text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Dixon, a/k/a Ruffin Dixon, Defendant-Appellant.
    (No. 56090;
    First District (2nd Division)
    March 27, 1973.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Henry Dixon, was charged with murder. At trial it was uncontradicted that he shot and killed decedent; defendant asserted self-defense as a justification for the shooting. A jury returned a verdict of guilty, and the trial court sentenced defendant to a term of 20-50 years in the Illinois State Penitentiary. Defendant appeals his conviction and presents these issues for our review:

1. Whether the trial court erroneously admitted into evidence prejudicial hearsay testimony;
2. Whether the trial court improperly allowed the prosecution to impeach a defense witness as to a collateral matter by use of extrinsic evidence; and
3. Whether the trial court improperly refused to allow defendant to testify as to his state of mind at the time of the shooting.

The evidence adduced at trial indicates that on November 23, 1969, at approximately 10:45 P.M., defendant shot and killed decedent in a West Side tavern. Decedent’s girl friend testified that defendant and decedent argued over defendant’s girl friend, and decedent left the tavern. A few minutes later defendant left. Soon after, decedent returned, and was standing with the witness and other friends at tire rear of the tavern. Defendant re-entered, and, from midway in the tavern, pulled a gun and fired 3 shots. Defendant’s girl friend also testified that there had been an argument, but that she did not see defendant re-enter and shoot. She, too, was standing next to decedent in the rear of the tavern. She did, however, see defendant move toward the door after the shots were fired. A third witness testified that she did not see the argument, but she did see defendant shoot toward decedent from midway in the tavern. None of these witnesses saw a knife in decedent’s hand, although one witness did testify that decedent’s right hand was in his coat pocket. The owner of the tavern testified that when the police took decedent’s right hand out of his coat pocket, decedent was holding a knife. There was no testimony that the body had been moved.

Witnesses for defendant testified that decedent’s reputation in the community for peacefulness was bad, and that defendant shot decedent when he approached defendant with a knife. One witness testified that decedent approached defendant, and when they were at arm’s length apart, decedent pulled a knife and defendant then shot him. Another witness said that decedent put a knife in his pocket and put his hand in his pocket, but that he did not see him take his hand from his pocket. A third witness testified that decedent approached defendant with his right arm extended and with a knife in his right hand. One of tírese witnesses testified that defendant and decedent were standing near the front of the tavern when the shooting occurred, while two witnesses testified that the shooting occurred at the rear of the tavern.

Defendant testified that decedent threatened to cut his head off earlier in the evening, then he shot decedent when decedent came at him with a knife". He testified that the shooting occurred near the front of the tavern, and, when he first saw the knife, he shot over decedent’s head.

OPINION

The issues which defendant presents on appeal were not raised in his written motion for a new trial. The motion for a new trial related only to questions of guilt beyond a reasonable doubt and the foundation for the introduction of certain physical evidence. Since the issues in this appeal were not properly preserved, they are deemed waived. (People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Jackson, 4 Ill.App.3d 698, 281 N.E.2d 373.) However, even upon consideration of these alleged errors, defendant has presented no adequate grounds for reversal, and the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant first contends that the trial court improperly admitted into evidence prejudicial hearsay. A police officer who arrived on the scene 20 minutes after the shooting testified that the first officers at the tavern told him that decedent’s body had not been moved since their arrival on the scene. Defendant argues that this testimony destroyed his contentions that the body ffiad been moved from the middle of the tavern to the rear. However, at no other time in the trial did defense counsel present the theory that the body may have been moved or manipulated after the shooting. Defendant merely relied on the testimony of the witnesses as to where decedent was standing at the time of the shooting. In addition, the hearsay testimony went only to the question of whether the body was moved after the first officers arrived at the scene, and was not directed to the issue of whether the body was moved before the police arrived. The prosecution’s witnesses testified that decedent was standing in the rear of the tavern when he was shot, and a photograph of decedent’s body lying in the rear of the tavern was also introduced into evidence. Defendant and his witnesses contradicted each other as to where decedent was standing when he fell. Therefore, in view of all the evidence regarding decedent’s position, the hearsay testimony of the officer was not unduly prejudicial. People v. Moorehead, 45 Ill.2d 326, 259 N.E.2d 8; People v. Ford, 89 Ill.App.2d 69, 233 N.E.2d 51.

Defendant’s second contention, that the prosecution improperly impeached a witness as to a collateral issue, does not require reversal of this conviction. The witness testified on direct examination that decedent’s reputation in the community for peacefulness was bad. He went on to testify that decedent “always carried knives and cut peoples [sic] * * *. He once cut me on the neck.” On cross-examination the prosecutor asked the witness if he had told a third party that he had “ganged” decedent and that was the reason decedent had cut him. The witness answered no, and in rebuttal the prosecutor called a woman who testified that she heard the witness tell her husband that he had “ganged” decedent. There was no objection to this rebuttal testimony.

In Illinois, testimony as to collateral matters is not subject to impeachment by proof of prior inconsistent statements. (See People v. Smith, 391 Ill. 172, 62 N.E.2d 669.) Where a defendant’s contention is self-defense, he can introduce evidence of decedent’s reputation for peacefulness (Kelly v. People, 229 Ill. 81, 82 N.E. 198), but he cannot introduce evidence of specific acts of the victim. (People v. Gibson, 385 Ill. 371, 52 N.E.2d 1008.) Decedent’s reputation was put in issue in the case at bar, but the witness then went on to relate a specific instance. The testimony concerning that specific instance was improper, but was not objected to by the prosecution, and when the prosecution attempted to impeach the witness as to that specific incident by calling a rebuttal witness, defense counsel did not object. Since no objections were made, any error concerning the rebuttal testimony is deemed waived. (People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76.) Furthermore, the jury heard contradictory testimony concerning decedent’s reputation and the shooting itself. The judgment of the jury will not be set aside unless it is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. (People v. Peto, 38 Ill.2d 45, 230 N.E.2d 236.) The jury in this case weighed the testimony, judged the credibility of the witnesses and determined the facts from the contradictory evidence. The evidence adduced by the prosecution was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant’s final contention is that the trial court improperly disallowed defendant’s testimony concerning his intent at the time of the shooting. The colloquy at trial was as follows:

“Defense Counsel: What, if anything, did he do?
Defendant: He reached at me and slashed at me, and I jumped back and shot over his head.
Defense Counsel: Now, when you shot at him, Mr. Dixon, do you recall how many times you shot in total?
Defendant: Two times.
Defense Counsel: Do you know whether or not you hit him with those shots that you fired?
Defendant: The first time I shot over his head.
Defense Counsel: When you shot the first time did you intend to kill him?
Prosecutor: Objection.
Defendant: No, I did not.
The Court: Sustain that objection.
Defense Counsel: When you shot at him the first time did you aim at him?
Defendant: No, I did not.
Defense Counsel: When you shot at him the second time, did you aim at him?
Defendant: Yes, I did.
Defense Counsel: What was your state of mind when you shot at him with the gun when he advanced on you with a knife, Mr. Dixon?
Prosecutor: Objection.
The Court: Overruled.
Defense Counsel: What was your state of mind?
Defendant: I was in fear of my life. I was scared.
Defense Counsel: And this is when you shot the gun? Defendant: When I shot the gun.”

It is proper for a defendant to testify as to his intention when his defense is self-defense. (People v. Spranger, 314 Ill. 602, 145 N.E. 706.) The objection by the prosecutor in the case at bar was improperly sustained; however, it is clear that the subsequent testimony of defendant cured this error by plainly setting forth defendant’s intent and state of mind at the time of the shooting. Therefore, defendant was not prejudiced. People v. Storer, 329 Ill. 536, 161 N.E. 76.

For the above reasons the judgment of the Circuit Court is affirmed.

Affirmed.

LEIGHTON and HAYES, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
    Vinylast Corporation, Plaintiff-Appellant, v. Alexander Gordon et al., Defendants-Appellees.
    (No. 55091;
    First District (5th Division)
    March 30, 1973.

      Collins & Amos, of Chicago, (Donald M. Thompson, of counsel,) for appellant.
    Panter, Nelson, Bernfield, of Chicago, (Irwin Panter and Jerry I. Rudman, of counsel,) for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Vinylast Corporation filed a two-count verified complaint in the Circuit Court of Cook County. Count I, against Alexander Gordon, Purpose Extruded Aluminum Company and Al-Gor Corporation, requested an accounting and other equitable relief. Count II, against Gordon and Purpose, alleged breach of contract. Pursuant to defendants’ motion, the trial court dismissed plaintiff’s complaint for failure to state a cause of action.

On appeal plaintiff argues that it stated a valid cause of action because (1) the creditors’ committee as trustee and Gordon as principal trustee breached their fiduciary duties, (2) plaintiff was a third party beneficiary of the creditors’ agreement, (3) Al-Fab fraudulently conveyed a security interest for the sale of goods at inflated prices, and (4) the assignment for the benefit of creditors violated the notice requirement of the Bulk Sales Act.

The complaint alleged the following facts regarding both counts:' plaintiff Vinylast and defendant Purpose supplied Al-Fab corporation, the predecessor of Al-Gor corporation, with products necessary for its business of manufacturing storm windows. In the spring of 1967, Al-Fab, involved in financial difficulties though solvent, was unable to pay its debts as they became due. As a result of these difficulties Al-Fab entered into a “creditors’ agreement.” (The complaint does not indicate that plaintiff was a party to this agreement and apparently it was not.) The agreement turned over substantial control of the corporation to a creditors’ committee. Defendant Gordon, president of Purpose, became chairman of this committee and took the principal actions of the committee without calling formal meetings. Pursuant to the creditors’ agreement, Gordon selected an employee named Zuckerberg to become Al-Fab’s comptroller. By exercising power beyond that ordinarily exercised by a comptroller, Zuckerberg, under the control and domination of Gordon, substantially controlled Al-Fab. Plaintiff, although paid for its deliveries prior to the execution of the creditors’ agreement, was not paid some $22,952.00 for its deliveries after the execution of the agreement. (The complaint does not clarify whether or not plaintiff was paid for its deliveries prior to the execution of the creditors’ agreement pursuant to that agreement.)

The complaint further alleged that defendant Gordon determined to obtain control of Al-Fab and with, this in mind, through his position as chairman of the creditors’ committee, (1) opposed a settlement plan which would have paid AI-Fab’s general creditors- 35% of their claims, never informed plaintiff of the proposal, and plaintiff received nothing, and (2) failed to give plaintiff, a known creditor, a copy of the .creditors’ agreement, failed to inform plaintiff that Purpose was taking a lien against Al-Fab’s property, and informed plaintiff that no liens were being taken. Further, Gordon, through Zuckerberg, (1) caused Al-Fab to purchase all its aluminum from Purpose at prices greater than those charged to Purpose’s other customers without informing plaintiff that Al-Fab was not seeking aluminum at the lowest possible prices in the open market, (2) caused financing statements to be filed for the aluminum Purpose shipped to Al-Fab which had the effect of giving Purpose a lien which preferred it over other creditors and permitted it to take control of Al-Fab, and (3) permitted Al-Fab to grant Purpose a lien without the prior consent of the creditors’ committee in violation of the creditors’ agreement. (The complaint does not show the precise nature of these liens.) These actions were taken in violation of the trust and confidence defendant Gordon owed to Al-Fab’s other creditors, amounted to willful malfeasance since he resolved his conflict of interest in favor of his own corporation, and were violations of the creditors’ agreement. Defendant Gordon then caused defendant Purpose to cease shipping aluminum to Al-Fab and an assignment for the benefit of creditors followed on March 10, 1969. An advertisement was placed in The Chicago Daily News requesting bids on the sale of the business at a minimum of $203,275.24 because of defendant Purpose’s bid in that amount consisting of $173,275.24 in liens and $30,000 in cash. Purpose acquired Al-Fab and transferred Al-Fab’s business to defendant AI-Gor corporation which is owned and controlled by Purpose and Gordon. This sale was primarily for the benefit of Purpose and Gordon and not for the benefit of all creditors.

The creditors’ agreement attached to the complaint purported to be an agreement between Al-Fab and several other parties constituting a committee of Al-Fab’s creditors acting on their own behalf and for all the debtor’s unsecured creditors who may later approve the agreement. It recited that although Al-Fab was having difficulty paying its obligations if Al-Fab were allowed to continue in business it would be able to pay its obligations in full and that such a continuation of business would be in the best interest of Al-Fab’s creditors. The agreement was subject to cancellation by either party if 80% in number of Al-Fab’s creditors failed to consent to the agreement.

According to the terms of the agreement, Al-Fab was required (1) to retain title to its assets and to conduct its business in consultation with the creditors’ committee, (2) to keep its books available to the committee, (3) to apply its funds first to the normal operations of the business including payments for the purchase of new goods, (4) to establish a sinking fund to be administered by the committee to pay all those unsecured obligations which arose prior to the execution of the agreement, (5) to pay priority obligations and to subordinate the corporation’s debts to officers, directors and shareholders to those of its unsecured creditors, (6) to give priority to the payment of current obligations and to pay those obligations “in accordance with the terms and conditions of each purchase,” (7) to keep officers and employees satisfactory to the committee and require all officers and directors to submit undated resignations, (8) to employ a comptroller satisfactory to the committee who must sign all checks, (9) to give the committee notice of all board meetings, permit the chairman or agent of the creditors’ committee to attend those meetings, and send the committee true copies of the minutes of such meetings, and (10) to submit a monthly report of operations to the committee and furnish the committee with a year-end audit. Moreover, Al-Fab was prohibited, without the prior consent of the committee, from taking numerous acts normally permitted corporations. Among other acts, it was prohibited from undertaking to “offer or permit voluntarily any encumbrance or lien to attach to the property or assets of the Debtor.”

Under the agreement, the committee and the consenting creditors it represents agreed to permit Al-Fab to continue in business at least as long as the best interests of creditors so required. However, AI-Fab’s business could be discontinued upon 30 days notice by the creditors, and the committee had the option to “take exclusive possession and control of the Debtor’s business and all of its assets at any time after nine (9) days from the date of giving of the said notice.” Further, the agreement provided that consenting creditors would extend the due date for their claims for one year. The committee of six members (of whom Gordon was one) was authorized to choose a chairman and would conduct its affairs by majority vote. Members of the committee would be liable only for their willful malfeasance or actual bad faith.

Defendants filed a motion to strike and dismiss plaintiff’s complaint. The motion alleged: (1) that the complaint failed to state a cause of action, (2) that the complaint failed to show that plaintiff was a party to the creditors’ agreement and thus no contractual or fiduciary duties were owed, (3) that the complaint alleged no facts establishing any actionable violation of contract or fiduciary duty, (4) that the complaint alleged no violation of law, (5) that the complaint alleged no basis for damages in the amount of the liens Purpose acquired, and (6) that the complaint alleging liquidated damages should be brought at law. The trial court after hearing arguments granted defendants’ motion.

OPINION

Plaintiff first contends that its complaint stated a cause of action for breach of trust. Plaintiff argues that tire creditors’ committee established by the creditors’ agreement was the trustee for all unsecured creditors because of the substantial powers granted to it by the agreement. Whether a trust was created must be determined in the instant case from the intent of the parties. (Shaack v. Reiter (1939), 372 Ill. 328, 23 N.E.2d 714; Ellis v. Flannigan (1917), 279 Ill. 93, 116 N.E. 618.) Therefore, we must examine the terms of the creditors’ agreement. Since the agreement required AI-Fab to retain legal title to its assets, no transfer of title to a trustee occurred. Thus, one of the essential elements for the creation of a trust is lacking and no trust was created. (Hall v. Crane Bros. Mfg. Co. (1877), 87 Ill. 283.) Moreover, plaintiff cites no case going so far as to hold that the transfer of substantial control of a corporation creates a trust.

An agreement, as in the instant case, between an insolvent or embarrassed debtor and some or all of its creditors by which the creditors agree to extend the debtor’s obligations and thereby permit the debtor to continue in business is a common law extension agreement. (Nadler, The Law of Debtor Relief (1954), ch. III.) An extension is related to a common law composition agreement by which the creditors agree to reduce the amount of the debtor’s obligations. Although an extension does not alter the original contract like a composition (Pitts Sons’ Mfg. Co. v. Com’l Nat’l Bank of Chicago (1887), 121 Ill. 582, 589, 13 N.E. 156, 159, aff’g 21 Ill.App. 483, 487.), the same law relevant to compositions generally applies to extensions. Nadler, The Law of Debtor Relief (1954), ch. III.

An extension agreement is a contractual relationship; the consideration for each creditor’s promise is the mutual forbearance of the other consenting creditors. (Union Central Life Insurance Co. v. Weber (1936), 285 Ill.App. 568, 2 N.E.2d 746.) The creditors’ committee which is frequently established in extension agreements is the agent of consenting creditors. Nadler, The Law of Debtor Relief (1954), sec. 63.

The terms of an extension agreement bind only those creditors who consent to it. (Glenn, The Law Governing Liquidation (1935), sec. 89. Gillfillan v. Farrington (1882), 12 Ill.App. 101.) A non-consenting creditor is not a party to the contract; and its right to obtain a judgment against the debtor is not affected by the agreement. Since non-consenting creditors are not parties to the contract, it follows that they are not entitled to notice of its provisions or of actions taken pursuant to it. Clearly no trust applicable to plaintiff was created here.

Plaintiff secondly contends that it was a third party beneficiary of the contract Al-Feb entered into with some of its creditors. In Illinois, third parties may enforce agreements entered for then benefit. Whether an agreement was for the benefit of a third party must be determined on a case-by-case basis from the intent of the parties to the agreement. (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498.) The primary intent of the extension agreement in the instant case was to give Al-Fab the opportunity to continue in business by paying its obligations in full over an extended time. Nonetheless, although its right to obtain a judgment against Al-Fab was not affected by the agreement, plaintiff points out that certain provisions of the agreement must have been intended for its benefit. In the agreement Al-Fab agreed (1) to establish a sinking fund to be administered by the creditors’ committee for the payment of all creditors of the amounts owed prior to the execution of the agreement, (2) to give priority under the supervision of the creditors’ committee to the normal operation of the business including payments for the purchase of new goods following the execution of the agreement, and (3) to give no hens without the consent of the creditors’ committee.

In the instant case, however, we need not reach the merits of plaintiff’s contention. Even if plaintiff were a third party beneficiary of the extension agreement, it has not stated a cause of action here. The remedy of a third party beneficiary lies against the party to the contract who is required to supply his benefits. In the instant case, although the creditors through their committee were to provide supervision, Al-Fab was to provide the benefits to plaintiff. Thus, Al-Fab was the proper defendant to an action on a third party beneficiary contract; but Al-Fab was not joined as a defendant in the instant case. Moreover, as,a result of the assignment for the benefit of creditors Al-Fab is now defunct and its successor Al-Gor did not assume its obligations. Plaintiff, of course, could have obtained basically the same relief against Al-Fab on its original contract as it sought to obtain as a third party beneficiary of the extension agreement. Furthermore, we do not believe that the creditors who consent to an extension agreement guarantee its success; the benefits plaintiff may be entitled to from Al-Fab under the agreement are mere gratuities as against the consenting creditors.

Plaintiff thirdly contends that its complaint stated a cause of action for the fraudulent conveyance of a security interest for the sale of goods at inflated prices. Although the creation of a security interest may sometimes constitute a fraudulent conveyance (Strohm v. Hayes (1873), 70 Ill. 41.), the law in Illinois clearly permits a debtor to prefer one or more of its bona fide creditors. (Murry Nelson & Co. v. Leiter (1901), 190 Ill. 414, 422, 60 N.E. 851, 853.) In the instant case, Gordon, although president of Purpose and chairman of the creditors’ committee, was only one of several members of the committee. Further, Purpose obtained the liens by its own diligence as a condition of the sale of its goods as permitted by the terms of the agreement. We believe these liens were a valid preference. Moreover, the bases of the complaint was breach of fiduciary obligation and breach of contract, not fraud; and these bases fail to support a cause of action. Furthermore, Gordon’s alleged determination to gain control of Al-Fab in itself is neither fraudulent nor illegal. Therefore, we do not believe plaintiff has stated a cause of action for fraudulent conveyance.

Plaintiff lastly contends that it stated a cause of action for failure to comply with the notice requirement of the Bulk Sales Act. (Ill. Rev. Stat. 1969, ch. 26, art. 6.) Although the Act specifically excepts assignments for the benefit of creditors from its provisions (Ill. Rev. Stat. 1969, ch. 26, sec. 6 — 103(2).), plaintiff argues that this exception is inapplicable and that the notice requirement of the Act should have been followed since the assignment in the instant case was not for the benefit of all Al-Fab’s creditors. We need not reach the merits of this argument however. Plaintiff’s complaint failed to allege that the notice required by Bulk Sales Act was not given in the instant case. We will not consider an argument on appeal which was not first raised in the trial court.

Plaintiff having failed to state a cause of action, the judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry McGaha, Defendant-Appellant.
    (No. 57412;
    First District (5th Division)
    March 30, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Cary Lind, and Robert C. Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Defendant was convicted, after a jury trial, of robbery and the possession of marijuana and sentenced to concurrent terms of five to ten years. On appeal he contends that the drug conviction is invalid and that the sentence on the robbery charge is excessive or in the alternative that the sentence on the robbery charge be vacated and the cause remanded for a new hearing in aggravation and mitigation and for resentencing.

Defendant grabbed a purse from a Mrs. Wooten, ran to his car and drove it away followed by a police squad car. Defendant’s car crashed into a caisson several blocks away and after a short foot chase defendant was apprehended. The purse was found in defendant’s automobile and a search revealed two small envelopes containing 3.15 grams of marijuana.

The State agrees that under the decision of People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407, the judgment and sentence on the charge of possession of marijuana must be reversed.

As to defendant’s contention that the sentence on the robbery charge was excessive, he argues that since he was tried jointly on that offense and the invalid marijuana charge, the severe sentence he received resulted from the court’s simultaneous consideration of the marijuana charge and his conviction thereunder. He also questions the prejudicial effect of a prior “supervision” on another marijuana possession charge.

In United States v. Tucker, 404 U.S. 443, 448, the court stated that if the trial court had been aware of the constitutional infirmity of two of the respondent’s prior convictions, “the factual circumstances of the respondent’s background would have appeared in a dramatically different light at the sentencing proceeding.” The cause was remanded to the trial court for resentencing.

We therefore vacate the sentence on the robbery charge and remand the cause with directions to hold a new hearing in mitigation and aggravation and thereafter to resentence the defendant.

We will not consider a reduction of sentence since we believe the trial court in this case will be in a better position to impose proper punishment.

The marijuana conviction is reversed.

Reversed in part; sentence on robbery charge vacated and cause remanded for resentencing.

ENGLISH and LORENZ, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tommy Peterson, Defendant-Appellant.
    (No. 55891;
    First District (1st Division)
    April 2, 1973.
    James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Roy McCoy, Defendant-Appellee.
    (No. 55652;
    First District (2nd Division)
    April 3, 1973.

      Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
    Charles A. Boyle, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an interlocutory appeal by the People of the State of Illinois from an order entered by the Circuit Court of Cook County suppressing evidence. The trial judge granted defendant’s motion to suppress evidence for the reason that a prior federal warrant, which was the basis for tire Illinois search warrant, was improperly issued.

The federal search warrant was issued on July 2, 1970. The affidavit supporting issuance of this warrant was prepared by a United States Treasury Agent and detailed specific transactions during which the affiant had purchased firearms from defendant. The affidavit was as follows:

“The undersigned being duly sworn on oath deposes and says that he has reason to believe that on the premises known as white single-story dwelling house with multiple barns and outbuildings, located on the east side of Route 59, approximately %0 of a mile north of the intersections of Routes 19 and 59 in Cook County in the Northern District of Illinois, Eastern Division, there is now being concealed certain property, namely firearms — being rifles, shotguns and hand guns of both manual and automatic design and ammunition and all instrumentalities and fruits of the crime of dealing in firearms without a license, which are being held there and kept for sale by Roy McCoy in violation of Title 18, U.S.C. Section 922 (a) (1), in that said Roy McCoy is not a licensed dealer pursuant to Title 18 U.S.C. Section 923, and he is engaged in the business of dealing in firearms at the above described premises and that he has offered and continues to offer firearms for sale at the above premises and which firearms are fruits and instrumentalities of the above mentioned crime. And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows:
I, Jimmy C. Gober, am a special investigator for the Alcohol, Tobacco and Firearms Division of the United States Treasury, Chicago, Illinois, and have been so employed for approximately one year. On June 15, 1970, I purchased two (2) .38 caliber revolvers from Roy McCoy in a storeroom-garage attached to the dwelling described herein. Roy McCoy left the storeroom ánd went into the dwelling house and returned with the weapons in his hand and delivered them to me and I paid him $150.00 in United States currency for the purchase. Inspector Michael Figueroa of the Illinois Bureau of Investigation, was present and a witness to the transaction. At this time Roy McCoy stated that he had fifteen (15) firearms for sale the previous week, and that he had attempted to contact me unsuccessfully. Since then he had sold seven (7) of these fifteen (15) firearms.
On Monday, June 22, 1970, at approximately 9:15 P.M., I purchased two (2) handguns from Roy McCoy in a storeroom-garage attached to the dwelling described herein. Roy McCoy went into the house and returned with the weapons in his hand and delivered them to me and I paid him $90.00 United States Currency for the two (2) handguns. At this time, Special Investigator Fortino Gutierrez purchased one (1) pistol from Roy McCoy. Roy McCoy went back into the house and returned to the attached garage storeroom carrying the pistol in his hand which he delivered to Gutierrez. Gutierrez then paid Roy McCoy $50.00 United States Currency. This transaction took place in my presence and I was a witness to it.
All these purchases of firearms were made in the garage-storeroom attached to the residence (dwelling house) of Roy McCoy described as a white single .story dwelling house with multiple barns and outbuildings located on the east side of Route 59 approximately 4/io of a mile North of the intersections of Routes 19 and 59 in Cook County. At this time, McCoy stated that he was to receive twenty seven (27) stolen shotguns and rifles on Wednesday, June 24, 1970, from a supplier in Wisconsin. He also stated that he could probably supply me with hand grenades by the weekend.
On June 30, 1970, a search was made of the records of licensed dealers by Adel Carroll of the records division of the Alcohol, Tobacco and Firearms Division and she reported to me that the search she conducted revealed that no federal license to deal in firearms had been issued to Roy McCoy.”

The warrant was executed on July 2, 1970 at 7:30 P.M. Illinois Bureau of Investigation agents accompanied the federal agents, and, in the course of the search, an Illinois agent observed drugs in a drawer in one of defendant’s bedrooms. The Illinois agents left to obtain a state warrant to seize the drugs, and at 3:00 A.M. on July 3, 1970 they returned with the state warrant. This warrant was based upon the affidavit of the Illinois agent who personally observed the drugs. His affidavit was as follows:

“Allan T. Marshall now appears before the undersigned judge of the Circuit Court of Cook County and requests the issuance of a search warrant to search the person of Roy McCoy and the bedrooms of his home at Route No. 1, Box 189, Elgin, Illinois, and seize the following instruments, articles and things; one plastic bag containing 35-45 green and white colored capsules believed to be a depressant drug, along with one small white colored plastic bottle containing Benzedrine pills, which have been used in the commission of, or which constitutes evidence of the offense of possession of depressant drugs.
Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the person and premises set forth above.
On July 2, 1970, at approximately 9:30 P.M., the complainant, Special Agent Allan T. Marshall of the I.B.I., along with agent of Alcohol, Tobacco and Firearms who were serving federal arrest and search warrants on the defendant Roy McCoy did observe depressant drugs in the bedroom of Roy McCoy as described above.”

At the hearing to suppress evidence, the trial judge stated that, if the Illinois agent was on the premises pursuant to an invalid federal warrant, the information gained from that improper invasion could not be a basis for a state warrant. The trial judge then went on to state that an 11 day delay between the time the Treasury agent observed the firearms (June 22) and the time the warrant was issued (July 2) was so unreasonable as to vitiate the showing of probable cause. The judge was of the opinion that, on the basis of the June 22 sale and the alleged shipment of June 24, it could not be determined that the firearms would be on the premises on July 2. The judge stated:

“It is not a reasonable time for dealing with a small easily transitory business. If in fact I am a police officer, if in fact I believe that this defendant is a dealer in illegal firearms, I am going to believe he is going to be passing these things off fast, one after another. And to wait 11 days to obtain a search warrant is unreasonable, highly unreasonable.”

We do not agree with this finding.

We have reviewed the record in this case and have found that probable cause did exist for the issuance of the federal search warrant, and, therefore, the Illinois agent was properly on the premises. It is clear that an officer who is justifiably on the premises can rightfully seize objects falling within plain view. (Harris v. United States, 390 U.S. 234.) In addition, it cannot be disputed that the detailed affidavit based upon first-hand information, which recited purchases of illegal firearms from defendant and offers to sell other weapons, and which disclosed that defendant was not a registered firearms dealer, was sufficient to show probable cause. (See United States v. Lauchli (7th Cir.), 444 F.2d 1037.) The only remaining issue is whether probable cause existed despite the 11-day interval between the last purchase and the affidavit.

Probable cause exists where facts and circumstances within the knowledge of the affiant are sufficient in themselves to warrant a man of reasonable caution to believe that the law is being violated, and that evidence is presently on the premises to be searched. (Berger v. New York, 388 U.S. 41; People v. Francisco, 44 Ill.2d 373, 255 N.E.2d 413.) Probable cause requires neither a showing of guilt beyond a reasonable doubt nor commands a naive evaluation of facts. (People v. York, 29 Ill.2d 68, 193 N.E.2d 773.) Passage of time affects a showing of probable cause, but does not automatically vitiate it. (People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389.) Where an affidavit recites an isolated violation, it is not unreasonable to imply that probable cause dwindles rapidly with passage of time. However, where facts indicate a course of conduct, passage of time becomes less significant.

In the instant case, the trial judge found the delay to be unreasonable because the business of selling firearms illegally is “transitory.” The sale of narcotics and the dispersal of football parlay cards for gambling purposes also can be termed “transitory.” In People v. Montgomery, 27 Ill.2d 404, 189 N.E.2d 327, an 8-day delay between observation of narcotics and issuance of a search warrant was held not to be unreasonable. In People v. Lloyd, 3 Ill.App.3d 932, 279 N.E.2d 773, a 21-day delay between criminal conduct involving parlay cards and issuance of a search warrant was held not to be unreasonable. In the case at bar, defendant supplied federal agents with revolvers and pistols and told them that he was expecting a shipment of shotguns and could supply them with hand grenades. It can reasonably be inferred from these facts that defendant’s activities were continuous and that defendant would have guns on the premises 11 days after the last purchase by the federal agents. We adhere to the principles set forth in United States v. Ventresca, 380 U.S. 102, wherein the court stated that a grudging attitude by courts will discourage police officers from submitting evidence to a magistrate, and that resolution of doubtful or marginal instances of probable cause should be determined by the preferences to be accorded warrants. For these reasons, we believe probable cause existed for the issuance of the federal warrant. The trial court erred in granting defendant’s motion to suppress the evidence. The order of the Circuit Court is reversed and the cause is remanded with directions to deny defendant’s motion to suppress evidence.

Reversed and remanded with directions.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1969, ch. 110A, par. 604.

       Other Illinois cases have held that delays between sales of liquor and issuance of search warrants do not vitiate probable cause. (People v. DeGeovanni, 326 Ill. 230, 157 N.E.195; People v. Holton, 326 Ill. 481, 158 N.E. 134.)


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roberto Garcia, Defendant-Appellant.
    (No. 56043;
    First District (2nd Division)
    April 3, 1973.
   PER CURIAM.

Gerald W. Getty, Public Defender, of Chicago, (Harry Missirlian, Assistant Public Defender, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Richard Silas, Assistant State’s Attorney, of counsel,) for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George W. Coles, Defendant-Appellant.
    (No. 56513;
    First District (2nd Division)
    April 3, 1973.
    James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robin K. Auld, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    Catherine Brown, Plaintiff-Appellee, v. The City of Chicago et al., Defendants-Appellants.
    (No. 57352;
    First District (2nd Division)
    April 3, 1973.
    Richard L. Curry, Corporation Counsel, of Chicago, for appellants.
    No appearance for appellee.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE STAMOS Mr. JUSTICE HAYES

text:
    Hubert A. Harnois, Plaintiff-Appellee, v. Marie Harnois, Defendant-Appellant.
    (No. 56449;
    First District (2nd Division)
    March 27, 1973.

      Rehearing denied April 24, 1973.

      HAYES, J., specially concurring.
    Alice Heerey McNichoIas, of Chicago, for appellant.
    Irving Goodman and Louis Z. Grant, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Marie Harnois, appeals from a supplement to a judgment of divorce which declared the property rights of the parties. She contends:

1. The trial court erred in ordering her to convey a one-half interest in the marital home to plaintiff since he had previously made a gift of such interest to her;
2. It was error to determine the rights of plaintiff’s mother in personal property located in the marital home since she was not a party to the action;
3. The trial court erred by not allowing defendant’s request for an accounting; and
4. The trial court erred in placing a limit on the amount of child support payments to be made by plaintiff without a similar limitation for her.

The parties were married on February 24, 1949. Two daughters, Geri and Debra, were born as issue of the marriage on October 26, 1950 and April 10, 1953, respectively. When judgment was entered Geri was married and Debra was 18 years of age and a student at the University of Illinois.

Plaintiff filed a complaint for divorce on July 2, 1968 aHeging mental cruelty. Defendant filed an answer to the complaint and a counterclaim for separate maintenance. The trial court dismissed the counterclaim. A jury trial was conducted on the complaint, the jury found in favor of plaintiff and a judgment of divorce was entered. Thereafter a hearing on the matters of property distribution and chffd support was conducted by the trial court.

Plaintiff is a sergeant with the Chicago Police Department. He earns approximately $14,700 per year. Defendant is a school teacher employed by the Chicago Board of Education. She earns approximately $15,900 per year and has been gainfully employed in one capacity or another throughout the period of the marriage except during pregnancies and a confinement for surgery.

The parties purchased a home in joint tenancy on July 4,1952. In 1958 plaintiff collided with a child while driving his automobile. Thereafter on May 13, 1958 plaintiff conveyed his interest in the home to defendant for no consideration. Both parties continued to reside in the home and plaintiff continued to make the mortgage installment payments thereon until at least 1968.

On May 11, 1971 the trial court entered a supplement to the judgment of divorce which required defendant to convey a one-half interest in the home to plaintiff. The court further ordered that both parties contribute one-half of the college expenses of their daughter Debra, but limited plaintiff’s expenditures therefor to $1000 per year. In a second supplement to the judgment the court awarded plaintiff certain personal property located in the marital home and ordered defendant to allow its removal therefrom.

Defendant initially contends that the trial court erred in ordering her to convey a one-half interest in the marital home to plaintiff. She argues that when plaintiff conveyed his interest as joint tenant in the property to her in 1958 such conveyance raised the presumption of a gift and plaintiff failed to present sufficient evidence to overcome the presumption. Plaintiff contends, and the trial court found, that no gift was intended by the conveyance, thereby giving rise to a resulting trust in favor of plaintiff.

Our Supreme Court has stated in Scanlon v. Scanlon, 6 Ill.2d 224, 229-231:

“The principal question, so far as the real estate is concerned, is the sufficiency of the evidence to establish a resulting trust in one half of the real estate in favor of plaintiff. The applicable rules of law have been frequently stated. Such a trust is created by operation of law from the presumed intention of the parties. [Citing cases.] In its most common application, a resulting trust arises from the fact that the consideration for the purchase of land is furnished by one person while the title is taken in the name of another. [Citing cases.] * # * The burden of proof is upon the party seeking to establish a resulting trust, and the evidence, to be effective for this purpose, must be clear, convincing and unmistakable. [Citing cases.]
ft ft ft
Where a husband purchases real estate and takes title in his wife’s name, there is a presumption of gift or advancement. [Citing cases.] This presumption of fact, [Authority cited] however, is not conclusive. The intention of the parties governs. [Authority cited.] * * * If the proof discloses that it was not the intention of the parties that the conveyance was to be deemed a gift or advancement, equity will effectuate the intention of the parties by declaring a resulting trust. [Citing cases.]”

In the instant case plaintiff conveyed his interest as joint tenant in the real estate to defendant for no consideration. Thus plaintiff furnished the sole consideration for the conveyance. This transaction raised a presumption that plaintiff intended to make a gift or advancement of his interest in the property to defendant. Plaintiff then assumed the burden of proof of rebutting the presumption by showing through clear and convincing evidence that he did not intend the conveyance to be a gift or advancement. Plaintiff adduced evidence to prove that the conveyance was made to avoid payment of a potential liability arising out of an automobile mishap that he had been involved in. The conveyance was made shortly after the mishap. He testified that the conveyance was made with the understanding that there would be a reconveyance after the Statute of Limitations had run on the personal injury claim. Defendant testified that plaintiff had told her that he was giving her the property.

The trial judge, who had the opportunity to observe the witnesses as they testified, was in a superior position to assess the weight and credibility to be afforded their testimony. He found that a gift was not intended by die conveyance and that, therefore, a resulting trust was created in favor of plaintiff. We will not disturb that finding since it is not contrary to the manifest weight of the evidence.

Defendant further argues that, even if the evidence was sufficient to establish a resulting trust, plaintiff is estopped by laches from so asserting. She urges that plaintiff’s delay in asserting his rights under the resulting trust has caused her prejudice in that she has expended large sums of money on improvements to the property in reliance on what she believed to be a gift thereof.

Laches has been defined as such neglect or omission to assert a right, taken in conjunction with a lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in a court of equity. (Carlson v. Carlson, 409 Ill. 167.) Circumstances tending to explain or excuse delay in asserting one’s rights should be considered in determining whether laches will bar assertion of those rights. Wright v. Wright, 242 Ill. 71.

The facts in the instant case show that plaintiff continued his residence at the property in question, there was no adverse possession by defendant, and the parties were husband and wife until this litigation arose. Plaintiff further explained the delay in asserting his rights under a resulting trust by testifying that the property was conveyed to avoid payment of a liability arising from a possible personal injury claim by the child and that the conveyance was to be effective only until the statute of limitations had expired on the claim, whereupon the property was to be reconveyed to the parties as joint tenants. Under these circumstances we agree with the trial court that plaintiff’s delay was sufficiently explained so that laches would not bar him from asserting his rights under a resulting trust.

Defendant next contends that the trial court erred by determining the rights of plaintiff’s mother to certain personal property in defendant’s possession since plaintiff’s mother was not a party to tire action. Plaintiff contends that he held the disputed items for his mother. The trial court found “[t]hat the [personal] property in question is not the property of the defendant.” The trial court awarded the property to plaintiff and ordered defendant to allow its removal from her residence.

The trial court did not determine rights of a person not a party to the action. Plaintiff’s evidence established that he held the personal property as bailee for his mother and, therefore, had a right to possession thereof superior to that of defendant. Although defendant alleged that the personalty was given to her as a gift the trial court specifically found to the contrary. Such finding was not against the manifest weight of the evidence.

Defendant next insists that the trial court erred by not allowing her request for an accounting. She argues that since she was gainfully employed during the marriage and used her earnings for family necessaries plaintiff was able to use his income for the purchase and sale of real estate and stocks. Defendant alleges that plaintiff concealed these transactions from her and, therefore, she is entitled to an accounting.

In Spalding v. Spalding, 361 Ill. 387, 395 our Supreme Court stated:

“We are of the opinion that the weight of authority supports the principle that for payments voluntarily made by the wife for family expenses during the time the husband and wife are living together, in the absence of proof of a specific agreement for repayment by the husband, the law does not create an indebtedness of the husband to the wife. [Cases cited.] Public policy, ever interested in the maintenance of a harmonious marriage relation, prohibits a contrary rule. It would be disastrous to marital felicity where the parties have maintained a plane of living for both and in which the husband has acquiesced, where such expense has been voluntarily assumed and freely borne by tire wife, to require the husband, after the lapse of years, to account to the wife for such expenditures so made by her.”

Inasmuch as defendant freely and voluntarily used her earnings for family expenses and there was no agreement between the parties for repayment defendant has shown no right to the funds used by plaintiff in his financial dealings. Absent such proof it is our opinion that the trial court correctly denied her request for an accounting.

Defendant finally contends that it was error to place a limit on the amount of child support payments to be made by plaintiff without ordering a similar limitation for defendant. We agree.

Payment of educational costs of children is provided for in Ill. Rev. Stat. 1969, ch. 40, par. 19, which provides in pertinent part:

“When a divorce shall be decreed, the court may make such order touching * s * the care, custody and support of the children * * * as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just * * * and shall make such order touching the care, custody, support and education of the minor children of the parties or any of them as shall be deemed proper and for the benefit of the children. The court may order the husband or wife, as the case may be, to pay to the other party such sum of money * * * as tire court deems equitable.
# # #
The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance and the care, education, custody and support of the children, as shall appear reasonable and proper and the court has jurisdiction after such children have attained majority age to order payments for their support for educational purposes only.”

In the case at bar the trial court ordered both parties to contribute one-half of the college expenses of their daughter Debra, but limited plaintiff’s expenditures therefor to $1000. We are of the opinion that the financial circumstances of the parties do not differ so greatly as to justify a limitation on the support obligation of one party and not the other. Therefore, pursuant to Supreme Court Rule 366, we will order that the judgment be modified to remove the limitation placed upon plaintiff’s educational support obligation. Roth parties will remain obligated to pay one-half of the educational costs of their daughter Debra.

The judgment is affirmed as modified.

Affirmed.

LEIGHTON, J., concurs.

Mr. JUSTICE HAYES

specially concurring:

I concur in all respects with the opinion of the court. More specifically I concur in the policy reason given for denying defendant-appellant’s claim for a credit for the amount by which the improvements and repairs to the realty involved enhanced the value of that realty at the time of the entry of the decree of divorce in favor of plaintiff-appellee. This special concurrence is designed to point out an additional conceptual basis for that denial, using familiar concepts in the law of property held in joint tenancy.

We have held herein that the conveyance by appellee to appellant of his joint tenant interest in the residence was not a donative conveyance and that, under the circumstances, appellant must have known there was no donative intent. Hence, appellee retained, by way of resulting trust, tire equitable joint tenant interest in the realty, and appellee and appellant were equitable joint tenants during the period subsequent to the conveyance. It follows that appellee and appellant have at all times held them home as joint tenants: legal prior to the conveyance, and equitable thereafter.

The order herein directing, as a part of the property settlement decreed between the parties incident to the entry of the decree of divorce in favor of appellee, that the premises be sold within 90 days and the proceeds be equally divided between the parties has the same effect as would a decree of partition entered in favor of appellee.

Appellant had made certain improvements and repairs to the residence, for which she used her own funds. The basic trust of appellant’s position is that, since this situation is equivalent to a partition between joint tenants, she should be credited on final accounting for the improvements and repairs for which she alone had paid out of her own funds.

Were this a partition between joint tenants as between whom neither was under any legal duty to support the other, then the contributing cotenant would be prima facie entitled to a credit. (Bayley v. Nichols (1914), 263 Ill. 116, 104 N.E. 1054.) And it would be given irrespective of whether or not the non-contributing joint tenant had been under any legal duty to contribute. The basic reason is that, as between such joint tenants, there exists no rebuttable presumption that the improver and repairer had made the improvements and repairs with a donative intent.

Where, however, the joint tenants are husband and wife, a very different situation is presented. The difference is best illustrated by first using a fact situation which does not involve improvements or repairs, namely, the fact situation in which realty is purchased and legal title to that realty is taken by husband and wife in joint tenancy, but the purchase money was provided solely by one of the spouses out of his or her own funds. In that situation, there exists as a matter of law a strong rebuttable presumption that the spouse furnishing the consideration has done so with the intent thereby to make a gift' to the joint tenant interest to the non-contributing spouse; and clear and convincing evidence is required to rebut that presumption, so as to establish instead that the non-contributing spouse is holding his or her joint tenant interest upon a resulting trust for the contributing spouse. Walker v. Walker (1938), 369 Ill. 627, 17 N.E.2d 567; Spina v. Spina (1939), 372 Ill. 50, 22 N.E.2d 687.

These joint tenancy cases can be distinguished on the facts (though concededly the distinction is a bit tenuous) from cases in which one spouse furnishes the entire consideration out of his or her own funds, but legal title is then taken solely in the name of the non-contributing spouse. In that situation the presumption of gift will arise only when the consideration has been furnished by the husband. When, on the other hand, the consideration has been furnished by the wife, then a rebuttable presumption of resulting trust will arise, exactly as it would have had the parties not been related as husband and wife. Wright v. Wright (1909), 242 Ill. 71, 89 N.E. 789; Lutyens v. Ahlrich (1923), 308 Ill. 11, 139 N.E. 50; and, for a review of such cases, see Peters v. Meyers (1951), 408 Ill. 253, 96 N.E.2d 493. The reason given for the rule in the latter fact situation is that the husband is under a legal duty to support the wife (which he is presumed to have been fulfilling in part by the conveyance), whereas the wife is under no legal duty to support the husband.

Whether or not this concededly tenuous distinction is adequate to reconcile the cases, the fact is that the distinction as to the presumption of gift or of resulting trust based upon the incidence of the legal duty to support was not applied in the fact situation in which the contributing and non-contributing spouses both take title to the realty as joint tenants. (Walker v. Walker (1938), 369 Ill. 627, 17 N.E.2d 567; Spina v. Spina (1939), 372 Ill. 50, 22 N.E.2d 687.) (We note further that reservations have been expressed as to whether the said distinction has any present-day social utility: “Both the law and current social mores cast doubt on these historical attitudes.” (Peek v. Peek (1971), 131 Ill.App.2d 1045 at 1047, 268 N.E.2d 443.) The one case in which the said distinction may appear to have been applied to the joint tenancy situation between spouses (Mauricau v. Haugen (1944), 387 Ill. 186, 56 N.E.2d 367) is itself easily distinguishable by the fact that in that case the wife did not know that the release executed by the security holder of the realty conveyed the realty to husband and wife in joint tenancy; her ignorance of that fact made it impossible to say that there was any presumption of a gift by her to the husband.

Turning now from the illustrative fact situation (involving transfers of legal title) to the fact situation in the instant case (involving credit for improvements and repairs), we inquire whether the presumption of gift which exists when legal title is taken between spouses in joint tenancy carries over to the situation in which improvements and repairs have been made at the sole expense of one spouse while the realty is being held by them in joint tenancy (whether legal or equitable). We conclude that it does. Stromsen v. Stromsen (1947), 397 Ill. 260, 73 N.E.2d 272, as construed in Bowman v. Pettersen (1952), 410 Ill. 519 at 532, 102 N.E.2d 787; dictum in Lutticke v. Lutticke (1950), 406 Ill. 181, 92 N.E.2d 754.

The conclusion is, therefore, that in this case there exists, as a matter of law, a rebuttable presumption that appellant, when she made the improvements and repairs with her own funds, did so with donative intent.

That presumption can be rebutted only by evidence which is clear and convincing. The only evidence in this case which is available to rebut the presumption of gift is the reference by appellant to a marital arrangement by which appellant would use her own funds to maintain the household while appellee would use his own funds to establish and develop a retirement fund for the benefit of both spouses. We conclude that this evidence falls short of the standard of clear and convincing evidence which is required to rebut the presumption of gift.

Hence, appellant is not entitled to any credit in this property settlement for the enhanced value of the realty by reason of the improvements and repairs which she had made with her own funds.


author: Mr. JUSTICE EGAN

text:
    Vincent Page et al., Plaintiffs-Appellees, v. The City of Hickory Hills, Defendant-Appellant—(The Village of Justice, Defendant-Appellee.)
    (No. 56614;
    First District (1st Division)
    March 26, 1973.

      Rehearing denied April 24, 1973.

    Kozlowski & Smith, of Chicago, (Louis V. Kiefor, special counsel, and John J. Kozlowski, of counsel,) for appellant.

      Levin & Berger, of Chicago, for appellees Vincent Page, Ed Bauman, and Dave Jackson.
    Walter C. Wellman, of Lyons, for appellee Village of Justice.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs filed a suit for declaratory judgment alleging that they were purchasers of a tract of land under a real estate contract dated November 7, 1969. Both the City of Hickory Hills and the Village of Justice claimed that the property was located in their respective municipalities. Because the plaintiffs wished to build on the property and because they were unable to make proper application for zoning and building permits, they asked the court to declare which municipality had annexed the property. Justice filed a motion for summary judgment which was allowed, and the court declared the subject property to be within the corporate limits of Justice.

The subject property consists of 20 acres bounded by the south side of west 86th Street on the north, the north side of west 87th Street on the south, the west side of south 88th Avenue on the east and the east side of south 90th Avenue on the west. On February 15, 1965, the Village (now City) of Hickory Hills passed an ordinance annexing 40 acres of land consisting of the subject property and 20 acres immediately to the north, which was bounded by 85th Street on the north, 86th Street on the south and the same east-west boundaries as the subject property. On the same day the Village of Justice passed an ordinance annexing the north 20 acres of the 40-acre tract annexed by Hickory Hills. The Justice ordinance did not include the subject property and was recorded 25 minutes after the Hickory Hills ordinance.

Later, in 1965, Justice filed quo warranto proceedings against Hickory Hills contesting only the 20 acres north of the subject property. On January 11, 1967, Judge Charles S. Dougherty entered an order in the quo warranto proceedings which recited, in part, “that the attorneys for the Village of Hickory Hills having represented that said village did on December 29, 1966, disconnect all the territory which is the subject matter of the instant suit, and both parties hereto through their attorneys agree that the suit can be dismissed, it is * * * ordered * * * dismissed * * The order was approved by the attorneys for each village. They are not the same attorneys that have appeared in this cause in the trial court or in this court.

On December 29, 1966, the Village of Hickory Hills had passed an ordinance purportedly disconnecting the 20 acres which were the subject of the quo warranto proceedings and the 20 acres which are the subject of these proceedings. Immediately after passing that ordinance of disconnection, Hickory Hills passed an ordinance reannexing the 20 acres which are the subject matter of these proceedings. These ordinances were recorded on December 30,1966, and re-recorded on June 28, 1969. Meanwhile, on June 3, 1968, Justice passed an ordinance annexing the subject property and recorded it on June 28, 1969, one minute after the rerecordation of the Hickory Hills ordinance.

Hickory Hills maintains the ordinánce of disconnection of December 29, 1966, was invalid, and, consequently, the original annexation ordinance of 1965 is in full force and effect; alternatively, if the ordinance of disconnection was valid, the reannexation of the subject property the same night was valid and constitutes the basis of its claim over the subject property.

Justice maintains, with considerable asperity, that the disconnection by Hickory Hills was a valid one made pursuant to an agreement, but that the reannexation of the subject property on December 29, 1966, was invalid because it did not comply with Chapter 24, Section 7 — 1—8 in that all of the owners of record did not sign the petition for annexation. Hickory Hills counters that the annexation ordinance passed by Justice on June 3, 1968, was invalid because Section 7 — 1—25 is inapplicable and for other reasons not immediately pertinent.

On the motion for summary judgment, Justice submitted the affidavit of Dolores Pleto (described as Pluto in the affidavit of the Village President of Justice, Edward E. Rusch, who, to add to the confusion, is identified as Rausch in the brief of Hickory Hills). In that affidavit Dolores Pleto stated that she was an elector residing on certain described property. The legal description contained in her affidavit is not of the subject property. She swore that she never executed a petition for annexation allegedly filed with the Village Clerk of Hickory Hills. The counter-affidavit of Joseph Kozlowski, the City Attorney of Hickory Hills, filed in opposition to the motion, alleges, however, that Dolores Pleto, along with two men, both named John Pleto, and Donald Pleto were indeed the record owners of the subject property, that they considered themselves residents and electors of the City of Hickory Hills since the enactment of the 1965 annexation ordinance, that they had voted in Hickory Hills elections including one in April, 1971, that they had requested and had received sewer and water service from Hickory Hills and that they had executed sales tax returns to the State of Illinois in which they listed Hickory Hills as the municipality in which they lived and did business under the name, Royal Oaks Grove.

The affidavit further alleged that Michael Pleto (not previously mentioned), Dolores Pleto and John Pleto, the record owners of the property, appeared before the Zoning Commission of Hickory Hills seeking a classification from commercial to multiple dwelling, that when the Zoning Commission recommended to Hickory Hills that the property be reclassified to single family residential the record owners then apparently took the position they were not in the Village of Hickory Hills and that tire plaintiffs entered into a real estate sales contract with the record owners conditioned upon the property being re-zoned to 8 acres of commercial and 12 acres of multiple dwelling condominium.

Hickory Hills also filed the counter-affidavit of Vincent R. Ewald, now deceased, who was the Village Attorney of Hickory Hills at the time the annexation ordinance of December 29, 1966, was passed. He swore that before drafting the ordinance he determined that “Donald Pluto, Michael Pleto, John Pluto and Dolores Pluto” were the electors residing on the land at the time, that each of them signed a petition before him for the annexation of their property to Hickory Hills and that the petition was drafted by him and submitted to the Village Clerk before the adoption of the annexation ordinance.

Hickory Hills also filed the affidavit of Betty Maher, City Clerk of Hickory Hills, in which she swore that she had been unable to locate the petition executed by the electors and owners referred to in the annexation ordinance of December 29, 1966.

At the close of oral argument, the trial court concluded that the absence of the petition allegedly signed by Dolores Pleto was fatal to the position of Hickory Hills and that no factfinder could reasonably conclude that Dolores Pleto had in fact signed the petition. That being so, it necessarily followed that the reannexation ordinance was invalid in that, as Justice contended, it did not comply with Chapter 24, Section 7 — 1—8.

Insofar as the record discloses, the ordinance passed by Hickory Hills on February 15, 1965, annexing the subject property and the 20 acres immediately to the north was a valid one. Therefore, the ordinance of Justice passed the same day purportedly annexing the north 20 acres recorded twenty-five minutes after the recordation of the Hickory Hills ordinance was of no force and effect.

When Justice filed the quo warranto proceedings, the only issue before the court involved the north 20 acres, and not the subject property. The order by Judge Dougherty shows that the attorneys for Hickory Hills represented that they had disconnected “all the territory which [was] the subject matter” of the quo warranto suit. There was no nrisrepresentation to the court; Hickory Hills had, in fact, passed a disconnection ordinance involving the north 20 acres. The answer of Justice alleges that the annexation ordinance of June 3, 1968, was passed pursuant to the representations of Mr. Ewald, made in the quo warranto suit, that the subject property had been disconnected from the Village of Hickory Hills. Whether Mr. Ewald had agreed to disconnect the subject property, as well as the 20 acres to the north, is immaterial. Any agreement entered into by the attorney could not bind the municipality, particularly where legislative action is required. Wacker-Wabash Corp. v. City of Chicago, 350 Ill. App. 343, 112 N.E.2d 903; O’Neill v. City of Chicago, 169 Ill. App. 546.

The 1968 annexation ordinance of Justice recites that the annexation was made pursuant to Section 7 — 1—25 of the municipal code. The Hickory Hills disconnection ordinance of December 29, 1966, does not allege the applicable statute under which it was passed, but instead states: “Whereas, the Village of Justice has filed quo warranto proceedings * * * and [wjhereas, it is deemed to be in the best interest of the Village of Hickory Hills # # * to avoid lengthy and costly litigations, that the territory so annexed be disconnected from the Village of Hickory Hills * * We deem that the disconnection ordinance of Hickory Hills presents the threshold issue in this case. Unfortunately, this issue was never presented in the trial court as clearly and concisely as it could have been. However, after examining the answer of Hickory Hills, the affidavit of Joseph Kozlowski and tire oblique references to disconnection made in the trial court, we cannot say that Hickory Hills has waived its contention that tire disconnection ordinance of December 29, 1966, was invalid.

The record before us is á confusing one. The mistake in names and legal description, the two races to the Recorder’s Office, the rerecording of the ordinance, the disconnection and immediate re-annexation, the missing petition, the conflict between the testimony of Ewald and Dolores Fleto, and, most of all, the suggestion of an agreement to disconnect the subject property present a perplexing picture. Since many of the facts'are not pertinent to our decision, we would prefer to refrain from comment upon the course of conduct shown by this record. However, one observation must be made. The citizens of this State are not residents of fiefs which may be bartered for, exchanged or divided after disputes, judicial or otherwise, at the whim of the municipalities. They have the right to rely on stability, and to insist on continuity, in government at whatever level, as they see fit. The exclusive methods of annexation and disconnection of territory have been determined by the State Legislature. A reading of those pertinent sections of the statute leads to but one conclusion, that the persons primarily responsible for the decision to annex or disconnect are the citizens themselves.

The procedures for disconnection are contained in the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, secs. 7 — 1—24 to 27). Section 7 — 1—24 requires a petition signed by one-half of the electors and one-half of the owners of record; Section 7 — 1—26 provides for disconnection of territory lying along a boundary line between two municipalities and contiguous to a third one; Section 7 — 1—27 applies to territory not less tiran one-half square mile in area and requires a petition signed by not less than one hundered electors of the territory. With due deference to the concern of the corporate authorities for the best interest of the Village of Hickory Hills, we must note that the three sections referred to are either inapplicable factually or were not complied with by Hickory Hills.

The only remaining section, which is invoked by Justice, is 7 — 1—25, which provides:

“Any unoccupied territory, lying along the boundary line between 2 adjoining municipalities, may be excluded from one of the adjoining municipalities and annexed to the other adjoining municipality, as follows:
* #

The issue is whether the subject property is “unoccupied” within, the meaning of the Act. The undisputed evidence is that Dolores Pleto and others were record owners, electors and residents of the subject property. Under this evidence, we must conclude that the property was occupied and that Section 7 — 1—25 is also inapplicable. Therefore, the disconnection ordinance of Hickory Hills passed December 29, 1966, is of no force and effect.

In view of the position we take of this issue, we need not pass on the correctness of the trial court’s determination with respect to the validity of the reannexation ordinance. Since the disconnection ordinance was invalid, then perforce the reannexation was a useless act, and the annexation by Justice in June, 1968, was of no force and effect. We hold that the subject property is within the territorial limits of Hickory Hills under the annexation ordinance of Hickory Hills passed February 15, 1965. For these reasons the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

BURKE, P. J., and STAMOS, J., concur.


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James D. Castro, Defendant-Appellant.
    (No. 56524;
    First District (2nd Division)
    March 20, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State’s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and James E. Sternik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

In Indictment No. 68-1305, defendant was charged with a sale of heroin on 1 April 1968 to a police undercover officer in violation of Ill. Rev. Stat. 1967, ch. 38, sec. 22 — 3. On 9 July 1969 defendant filed a discovery motion for an order requiring the State, among numerous other things)'to “furnish a list of witnesses that the State may or may not call who were occurrence witnesses at the scene of the alleged offense or who were present at the time of the arrest of the defendant”. This request was simply denied by the trial court on 23 October 1969 without any discussion, while the court was in the process of ruling on all of the numerous items in defendant’s discovery motion. On 10 February 1970, defendant filed a discovery motion for an order on the State “to produce Albert Spagnolli for the purpose of interrogation and as a witness”. As grounds for the motion, defendant alleged that Spagnolli was an informer who was present at the time and place of the alleged sale and who was necessary for the preparation of the defense. Defendant further alleged that the whereabouts of Spagnolli were “only known by officers of the State of Illinois and the defendant is unable to learn of his whereabouts”.

A hearing was held on this motion that same day. The' purchasing officer was called as a witness. He testified that he had received a telephone call from defendant, who asked if the officer wanted to buy heroin. After defendant and the officer had established a meeting place, the officer contacted three other police officers and arranged a plan for the surveillance of the proposed sale. When the officer arrived at the meeting place, he testified that he saw defendant standing alone. Defendant got into the front passenger seat of the officer’s car and the sale was thereupon made. The car remained parked during the incident and until defendant had left the car. Defendant was then called as a witness. He testified that he was with Albert Spagnolli at the time of the meeting with the officer. At Spagnolli’s suggestion, he and Spagnolli got into the rear seat of tire officer’s car. The officer then drove the car about one block. During that time defendant was given some money by Spagnolli, but defendant sold nothing to tire officer, nor did he see any sale of anything occur. After the short drive, defendant left the car with Spagnolli and the officer still in the car.

The court thereupon denied the motion because there was, in the court’s judgment, no credible evidence that Spagnolli was present at the time and place of the alleged sale. The court also based its denial of the motion on the fact that, even if the testimony of defendant were credible, that testimony disclosed that Spagnolli was not a paricipant in any sale, since defendant’s testimony was that there had been no sale at all of anything. For these reasons, the court held that there was no right to a disclosure of the whereabouts of Spagnolli.

The juiy trial began shortly thereafter. The first witness called by the State was the same purchasing officer. On direct examination he was asked whom he saw when he arrived at the meeting place agreed upon with defendant. He replied that he saw defendant standing alone, and also saw Albert Spagnolli, who was sitting in the rear seat of the officers car. He testified that he got out of the car and talked to defendant alone. Thereafter, he and defendant got into the front seat of the car, where the sale occurred. He testified that Spagnolli at this time was sitting in the back seat of the car.

At this point, a conference was held out of the presence of the jury during which defense counsel contended that the purchasing officer had changed his testimony as to the presence of Spagnolli. But both the court and the prosecutor pointed out that, at the hearing on the motion to produce Spagnolli, the officer had never been asked about the presence of Spagnolli, and had testified merely that defendant was alone when he (the officer) met defendant. The prosecutor, however, conceded that he also had been caught by surprise, since, when he had opposed the discovery motion by maintaining that no one was present at the alleged sale other than the two participants, he had been operating on the basis of the testimony of the purchasing officer at the grand jury investigation. In that testimony the officer had not mentioned the presence of Spagnolli.

The trial then continued. One of the surveillance officers was called as a witness for the State. While he did not see the sale, his testimony also established that Spagnolli had been in the car at the time and place in question.

Defendant did not testify and the defense called no witnesses.

Following final argument the trial court gave the jury a number of instructions, including the following (IPI 17.01 CRIMINAL and 17.02):

“To sustain the charge of violating the Narcotic Drug Act, the State must prove the folowing proposition: that the defendant sold heroin.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

The jury found defendant guilty, and the court, after a hearing in aggravation and mitigation, sentenced defendant to not less than 20 years nor more than 30 years in the Illinois State Penitentiary.

On this appeal, defendant first contends that the trial court erred in refusing to order the State to produce Albert Spagnolli so that Spagnolli might be interviewed and possibly called as a witness by the defense. He contends that production of this witness to the alleged crime was required under the decision of the United States Supreme Court in Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro, defendant was charged in Count I of a two-count indictment with tire offense of sale of narcotics, and in Count II with the offense of “transporting” narcotics. The informer involved was the buyer in the alleged sale, and could presumably be regarded as the ultimate destination in the alleged “transporting”. The Government conceded that the informer’s identity and whereabouts should have been disclosed as to Count I, but that his identity and whereabouts were irrelevant as to Count II and his conviction was therefore sustainable on that count. The court in a footnote confirmed the Government’s concession as to Count I, but held that the informer’s identity and whereabouts were relevant to the defense of Count II in a number of potential respects, so that, even as to Count II the identity and whereabouts should have been disclosed. We note in passing that the designation of the informer as a participant in the alleged offense is certainly true as to the sale in Count I but very doubtful as to the “transporting” in Count II. Active participation by a buyer is essential to the. act of selling, but active participation by the person who constitutes the destination of goods being transported is not essential to the act of transporting.

We are aware that the Roviaro decision may not be binding upon this court in that it may be regarded as an exercise of the supervisory powers of the United States Supreme Court over Federal prosecutions rather than as a decision based on the Sixth Amendment to the Federal Constitution. But, even were it to be so regarded, still, since the court devoted considerable attention to the matter of “fundamental requirements of fairness”, it is obvious that what would here be a Fourteenth Amendment issue of due process was not altogether irrelevant to that decision. In any event, since the decision in Roviaro in 1957, the Supreme Court of Illinois has referred to Roviaro in several opinions beginning with People v. Mack (1957), 12 Ill.2d 151, 145 N.E.2d 609. All of these cases have regarded Roviaro as expressive of the law of this State, whether or not expressive of a Federal constitutional requirement.

The purpose for requiring the disclosure of the identity and whereabouts of the informer in Roviaro was to permit the defense to interview the informer and possibly to call him as a material witness. Obviously, this purpose is not satisfied where defendant knows the identity of the informer but does not know his whereabouts. Hence, the State must inform the defense of his whereabouts, if the State knows.

The State attempts to justify the denial of the motion to produce on the ground that a motion to produce the informer is an improper method for the assertion of defendant’s Roviaro right to know the whereabouts of Spagnolli, for the reason that the State is not always obligated physically to produce the informer. But in the instant motion to produce Mr. Spagnolli, defendant alleged that the whereabouts of Spagnolli were "only known by officers of the State of Illinois and that defendant is unable to learn of his whereabouts”. At the initial hearing on this motion, no disposition was made by the court, because the court left with the prosecutor the possibility of resolving the matter by giving the defense Spagnolli’s address. When the motion next came before the court, the State had not given Spagnolli’s address to defendant and continued to oppose the motion on the ground that there had been no occurrence witness other than the purchasing officer. Hence, all parties treated the motion as a motion to learn the whereabouts of Spagnolli rather than as a motion literally to produce him. We treat the motion in the same manner.

As a further ground for affirming the trial court’s denial of the motion, the State urges that the record does not demonstrate that the State knew tire whereabouts of Spagnolli. While this is true, it is also true that there is nothing in the record to indicate that the State did not have such knowledge. The prosecutor simply persisted in asserting that the State was not obligated to disclose the whereabouts of Spagnolli, and did not allege that the State did not have that information (though he did allege that he personally did not have it). Furthermore, it appears that, on at least one occasion, Spagnolli had worked as a special operative for the State in detecting violations of the law, and that the case on which he had worked was about to come to trial. It would not, therefore, be unreasonable to infer that the State knew his whereabouts. In any event, to place upon defendant the burden of proving that the State actually does have knowledge of his whereabouts would be to make Roviaro meaningless.

At the conclusion of tire pre-trial hearing on the motion of 10 February 1970, the court denied the motion. Where the testimony in a hearing is in conflict, the court must make a decision as to the credibility of the witnesses. (People v. Haskell (1968), 41 Ill.2d 25, 241 N.E.2d 430.) At this pre-trial hearing, the testimony as to the presence of Spagnolli at the relevant time and place was in conflict, and we cannot say that the ruling of the court at that time was in error.

Following, however, the testimony of the purchasing officer at the trial, there was no longer any question but that Spagnolli was present at the relevant time and place. The requirements of Roviaro thereupon became unavoidable, for a reason which defendant, it must be conceded, never made very clear to the trial court. That reason is that Spagnolli, present in the car at the time of the alleged offense, was a potentially crucial witness for the defense. Defendant had only two means by which to introduce evidence in support of his contention that no sale, in fact, had occurred: he could waive his Fifth Amendment right and himself testify, or he could call Spagnolli as a witness. Should Spagnolli’s testimony have supported defendant’s version of the incident (and we have no basis in the record to conclude that it would not have supported defendant’s version), defendant’s interest in maintaining his Fifth Amendment right and his production of testimony which might have been more persuasive to a jury than his own obviously interested testimony cannot be viewed as a matter of mere trial strategy. Rather, it goes to the central right of the defendant under tire Sixth Amendment to call witnesses in his own behalf. It was precisely this consideration which lead the United ■States Supreme Court in Roviaro to hold that the defense has a right of access to such witnesses.

“Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe [the pseudonym for the informer] was his one material witness. Petitioner’s opportunity to cross-examine Police Officer Bryson and "Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he 'transported’ from the tree to John Doe’s car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” 353 U.S. 53, at 64.

There is here, of course, no question of participation by Spagnolli, because the gist of the defense is that no sale whatever of anything took place. But the potential for Spagnolli to testify to that effect is at least as great as was the potential for John Doe to testify favorably for defendant in respect of the alleged offense of “transporting” in Count II of the indictment in Roviaro. In any event, it is surely “a matter for the accused rather than the Government to decide”.

The State next contends that any right to disclosure of the whereabouts of Spagnolli was lost by failure of the defense to renew its motion following the testimony of the purchasing officer at the trial. We confess an initial sympathy with this contention. Had defense counsel specifically renewed his motion and, in particular, had he cogently explained to the trial court the vital importance of a “present” Spagnolli to the defense, the disclosure sought might well have been ordered. On the other hand, defense counsel did caU attention to the prior motion in his conference with the court following the officers trial testimony. The relevant hearing on the motion had been before the same judge that same day. That the judge had a clear recollection of that hearing is evidenced by his prompt correction of the defense attorney’s mistake concerning the testimony at that hearing. That the judge was not, however, put in a position to appreciate the real thrust of Spagnolli’s importance to tire defense is clear from his remark at the pre-trial hearing that all Spagnolli could testify to was that he (Spagnolli) took a ride in a car with defendant.

Were the right involved here less crucial to the defense, we might hold that defense counsel’s representations were inadequate to preserve the issue on appeal. Our courts have repeatedly refused to consider errors which were not effectively called to the attention of the trial court. On the other hand, our courts have also repeatedly held that errors which involve substantial rights should be considered on appeal, even though inadequately called to the attention of the trial court or not called to its attention at all. (People v. Brown (1967), 83 Ill.App.2d 457, 228 N.E.2d 505; People v. McGrath (1967), 80 Ill.App.2d 229, 224 N.E.2d 660.) In the light of the potentially crucial importance of Spagnolli’s testimony to the defense, we hold that the trial court’s failure to order the State to disclose his whereabouts after the purchasing officer’s trial testimony was prejudicial error.

The second issue presented by defendant on this appeal is that the trial court committed reversible error by failing to give an instruction to the jury expressly stating that, in order to find defendant guilty of unlawful sale of heroin, the jury must find that defendant sold the heroin knowingly. In view of the possibility that this case may be retried, we must consider this issue. It is undisputed that knowledge of the nature of the substance sold is an essential element of the crime of sale of narcotics, just as it is for the crime of possession of narcotics. (People v. Bussie (1969), 41 Ill.2d 323, 243 N.E.2d 196.) The likelihood, however, of any prejudicial effect from failure expressly to include this requirement in the instruction given to the jury is far less where the offense is sale than it is where the offense is possession. And yet, even in prosecutions for possession, it has been held that failure to instruct the jury on the requirement of knowledge will not be prejudicial error, if the evidence of knowledge is so clear and convincing that the jury could not reasonably have found tire defendant not guilty on that basis. People v. Truelock (1966), 35 Ill.2d 189, 220 N.E.2d 187.

Normally, however, the mere possession of a thing does not necessarily infer knowledge on the part of the possessor as to the nature of the thing possessed. For that reason, in the crime of possession of narcotics, it is usually critical to instruct the jury that they must find that, in addition to possession, there was knowing possession. A sale of narcotics, however, is always an intentional affirmative act, which, by its very nature, creates a reasonable inference that the seller knows the nature of the thing he is selling. Only in the exceptional case will the issue of whether there was a knowing sale arise.

In the present case, the trial court adopted its instructions from IPI 17.01 CRIMINAL and 17.02. In the words of the drafters, these instructions are intended to be “simple, concise, unslanted” and “non-partisan”. In order to be such a model statement, the pattern instruction cannot cover every conceivable issue. In the Committee Note following instruction 17.01, the Committee acknowledges that there are many potential affirmative defenses which are not covered by the pattern ins traction. The Committee thought, however, that “* s * no useful purpose would be served by framing instructions to meet all of the contingencies that would render manufacturing, possession, control, selling, prescribing, administering, dispensing, and compounding, lawful”. The Committee intended, therefore, to draft an instruction which would conform to legal requirements in the average case, but which would require supplementation, should specific issues arise in a given case.

We cannot say that the issue of knowledge in sales of narcotics is so likely to arise as to require that the essential element of such knowledge be expressly included in the instruction given in such prosecutions. Should this case be retried, and should there be some indication in the testimony that defendant did not know that the substance which he was selling was a narcotic substance, then the court should instruct the jury that they must find that defendant knowingly sold the narcotic substance in order to find him guilty. (People v. Phillips (1970), 129 Ill.App.2d 455, 263 N.E.2d 353.) Should there be no such indication in the testimony, the instruction as given would be unobjectionable.

For the reasons above stated, the judgment of the Circuit Court of Cook County is reversed, and the case is remanded for such further proceedings as may be had which are not. inconsistent herewith.

Reversed and remanded.

LEIGHTON and SCHWARTZ, JJ., concur.