author: Mr. JUSTICE JIGANTI

text:
    THE PEOPLE ex rel. WALTER KRYCH, Plaintiff-Appellant and Cross-Appellee, v. IRVING BIRNBAUM, Defendant-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 80-2779
    Opinion filed November 5, 1981.

      Irving R. Campbell and Joseph M. Carrabotta, both of Stitt, Moore & Lennon, of Chicago, for appellant.
    Steven M. Levin, of Chicago, for appellee.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Walter Krych, filed this action pursuant to the Illinois Quo Warranto Act (Ill. Rev. Stat. 1979, ch. 112, par. 9 e\ seq.) (Act) in an effort to oust the defendant, Irving Birnbaum, from certain corporate offices. Although the trial court entered summary judgment for Krych ousting Birnbaum, Krych perfected this appeal on the grounds that the trial court erred in not making a specific finding as to the number of shares Krych owns in the corporation. Birnbaum filed a cross-appeal, contending primarily that the trial court erred in striking his affirmative defenses and that the court erred in granting summary judgment to Krych because there is a genuine issue of material fact as to whether Krych was a corporate shareholder.

Krych’s complaint alleged that he was a shareholder in the Grove-Darrow Buildings, Inc. (Grove-Darrow), an Illinois corporation. Irving Birnbaum unlawfully usurped the offices of director and secretary of the corporation. Section 3 of the Act provides that a complaint may be set out in these general terms. (Ill. Rev. Stat. 1979, ch. 112, par. 11.) The relief requested in the complaint was that the court require Birnbaum to show by what warrant he exercised the offices of director and secretary of the corporation. In the event that he failed to justify his position, Krych requested that Birnbaum be ousted and fined pursuant to section 6 of the Act (Ill. Rev. Stat. 1979, ch. 112, par. 14).

Birnbaum answered the complaint and filed affirmative defenses of res judicata and collateral estoppel, statute of limitations on both oral and written contracts, pending actions between the same parties for the same cause, lack of a completed contract, unclean hands and laches. He took the position that these affirmative defenses should have precluded the court from granting Krych leave to file the complaint in quo warranto pursuant to section 2 of the Act (Ill. Rev. Stat. 1979, ch. 112, par. 10). On Krych’s motion the affirmative defenses were stricken.

In support of his motion for summary judgment, Krych filed an affidavit stating that on August 17, 1959, he and Birnbaum purchased certain real estate in Evanston, Illinois, in equal shares and caused title to be conveyed to a land trustee. The trust agreement provided that Krych and Birnbaum were equal beneficiaries. They prepared to build houses on the property and applied for mortgage loans which they personally guaranteed. On July 27, 1960, Krych and Birnbaum caused the trustee to convey the title to the Grove-Darrow Buildings, Inc., in payment for all of its 100 shares, which were to.be issued before it commenced doing business. On October 19, 1960, the parties entered into a contract in writing for the purpose of settling a stockholding dispute, declaring that each had “a 50% stock interest” in the corporation. On June 30, 1961, Birnbaum delivered to Krych an instrument entitled “Grove-Darrow Buildings, Inc., Analysis of Stockholder’s Loans,” which states that the parties had each paid $500 for capital stock totalling $1000. Birnbaum at that same time delivered a balance sheet showing that the entire capital stock was $1000. Subsequently, without authority of the board of directors, Birnbaum issued stock certificates for 49M shares to himself, 49/2 to Krych and one share to Birnbaum’s legal secretary, Mary Green. Krych refused to accept the tendered certificate for 49M shares. The minutes of the first shareholders’ meeting, dated October 19, 1961, record that Birnbaum stated that Mary Green was entitled to at least one share of stock because she was named as an incorporator. The last notice of a shareholders’ meeting which was received by Krych was for a meeting held on October 8,1973. The affidavit concludes by stating that Birnbaum claims he was elected to certain corporate offices at a shareholders’ meeting of which Birnbaum did not give Krych the required notice.

In opposition to the motion for summary judgment Birnbaum filed an affidavit which stated essentially as follows. Krych’s claim is based upon a contract dated October 19, 1960, which was a settlement agreement for the purpose of resolving a dispute between the parties which arose because Krych prevented the corporation from completing its construction project and harassed the corporation for his benefit and to the detriment of the corporation. Shortly after that agreement Krych took on the responsibility of president and Birnbaum informally agreed to act as secretary. A bank account was opened authorizing the parties to sign checks jointly. Shortly after October 2, 1960, to the present date, Krych proceeded on a pattern of harassment and delay to further his own interests and to harm those of the corporation by refusing to participate in the corporate business. Birnbaum was required to assume all of the responsibilities of the corporation and to act as general contractor. Birnbaum specifically alleged that Krych’s conduct in failing to act brought the corporation into default on a mortgage and near bankruptcy. In an effort to avert this, a meeting of the incorporators was called on October 19, 1961, at which Krych and his attorney appeared but refused to participate. An election was held and two of three directors were named, one of the two being Birnbaum. The third was held vacant for Krych. Krych persisted in his refusal to act and another meeting was held on November 8, 1961. At that meeting, officers were elected and a resolution was passed which authorized the signing of checks by Birnbaum, the other director, or Krych. Shortly after that meeting Krych rejected the stock certificates for 49/2 shares which were tendered to him by Birnbaum. Krych filed a suit in 1962 which has never been prosecuted and is still pending. He filed a series of cases relating to his rights in the corporation. Birnbaum claimed that since 1962, Krych has repeatedly harassed the corporation and for a period of almost 20 years has done nothing to aid the corporation in its function. In a 1975 chancery suit, Krych admitted that Mary Green was entitled to one share of stock and Krych attempted to purchase that share of stock from Mary Green. Birnbaum claims that consequently Krych is at most entitled to only 49M shares of stock.

The court entered summary judgment on August 6, 1980. The order found that Birnbaum was guilty of usurpation of the corporate offices as alleged. He was ousted from the offices of director, president and secretary of Grove-Darrow and prohibited from exercising the powers, performing the duties and receiving the prerogatives thereof. The order also found, and this is the basis for Krych’s appeal, that Krych was the owner and holder of “at least 49-/2 shares” of Grove-Darrow. The court found that as a shareholder, Krych was entitled to notice of shareholders’ meetings in 1977 and 1978 and that Birnbaum failed to give notice of these meetings. Consequently, the purported election of the defendant to the offices of director, president and secretary was void.

The first issue in this cause involves the proper scope of an action in quo warranto. Krych’s theory in bringing this action was that he, as a shareholder, was entitled to notice of the meeting at which Birnbaum was elected. Because he did not receive notice, the election was void and Birnbaum had no right to hold the offices in dispute. Krych recognizes that since all shareholders are entitled to notice regardless of the extent of their holdings, it was not necessary for the court to specifically find that he owned 50 shares in order to grant the relief requested, which was an ouster of Birnbaum from the corporate offices. However, he argues that the court should have made a definite finding that he owned 50 shares because that was the position taken in his pleadings. Also, a decision as to Krych’s rights in the corporation would serve to terminate his longstanding dispute with Birnbaum. As support for his argument Krych relies on the portion of the Illinois Quo Warranto Act which provides that “[t]he Court shall determine and adjudge the rights of all parties to the proceeding.” Ill. Rev. Stat. 1979, ch. 112, par. 14.

In evaluating this argument, it is necessary to briefly examine the purpose and origins of the quo warranto proceeding. Broadly defined, quo warranto is a writ of inquiry as to the warrant or authority for doing the acts of which complaint is made. (65 Am. Jur. 2d Quo Warranto §1, at 230 (1972).) It has been recently described as “ ‘[a]n extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted.’ ” (Department of Illinois Disabled American Veterans v. Bialczak (1976), 38 Ill. App. 3d 848, 850, 349 N.E.2d 897, 899.) In its inception, the action was available only where the public interest was involved. However, it has now been extended to redress private as well as public wrongs. (People ex rel. Brooks v. Village of Lisle (1974), 24 Ill. App. 3d 432, 321 N.E.2d 65.) Quo warranto has been recognized as an appropriate means of determining the right of title to office in a corporation chartered by the State. (See Department of Illinois Disabled American Veterans v. Bialczak.) Although originally the courts had power only to oust the defendant from office, statutes in many jurisdictions have “enlarged the proceeding so as to permit a determination both of the question of usurpation by the person in office and of the claim of the person asserting a right thereto 0 0 65 Am. Jur. 2d Quo Warranto §115, at 312-13 (1972).

As pertinent to the present appeal, the Illinois Quo Warranto Act (Ill. Rev. Stat. 1979, ch. 112, par. 9 et seq.) provides that “[a] proceeding in quo warranto may be brought in case ” ° 0 [a]ny person shall usurp, intrude into, or unlawfully hold or execute any office, or franchise, or any office in any corporation created by authority of this State.” (Ill. Rev. Stat. 1979, ch. 112, par. 9(a).) Under the statute, the defendant is required to answer by what warrant or authority he holds the office in question. (Ill. Rev. Stat. 1979, ch. 112, par. 11.) If he fails to establish his right to the office, the court is authorized to render a judgment of ouster and to enter a fine. (Ill. Rev. Stat. 1979, ch. 112, par. 14.) The statute further provides that “[t]he several rights of diverse parties to the same office or franchise, privilege, exemption or license, may properly be determined in one action,” but that “[n]o matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise.” Ill. Rev. Stat. 1979, ch. 112, par. 11.

We believe that a fair reading of the Act leads to the conclusion that its “distinctive purpose” is to provide an expeditious means for challenging the authority of one who claims to hold office in a corporation created pursuant to the laws of this State. The trial court was able to grant the requested relief by determining that Krych was a shareholder and that he was not notified of the meeting at which Birnbaum was elected to the office in question. The purpose of the Act would be ill-served by a holding that the trial court was also required to render what in effect would have been a declaratory judgment as to the ownership of one-half share of corporate stock which has been the subject of dispute for over 20 years. A determination of this matter would have involved the court in intricate and involved issues of fact which are collateral to the determination of whether or not the defendant lawfully held the offices he claimed. Birnbaum contends that the trial court erred in granting summary judgment to Krych because there was a genuine issue of material fact as to whether Krych was a corporate shareholder. He claims that although Krych was a subscriber for 49% shares, he rejected the shares when tendered and therefore never became a shareholder in Grove-Darrow. Thus, the corporate records, on their face, do hot show Krych to be a shareholder. Alternatively, Birnbaum argues that even if Krych did become a shareholder in Grove-Darrow, he lost his shares either through laches or by operation of the statute of limitations.

The record shows that Krych contributed capital to the corporation with the expectation of receiving corporate shares in return. It is clear that Krych rejected the tendered stock certificates for 49M shares not because he intended to withdraw from the corporation but rather because he believed he was entitled to 50 shares. Although a dispute arose shortly after incorporation as to the ownership of one share of stock, Birnbaum recognized Krych’s status as a shareholder by notifying him of shareholders’ meetings until October of 1973. There is no allegation by Birnbaum that Krych sold or transferred any of his shares. While the affirmative defenses of laches and the statute of limitations may have had validity with respect to Krych’s claim to own 50 rather than 49M shares, they do not seem pertinent to his claim to be a shareholder in Grove-Darrow. We therefore agree with the trial court that no genuine issue of material fact was raised with respect to Krych’s status as a shareholder.

Birnbaum’s claim that this suit is barred by res judicata or collateral estoppel is also without merit. His argument is that the issues raised in the present quo warranto action were determined against Krych in his previous suit for dissolution of the corporation. In that case, Birnbaum raised certain affirmative defenses to which Krych failed to respond. The trial court entered judgment on the pleadings for Birnbaum and Krych appealed. The appellate court held that the trial court abused its discretion in not allowing Krych to file a later reply. It reversed and remanded the cause to the trial court with instructions that Krych be allowed to file a reply. Krych declined to do so and proceeded instead to prosecute the present quo warranto action against Birnbaum. The issue of whether Krych was a shareholder in Grove-Darrow was not decided. The effect of a reversal is to abrogate the judgment and leave the case as it stood prior to the judgment. (Willett Co. v. Carpentier (1954), 4 Ill. 2d 407, 123 N.E.2d 308.) Therefore, we do not believe that the judgment rendered in the 1975 suit amounted to a final determination of the issues which were before the trial court in this cause.

Neither are we persuaded that the quo warranto action before us was barred by section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(c)), which provides that a defendant may file a motion for dismissal of an action on the ground that “there is another action pending between the same parties for the same cause.” Even a liberal interpretation of that section would not lead to the conclusion that the present suit.is for the “same cause” as the lawsuits filed by Krych in 1962 and 1975. The 1962 suit was filed in an effort to prevent Birnbaum from drawing checks against the corporate bank account without Krych’s signature. Krych requested that Birnbaum be restrained from issuing checks and sought an accounting as to checks already drawn. In 1975, Krych filed a complaint seeking declaratory relief, an accounting and dissolution of the corporation. Birnbaum argues that to come within the purview of section 48(1)(c) it is only necessary to show that the relief requested in the prior pending actions was predicated on substantially the same set of facts as the later action. (Baker v. Salomon (1975), 31 Ill. App. 3d 278, 334 N.E.2d 313.) It is true that all of the lawsuits filed by Krych involved, to some extent, his status as a corporate shareholder. However, it is clear that the facts which formed the basis of the instant quo warranto suit, i.e., the 1976 shareholders’ meeting of which Krych was not notified and the election of Birnbaum to the offices of director and secretary, were not existent at the time the previous lawsuits were filed.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO CARPENTER, Defendant-Appellant.
    First District (5th Division)
    No. 80-2038
    Opinion filed November 6, 1981.

      Ralph Ruebner and Michael J. Pelletier, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich, and Gregory J. Ellis, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from his convictions of attempt murder and armed robbery and his sentence of 50 to 100 years “to run concurrently with each other.” A number of issues are raised on appeal, but we find it necessary to consider only whether Illinois Pattern Jury Instruction, Criminal, No. 2.03 (1968) (hereinafter IPI Criminal) concerning the presumption of innocence and burden of proof should have been given sua sponte by the trial court.

Defendant was indicted for the attempt murder, armed robbery, and aggravated battery of Ronald DeLott, who testified that during a robbery of the store in which he was employed he was shot by defendant. Three other store employees gave substantially the same testimony as DeLott. Defendant, who appeared pro se, did not testify and presented no defense other than to recall two of the State’s witnesses who recounted their earlier testimony.

Defendant submitted no instructions, and the court gave none concerning the presumption of innocence. Issue instructions on aggravated battery (IPI Criminal No. 11.10) and on armed robbery (IPI Criminal No. 14.02) were given, and in each the jury was told that if they found certain propositions set forth therein had been proved beyond a reasonable doubt, they should find defendant guilty. No such issue instruction, however, was given for attempt murder. The jury found defendant guilty of all three charges, following which a motion of the State to nolle pros the indictment for aggravated battery was granted and defendant then was sentenced as to attempt murder and armed robbery. A post-trial motion for a new trial was denied, and this appeal followed.

Opinion

The presumption-of-innocence instruction (IPI Criminal No. 2.03) is as follows:

“The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

Although this instruction was not given, the State argues that the jury was sufficiently informed of its content because (a) the trial court explained it in substance during the voir dire examination; (b) the instructions as to aggravated battery and armed robbery required that guilt be proved beyond a reasonable doubt; and (c) the prosecutor told the jury in closing argument that defendant was presumed innocent. The record discloses that the trial court made a preliminary statement to the array of jurors prior to their questioning in which they were informed that defendant was presumed to be innocent and that the State was required to prove his guilt beyond a reasonable doubt. Thereafter, the trial court mentioned the presumption of innocence during its questioning of 2 of the 17 jurors interrogated, and it appears that the prosecutor at one point in his closing argument informed the jury that there was a presumption of innocence. It is our view, however, that under existing law and in light of the circumstances presented here, the failure to give IPI Criminal No. 2.03, sua sponte, effectively denied defendant the full range of protections afforded thereby.

In Kentucky v. Whorton (1979), 441 U.S. 786, 60 L. Ed. 2d 640, 99 S. Ct. 2088, it was held that in the determination of whether the trial court’s failure to give a presumption of innocence instruction was reversible error, there must be a consideration of all the facts and circumstances at trial. The court stated:

“While this Court in Taylor [Taylor v. Kentucky (1978), 436 U.S. 478, 56 L. Ed. 2d 468, 98 S. Ct. 1930] reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case. Rather, the Court’s opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety.
* # e
[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” (441 U.S. 786, 788-89, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2089-90.)

While the rule as formulated in Whorton apparently does not demand that absolute weight or priority be ascribed to any factor, neither does it contemplate sole reliance on any one factor to the exclusion of all others; rather, it appears to be a flexible test which invites comparison among the factors enumerated as well as unanticipated factors having significance in a given case.

Failure to instruct the jury on the presumption of innocence in its most pernicious aspect amounts to a manipulation of fundamental legal principles to achieve results apparently favorable to the State but at the expense of basic protections guaranteed the accused. (See Estelle v. Williams (1976), 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691.) When that principle is not impressed upon the minds of the jurors, the trial could become a mere formality in which the jury presumes guilt, and its function would thus deteriorate into one simply ratifying the criminal investigation. Although it is established that the presumption of innocence is not evidence favoring the accused (Taylor v. Kentucky), it remains a vital principle of legal rhetoric which serves to inform the jury not to automatically agree with the prosecution. Its purpose also is to afford fair and even-handed treatment to all persons accused of criminal offenses, so that guilt or innocence is based exclusively on evidence adduced at trial. (Taylor v. Kentucky.) That objective may be sacrificed if the jury is not instructed on the presumption of innocence, as it then cannot be said that the rights of the accused are safeguarded. Moreover, the incriminating aspects of the case may be unduly emphasized at the expense of exonerating details.

Our research reveals no dispositive Illinois case, but several broad principles having significant application here are discernible. Although as a general rule a party may not raise on appeal the trial court’s failure to give an instruction not tendered (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2) (i)), in criminal cases substantial defects in instructions are not waived by failure to make timely objection thereto if the interests of justice so require (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)).

Initially, it should be noted that a defendant who proceeds pro se in a criminal case is ordinarily not accorded any special treatment (People v. Hudson (1980), 86 Ill. App. 3d 335, 408 N.E.2d 325) and cannot be heard to complain that his sixth amendment rights have been violated (United States ex rel. Smith v. Pavich (7th Cir. 1978), 568 F.2d 33). However, the court in Pavich, 568 F.2d 33, 40 n.5, also stated that:

“When the defendant represents himself, the trial judge ordinarily cannot expect much assistance from defense-tendered instructions in framing his charges; but, since the ultimate responsibility for a fair charge remains with the judge, he must exercise special care in his charge to protect the defendant’s rights.”

In People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487, 489, it was stated (though not expressly held) that the trial court “bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of the burden of proof.” Parks has been construed as implicitly holding that such instructional defects are substantial and therefore cannot be waived under Supreme Court Rule 366. (People v. Carey (1981), 94 Ill. App. 3d 631, 418 N.E.2d 1119.) Also see People v. Long (1950), 407 Ill. 210, 95 N.E.2d 461; People v. Williams (1981), 97 Ill. App. 3d 394, 422 N.E.2d 1091; and Committee Note to IPI Criminal No. 2.03, which states that “[t]his instruction must be given in all cases.”

In People v. French (1972), 5 Ill. App. 3d 908, 909, 284 N.E.2d 481, 482, a conviction was reversed for failure to give IPI Criminal No. 2.03, the court stating:

“If, as here, the defense counsel does not offer this instruction, it should be tendered by the prosecution, or the court should give it on its own motion. We do not reach the question of whether or not it is reversible error to fail to give this instruction in any case. Under the facts in this case, where the presumption of innocence was not mentioned in any instruction or in argument to the jury, the failure to give this instruction amounted to either a denial of due process or inadequate representation, and requires reversal.”

In People v. Donald (1974), 21 Ill. App. 3d 696, 315 N.E.2d 904, the State argued that no error resulted from the failure to give IPI Criminal No. 2.03, as the jury was adequately informed as to the presumption of innocence and burden of proof from the statements and arguments of counsel. This court disagreed, however, stating:

“IPI 2.03 is explicit and concise, and we find it difficult to believe that the statements and arguments of counsel, referred to by the State above, would have the same impact on the jurors as would the instruction.” (21 Ill. App. 3d 696, 699, 315 N.E.2d 904, 906.)

The State maintains that Donald is distinguished because the trial court in the instant case explained the presumption of innocence and the State’s burden of proof during the voir dire examination. It seems clear to us, however, that the situations are analogous. Here, and as in Donald, the jurors were instructed that the applicable law was as stated in the instructions and that it was their duty to follow them. In Donald, we stated our belief that this instruction stressed the fact that the jury should follow the law as set forth in the instructions rather than in the statements and arguments of counsel. It is our view also that the effectiveness of the trial court’s explanation of the presumption and the State’s burden during voir dire was counteracted by the above instruction. In essence, the jurors could have believed it required them to disregard the trial court’s previous statements and to listen anew for the applicable law.

Furthermore, while the jury was instructed as to aggravated battery (IPI Criminal No. 11.10) and armed robbery (IPI Criminal No. 14.02) that proof of guilt must be beyond a reasonable doubt, no such instruction was given as to attempt murder. It is significant also that the burden of proof was only minimally stated in those instructions, which as stated in Taylor v. Kentucky, 436 U.S. 478, 488, 56 L. Ed. 2d 468, 477, 98 S. Ct. 1930, 1936, “ignores both the special purpose of a presumption-of-innocence instruction and the particular need for such an instruction in this case.” Moreover, in Dodson v. United States (4th Cir. 1928), 23 F.2d 401, 403, it was said that “the failure to charge on the presumption of innocence is not cured by a correct charge on the burden of proof.” We believe that the need for such an instruction is heightened in the present case, since the State’s burden of proof was not included in the attempt murder instruction. It seems clear, therefore, that the instructions here were unbalanced, which thereby increased the danger that the jury may have found defendant guilty of attempt murder on an inferior standard of proof. (See In re Winship (1970), 497 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) When combined with the failure to give IPI Criminal No. 2.03, the result was that the jury was told to consider all the charges without the salutary effect of the presumption of innocence and to consider the attempt murder charge without guidance as to the State’s burden of proof.

Other cases support the view that the failure to instruct on the presumption of innocence may not be cured by statements made concerning it at earlier stages of the trial. In United States v. Nelson (5th Cir. 1974), 498 F.2d 1247, the court rejected the contention that references to the presumption of innocence throughout the proceedings coupled with the trial court’s detailed instructions on the burden of proof cured the omission of an instruction on the presumption of innocence. Similarly, in Dodson v. United States, the trial court explained the presumption of innocence to the jury before any testimony was presented and, at the close of testimony, the jury was instructed as to the applicable law but was not instructed as to the presumption of innocence or the State’s burden of proof. Finding that omission to be reversible error, the court stated:

“[T]he defendant was entitled to have the jury instructed as to the presumption of innocence at the time when they were given the other instructions in the case. Jurors understand that they are to be guided in their deliberations by the instructions given them after the testimony is concluded; and the accused is entitled to have any proper instruction given at that time. An instruction given at the beginning of the trial is likely to be forgotten or misunderstood; and in this case, even if the charge as to the presumption of innocence had been correct, the jury might well have concluded that, having been given at the beginning of the trial, and not along with the other instructions, it was not a matter which they were to consider in their deliberations.” 23 F.2d 401, 403.

In sum, we have noted that no instruction was given as to the presumption of innocence; that no instruction was given which specifically used the phrase “burden of proof”; that the jury was not informed as to the State’s burden of proof in attempt murder; and that the issues instructions on armed robbery and aggravated battery stated only that if certain propositions were proved beyond a reasonable doubt the jury could find defendant' guilty of those charges, which instructions were, at most, a minimal statement as to the State’s burden.

While it appears that the evidence was sufficient to sustain the convictions of attempt murder and armed robbery (see Miklencic v. United States (3d Cir. 1933), 62 F.2d 1044), we believe that to do so in light of the circumstances as set forth above would compromise two principles whose historical significance is unchallenged.

Therefore, we find that it was error not to have given IPI Criminal No. 2.03 on the presumption of innocence and the State’s burden of proof. We reverse the convictions and sentences for attempt murder and armed robbery, and remand for a new trial.

Parenthetically, we note that the trial court exercised great patience and conducted itself most capably in the handling of the many problems and awkward situations resulting from defendant’s ineptness in his own representation.

Reversed and remanded for a new trial.

LORENZ and MEJDA, JJ„ concur.

       Although the report of proceedings indicates a nolle pros of the armed robbery indictment, from the record it appears to have been the aggravated battery indictment and it is so treated by the parties in their briefs.


author: Mr. JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL GUYON, Defendant-Appellant.
    First District (1st Division)
    No. 80-1158
    Opinion filed November 9, 1981.
    Ralph Ruebner and James E. Staruck, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Georgia A. Buglass, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Michael Guyon was found guilty of rape, two counts of deviate sexual assault, and two counts of aggravated kidnapping. He was sentenced to 60 years in the Illinois Department of Corrections. Defendant appeals.

On appeal, defendant argues that (1) the trial court erred in denying his motion for a continuance; (2) discrepancies in the complainants’ testimony created a reasonable doubt of guilt; (3) he was deprived of his right to counsel of his choice; and (4) his motion to suppress identification evidence improperly was denied.

We affirm.

The two complainants in this case were 15 years old at the time the incident occurred. The female complainant testified that as she and the male complainant were walking home from school, defendant forced them at gunpoint into the back seat of a car. Defendant drove to an abandoned building and took complainants to a room on the second floor. He ordered the complainants to undress and forced them to engage in intercourse. Both complainants were then ordered to perform fellatio upon defendant, and the female complainant was made to submit to anal and vaginal intercourse with defendant. The ordeal lasted approximately 1M hours. The male complainant’s testimony substantially corroborated the female complainant’s testimony regarding these facts.

The female complainant also testified that defendant had both a folding knife and a gun during the incident. She identified the knife at trial. The male complainant testified that defendant had a pistol.

Defendant testified that on the morning of the day in question, he drove his wife to work. During the afternoon, he went to apply for a new job and visited his mother-in-law.

Other witnesses were called by the State and defendant. Their testimony and further testimony of the complainants will be recounted in the discussion of the issues where necessary and appropriate.

First, defendant argues that the trial court erred in denying his motion for a continuance. Defendant’s motion was made on April 8,1980, after the trial court set trial for April 14,1980. As grounds for his motion, defendant’s counsel stated his investigations had not been completed and he was not prepared to go to trial.

In People v. Peterson (1979), 70 Ill. App. 3d 205, 209, 387 N.E.2d 951, 955, the court in deciding a similar issue noted the following principles:

“[A] motion for continuance is addressed to the sound discretion of the trial court and ‘shall be considered in the light of the diligence shown on the part of the movant.’ (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 4(e).) The action of the trial court will not be disturbed on appeal absent on abuse of discretion. (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465.) 0 0 0 Where a continuance is sought on the basis of the defense counsel’s lack of preparation, the determination of whether the denial of the motion is an abuse of discretion is to be considered in light of the diligence shown on the part of the defendant and the extent to which the denial embarrasses the defendant in the preparation of his case and prejudices his rights. (People v. Jefferson (1976), 35 Ill. App. 3d 424, 342 N.E.2d 185.)”

We find that defendant’s rights were not seriously prejudiced by the trial court’s denial of a continuance. Defendant had the assistance of counsel for 18 months prior to trial. Discovery requests had been complied with and many pretrial motions had been ruled upon. Furthermore, defendant had an additional week from the time the motion was denied in which to prepare. During this week, defendant had amended his answer to discovery and listed two additional potential witnesses. Obviously he was able to complete some of his investigation during this time. Thus, the trial court did not abuse its discretion in denying the motion.

Second, defendant contends that his right to counsel was abridged where the trial court refused to appoint new counsel after the trial had begun. During a recess after direct examination of the State’s first witness, defendant struck one of the two assistant public defenders representing him. He later explained to the court that his attorneys were not answering his questions about the case and that he was not satisfied with their representation. The following day, the injured attorney was allowed to withdraw from active representation and ordered to assist co-counsel.

When a defendant represented by appointed counsel requests new counsel during or on the day of trial he must express a reasonable basis for substitution of counsel. (People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, citing People v. Williams (1976), 39 Ill. App. 3d 449, 350 N.E.2d 135.) It is within the trial court’s discretion to grant or deny a continuance for substitution of counsel. People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, citing People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736.

Here defendant waited 18 months after the assistant public defenders were appointed to request new attorneys. He had no counsel ready and willing to represent him, and the trial had begun. Furthermore, the assistant public defenders stated that they had visited defendant while he was in jail and were in fact explaining the proceedings and answering his questions when defendant struck the attorney. On the basis of these facts and the fact that co-counsel assumed active representation to the exclusion of the injured attorney, we find that the trial court did not abuse its discretion in denying defendant’s request for substitution of attorneys.

Third, defendant maintains that inconsistencies and omissions in the complainants’ testimony rendered their testimony incredible and that he therefore was not proved guilty beyond a reasonable doubt. Specifically, defendant points to the female complainant’s failure to recall the perpetrator’s weight and height and the model of the car he was driving. He also points to the male complainant’s inability to recall whether defendant’s shirt was blue or black, whether defendant had a goatee and whether he told police the defendant had a knife.

We first note that several of defendant’s conclusions are refuted by the record. The record indicates that the female complainant estimated defendant’s height and weight and described the car in which she was abducted. The fact that she could not recall the particular model does not render her testimony incredible. Furthermore, the male complainant testified that defendant wore a black shirt and had a mustache which “came down around his mouth.” His inability to recall whether defendant had a goatee does not destroy the credibility of his testimony. People v. Agosto (1979), 70 Ill. App. 3d 851, 388 N.E.2d 1018.

We find that defendant was proved guilty beyond a reasonable doubt. The record indicates that complainants were held in a well-lit room for Hi hours. They viewed their assailant under circumstances which would permit subsequent positive identification. Both complainants identified two photographic exhibits admitted during trial as pictures of the car in which they were abducted. The arresting officers testified that defendant was apprehended in this auto on the same day the incident occurred and that a pistol and a knife were recovered from the car. Furthermore, the complainants’ estimation of defendant’s height, weight, and age were accurate and corroborative. The omissions and discrepancies in the complainants’ testimony were matters for the jury to consider in weighing the testimony. (People v. Thomas (1979), 72 Ill. App. 3d 186, 389 N.E.2d 1330, citing People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.) In this case, we will not overturn the jury’s determination of the witness’ credibility.

Finally, defendant contends that the pretrial lineup was unduly suggestive because he was forced to wear a hairnet and green jacket allegedly worn by the victims’ assailant and that no other lineup participant was required to wear these items.

The burden is on defendant to prove that pretrial identification evidence should be suppressed. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.) To succeed, a defendant must prove that the procedure used was unnecessarily suggestive and conducive to mistaken identification. (People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330; People v. Sakalas.) The mere fact that a suspect in a lineup wears clothing similar to that worn by an assailant and that members of a lineup are largely dissimilar does not necessarily render the lineup unduly suggestive. United States v. Medina (7th Cir. 1977), 552 F.2d 181, cert. denied (1977), 434 U.S. 839, 54 L. Ed. 2d 102, 98 S. Ct. 132.

Defendant testified during the hearing on the motion to suppress that a police officer placed a hairnet on his head before four or five of the 12 lineups in which he participated on the day in question. He did not remember whether he wore one in the lineups which complainants viewed. Defendant further testified that he asked but was not allowed to remove his green jacket. However, he could not recall whether complainants viewed him before or after this request. Based upon the facts and the foregoing legal principles, we find that defendant did not meet the burden of proving that the lineup was unnecessarily suggestive.

Furthermore, complainants’ in-court identifications had an origin independent of the pretrial confrontation. In-court identifications are permissible if they have an origin independent of tainted pretrial identifications. (People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861; People v. Patrick (1972), 53 Ill. 2d 201, 290 N.E.2d 227; People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Here complainants were abducted by defendant during daylight hours and were held by defendant for 1/2 hours in a sun-lit room. Thus, they had ample opportunity to view defendant and their in-court identifications were reliable.

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

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    NOBLE DOTSON et al., Plaintiffs-Appellees, v. AGENCY RENT-A-CAR, INC., Defendant-Appellant.—(DIANE BRISCO et al., Defendants.)
    First District (1st Division)
    No. 80-1201
    Opinion filed November 9, 1981.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Thomas H. Neuckranz, of counsel), for appellant.
    Glen E. Amundsen and Victor J. Piekarski, both of Querrey, Harrow, Gulanick & Kennedy, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Noble Dotson, Janet Dotson, and State Farm Mutual Automobile Insurance Company, hereinafter called State Farm, filed an action for declaratory judgment seeking a declaration of the defense and indemnity obligations of State Farm under its policy with its insureds, Janet and Noble Dotson, in relation to the defense and indemnity obligations of Agency Rent-A-Car, Inc. (hereinafter called Agency), under a financial responsibility bond filed with the Secretary of State. (Ill. Rev. Stat. 1975, ch. 9Sí, par. 9 — 101 et seq.) The plaintiffs and defendant Agency filed motions for judgment on the pleadings, and the court granted each motion in part and denied each motion in part and entered judgment finding that Agency was primarily liable for the first $50,000 of any judgment rendered against State Farm’s insureds because of an accident while driving an Agency rental vehicle. Agency has appealed that finding.

Prior to January 15, 1976, State Farm issued an automobile liability insurance policy to Janet Dotson, -which policy covered Janet’s daughter, Noble Dotson, as an additional insured. This policy was in force on January 15, 1976, when Noble Dotson was involved in an automobile accident, colliding with a parked fire truck owned by the City of Chicago. Noble was driving, with permission, an automobile leased by Janet Dotson from Agency, while her own car was withdrawn from normal use for repairs. Diane Brisco was a passenger in the leased vehicle at the time of the accident and has filed suit against Noble Dotson for injuries allegedly sustained as a result of the accident. The leased automobile was under the terms of the policy a temporary substitute automobile and was covered to the same extent as Janet’s own automobile. Agency, a corporation engaged in the business of leasing cars, was at the time of the accident in compliance with the provisions of section 9 — 101 et seq. of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95%, par. 9 — 101 etseq.), and had on file with the Secretary of State a motor vehicle liability bond as proof of financial responsibility pursuant to section 9 — 103 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95%, par. 9 — 103). Both the plaintiffs and defendant Agency moved for judgment on the pleadings, and the trial court found that: (1) Agency’s financial responsibility bond is not an insurance policy and is not “other collectible insurance” within the meaning of State Farm’s “other insurance” clause; (2) the obligations of State Farm to Noble and Janet Dotson under its policy are not affected by the “other insurance” clause of its policy, and State Farm has a continuing duty, pursuant to the provisions of its policy, to provide insurance coverage and a defense to Noble and Janet Dotson in the lawsuit filed against them by Diane Brisco; (3) in the event that a judgment is entered against Noble Dotson and/or Janet Dotson in favor of Diane Brisco, Agency shall be liable for and shall pay the first $50,000 of said judgment, and State Farm shall be liable for the excess over and above $50,000 up to the applicable limit of its policy; and, (4) Agency has no duty to defend or pay for the defense of Noble and Janet Dotson in the aforementioned lawsuit. The only issue before this court is whether the court erred in finding Agency liable for the first $50,000 of any judgment rendered against the Dotsons in the aforementioned lawsuit.

Agency urges that State Farm’s contract of insurance with the insureds herein offers no basis for holding Agency primarily liable to pay any judgment entered against Noble Dotson. According to the terms of the policy, State Farm’s coverage is primary because the “other insurance” provision of the policy does not apply (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 362 N.E.2d 1355). Janet and Noble Dotson’s coverage provides that unless excused by the language of its “other insurance” clause, State Farm has the obligation both to defend lawsuits filed against Noble Dotson arising out of her operation of the temporary substitute automobile and to pay all. sums which she becomes legally obligated to pay either as bodily injury or property damages, subject to its scheduled limits of coverage. Furthermore, the contractual obligation of State Farm pursuant to its policy obligates State Farm not only to its insureds, but also to judgment creditors of its insureds as third-party beneficiaries of the contract of insurance. (Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill. 2d 318, 121 N.E.2d 509; M.F.A. Mutual Insurance Co. v. Cheek (1975), 34 Ill. App. 3d 209, 340 N.E.2d 331.) On the other hand, Agency’s obligation under the bond is to:

“[P]ay any judgment within 30 days after it becomes final, recovered against 808 any person operating the motor vehicle with the customer’s express 8 8 8 consent 8 8 8 for an injury to 8 8 8 any person 8 8 8 resulting from the operation of the motor vehicle.” (Ill. Rev. Stat. 1975, ch. 95M, par. 9 — 103.)

Agency argues that since the purpose of the financial responsibility requirement of the Illinois Motor Vehicle Code is “the protection of the public and not some other insurance company” (Continental Casualty Co. v. Travelers Insurance Co. (1967), 84 Ill. App. 2d 200, 206, 228 N.E.2d 141, 144), it is reasonable that the obligation of Agency should only be activated when the injured party has no other source of recovery. In reliance on Continental Casualty Agency urges that because the injured party in the instant case has available to it the benefits of the State Farm policy covering the driver, which are enforceable immediately upon the entry of a judgment, the reasonable expectation would be that State Farm would pay first, and to protect the public against the possibility that Dotson had no insurance or had insufficient insurance, Agency would have to pay up to the statutory minimum, if no other source were available.

State Farm claims that its contractual obligation to its insureds is subordinate to the primary and unqualified obligation imposed by statute on Agency to pay any judgment up to the first $50,000 awarded against the operator of a car leased by it. State Farm urges that this obligation follows from the plain meaning of the statute. (Sickler v. National Dairy Products Corp. (1977), 67 Ill. 2d 229, 367 N.E.2d 674; Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.) State Farm further urges this court, in support of its position, to read into the language of the statute the comments of State Representative Frank P. North, made just before the vote was taken which increased the statutory minimum from $25,000 to $50,000, to the effect that the old limit was too low and not adequate protection for the person who is leasing the car. (Proposed Amendment to the Illinois Vehicle Code: Debates on HR 3781 Before the General Assembly, 77th General Assembly (1971-1973) (statement of Frank P. North).) State Farm claims that its position is also strengthened by the insurance law rule that normally where there are two policies which both purport to be excess with respect to an indemnity duty, the indemnity coverage afforded the vehicle is primary, and the indemnity coverage afforded the driver is excess. Bertini v. State Farm Mutual Automobile Insurance Co.; Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill. App. 2d 172, 221 N.E.2d 795.

The law in Illinois is that insurance companies are liable according to the terms of their contracts (Continental Casualty Co. v. Travelers Insurance Co.; Jensen v. New Amsterdam Insurance Co. (1965), 65 Ill. App. 2d 407, 213 N.E.2d 141), and that an insurance policy should be construed like any other contractual agreement. In this connection the trial court has found that a financial responsibility bond is not “other insurance,” according to the terms of the policy of insurance of State Farm, and we reject the argument that the increase in the statutory minimum expresses a legislative intent to impose primary liability on the lessor. We do not view the insurance law rule cited by State Farm as the basis of the findings of the trial court and as being decisive of the issue raised in this appeal. We do find that both Bertini and Continental Casualty lend support to Agency’s contention that nothing in the statutory obligation of Agency to its lessee, or under the terms of its contract, requires that a judgment must be first satisfied up to the $50,000 limit by Agency. Any such obligation imposed by statute on the owner of a leased vehicle should be clear, unambiguous, and free from doubt.

We agree with State Farm that the language of a statute must be given its plain and ordinary meaning (People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627; Sickler v. National Dairy Products Corp.; Franzese v. Trinko), and the statute in question provides as follows:

“A motor vehicle liability bond, conditioned that the owner of the motor vehicle will pay any judgment within 30 days after it becomes final, recovered against the customer or against any person operating the motor vehicle with the customer’s express or implied consent for damage to property other than to the rented motor vehicle or for an injury to, or for the death of any person including an occupant of the rented motor vehicle, resulting from the operation of the motor vehicle, provided, however, every such bond is in the penal sum of $50,000.
The bond shall be executed by a solvent and responsible surety company authorized to do business in the State of Illinois, or by one or more personal sureties to be approved by the Secretary of State.
The personal sureties shall own real estate in the State of Illinois of the aggregate value of $50,000, over and above all encumbrances, and each of the personal sureties shall make an affidavit concerning the property which he schedules for the purpose of qualifying as surety, stating the location, legal description, market value, and the amount and nature of any encumbrances.” (Ill. Rev. Stat. 1975, ch. 95%, par. 9 — 103.)

We have examined the section in question, and we do not find a basis in the statute for the assertion that the statute requires mandatory primary coverage under the facts of this case. We do not find any clear-cut legislative requirement that the legislature, by enacting section 9 — 103, intended to subordinate the remedies available to an insured under existing policies, to those remedies provided by said statute. It is not for this court to reach such a conclusion unless the intention of the legislature is clearly expressed. The Illinois Supreme Court has repeatedly stated that “[t]here is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, 167 N.E.2d 169, 173. See People v. Haron; Sickler v. National Dairy Products Corp.), and we find no authority under the statute to support the contentions of State Farm. We therefore find that the trial court erred in holding that Agency shall pay the first $50,000 of any judgment rendered against the Dotsons. The judgment of the trial court is reversed, and said cause is remanded for further proceedings.

Reversed and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


author: Mr. JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ANDREWS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 80-226, 80-229 cons.
    Opinion filed November 12, 1981.

      Ralph Ruebner and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Adam N. Stillo, Jr., of counsel), for the People.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendants James Andrews and Leonard Alexander were found guilty of robbery, and sentenced to terms of years and 5‘á years respectively in the Illinois Department of Corrections. At trial, Ida Meyers, the victim, testified that she worked on the counter at Harold’s Chicken Shack and that on August 11, 1978, shortly after midnight, three men entered the establishment. One, whom she described as light-skinned, came to the counter and ordered a half a chicken. Another, described by her as dark and short stood near the rear door that led to the work area. The third she described as dark and tall. She said that it took about 10 minutes to cook the chicken. When she finished the order, the light-skinned man ordered two bottles of soda pop. Meyers testified that she went to the work area to get the soda pop, and as she was doing so the two dark men rammed the door, knocking it down and jamming her into the pop machine. The short, dark man grabbed her around the neck while the tall, dark man took about $370 from the cash register. A week later, Meyers again saw the two dark men in the vicinity of the Chicken Shack and called the police. She pointed out the defendants, and they were arrested. In court she identified defendant Andrews as the man who grabbed and held her, and defendant Alexander as the man who rifled the cash register. This identification was corroborated by Henry Kyles who testified that it was he, not his brother Sylvester, who entered the Chicken Shack while the robbery was in progress. In sum, both witnesses testified that the robbery was committed by two dark men. The police report of the incident contained a different description stating that one of the robbers was light in complexion with a beard and a mustache. The report listed Ida Meyers as the victim and Sylvester Kyles as a witness. Defense counsel sought to use this information to impeach both Meyers and Kyles and called to the stand the police officers who made the investigation and prepared the report. The police officers as witnesses suffered a loss of memory and could not recall who gave them the description contained in the report of the light-skinned offender: Meyers or Kyles, or indeed some third person. In their frustration, defense counsel sought to refresh the recollection of the officers but to no avail. They then sought leave of court to cross-examine the police officers on the basis of surprise. This was denied. Likewise they asked that the police report itself be admitted into evidence as past recollection recorded to impeach Meyers or Kyles. This was also denied. It appears from the voir dire examination of Officer Havelka that the police report states Ida Meyers gave the reporting officers the descriptions of the two offenders:

“MR. REARDON [defense counsel]: Does the report in fact say in the section entitled narrative, ‘Reporting officers,’ abbreviated R.O.’s, ‘informed by the manager of Harold’s Chicken, Ida Meyers, that the two offenders entered the store and ordered chicken. While Mrs. Meyers turned her back to get a bottle of pop for one of the offenders, the offender one checked down the store’s door leading to the kitchen where Mrs. Meyers was working. Both offenders entered the area and while the number two offender held Mrs. Meyers around the neck, the number one offender removed cash from the cash register. Both offenders then fled northbound on State.’
‘Also witnessed by Sylvester Kyles.’ Now, are those words contained in the police report that you and your partner have both signed and you have reviewed and found to be accurate?
A. Yes.
Q. You reviewed this report at the time of the incident when you signed it, did you not?
A. Yes.
Q. And at that time you found the report to be accurate and to describe your experience as you have narrated it here?
A. Yes.
Q. And further the report contains under the offender’s name column a description of offender number one and that offender number one, the same offender who is referred to in the report as being spoken about by the manager of Harold’s Chicken Shack, Ida Meyers, that offender number one is in fact described as male Negro, age 22 to 24, height six foot one, weight 175 pounds; eyes brown; hair, black; complexion, light, beard and mustache, and wearing blue sweater, white horizontal stripes, blue jeans?
A. Yes.”

The trial court refused to admit the report into evidence, because “the .report itself comes from sources quite possibly other than the witnesses that are sought to be impeached.” Defendants-appellants maintain that this ruling was erroneous and we agree. The most effective and most frequently used attack upon the credibility of witnesses is proof of a prior inconsistent statement. The question here is, was the police report competent evidence of such prior statements. Illinois courts do not admit police reports into evidence as substantive evidence of the facts related herein. Such reports, however, may be used for the limited purpose of impeachment. (People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.). Here the report was offered not as substantive evidence, but to impeach by showing what was said to the investigating officers. The rule permitting the introduction of past recollection recorded has four requirements which must be met: “(1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.” (People v. Skidmore (1978), 56 Ill. App. 3d 862, 865, 372 N.E.2d 723, cert. denied (1978), 439 U.S. 912, 58 L. Ed. 2d 258, 99 S. Ct. 282; People v. Munoz (1975), 31 Ill. App. 3d 689, 693, 335 N.E.2d 35; McCormick, Evidence §299, at 712 (2d ed. 1972).) This record has evidence supporting each of these requirements. Both officers at the time of making the report had firsthand knowledge of what the witnesses had told them. The report was made shortly after the interviews while they still had a clear memory of what was said, but at the time of trial they did not. Lastly, both testified that the report was accurate when written. The report was admissible as past recollection recorded.

The trial court ruled, however, that since the police officers could not say definitely that the information in the report came from Kyles or from Meyers, it could not be used to impeach either of them. The State in support of this ruling cites People v. Colon (1974), 20 Ill. App. 3d 858, 314 N.E.2d 664. In that case, the defendant sought to introduce a police report to impeach Nathaniel Burr, a prosecution witness. The report contained an amalgam of statements by two or more persons, and it named Daniel Burr and Jimmy Harris as the witnesses who supplied its contents. The police officer who had taken the report could not state the portions of the report for which Harris was responsible. The appellate court held that even assuming that Nathaniel Burr was the Daniel Burr named in the police report, the police report was incompetent for impeachment purposes because it was impossible to isolate which statements in the report were attributable to the witness. The court specifically distinguished the situation where a police report contains statements by more than one witness, and it clearly attributes each statement to its source. Here the report itself identified Ida Meyers as a source of the descriptions. The report with its description of one offender having a light complexion should have been admitted to impeach Meyers’ testimony that both offenders had dark complexions. Identification was the critical issue of the case. The wrongful exclusion of the impeachment evidence requires that the convictions be reversed and the case be remanded for a new trial.

Two other points were raised by defendants-appellants: that the trial court should have allowed cross-examination of a witness because of surprise, and that the trial court abused its discretion in refusing to consider a juror’s post-trial statement and denying a motion for a new trial. In view of the ruling above, we do not decide these issues.

Reversed and remanded.

RIZZI, P. J., and McGILLICUDDY, J., concur.


text:
    GREGORY FREDE, Plaintiff-Appellant, v. DAVID DOWNS, Defendant-Appellee.—(VAL McDANIELS, Defendant.)
    First District (4th Division)
    No. 80-2441
    Opinion filed November 12, 1981.
    — Rehearing denied December 21, 1981.

      Leon C. Wexler and Harold Liebenson, both of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Norman J. Barry, Jr., and Evan B. Karnes, II, of counsel), for appellee.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Gregory Frede, was injured in a boating accident. A juror wrongfully secreted his own book on boating into the jury room. The book had not been referred to during the trial. To a certain extent the book was referred to by the jurors during their deliberations. The jury rendered a verdict for Frede and against Val McDaniels for $250,000. McDaniels has not appealed from the judgment entered on the verdict. The jury also rendered a verdict in favor of David Downs, a codefendant, and against Frede. After the verdict the jury’s improper conduct was discovered. The jurors were summoned and questioned in camera by the court. An appropriate post-trial motion was made to set aside the verdict as to Downs and also to enter judgment against Downs. The court denied Frede’s motion and he brought this appeal.

Before stating the facts in more detail, a discussion of the law as it relates to this general subject is appropriate. A jury verdict may not be impeached by a juror’s testimony or an affidavit in an attempt to prove the motive, method or process by which the jury reached its verdict. However, a jury verdict may be impeached by a juror’s testimony or affidavit offered to prove “conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors’ deliberations or mental processes.” People v. Holmes (1978), 69 Ill. 2d 507, 512, 372 N.E.2d 656, 658, reversing 41 Ill. App. 3d 956, 354 N.E.2d 611; see Annot., 32 A.L.R.3d 1356 (1970); 28 U.S.C. App. Fed. R. Evid. 606(b) (Supp. 1975).

Holmes is instructive not only in its statement of the law but also in its application of the governing law. Both the supreme court and appellate court opinions will be referred to for the facts. The testimony at the Holmes trial showed that at the time of an attempted robbery the ground was covered with snow and the complainant pointed out to the police the heel print which the assailant had left in the snow. The defendant was apprehended near the scene and, for purposes of comparison, one of the arresting officers made him make a heel print in the snow next to the heel print left by the assailant. Nothing was done to preserve the prints in the snow. The complainant testified at trial that the heel consisted “of a disk emblem with a line extending through it.” One of the officers stated that the heel prints matched and that they had the “same crack-like indentation.” The other officer testified that they matched and there was a “crack extending from the brand name logo toward the corner of the heel.” He also testified that the brand name on each heel print was Florsheim.

The defendant denied that he owned or wore Florsheim shoes at that time. He stated that he wore a pair of Italian shoes with the brand name of “Siegard.” The defendant attempted to offer into evidence the shoes he claimed to have worn at the time he was arrested, but the trial court denied the admission. In the motion for a new trial it was shown that during the course of the trial several jurors went to a Florsheim shoe store, picked up some of the shoes, and looked at the heels. The court accepted a standard that there must be a probability of prejudice. The court found that the investigation by the jury resulted in an error so prejudicial that the judgment had to be reversed and remanded. The court stated that it did not intend to hold that in every instance in which extraneous or unauthorized information reaches the jury the error will be so prejudicial as to require reversal. However, the court reasoned that the information in Holmes was in “the nature of evidence crucial to the question of the defendant’s identification with which he had neither been confronted at trial nor had the opportunity to refute.” Holmes, 69 Ill. 2d 507, 519, 372 N.E.2d 656, 662.

With Holmes in mind the instant case should be considered. Frede was a passenger in a power boat which was owned by the Frede family but operated by the codefendant, Downs. It was late in the evening on July 3, 1971. The Frede boat was proceeding north toward Diversey Harbor. It was equipped with a red and green teardrop light on the bow and a white light elevated on a staff on the stern. It was a clear, dark night. As Downs operated the boat he maintained a lookout in the direction in which he was proceeding while a third person in the boat illuminated the water ahead with a hand held spotlight. At the time, they were looking for . an unlighted rubber raft which they had spotted in the area earlier. A power boat owned and operated by McDaniels proceeded at a high rate of speed in an east by northeasterly direction. McDaniels’ boat struck the Frede boat from an oblique angle at the port stern, cutting the Frede boat in half. The occupants of the Frede boat did not see the McDaniels’ boat until a fraction of a second before the collision.

After the verdict the trial court was informed that a juror had taken a book entitled Piloting, Seamanship and Small Boat Handling, by Charles Chapman, into the jury room during the deliberations. The trial court recalled the jury for an in camera hearing. In accordance with Holmes, the court limited its inquiry to the use of the book rather than its effect, if any, upon the decisionmaking process. Some jurors stated that they glanced at the book or looked at the pictures. One juror stated that the entire jury read the book. Specific portions of the book mentioned by some of the jurors involved the section on the right of way and the responsibilities of the skipper of the boat and also rules of the road for boats.

As to the defendant Downs, the jury had been instructed that Frede’s sole claim was that Downs was negligent in failing to keep a proper lookout. The jury was also instructed that every person operating a motor craft must exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision. Several statutes were also cited, one of which stated that when boats were approaching each other obliquely or at right angles the boat approaching on the right side has the right of way. Another instruction stated that one boat may overtake another on either side but must grant the right of way to the overtaken boat.

We believe that the circumstances of the case at bar require a reversal of the judgment and a remandment because there was a requisite showing of probability of prejudice. As in Holmes, the extraneous information that was improperly brought to the jury’s attention was in the nature of evidence appearing on a crucial question, that is the alleged negligence of Downs in failing to keep a proper lookout. Frede had not been confronted with nor given an opportunity to refute what the jurors may have looked at in the book. In determining whether Downs was keeping a proper lookout the jury was instructed that Downs had the duty to exercise ordinary care to avoid a collision and also that in making that determination they should consider the statutes on the right of way. The extent to which the jury read the book is not certain. They did, however, read the rules of the road for boats and the duties of a skipper which relate to this issue of a proper lookout. This may have improperly influenced the verdict. Heaver v. Ward (1979), 68 Ill. App. 3d 236, 241, 386 N.E.2d 134, 139.

Downs makes a number of arguments in opposition. He states that Holmes articulates not only the standard that there must be a probability of prejudice but also that the burden of proving the probability of prejudice rests on the party attacking the verdict. No citation is given for the proposition that the burden is on the party attacking the verdict. In United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 238, the court said that communications during deliberations are presumptively prejudicial. The presumption could be rebutted by evidence showing that the communication was harmless or lacked prejudice. In Heaver the court reversed and remanded the case for a new trial under circumstances somewhat similar to those in the instant case after concluding that the proponent of the verdict had not shown that it was apparent that no prejudice resulted. Heaver, 68 Ill. App. 3d 236, 242, 386 N.E.2d 134, 139.

The extent to which the probability of prejudice must be shown is illustrated in Holmes. In essence, the jury had been told by three witnesses that they looked at the prints of the assailant in the snow and compared them to prints made by the shoe the police said the defendant was wearing. Both sets of prints were the same. The three witnesses described the heel mark and one of the witnesses said that it was a Florsheim shoe. The defendant denied that he was wearing a Florsheim shoe. The only thing the jury did was go to a Florsheim shoe store. The extent to which the visit to the shoe store prejudiced the defendant is not apparent on the record. What the observation of a Florsheim shoe heel would add to the resolution of the issue of whether the heel prints were identical seems at most minimal. However, the supreme court characterized this as crucial and reversed the conviction and remanded the matter. In our judgment it is equally crucial in the case at bar that the jury was permitted to consider the book with which Frede had not been confronted and which had references to matters relating to the specific issues with which the jury was confronted.

Downs points out that Frede fails to designate any passage from the book that establishes the probability of prejudice. Heaver considered an identical argument but still granted a new trial and commented that the book related to the issues of the case and may have improperly influenced the verdict. Heaver, 68 Ill. App. 3d 236, 241, 386 N.E.2d 134, 139.

The judgment of the circuit court is reversed. The evidence presents a question of fact to be considered by the jury. Consequently the cause is remanded for a new trial.

Reversed and remanded.

ROMITI, P. J., and JOHNSON, J., concur.


text:
    LAVINE CONSTRUCTION COMPANY, Plaintiff-Appellee, v. KATHRYN JOHNSON, Defendant-Appellant.
    First District (5th Division)
    No. 80-2649
    Opinion filed November 13, 1981.
    Washington, Kennon, Hunter & Samuels, of Chicago (Ronald S. Samuels, of counsel), for appellant.
    Barnett, Ettinger, Glass, Berkson and Braverman, Ltd., of Chicago (Richard D. Joseph, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant appeals the entry of a judgment against her for $5,700 in this breach of contract action. She contends that the contract was unenforceable because plaintiff failed to obtain a required permit for electrical work from the City of Chicago (City).

The contract, which was for building and electrical work in defendant’s home, required the redecoration of the kitchen, the installation of windows, and the delivery and installation of electrical appliances with a wiring system to support the operation of the appliances. Plaintiff retained a subcontractor to do the electrical work at a cost of $221. Defendant complained to plaintiff that the appliances did not work and that the electrical system had been improperly installed.

Joseph Lavine, president of plaintiff, testified that all the work was completed, including the installation of the electrical system, but that defendant refused to sign a completion certificate for the work. He admitted that an electrical permit required for the work was not obtained.

Defendant’s answer generally denied that plaintiff had performed the contract and, at trial, she argued inter alia that plaintiff could not enforce the contract bécause it was in violation of City ordinance. It appears that at the close of plaintiff’s case and at the close of all the evidence, defendant moved for directed judgments, contending that plaintiff did not meet its burden of proving performance under the contract because of its failure to obtain the electrical permit required for the work. The trial court denied the motions and eventually entered judgment for the contract price of $5,700. This appeal followed:

Opinion

The sole issue before us is whether the contract in question was unenforceable because the necessary electrical permit was not obtained. Defendant relies on various provisions of the City’s electrical regulations (the ordinance), particularly section 27 of chapter 86 (Municipal Code of the City of Chicago, ch. 86, par. 27 (1977)), which provides in pertinent part:

“No electrical equipment shall be installed or altered except upon a permit first issued by the bureau of electrical inspection authorizing the installation, alteration, or repair of electrical equipment.
(a) Where an electrical installation has been started prior to the issuance of a permit for such work, the normal permit fee as required by this code shall be increased by the amount of fifteen dollars ($15.00).
(b) Where a registered electrical contractor is found doing electrical work without a permit on three separate occasions in one calendar year, a hearing shall be held by the Chief Electrical Inspector at which time the permit privileges of said electrical contractor may be suspended for a period of time not to exceed one year.”

In addition, section 28 of chapter 86 (Municipal Code of the City of Chicago, ch. 86, par. 28 (1977)), requiring the registration of electrical contractors, provides in relevant part:

“The bureau of electrical inspection shall issue permits for such installation and alteration of electrical equipment in all cases where application for such permit shall be made ° ” provided, however, that no permit shall be issued for installing or altering by contract, electrical equipment, unless the person applying for such permit is registered as an electrical contractor * °

From our examination of the relevant provisions of the Municipal Code, we believe that none expressly prohibits the enforceability of contracts for failure to secure a required permit. See Municipal Code of the City of Chicago, ch. 86, pars. 27-31 (1977).

Where applicable, a municipal ordinance enters into and forms a part of a contract by operation of law. (Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 391 N.E.2d 133; Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 276, 356 N.E.2d 1269.) The power to enact ordinances derives from the legislature, so that an ordinance passed within the power conferred by that body has the same force and effect within the corporate limits as a State statute. (Archibald v. Board of Education (1959), 19 Ill. App. 2d 554, 154 N.E.2d 867.) While it is clear that the ordinance in question is incorporated into the present contract, our reading of the ordinance in light of the case law compels us to conclude that the contract is enforceable.

The general rule which guides this conclusion was stated in Meissner v. Caravello (1955), 4 Ill. App. 2d 428, 431, 124 N.E.2d 615, 616, quoting 6 Williston, Contracts §1767, at 5018-19 (rev.ed. 1938):

“ ‘[UJnless a bargain necessarily contemplates an illegal act, it is not unenforceable, and if it is later performed in a way that involves some slight violation of law, not seriously injurious to the public order, the person performing may recover on his bargain. This principle may be stated more broadly: “Where a bargain does not in terms necessarily involve a violation of law, the fact that plaintiff performs it in a way not allowed by law, does not preclude recovery, if not seriously injurious to the public order.”

This rule has been invoked or implicitly applied in a variety of factual settings.

In Meissner v. Caravello, for example, defendants contended that plaintiff’s failure to obtain a building permit as required by Chicago ordinances before beginning masonry work .made the contract for the work illegal and consequently barred plaintiff from enforcing its claim for a mechanic’s lien. The ordinances prohibited work on any building for which a permit was required unless such permit was first obtained and further provided that under such circumstances work would be stopped and penalties imposed. Finding that the ordinance contained no prohibitory language precluding recovery on the contract, the court construed the ordinances not as barring recovery for the failure to obtain a permit but rather as providing penalties for violations. The court noted in addition that the failure to issue a permit was an oversight; that the public welfare which the ordinances were designed to protect was not injured and that the building commissioner appeared satisfied that the improvements were made in compliance with the law.

In Amoco Oil Co. v. Toppert (1978), 56 Ill. App. 3d 595, 361 N.E.2d 1294, plaintiff violated the Illinois Fertilizer Act of 1961 by failing to provide defendants with written statements at the time each of several loads of custom mixed fertilizer was delivered. Noting that fines could be imposed for violation of the statute but that it neither declared such contracts to be illegal nor contained language barring recovery for violations, the court held that the violations in question were not so serious an affront to public policy or seriously injurious to the public welfare as to make the contract unenforceable.

Similarly, in South Center Plumbing & Heating Supply Co. v. Charles (1968), 90 Ill. App. 2d 15, 234 N.E.2d 358, plaintiff agreed to furnish labor and materials in the removal and relocation of plumbing in defendant’s apartment but failed to obtain a permit and furnish plans, as required by the Chicago plumbing ordinance. The court noted, however, that the contract did not require plaintiff to obtain a permit and that the City of Chicago had not complained that plaintiff’s work did not comply with the ordinance. In the court’s view, the ordinance did not bar recovery, nor was there a legislative intent to declare contracts in violation thereof to be illegal. Finding no harm to the public welfare by the manner in which the contract was performed, the court held the breach to be technical and the contract to be enforceable.

In contrast to the foregoing line of cases are those appearing in a variety of contexts which stand for the proposition that a statute which declares an act to be illegal and imposes a penalty for its violation renders contracts for the performance of such act void and unenforceable. (Broverman v. City of Taylorville (1978), 64 Ill. App. 3d 522, 381 N.E.2d 373.) Thus, in Broverman, the parties contracted for the disposal of defendant’s refuse, but without obtaining a permit as required by the Illinois Environmental Protection Act and its regulations. Noting the legislative intent to protect the public welfare and to regulate individual conduct through the permit requirement and penalty provisions of the statute, the court found that the parties knew of the requirement, as such was evident from their contract; and that the contract, which was a continuation of their previous waste disposal agreement, was an attempt by the parties to circumvent the statute. Accordingly, the court held that both parties were responsible for compliance with the statute and that their contract was unenforceable. The statute in Broverman was thereby construed as declaring contracts in violation of its permit provisions to be illegal.

In American Buyers Club of Mt. Vernon, Illinois, Inc. v. Grayling (1977), 53 Ill. App. 3d 611, 368 N.E.2d 1057, the court found certain contracts, which purportedly enabled buyers to purchase merchandise at substantial savings, were designed to evade the Federal Consumer Credit Protection Act (the so-called “Truth in Lending Act”) and Regulation Z of the Federal Reserve Board. The court held those contractual arrangements to be prohibited by the statute in question, which thereby rendered the contracts unenforceable.

Cases involving the unenforceability of contracts in violation of licensing statutes afford additional guidance. In Lozoff v. Shore Heights, Ltd. (1977), 66 Ill. 2d 398, 362 N.E.2d 1047, a Wisconsin attorney represented Illinois residents in a proposed conveyance of land in Illinois by actively participating in the negotiations and giving legal advice. All the parties involved, except the attorney, were Illinois residents. The court held that the attorney’s activities were not covered by a former supreme court rule making it possible for an attorney not admitted to practice in Illinois to take part in court proceedings and that, therefore, he engaged in the unauthorized practice of law and was not entitled to recover attorney’s fees.

In Tovar v. Paxton Community Memorial Hospital (1975), 29 Ill. App. 3d 218, 330 N.E.2d 247, plaintiff claimed wrongful termination of his employment contract as a physician with defendant. However, both parties knew plaintiff was not licensed to practice medicine in Illinois, as required by the Medical Practice Act which also barred an unlicensed physician from maintaining an action for fees or services. The court noted that the purpose of the statute was to ensure the public of adequately trained physicians and that the statute prohibited any agreement designed to induce a breach of the licensing provisions. Although plaintiff’s action was not to recover for services rendered, the court reasoned by analogy that as the contract of employment was in violation of the statute, the agreement was unenforceable.

Finally, in Usher v. McGowan (1958), 20 Ill. App. 2d 201, 155 N.E.2d 830, plaintiff sued to enforce a promise allegedly made by defendant for services rendered in the sale of real estate. The contract there was found to be in violation of the Chicago real estate broker ordinance which imposed a fine for violations and prohibited the payment of broker’s fees to anyone except licensed real estate brokers. The court pointed out that any contract entered into by a person acting as a real estate broker without a license is contrary to statute and is void and unenforceable, and it noted that as to the ordinance in question, the penalty provision and the prohibition against payment of fees to unlicensed brokers evidenced a legislative intent to render such contracts unenforceable. Accordingly, the court denied plaintiff recovery. Also see In re Winston (1962), 36 Ill. App. 2d 423, 184 N.E.2d 725.

The ordinance upon which plaintiff relies herein requires that an electrical permit be obtained before the installation or alteration of electrical equipment. It seems clear that the purpose of such requirement is to ensure public safety against the hazards of faulty or improperly performed electrical work. (See Municipal Code of the City of Chicago, ch. 86, pars. 29-31 (1979).) The ordinance does not, however, expressly or implicitly prohibit the enforcement of contracts entered into without such a permit. The penalty provisions contained therein pertain only to the failure to obtain a permit and not to contracts for the performance of any act declared to be illegal or prohibited by statutory language. Furthermore, the registration requirement for electrical contractors does not limit the payment for services only to those who obtain a permit, and we fail to see how such a construction is warranted here.

We note also that plaintiff alleged performance of all its contractual obligations — including compliance with the ordinance — and that defendant denied this in her answer. Thus, the burden of proving such compliance was upon plaintiff. Defendant does not contend here that this burden was not met or that the trial court improperly denied her motions for directed judgment. She testified that, after installation by plaintiff, “none of the electrical set-ups were working”; that certain of the appliances covered by the contract did not work; and that an under-cabinet installed by plaintiff was defective. Defendant did not establish at trial, however, that the electrical work failed to satisfy City standards or that the purportedly inferior quality of the work impermissibly endangered the public welfare. (Cf. Archibald v. Board of Education (1959), 19 Ill. App. 2d 554, 154 N.E.2d 867.) A court of review should refrain from searching the record for unbriefed or unargued points in order to reverse the judgment of the trial court. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.

We note, parenthetically, that the cost of the electrical work was only $221 of the $5,700 contract price and that defendant fails to explain why the entire contract should be unenforceable on the basis of an asserted breach for that amount.

For the reasons stated, we hold that the contract before us was enforceable and, therefore, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: Mr. JUSTICE O’CONNOR

text:
    ROSCOE MINOR, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 80-2228
    Opinion filed November 16, 1981.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke, Jetta N. Jones, and Leon Pawlykowycz, Assistant Corporation Counsel, of counsel), for appellant.
    Ronald Kirk Goulding, of Goulding and Kamberos, of Chicago, for appellee.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Roscoe Minor filed a negligence action against defendant City of Chicago to recover damages for personal injuries allegedly sustained as a result of an incident occurring on a public sidewalk in Chicago. An amended complaint was filed on June 5, 1980. After a jury trial, a verdict in the amount of $35,000 was returned in favor of plaintiff. Defendant raises two issues on appeal: the trial court erred (1) in not allowing defendant to impeach plaintiff’s credibility with prior convictions for theft, and (2) in not allowing into evidence as a past recollection recorded a hospital record made by a physician-witness.

Plaintiff alleged that defendant negligently maintained a sidewalk section in his neighborhood. Plaintiff was the sole occurrence witness at the trial. He testified that he tripped and fell over one portion of the sidewalk which was lower than another. As a result of this fall, he testified, he sustained a knee injury which required surgery, hospitalization at Cook County Hospital and extensive therapy. Plaintiff denied on cross-examination that he ever told anyone that he fell any place other than on the uneven sidewalk.

Before trial, plaintiff presented a motion in limine which sought to prohibit any remarks or questions relative to plaintiff’s consumption of alcohol, use of narcotics or his prior convictions. Over defendant’s objections, the trial court granted the motion in limine.

Defendant called Dr. Merle Strong as one of its witnesses. Dr. Strong was an intern at Cook County Hospital at the time of plaintiff’s treatment. One of the doctor’s duties was to take the medical history of newly admitted patients in the orthopedic surgery section. He was asked to testify as to certain medical history records relating to plaintiff’s admission to the hospital.

At plaintiff’s request, an in camera voir dire examination was held to determine whether there was a proper foundation to allow Dr. Strong to testify to the following entry in the hospital record:

“This is a forty-five year old black male who stepped from a curb and fell, injuring his right knee one week ago. The patient tried to stand and fell a second time on the same knee.”

In the voir dire examination, Dr. Strong testified that he did not have any independent recollection of having talked to plaintiff. He also did not have an independent recollection of making the record. However, he did state that the handwriting of the entry was his and it contained his signature. He further testified that it was his practice to make the patient’s history record at, or soon after, the time the patient was interviewed and admitted to the hospital. He also indicated that the information written into the record would be related to him by the patient. If the patient history information came from a different source, he would make a notation to that effect. He could not say whether the information pertaining to the location of the fall was true or not.

The trial court refused to allow Dr. Strong to testify from the medical history record. However, he was allowed to testify to such matters as the condition of plaintiff and his treatment at the hospital.

Further testimony was received from two city employees regarding the condition and type of lighting along the street where the accident occurred.

Defendant initially contends it should have been allowed to impeach plaintiff’s credibility with the prior convictions for theft. This is particularly so, it is argued, where plaintiff was the only witness testifying to the accident and the circumstances surrounding it. In support, defendant primarily relies on People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805, and People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.

The general rule regarding impeachment of witnesses with evidence of their prior criminal conduct is set forth in Montgomery. There, the supreme court adopted proposed Rule 609 of the Federal Rules of Evidence and held that a prior conviction may be used to impeach a witness if the crime (1) was punishable by death or imprisonment in excess of one year, or (2) involved a dishonest or false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. (47 Ill. 2d 510, 516.) Also, the conviction or the release from confinement must have been within the last 10 years.

This rule was specifically adopted for civil cases in Knowles, which involved a question of whether a misdemeanor conviction was admissible for impeachment purposes. The supreme court held that it was, stating: “[a]ny prior conviction, so long as it comports with paragraph (a) [of proposed Rule 609] as well as with the other provisions set out in Montgomery [citation] may be introduced.” 66 Ill. 2d 585, 588.

The Spates decision held that theft is a crime involving dishonesty or false statement within proposed Rule 609(a)(2) (77 Ill. 2d 193, 202-03). The court reiterated, however, that it was still the province of the court, after weighing all the factors, to refuse to admit evidence of a conviction.

Defendant presented to the trial court a certified copy of the conviction of plaintiff for theft on May 8, 1979. Defendant also informed the trial court that in a discovery deposition plaintiff revealed he was sentenced to one year in jail for theft in 1973.

We feel that evidence of these crimes should have been allowed during the trial. The convictions meet the test enunciated in Montgomery. Both convictions occurred within the 10-year limit and involved a crime of dishonesty. (People v. Spates; Pratt v. Bartoli (1977), 55 Ill. App. 3d 884, 371 N.E.2d 359.) In this case, plaintiff was the sole occurrence witness. Thus plaintiff’s testimony and credibility was of the utmost importance in the jury’s determination. We do not believe the trial court properly determined the probative value of this evidence.

The crucial question in this case, however, concerns the refusal of the trial court to admit in evidence the entry in Dr. Strong’s medical history record. We find that a proper foundation was laid for its admission. The primary requisites to the admission of a document into evidence under the doctrine of past recollection recorded are that the witness has no independent recollection of the facts and that, after reviewing the document, he is unable to refresh that recollection. (Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 248 N.E.2d 679; Umberger v. Hospital Service Corp. (1972), 4 Ill. App. 3d 123, 280 N.E.2d 264.) Defendant established in the voir dire examination that Dr. Strong had no present recollection of seeing or talking to plaintiff, that the record did not refresh his recollection, but that the information written on the medical history would be correct entries at the time he made them. Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.

Wolfe v. City of Chicago (1966), 78 Ill. App. 2d 337, 223 N.E.2d 231, involved facts very similar to this case, including the alleged cause of injury, a defective sidewalk. There, the plaintiff contended she injured her ankle in a hole in the pavement. The appellate court ruled the trial court was correct in allowing an emergency room nurse to read a report she made at the time plaintiff was admitted for treatment. (78 Ill. App. 2d 337, 342.) Using the report, the nurse testified the plaintiff had stated she fell on the ice when she injured her ankle.

In Umberger, an issue existed as to the place where the plaintiff slipped and fell. The appellate court found a proper foundation had been laid for a hospital nurse to read from a report a statement regarding where the plaintiff said he had fallen. 4 Ill. App. 3d 123, 126.

While it is true, as plaintiff points out, that the doctor could not swear to the truth of the statement regarding the location of the fall, the record shows the doctor did testify that the information recorded was what was related to him at the time and was recorded by him in his handwriting. Plaintiff’s argument goes to the credibility of the statement, not to the admissibility of the report. See Healy v. City of Chicago.

For the reasons stated herein, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

CAMPBELL, P. J., and McGLOON, J., concur.