text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ivan Light, Defendant-Appellant.
    Gen. No. M-10,670.
    Fourth District.
    February 21, 1966.
    Rehearing denied March 19, 1966.

      Ivan Light, of Shirley, pro se.
    Hugh H. Henry, of Bloomington, for appellee.
   TRAPP, P. J.

Defendant appeals from a judgment of guilty, following a jury trial, upon an information charging the operation of a motor vehicle of the second division without having a certificate of safety required by Ill Rev Stats 1963, chap 95%, § 220, and from the judgment imposing a fine of $15 and costs for the violation.

The defendant contends that a verdict should have been directed in his favor and his motion in arrest of judgment should have been allowed, for the reason that a certificate of safety was required only for motor vehicles of the second division and it was not established that his pickup truck was a motor vehicle of the second division as defined by the statute.

On June 6, 1964, the defendant, whose occupations include that of farm owner and operator, drove his 1961 International pickup truck from the Shirley bridge across U. S. Highway 66. There were one or two passengers in the truck and a few items such as peat moss bags and pipes in the truck bed. The vehicle did not bear a current certificate of safety generally required of vehicles of the second division as defined in “An Act in relation to the regulation of traffic,” (Ill Rev Stats 1963, c 95%, § 98-239). There was no other evidence of the use of the vehicle in question than the evidence of use on the occasion of the arrest on June 6, 1964.

Defendant’s arguments regarding the violation of the statute may be condensed to the proposition that it was not established that his vehicle was a vehicle of the second division within the meaning of §§ 2,123 and 123.10 of “An Act in relation to the regulation of traffic”, (Ill Rev Stats 1963, c 95%, §§ 99,220 and 220.10).

The “Act in relation to the regulation of traffic” classifies motor vehicles in § 2 (Ill Rev Stats 1963, c 95%, § 99), as follows:

“2. (a) Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.
“(b) Motor Vehicle. Every vehicle which is self propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.
“For the purpose of this Act, motor vehicles as a class shall be divided into two divisions, viz.:
“First: Those vehicles which are designed and used for the carrying of not more than seven persons.
“Second: Those vehicles which are designed and used for pulling or carrying freight and also those vehicles or motor cars which are designed and used for the carrying of more than seven persons.”

Section 123 of the Act (Ill Rev Stats 1963, c 95%, § 220) requires all vehicles of the second division, except those inspected under the supervision of the Illinois Commerce Commission, those owned by certain municipal corporations, trailers less than 3,000 pounds, and certain farm vehicles, to have a certificate of safety.

There is no contention that defendant’s vehicle falls within the description of a vehicle designed and used for carrying of more than seven persons.

The question, therefore, resolves itself into the inquiry whether defendant’s 1961 International pickup truck falls within the statutory description of “vehicles which are designed and used for pulling or carrying freight.”

Defendant contends that the word “and” between “designed” and “used” is conjunctive and that, therefore, some meaning must be given to both the words “designed” and “used.” Since we agree with this contention, no elaborate discussion of this point is required.

Defendant further contends that “freight” has a technical meaning which relates exclusively to property carried for hire. With this we cannot agree. While it may be true that the term “freight” is commonly associated with transportation for hire, the term is also used to describe the cargo itself as distinguished from the financial arrangements regarding its transportation. We note that the Shorter Oxford English Dictionary, 1934, defines “freight” as having the usage in the United States as “anything carried by sea or land,” and that Webster’s New World Dictionary of American Language, 1960, in defining “freight,” includes “goods transported” and “any load or burden.” We take it to be used in a general sense and to be the equivalent of goods, merchandise, property, commodities and the like. In certain fields of enterprise, freight is distinguished from express, and land shipment (freight) from water shipment (cargo). There is no reason, however, to believe that the Legislature had these distinctions in mind.

It occurs to us that we should be guided rather by the purpose of the Act in seeking the intention of the Legislature than the possible technical meaning of certain phrases. This Act does define certain terms but it does not define freight in the text of this Act. It has been frequently stated by the Supreme Court that where the statute does not define the term, the term should be used in a popularly understood meaning rather than in a technical sense. Bowman v. Armour and Co., 17 Ill2d 43 on 52, 160 NE2d 753, Farrand Coal Co. v. Halpin, 10 Ill2d 507 on 510, 140 NE2d 698. See also, Ill Rev Stats, 1963, chap 131, sec 1.01, regarding the construction of statutes as follows:

“All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.”

Constructions of statutes leading to absurd consequences are to be avoided. People ex rel. Bodecker v. Community Unit School Dist. No. 316, 409 Ill 526 on 531, 100 NE2d 573. This principle has been repeated by the Supreme Court many times. (Smith-Hurd Ill Ann Stats c 131, § 1.01, Note 5).

Statutes must be construed in their entirety and in the light of their objectives. People v. Ikerd, 26 Ill2d 573 on 578, 188 NE2d 12.

If we are to be guided then by the purpose of the Legislature in analyzing the statute, we should consider the entire “Act in relation to the regulation of traffic,” and the objective to be accomplished. The outstanding motive is obviously traffic safety. For this purpose, motor vehicles are classified in two divisions. There are not three, four or seven divisions, but only two. In general aspect, passenger cars, exclusive of busses, are in the first division, whereas trucks and busses are in the second division.

If we were to ignore the general framework of the Act, the specific definition of first division vehicles would include trucks because trucks are generally designed and used to carry no more than seven persons, and the first division gives no other characteristics of the vehicles in that subdivision.

In the format of the statute we should construe the first division and the second division as mutually exclusive. It would, therefore, appear out of order to have a particular vehicle appear in both divisions.

Additionally, since all motor vehicles are designed to carry “persons,” common sense would dictate that the word “primarily” be inserted at an appropriate point to distinguish trucks from passenger cars. Therefore, we would not place trucks in the first division merely because they are designed and used to carry persons. Thus, the first division would include those motor vehicles designed “primarily” to carry persons and not more than seven. This same construction would eliminate trucks, which are primarily designed to carry property, from the first division vehicles.

Now the purpose of the requirement of a safety certificate on the vehicles of the second division is safety of the public. Large passenger cars, or busses, carrying more than seven persons are obviously in the second division. They are exempted from Section 123 (c 95%, § 220) only because they are separately inspected by the Illinois Commerce Commission. The tests suggested in the fourth paragraph of § 123 appear to be directed to some extent to features applicable only to larger vehicles or trucks.

If we are to accept the defendant’s contention that only trucks carrying freight for hire are in the second division and all other trucks, irrespective of size, are in the first division, we ■ come to an absurdity. Company owned vehicles of the largest size, including the largest tractors and trailers are a common fact of our society. The defendant’s interpretation would exempt these large vehicles from safety inspection merely because they did not carry freight in the limited sense of carrying commodities for hire.

Since we cannot accept the idea that the Legislature intended to put large company owned trucks in the first division along with passenger cars, and at the same time, place small pickup trucks used by express companies in the second division, we are forced to the' conclusion that all trucks, that is to say, all motor vehicles designed primarily for carrying property, are vehicles of the second division.

Defendant objects that to give effect to the word “and” in the phrase “designed and used,” there must be some proof that the offending vehicle was actually used in transporting property for hire. We have eliminated the question of “for hire.” We are now asked to say that no truck, no matter what its size, can be in violation unless proof is made that at some time it is “used” for carrying property. Certainly defendant does not mean that the Legislature intended that a vehicle otherwise within § 123 (Ill Rev Stats c 951/4>, § 220) would be exempt from the statute when driven empty. Neither would it appear to have been the legislative intent to require proof of carrying property at some time in the vehicle by the operator or by the owner.

We believe the most sensible construction of the word “used” means, for the purpose of the “Act in relation to the regulation of traffic on highways,” the use referred to in § 123.10 (Ill Rev Stats c 951/2, § 220.10), that is to say, operation upon the highways. Many persons or firms own vehicles but do not license or use them in,a particular year. These unused vehicles would not be included.

By the same reasoning, a 20-passenger bus, which is used on the highway, is a vehicle of the second division, even though less than seven passengers are riding in it.

The interpretation which we give these divisions then is this: a vehicle of the first division is one designed primarily for carrying persons, not more than seven, and is used; a vehicle of the second division is either a vehicle designed primarily for carrying property, which vehicle is used, or a vehicle designed primarily for carrying more than seven persons, which vehicle is used.

< We cannot agree that use means “customary use by the defendant.” Defendant’s authorities, Scott v. Free-port Cas. Co., 392 Ill 332, 64 NE2d 542, and Maringer v. Bankers Indemnity Ins. Co., 288 Ill App 335, each relate to the construction of insurance policies and whether or not the benefits of the policy were forfeited because of a casual use of a vehicle. The doctrine of customary use under such type of contract is not controlling of the term “used” in defining vehicles of the second division, and we think that one use upon the highway without the appropriate certificate would be a violation of the statute designed to promote safety.

We cannot accept the defendant’s argument that the International pickup truck is exempted as a farm vehicle for the reason that there is nothing which adapts it uniquely or primarily to agricultural pursuits.

Defendant argues that the Legislature intended to distinguish vehicles of the second division from a “truck” defined in chap 95%, §1-185 (Ill Rev Stats 1957), as:

“. . . . Every motor vehicle designed, used or maintained primarily for the transportation of property. . . .”,

and that if the Legislature meant to include trucks as such in the class requiring safety stickers, it could or should have so specified. As a matter of historical development, the statute defining vehicles of the first and second divisions was adopted in 1935, (Ill Rev Stats 1935, c 95%, § 99). In 1939, the Legislature first adopted a statute prescribing inspections as a safety measure directed to the owner of a truck subject to regulation under the provisions of:

“An Act in relation to the regulation of the operation of trucks designed or used for the transportation of property.”

The latter Act, defined and applied to all forms of public and private carriers, including individuals who carried their own private property. The language prescribing safety inspections continued in such form until the Act adopted in 1957, at which time the Legislature adopted the present language extending the requirements to all vehicles of the second division. There is nothing in such legislative history which seriously suggests a legislative intent to reduce the number, or restrict the nature; of vehicles coming within the prescription of the safety-provisions.

We have examined the propositions of counsel and the authorities regarding interpretation of the particular words, but we are persuaded that the Legislature intended a dichotomous division of motor vehicles for the purpose of this Act and intended such division to be practical.

As an additional error, defendant contends that the trial court should have required the People to state whether the truck was a motor vehicle of the second division because it was designed and used for carrying more than seven persons, or because it was designed and used for carrying freight.

Under our view of the interpretation of the statute, the indictment charging the driving of a 1961 International pickup truck definitely placed the charge as one of driving a vehicle designed and used to carry freight without having the proper certificate.

Our view of the statute also disposes of the errors charged regarding the instructions.

Complaint is made of the failure of the trial court to impose the sentence of a fine for a period of 49 days after the judgment of guilty. The rule previously obtaining, and incorporated in the new Code of Criminal Procedure (Ill Rev Stats 1968, c 38, § 118-1 (c)), is that upon a verdict of guilty, sentence shall be pronounced within a reasonable time. Here, the judgment of guilty was entered October 30, 1964. Defendant filed a motion in arrest of judgment November 20, 1964. Sentence was pronounced December 18, 1964. No hearing was had upon the motion in arrest of judgment until March 17, 1965. It, therefore, appears that the motion was pending when sentence was pronounced. We are not supplied with any other facts regarding the delay in sentence. In People v. Ragen, 392 Ill 423 on 428, 64 NE2d 872, the Supreme Court said:

“What is a reasonable time is dependent upon matters that are pending before the court and is limited to such period as may be necessary for the court to dispose of motions for a new trial, in arrest of judgment, or for other good cause.”

On the limited record here presented, we cannot say that the delay of 49 days in pronouncing sentence caused the court to lose jurisdiction. The party asserting that the time is unreasonable should furnish the court with evidence of circumstances which make the time unreasonable in the particular case. Without more, this court is unable to determine whether the time was reasonable or unreasonable.

The judgment of the Circuit Court of the Eleventh Judicial Circuit, McLean County, is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Melvin H. Shook, Plaintiff in Error.
    Gen. No. 10,570.
    Fourth District.
    February 21, 1966.
    Rehearing denied March 18, 1966.

      Robert C. Walbaum and Jerry S. Rhodes, both of Springfield, for plaintiff in error.
    Raymond L. Terrell, State’s Attorney of Sangamon County, and Richard A. Hollis, First Assistant State’s Attorney, both of Springfield, for defendant in error.
   PER CURIAM.

The defendant was convicted of the offense of burglary in a jury trial before the circuit court of Sangamon County. He was sentenced to a term of not less than two years and not more than twenty years. This writ of error is to review that conviction.

Defendant assigns as error the failure of the State to furnish a list of names and addresses of all persons present at the time of an alleged oral confession as required by par 729 of ch 38, Ill Rev Stats 1963. This statute provided that when a person charged with a felony makes an oral confession, names and addresses of the persons present at the time the confession is made shall be furnished to defendant or his counsel. In the absence of compliance the confession is not to be admitted into evidence.

The record in this case shows a written confession and there is no question but that there was compliance with the statutory provisions applicable to the furnishing of a copy thereof, together with a list of witnesses. In addition to the written confession evidence was received, without objection, as to a conversation between the defendant and a pplice officer in which the defendant admitted to the offense charged or at least stated, “I can’t figure out what made me do it . . . this other fellow talked me into it. . . .”

It is the contention of the State that the above-quoted statement is not an oral confession. This assertion is supported by a citation to People v. Arthur, 314 III 296, 145 NE 413, which defines a confession as “an acknowledgment of guilt of the crime or of facts which directly and necessarily imply it.” It is our judgment that the quoted statement is an oral confession and well within the definition set forth in Arthur. To hold otherwise would be to engage in semantics at the expense of substance.

We find no error, however, in its admission under the circumstances of this case. A more specific written confession was in evidence. Thus the oral confession was but cumulative. Further, under the authority of People v. Seno, 23 Ill2d 206, 177 NE2d 843, the failure of the defendant to call the alleged error to the attention of the trial court by appropriate objection constituted a waiver of the statutory requirement. Such error cannot be raised for the first time upon writ of error. See also People v. Sims, 32 Ill2d 591, 208 NE2d 569, and cases there cited.

A more serious question is presented as to the use of a certain record of prior conviction for impeachment. This question arises under a rather unique set of circumstances.

The defendant took the stand on his own behalf and testified on direct examination that he had a prior criminal record and that as to each such prior conviction he had pleaded guilty. He specifically denied ever pleading not guilty and being convicted. No objections were made as to the defendant’s relating the circumstances of his prior convictions as distinguished from the fact of prior convictions.

On cross-examination the defendant was questioned about a conviction in Champaign County wherein he was convicted and had not pleaded guilty. The record of that conviction was received in evidence over objection. On cross-examination and further redirect the defendant testified that he had neither pleaded guilty nor not guilty to the Champaign County burglary charge and that the conviction was obtained in absentia. The record of that conviction so indicated. Efforts by the defendant to establish further details of the conviction and its ultimate result or disposition were successfully resisted by the State.

The briefs before us established that the Champaign County conviction was determined by the Supreme Court to have been void. That conviction was collaterally attacked by a petition for a writ of habeas corpus and in that proceeding the defendant was ultimately ordered discharged by the Supreme Court. It is clear that the action of that court was a determination that the Champaign County conviction was a nullity. 25 Am Jur, Habeas Corpus, sec 13. Clifford v. Pioneer Fire-Proofing Co., 232 Ill 150, 83 NE 448; People ex rel. Hutchinson v. Murphy, 188 Ill 144, 58 NE 984. The record does not indicate that the fact of the habeas corpus proceeding was made known to the trial court nor does the record show that it was known to the prosecution. The record of the Champaign County proceedings, however, does, on its face, show certain irregularities, including the absence of an appearance by the defendant or by counsel at the time of the alleged trial.

Based on the foregoing, it is clear that the record of the Champaign County proceedings was improperly used for purposes of impeachment. Although it has been held that the record of a conviction is admissible for purposes of impeachment even though the defendant was released from custody by means of pardon (Gallagher v. People, 211 Ill 158, 71 NE 842; People v. Lacey, 24 Ill2d 607, 182 NE2d 730), it does not follow that a void conviction is admissible for purposes of impeachment.

In 24A CJS Criminal Law sec 1908(4), at 1063, it is stated to be reversible error to permit evidence of an erroneous conviction had against an accused which was reversed on appeal. (Citing People v. Van Zile, 80 Misc Rep 329, 141 NYS 168.)

In Campbell v. United States, 176 F2d 45, the court held it to be error to admit evidence of a prior conviction that was being appealed. The reasoning of the court found in that case is here applicable.

We must turn, now, to the more difficult question of determining whether the error requires a reversal. The general rule is stated to be that technical errors or irregularities which do not affect the substantial rights of the accused must be disregarded on review, particularly where guilt appears from the record to be clearly established. Whether the error in a given case shall be regarded as harmless may depend on the circumstances of the particular case, as well as the prejudicial character of the alleged error in its relation to the entire case. Here, as we view the record, the judgment of conviction is correct on the merits and no other judgment could reasonably have been returned, and it cannot be said that the erroneous admission of the Champaign County conviction materially affected the jury verdict. 24A CJS Criminal Law, sec 1887. See also People v. Squires, 27 Ill2d 518, 190 NE2d 361. In this case there is a written and an oral confession, and in our view the evidence is not close. See 15 ILP, Criminal Law, sec 921, at page 379, and cases there cited. A different result might well obtain with reference to such an error in a case where the evidence is more closely in balance and where the erroneous evidence of the prior conviction is the sole evidence of a criminal record and not just cumulative as here or where it might be said that the prosecution offered the evidence with knowledge that the conviction was void.

For the reasons stated, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Plaintiff, v. Ida M. Boening, et al., Defendants, Audrey Jo Scully, Petitioner-Appellee, and Satterfield Corporation and Harriet Friedman, Respondents-Appellants.
    Gen. No. 50,110.
    First District, Fourth Division.
    February 11, 1966.

      Allan L. Blair, of Chicago (Allan L. Blair and Bruce M. Buyer, of counsel), for respondents-appellants.
    Arthur W. Main and Arthur W. Main, Jr., of Chicago, for petitioner-appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This appeal was taken from an order in the Circuit Court of Cook County directing the issuance of a tax deed. The appeal was taken to the Supreme Court and by that court transferred here. Audrey Jo Scully, the petitioner, purchased the property in question in the regular course of a tax foreclosure suit on August 16, 1960. On August 17, 1962, the petitioner presented to the County Clerk of Cook County for his approval a decree directing issuance of a tax foreclosure deed to her. A rule of the Circuit Court at that time required that the approval of the County Clerk and the State’s Attorney be placed in writing upon the decree before the court would act upon a petition for a tax deed order. The County Clerk informed the petitioner that the Satterfield Corporation had made a redemption from the tax foreclosure sale on August 2, 1962, and that the Clerk would not approve the decree. Petitioner’s right to a tax deed, under the statute, would have matured on August 16, 1962.

On February 8, 1968, the petitioner served notice upon the Satterfield Corporation and Harriet Friedman, together with a copy of her petition. The notice stated that the petition would be presented to the court on February 14, 1963. On February 13, 1963, a second purported redemption was made with the County Clerk in the name of Harriet Friedman, “C/o The Satterfield Corporation.” On February 14, 1963, the petitioner was given leave to file her petition, and the respondents were ordered to file an answer within 30 days. This petition alleged facts showing that petitioner had received a certificate of purchase at a tax foreclosure sale on August 16, 1960; that thereafter she paid all required taxes; that the records of the County Clerk of Cook County showed that the Satterfield Corporation had on August 2, 1962, deposited redemption money in order to redeem the subject parcel from the 1960 tax sale. The petition alleged that Satterfield Corporation had no interest in the subject premises on August 2, 1962; that from 1928 to July 17, 1962, the record title holder was one Dorothy Listing, who purportedly conveyed her interest in the subject real estate by quitclaim deed to one Harriet Friedman; that this deed was recorded; and that petitioner had given all notices entitling her to a tax déed. Petitioner prayed that the purported redemption by. Satterfield Corporation be expunged from the records and that the court order the County Clerk to issue a tax deed conveying the subject premises to her.

On March 11, 1963, the respondents filed a sworn answer admitting most of the allegations of petitioner’s pleading, and expressly agreeing, to petitioner’s statement that Satterfield Corporation was not the owner of the subject realty on August 2, 1962, and had no right to redeem from the foreclosure sale. The answer expressly denied that the petitioner had given “all notices entitling her to a tax deed.” Further answering, Harriet Friedman stated and alleged that the quitclaim deed given by Dorothy Listing, a spinster, to Harriet Friedman had been acknowledged by Albert Hassell, a notary public of Cook County; that the deed and the grantor’s certificate of acknowledgment were recorded in the office of the recorder of deeds on July 17, 1962; that the redemption deposit of August 2, 1962, had been made by Satterfield as agent for Harriet Friedman; and that Harriet Friedman, having been advised that redemption could only be made by the owner of record, deposited redemption money in the office of the County Clerk and received a certificate of redemption dated February 14, 1963. The respondents, Friedman and Satterfield, joined in the prayer of the petitioner which asked that Satterfield’s defective redemption be expunged from the records of the County Clerk and that the County Clerk be ordered to refund to Satterfield the sum it had deposited on August 2, 1962. The answer prayed that the petition, insofar as it prayed for the issuance of a tax deed to the petitioner, should be dismissed.

On May 28, 1963, the court entered an order allowing the petitioner to file an amendment to her previously filed petition. No notice appears in the record to have been given to the respondents.- In that amendment the petitioner alleged,- on information and belief, that in 1962.Harriet Friedman was nonexistent; that after the service of the petition to set aside the redemption upon the Satterfield Corporation, Harriet Friedman on February 13 attempted a second redemption from the said sale, and on March 11, 1963, filed an answer to petitioner’s petition as above noted; that the Satterfield Corporation had no right to redeem under its charter; that the invalid redemption by .the Satterfield Corporation prevented petitioner from obtaining a decree ordering the County Clerk to issue her a tax deed; that since that time petitioner had been attempting to discover whether or not the deed from Listing to Friedman was a valid conveyance, and whether or not Listing had ever existed or was existing in July 1962. The amendment further alleged that Albert Hassell, the notary public on the quitclaim deed from Listing to Friedman, had refused to state whether or not Listing was a fictitious person; and that David Shapiro had stated that he gave the consideration for the quitclaim deed to Hassell in a check payable to Has-sell. It was further stated, on information and belief, that Hassell was interested in the purchase price money or in the ownership of the lot, which interest disqualified him to take and certify the acknowledgment to the deed, and that hence, the quitclaim deed was void. On information and belief the petitioner stated that Richard Haley and Minnie Haley, or their heirs, were the only persons entitled to redeem; and the petitioner prayed that the purported-redemption in the name of Harriet Friedman.be expunged, from the sale and judgment records of the County Clerk, and that he refund to Friedman the sum deposited by her.

On June 10, 1963, the respondents. substituted attorneys and asked to withdraw the answer filed by them on March 11,1963. No order was entered by the court either denying or permitting the withdrawal of the answer, nor is any point made on the question in this court. On June 14, 1968, the respondents filed a petition setting out that they had, in accordance with Rule 19 of the Supreme Court, attempted to take a discovery deposition of the petitioner, and that at the time of taking the deposition counsel for the respondents propounded to the petitioner questions which petitioner’s counsel instructed her not to answer. The respondents prayed that the court enter an order upon the petitioner to answer the propounded questions, and that the court extend the time for the respondents to plead to the amended petition of the petitioner. A copy of the questions asked on deposition was attached to the petition.

On July 17, 1963, the respondents filed interrogatories upon the petitioner; these take up eight pages of the abstract. On August 12, 1963, certain answers were filed to the interrogatories; one was as follows:

5.A. To whom have you given notice as required by Section 263 of the Revenue Act of 1939 ?
Answer: Notice was given James Keller, Edwin Weber and Lolita Weber; each personally. Notice was given Dorothy Listing, Dorothy T. Listing, unknown owners or parties interested in said real estate ; by publication in the Chicago Daily Law Bulletin on April 16, 23 and 30,1962.

In an answer (the filing of which is controverted) to the amended petition the respondents alleged that because of the failure of the petitioner to answer discovery questions the respondents could not answer certain of the allegations, and they admitted that they originally filed an answer stating that the Satterfield Corporation did not have the legal right to redeem; they here affirmatively stated “that at the time of making such redemption Satterfield Corporation was the duly authorized agent of Harriet Friedman and that such redemption was in fact made in her behalf and was [a] valid and legal redemption in all respects when made.”

The respondents further contended that the allegation with reference to Albert Hassell’s interest in the transaction was not answered because of the petitioner’s failure to answer questions propounded to her in the deposition and in interrogatories, and respondents prayed that the relief sought in both the petition and the amended petition be denied. The respondents claimed that they filed with the answer a cross-petition in which it was stated that the petitioner was acting as the nominee for one Edwin Weber, who allegedly was in fact the real party in interest, and they prayed for attorney’s fees and that summons be issued against Weber, and that he be made a party to the proceedings.

On July 18,1963, the respondents moved that the court order summons to issue against Edwin Weber. The motion was continued to September 9, 1963. On July 22, 1963, the petitioner moved to strike the cross-petition of Satterfield Corporation and Harriet Friedman. (As we have pointed out, nothing appears in the record to indicate that either the answer or the cross-petition was actually filed.) On July 31,1963, the petitioner was given leave to file objections to the interrogatories. The objections were numerous and a hearing was set for September 17, 1963. On September 9, 1963, the court entered an order striking all the interrogatories but two, and denying the motion to file a cross-petition. In that order it was said, among other things:

(1) That respondents are not entitled to pre-trial discovery or to ask interrogatories with respect to [the] petition of Audrey Meyer [nee Scully].
(2) That respondents are not entitled to file a cross petition against new parties.

Article 1, section 1 of the Civil Practice Act provides: “The provisions of this act apply to all civil proceedings, both at law and in equity.” The act then sets out certain exemptions where the proceeding is regulated by separate statutes. The instant ease does not fall within these exemptions. The act further provides that in all these proceedings “the separate statutes apply to the extent to which they regulate procedure but this act applies as to matters of procedure not so regulated by separate statute.”

Section 58 of the Civil Practice Act provides: “Discovery . . . and answers to interrogatories shall be in accordance with rules.” Supreme Court Rule 19-11 provides that any party may serve upon an adverse party written interrogatories which must be answered unless objections are filed thereto. It then becomes the duty of the court to determine whether the objection should be overruled, and upon the court’s overruling the objections the court shall fix a time within which the interrogatories must be answered. The court erred in its ruling.

On September 18, 1963, a hearing was held, and an exhibit offered by the petitioner was received in evidence. The exhibit was'a portion of the record of the tax judgment, sale,. redemption and forfeiture record for Cook County. The notations on that record’s face included the following: forfeiture to the State of Illinois; Scully’s purchase at the “forfeiture foreclosure sale”; Satterfield’s controverted deposit for redemption of August 2, 1962; and Friedman’s controverted deposit for redemption of February 13, 1963, which notation read “Harriet Friedman, C/o Satterfield Corp.” Counsel, for the respondents was called to the stand, over his objection. The answer, filed on March 11, 1963, óf the Satterfield Corporation and Harriet Friedman to the petition of Audrey Jo Scully, was admitted in evidence, over objection. Counsel then testified that there was such. a. person as Harriet Friedman, who was also' known as Harriet Friedman Shapiro, wife of David Shapiro, who was president of the Satterfield Corporation. The court then said that an order expunging the redemption of the Satterfield Corporation would be entered; based- on the record and' the sworn answer of Harriet Friedman. Respondents’ counsel told the court there was a second answer on file, and the court stated that the answer was not found in the files. Counsel replied that it was filed some time around March 21. Counsel then stated that he would testify, as an officer of the court, that the answer had been filed; that in the answer it was stated that the Satterfield Corporation had the legal right to redeem; that at the time of making the redemption the Satterfield Corporation was a duly authorized agent of Harriet Friedman, and that the redemption was in fact made in her behalf. The court had stated that it would rule against the defendants without argument. Counsel then said he would make an offer of proof and would offer in proof their second answer to the amended petition; the court said it would set aside both redemptions.

On September 18, 1963, a decree was entered expunging the redemptions of Harriet Friedman and the Satterfield Corporation, and finding that all.parties had had due notice of the filing of and hearing on the. petition, and that the petitioner was entitled to the issuance of a tax deed; and it was so ordered. The decree further provided that there was no just reason for delaying the enforcement of the decree or an appeal therefrom.

On September 27, 1963, the respondents filed a petition for rehearing; this petition again recited the undisputed facts of this controversy, and further asserted the following : The certificate on file in the County Clerk’s office erroneously failed to reflect that Satterfield Corporation, on August 2, 1962, was redeeming on behalf of Harriet Friedman, who was.the record title holder; that on March 11, -1963, the respondents filed- an answer in which they agreed with petitioner that the attempted redemption by Satterfield was not a good redemption; that on May 28, 1963, the petitioner filed an amendment to her petition of February. 14; and on June 17, 1963,..within the time permitted by the court’s order, the respondents filed, an answer to that amendment; that a copy of the answer and cross-petition was served on opposing counsel. (Documents purporting to be copies of the answer and cross-petition and a copy of the letter of transmittal were attached to the petition for rehearing.) It further alleged that on July 22, 1968, pursuant to notice, the respondents moved that the court order a summons to issue against Edwin Weber, named as a defendant in the cross-petition, and on the same day, pursuant to notice, petitioner filed a motion to strike the cross-petition. Continuing, the petition for rehearing again raised the questions of the court’s ruling on the petition filed for a rule on Audrey Jo Scully to answer all interrogatories, and recited the fact that respondents had filed interrogatories, that Scully filed a motion to strike the interrogatories, and that on September 9,1963, the court had entered an order refusing to issue summons under the cross-petition and had denied respondents the right of pretrial discovery. The petition for rehearing further stated that at the hearing on September 18, 1963, the 1946 tax judgment, sale, redemption and forfeiture record was admitted into evidence; that no other evidence was taken; that the court prevented respondents from introducing any evidence, and had they been permitted they would have shown that the record title holder of the subject property on August 2, 1962, was Harriet Friedman, and that on that date the Satterfield Corporation redeemed as her agent; that in any event, the second redemption made on February 13, 1963, was valid in all respects; that the petitioner did not comply with sections 263 and 266-a of the Revenue Act of 1939, and was not entitled to an order directing the issuance of a tax deed. The court denied this motion for rehearing, and thereupon the respondents took an appeal.

Both parties attack each other’s briefs on the ground that they are in disregard of the rules of court and are confusing. With these allegations of both parties this court is in full accord.

Under the statute then in force it was provided in section 253 of the Revenue Act of 1939 (Ill Rev Stats 1961, ch 120, ¶ 734) that “Real property sold under the provisions of this Act may be redeemed at any time before the expiration of two years from the date of sale, by payment in legal money of the United States to the county clerk of the proper county. . . . Such real property may also be redeemed after the expiration of two years from the date of sale, at any time up to the date a tax deed is issued. . . .”

Section 263 of the Revenue Act (Ill Rev Stats 1959, c 120, ¶ 744) which was controlling during the events in the present case, and which implements Article IX, § 5 of the Illinois Constitution, sets out the following requirement :

“No purchaser or assignee of such purchaser of real estate sold for non-payment of general taxes or special assessments, shall be entitled to a deed until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, notice of such purchase, not less than three months prior to the date when the time of redemption, or extended time of redemption as hereinafter provided shall expire, upon the following persons: upon occupants or persons in actual possession of such real estate; upon the person in whose name the real estate was last assessed for general taxes . . . ; and upon the owners of, or parties interested in such real estate, including trustees and mortgagees of record. ... In such notices the purchaser, or his assignee, shall state when he purchased the real estate, in whose name last taxed, the description of the real estate he has purchased; what taxes or special assessments were included in the judgment or decree for which the real estate was sold, and when the time of redemption will expire.”

There is a further provision for publication in case the parties cannot be found. .

In the case before us a direct issue was raised as to whether or not petitioner made proper service of notice in accordance with the statute and the Illinois Constitution. The first answer filed by respondents denied that portion of Scully’s petition which had asserted that all notices, required by law had been given. In her original petition Audrey Jo Scully stated that from 1928 to July 17, 1962, the record title holder was Dorothy Listing, and that she purportedly conveyed her interest in the subject real estate by a quitclaim deed to Harriet Friedman, which deed was recorded. To one of the in-, terrogatories propounded to Scully, she had answered that personal notice had been given to James Keller, Edwin Weber and Lolita Weber, and that notice by publication had been given to Dorothy Listing and Dorothy T. Listing, and to unknown owners. This interrogatory and answer was not stricken by the court. There is no indication in the record however, that the answer to the interrogatory was formally offered in evidence. Supreme Court Rule 19-11, sec 4, provides that answers to interrogatories may be used in evidence to the same extent as the deposition of an adverse party. Rule 19-10, with reference to the use of depositions, provides that discovery depositions may be used only for the purpose of impeaching the testimony of a deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness, or as an admission made by a party in the same manner and to the same extent, as any other admission made by such party, or if otherwise admissible as an exception to the hearsay rule. As we have pointed out, under the pleadings there was an issue raised on this question, and the burden was on the petitioner to prove proper notice. There was no evidence whatsoever in the record to support the statutory requirement that proper notice must be given in order to obtain a tax deed.

. Scully also contends that the quitclaim deed from Listing to Friedman was void. That deed was not offered in evidence, nor does'it appear in the record except as an exhibit to the petition for rehearing. The Satterfield Corporation and Harriet Friedman argue that they were not permitted to offer evidence and that they were cut short when they tried to make an offer of proof. For this there is some support in the record.

With regard to the validity of the quit-claim deed, Scully contends that when a déed is acknowledged before a notary public who has a financial interest in the property, such deed is void. She also argues that since in the amendment to her original petition it was alleged on information and belief that Hassell was disqualified to take and certify to the acknowledgment because of his financial interest, and since no answer was filed, the quitclaim deed from Listing to Friedman should be held void.

• While it appears from the record that there was no answer filed to the amendment to the petition, the court and both parties apparently labored under the impression that the answer to the amended petition and the cross-petition had been filed. Notice had been given to Scully that an answer was to be filed, and a copy of the answer and cross-petition was served upon her.

: The trial court had before it a motion of the respondents to order summons to issue against Edwin Weber, based on the cross-petition allegedly filed; since the defendant moved to strike the cross-petition and the court thereupon entered an order denying the motion to order summons to issue against Weber, and struck the cross-petition, it would seem that the court must have had something purporting to be the answer and cross-petition before it or else it would not have been able to so rule. No objection was- made at the time by Scully that no answer to her amended petition had been filed, and that there had been no cross-petition filed.

In Slezak v. Fleming, 392 Ill 387, 64 NE2d 734, the defendant based his complaint upon the ground that the trial court erred by proceeding to trial without an answer having been filed to the complaint. It was stated:

“So far as the first objection is concerned, the parties, by voluntarily and without objection offering evidence in the condition of the record, without demanding answers to the complaint or the cross complaint, waived any objection, if such they had, to such condition of the record.”

In Pallasch v. United States Fidelity & Guaranty Co., 329 Ill App 257, 67 NE2d 883, at page 261 it is stated:

“Defendant contends that by plaintiff’s failure to traverse the new matter alleged in defendant’s amended answer it is deemed admitted under sec 40 of the Civil Practice Act [Ill Rev Stats 1945, ch 110, par 164; Jones Ill Stats Ann 104.040]. The evidence shows, however, that testimony was heard on the issues raised by the amended answer with reference to Pallasch’s duties as manager of the Kruse service station. Since it appears that the parties regarded the issues as properly made, the filing of a traverse was waived. (Ancateau v. Commercial Casualty Ins. Co. of Chicago, 318 Ill App 553; Cairo Lumber Co., Inc. v. Ladenberger, 313 Ill App 1; Slezak v. Fleming, 392 Ill 387.)”

Also see 30 ILP Pleading § 60. Since both parties participated in the motions with regard to the answer and cross-petition without any objection having been raised, and the court ruled on the same, the petitioner waived any objection to the fact that the answer and cross-petition did not appear in the record of the court. Failure to answer a statement made on information and belief in the pleading is not an admission. In any case, the Illinois rule is that a deed lacking acknowledgment is not void. In 1 ILP Acknowledgments § 3, it is stated:

“Apart from questions of homestead rights, an acknowledgment is not necessary to the validity of an ordinary deed ... , an unacknowledged deed or mortgage is valid and binding on the parties who execute it, and is also binding on persons who claim through such parties. . . .” [Citing Zilvitis v. Szczudlo, 409 Ill 252, 99 NE2d 124; 1914 Op Atty Gen 1203.] Also see Berigan v. Berrigan, 413 Ill 204, 108 NE2d 438.

As we have pointed out, the trial court entered no order on the motion of Satterfield Corporation and Harriet Friedman to withdraw the answer which they had first filed, which was a matter within the discretion of the court. (In this answer the respondents concurred in the prayer of the petitioner that the first redemption be expunged from the records of the court.) Therefore, the court was correct in its final judgment in setting aside the first redemption filed on August 7,1962.

Since there was nothing in the record to show that the quitclaim deed from Listing to Friedman was invalid, the court erred in setting aside the second redemption; the court erred in finding that proper statutory notice had been given by Audrey Jo Scully, as alleged in her petition and denied in the answer thereto; hence, the order of the court directing the issuance of the tax deed to Audrey Jo Scully must be reversed.

The case is reversed and remanded with directions to the court to order that proper interrogatories should be answered by Audrey Jo Scully; that an answer to her amended petition should be permitted to be filed by the respondents; and that further proceedings then be taken consistent with this opinion.

Reversed and remanded.

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


author: JUSTICE McCORMICK.

text:
    George E. Clark, Plaintiff-Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, a Banking Corporation, Individually and as Trustee of the Last Will and Testament of Lyman B. Kilbourne, Deceased, and Trustee of the Last Will and Testament of Katherine Kilbourne, a Co-Trustee of the Last Will and Testament of Charles A. Weaver, Deceased, Pleasant C. Hyson, Helen M. Sheridan, as Executrix of the Last Will and Testament of Homer C. Sheridan, Mrs. Charles A. Weaver, as Co-Trustee of the Last Will and Testament of Charles A. Weaver, Deceased, George H. Zendt, et al., Defendants-Appellees.
    Gen. No. 49,276.
    First District, Fourth Division.
    February 11, 1966.
    Irving Breakstone, of Chicago, for appellant; Arvey, Hodes & Mantynband and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (G. Gale Roberson and Patrick W. O’Brien, of counsel), for appellees.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert G. Brown, Defendant-Appellant.
    Gen. No. 65-33.
    Second District.
    February 25, 1966.

      Richard C. Christian and Charles S. Wilson, III, both of Waukegan, for appellant.
    Bruno W. Stanczak, State’s Attorney, and Jack Hoogasian, Assistant State’s Attorney, both of Waukegan, for appellee.
   ALLOY, J.

Robert G. Brown, Defendant, appealed to the Supreme Court of this State from a conviction and sentence for the crime of embezzlement. The cause was transferred to this court by the Supreme Court.

Defendant was indicted on September 18, 1961, by the Grand Jury for the crime of Embezzlement by a public officer. He was found guilty by a jury and was sentenced to a term of two to five years in the State penitentiary. The indictment was in five counts with each count alleging in differing terminology that defendant was an elected Township official of the Township of Ela; that is, that he was a Justice of the Peace. The indictment states that on the 15th day of September, 1960, while defendant was an elected Justice of the Peace of the said Township he received in his possession $2,857.85 which was to be delivered to the County Treasurer of the County of Lake, but that defendant unlawfully, feloniously and fraudulently embezzled the said sum in possession of said Township officer by virtue of his Township office and fraudulently converted it to his own use without the consent of the County of Lake contrary to the statute in such case made and provided. Defendant filed a written motion to quash the indictment and each count thereof which motion was overruled by the Trial Court.

On appeal in this court, defendant contends: (1) that the court erred in denying his motion tó quash the indictment, (2) that the court erred in allowing certain instructions to be given on part of the plaintiff, (8) that the court erred in failing to grant defendant’s motion for a judgment notwithstanding the verdict because there was a variance between proof and the charge contained in the indictment, (4) that the court abused its discretion in denying defendant’s motions for a bill of particulars and to bar certain witnesses from testifying, in failing to make the State elect upon which count it was going to proceed, and in failing to grant a mistrial on motion of defendant, and (5) that the court abused its discretion in failing to declare a hung jury after the court had indicated a hung jury would be declared and that the court coerced the jury and hastened the reaching of a verdict, and (6) that defendant was not proven guilty beyond a reasonable doubt,

Defendant was a resident of Lake Zurich, Illinois, and owned a gas station in that community. He was elected as a Justice of the Peace and would have been a Justice of the Peace until April of 1961. He was appointed a Supervisor for Lake County on September 9, 1960, and after that was no longer a Justice of the Peace. For the purpose of holding court, defendant had rented a private office in the Village of Lake Zurich, Illinois, and paid rent for the office out of his earnings as Justice of the Peace. He had an arrangement with a certain individual by the terms of which this individual would perform duties for him in exchange for office space in the office of defendant. No salary was paid to that individual but all utilities were paid for by defendant. During the years 1957 through 1960, defendant would keep dockets, sheets, and books but at the time of trial he did not know their whereabouts. He heard only traffic violation cases in his capacity of Justice of the Peace and generally these cases were heard on Saturday mornings. During the period defendant collected monies from traffic violators he testified he would deposit all of his money from his office in the Lake Zurich bank under a bank account entitled “Robert G. Brown, Justice of the Peace.” He contends that he made all of the reports required by law to the State’s Attorney’s office and to the Secretary of State’s office as well as to the State Police and to the Department of Conservation. He did not recall personally the names of any individual cases of traffic violators and stated that he was not paid a fee for his office as Justice of the Peace, but that his sole remuneration was collection of costs. He denied embezzling or taking any money from Lake County during the time he was in office as Justice of the Peace.

He testified that at certain times money was paid into his office when he was not present; that the violators would sometimes pay fines at his gas station and sometimes at his home. The other individual who occupied his office would accept payment for fines and issue receipts when defendant was not present. Defendant gave the other individual authority to sign receipts for him. He states, however, that he never gave this individual authority to put his seal on the receipts. Defendant had offered to pay the State’s Attorney any shortage if it could be shown that one existed. The other occupant of the office who helped defendant in accepting payment of fees testified that he worked as a part-time clerk for defendant and had no other duties except, when fines were levied, to take the money. He stated he gave the persons who paid the fines a receipt in return for the money and gave them a receipt as instructed by defendant. After the money was collected, he testified, he put it in an envelope and would put the number of the traffic ticket and the total amount in a desk. He stated there were two desks and he put the money in either the desk of Robert Brown or his own desk. He stated he did not know what happened to the money after it was placed in defendant Brown’s desk. He did not keep copies of the receipts and he had nothing to do with sending reports to the proper officials other than to notarize the signature of defendant Brown. He identified certain exhibits introduced by the People having his name on the bottom of the receipt and stated that he did not know what he did with the envelope with the money in it because in certain instances he either put it in his desk or defendant Brown’s desk. He did not know how much of the amount paid reflected the fine and how much reflected costs. He testified specifically that his name appeared on 54 traffic tickets introduced as People's Exhibits and that he signed the traffic tickets in his capacity as clerk. All this work was done in exchange for desk space on defendant’s rented premises. No one else worked in the office during that time except Defendant Brown and the individual referred to.

The State produced 36 witnesses at the trial who had pleaded guilty to traffic violations and paid various amounts of fines and costs to defendant Brown or to the other occupant of his office. Certain of the individuals received receipts from the clerk who shared desk space in defendant Brown’s rented premises and certain of the other witnesses testified that they paid by check. The checks were all deposited in the account of Robert Brown as Justice of the Peace. In a number of instances, People’s Exhibits covered traffic tickets which had been forwarded to the Secretary of State’s office wherein individuals stated they had paid the money to defendant Brown, either by cash or check. The net effect of the evidence was to show that there was a difference in the amount that defendant reported and the amount that individuals testified they had paid to defendant Brown.

Defendant was indicted under the provisions of. section 214, chapter 38, Illinois Revised Statutes (1959 Ill Rev Stats, c 38, § 214). Defendant-Appellant contends that inasmuch as the indictment charges embezzlement as a Justice of the Peace, the indictment should have been under the provisions of section 213 of said chapter 38. Such section (1959 Ill Rev Stats, c 38, § 213), covers embezzlement by attorneys, justices of the peace, constables and other officers authorized by law to collect money. Under section 214 the penalty is imprisonment in the penitentiary of not less than one year nor more than 15 years. Under section 213, it is provided that if such persons shall fail or refuse to pay over any money so collected by him, less his proper charges, on demand by the person entitled to receive the same, he shall be fined not exceeding double the amount retained by him or confined in the County Jail not exceeding one year or both and be removed from office and thereafter be ineligible to be elected or appointed to any office under the Constitution or laws of this State. Defendant seriously contends that section 213 exclusively covered the subject of embezzlement by Justices of the Peace. The courts of this State have determined that a Justice of the Peace is an elected Township official under the laws of this State, and conviction under section 214 pursuant to which the defendant in this case was indicted, has been upheld by the Supreme Court of this State in People v. Hagel, 32 Ill2d 413, 206 NE2d 699. In that case, the court specifically determined that a demand for funds was not an essential element of embezzlement under that section. The indictment charging defendant with embezzlement under section 214 was proper and the action of the trial court in denying the motion to quash was justified.

The People’s instructions in one instance in referring to “reasonable doubt” specified that “the reasonable doubt that the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence, and not as to any particular fact in the case not material in the case.” Under the facts in this case, such instruction would not constitute reversible error (People v. Rogers, 324 Ill 224, 234, 235, 154 NE 909). In another instruction, reference to reasonable doubt followed language closely akin to that in People v. Lucas, 244 Ill 603, 615, 91 NE 651. The instruction told the jury that reasonable doubt must not be based upon a mere possibility that defendant may be innocent but that it may be possible that defendant is innocent and yet at the same time there may be no reasonable doubt that he is guilty. While this instruction is a very confusing and undesirable type of instruction under any set of facts, we cannot say that the giving of the instruction in the instant case constituted reversible error.

The indictment in this case charges that defendant embezzled $2,857.85. The total amount actually proven fell considerably short of the figure alleged in the indictment. Defendant contends that since there is a definite material variance in the indictment and proof, the conviction should be reversed. The record shows, however, that for the years 1959 and 1960, prior to the qualification of defendant as a supervisor, the charge of embezzlement by a public officer was adequately proven and established by evidence received in the trial court. As stated in People v. Taylor, 391 Ill 11, 14, 62 NE2d 683, a slight variance from the date charged in the indictment is immaterial. Similarly, in cases of embezzlement there is no need for a special finding of value of the fraudulently converted property (People v. Chisholm, 370 Ill 634, 635, 636, 19 NE2d 578).

It likewise appears from the record that the indictment sufficiently informed defendant Brown of the crime of which he was charged so as to enable him to prepare his defense. In view of the fact that no injury is shown by virtue of the failure to furnish a bill of particulars, there is no showing that the court abused its discretion when denying such motion (People v. Gray, 251 Ill 431, 437, 96 NE 268).

Similarly, in the case before us there is no showing of any surprise by virtue of the fact that the court permitted witnesses to testify whose names had not been furnished to defendant. As stated in People v. Weisberg, 396 Ill 412, 420, 71 NE2d 671, the statute was adopted to prevent surprise and give defendant an opportunity to combat false testimony. The fact that names were withheld until the beginning of trial in itself would not be sufficient to reverse the judgment. Where defendant did not ask for a continuance nor do anything else to show his prejudice by failure to receive the names earlier, this court on review could not say that the trial court under such set of facts abused its discretion (People v. Tomaszewski, 406 Ill 346, 354, 94 NE2d 154).

On the issue as to whether the People were required to elect upon which count of the indictment to proceed, it is noted that defendant Brown was charged in a five-count indictment with the offense of embezzlement under the section of the Criminal Code referred to in the course of this opinion. While an indictment may not charge separate and distinct offenses, totally disconnected from each other, if it is obvious that they grow out of the same act or transaction, separate and distinct offenses may be charged in the same indictment and stated in varying ways in as many counts as may be required. A prosecutor is required to elect upon which count of an indictment he will rely for conviction only in such cases where the offenses charged in the different counts are actually distinct from one another but rise out of the same transaction (People v. Wilfong, 19 Ill2d 406, 408, 168 NE2d 726). In this case, all counts of the indictment arose from the same series of transactions involving defendant and were merely set forth in alternative allegations in accordance with the provisions of the section relating to embezzlement under which the conviction was obtained. There was no reversible error in such procedure. On the record as a whole, where questions of fact are for a jury to determine and a verdict of guilty has been returned, it would not be disturbed unless it is palpably contrary to the weight of the evidence or so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt (People v. Tomaszewski, supra). On the basis of the record before us, this court on review would not be justified in reversing the jury verdict in the state of the record as made in this cause.

The problem of major concern on review arises from circumstances which developed after the jury had retired to consider the verdict in this case. The trial of this cause had been in progress for eight days when the jury retired at 4:50 p. m. on October 18, 1962. At midnight, in open court, the Trial Judge requested the bailiff to inquire whether the jury had reached a verdict. The bailiff returned and stated a verdict had not been reached, and the trial court then continued the matter until 12:20 a. m. after discussion between attorneys and the court concerning an instruction on deadlocked jurors and a denial of a motion by the People that the jury be locked in a hotel for the evening. The court continued the matter until 1:00 a. m. stating to counsel only “it will be a hung jury at that time declared.” At 1:00 a. m. in open court, the jury was asked by the court:

“Mr. Foreman, do you feel that if you are given more time that you and the Jury would reach a verdict, sir?”
The Foreman: “That we may reach <me, yes.”
The Court: “You will?”
The Foreman: “That we may, yes, sir.”
The Court: “I am asking you, will you reach a verdict if given more time, sir, do you feel ?”
The Foreman: “Well, the possibility is definitely there. I wouldn’t at this time say we will.”
The Court: “All right. As far as we are concerned, you are to take all the time that you care to. There is a point to where the Court feels that it doesn’t want to impose upon the jury and have them staying out so long. Therefore, the Court feels that if you feel you can reach a verdict, we are willing to await that decision. But, on the other hand if you feel that you can not reach a verdict, we would like to know. Are you able to answer that ?”
The Foreman: “We would like to have an evening of rest and come back, and probably we will with clear minds at this point.”
The Court also thereafter stated: “Do you think it would be of some help to you if you were to return to the jury room again?”
The Foreman: “Yes.”
The Court: “All right. You may return to the jury room. Thank you.”

Thereupon the jury returned to the jury room and the court indicated that it would wait a reasonable time.

At 1:32 a. m. or approximately 20 minutes later, the jury returned and presented its verdict of guilty. Defendant strenuously contends that the court misled the defendant and State’s Attorney in declaring a hung jury at 1:00 o’clock and failing to carry out this order. It is further contended that the court should have made arrangements to house the jury for the night, especially when the Foreman indicated that they were tired. Defendant also contends that the failure of the court to uphold its “hung jury” determination at 1:00 a. m. and sending the jury back to consider the complex case at that hour was highly prejudicial and that the jury was hastened into a verdict by action of the court (People v. Golub, 338 Ill 554, 561, 165 NE 196).

In the instant case, the comments of the Trial Judge neither directly nor by implication indicated the jury should reach any particular conclusion. We cannot read into the remarks of the court anything other than a specific statement by the court, that as far as the court is concerned the jury is to take all the time it cares to. The court specifically stated that it did not want to impose upon the jury and have them staying out so long and that if the jury feel they could not reach a verdict, the court would simply want to know. Under the circumstances, we do not believe that the court hastened a verdict or that defendant was prejudiced by the action of the Trial Court in this regard (People v. Golub, supra; People v. Derrico, 409 Ill 453, 464, 100 NE2d 607; People v. Duszkewycz, 27 Ill2d 257, 262, 263, 189 NE2d 299; Starac v. Corsale, 22 Ill App2d 142, 159 NE2d 384).

While this trial was not completely free from error, we feel, under the record, that there was no reversible error and, accordingly, the conviction and sentence of Defendant will be affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.


author: EBERSPACHER, J.

text:
    The Patent Scaffolding Co., Inc., a Corporation, Plaintiff, v. Standard Oil Company of Indiana and Arthur G. McKee and Company, Defendants and Third-Party Plaintiffs-Appellees. Standard Oil Company of Indiana and Arthur G. McKee and Company, Third-Party Plaintiffs-Appellees, v. Johns-Manville Sales Corporation, a Corporation, Third-Party Defendant-Appellant.
    Gen. No. 65-6.
    Fifth District.
    March 1, 1966.

      Oehmke, Dunham, Boman & Leskera, of East St. Louis, for Johns-Manville Sales Corporation, defendant and third-party defendant-appellant.
    Green and Hoagland, of Alton (James K. Almeter, of counsel), for defendants and third-party plaintiffsappellees.
   EBERSPACHER, J.

This is an action originally brought by The Patent Scaffolding Company, Inc., a corporation, plaintiff to recover for damage to its patented scaffolding when two catalytic tanks, a reactor and a regenerator, fell with the scaffolding around them on December 31, 1958. The suit was brought by The Patent Scaffolding Company against Standard Oil Company of Indiana (hereinafter referred to as Standard), the owner of the premises, at Wood River, Illinois, on which the tanks were being constructed, Arthur G. McKee & Company, hereinafter referred to as McKee & Company, the general contractor, Chicago Bridge & Iron Company, a subcontractor, and Johns-Manville Sales Corporation, (hereinafter referred to as Johns-Manville), a subcontractor of McKee & Company, alleging negligence against each defendant. Following a trial before the court without a jury, judgment was rendered in favor of the plaintiff against Standard and McKee & Company for the sum of $15,481.82 and costs of suit. The court found the issues in favor of the defendants, Chicago Bridge & Iron Company and JohnsManville. That judgment against Standard and McKee & Company has now become final.

Both Standard and McKee & Company had filed their third party actions against Johns-Manville; the court deferred decision on the third party actions pending the trial of the original case, but subsequently on the strength of the evidence in that case, and briefs filed by both parties, found in favor of Standard and McKee & Company, third party plaintiffs and against Johns-Manville, the third party defendant, and denied the motion for summary judgment of Johns-Manville against Standard and McKee & Company. The judgment, from which Johns-Manville has perfected its appeal, is for the sum of $15,481.82, plus interest from date of judgment and court costs, together with an allowance of $1,275 to third party plaintiffs for attorney fees and the sum of $75 for expenses. No questions are raised on the pleadings except the court’s actions with respect to the motions for summary judgments, and the amount of damages awarded is not questioned.

In May 1958, McKee & Company had forwarded an offer in the form of a purchase order to Johns-Manville wherein Johns-Manville was to perform certain insulation work, sheet metal work, etc., and was required to furnish “all necessary labor, materials, tools and equipment, scaffolding erected and dismantled, warehouse and change office facilities, as will be required to insulate field erected pressure vessels,” which Johns-Manville accepted. The accepted order also contained the following pertinent provisions:

“You agree to assume liability, be responsible for and indemnify and save harmless ourselves and the owner, for any liability for death or injury to any person or persons or for any property damage or loss of use thereof resulting from or in connection with performance of the work specified.”
“You will assume the full responsibility for and hold ourselves and the owner harmless from any loss or damage to tools and equipment used by the workmen and/or your sub-contractors.”

Johns-Manville in September contracted with The Patent Scaffolding Company to furnish and erect the scaffolding necessary to perform the insulation and sheet metal work, and entered into a subcontract with J. H. Walters Co. to perforin the sheet metal work. On December 31, 1958, McKee & Company in conjunction with Standard, was testing the tanks for leaks by filling them with water, when the tanks collapsed, doing extensive damage to the scaffolding, for which The Patent Scaffolding Company has recovered the $15,481.82 judgment against Standard and McKee & Company. At the time of the collapse no Johns-Manville men were working on the job, but four employees of J. H. Walters Co., Johns-Manville’s subcontractor, were using the scaffolding in performance of the sheet metal work.

Johns-Manville in prosecuting this appeal from the judgment in the third party action, contends that it is not liable to Standard and McKee & Company because the contract does not indemnify the third party plaintiffs for their own negligence; contending that the quoted indemnity provisions do not encompass liability except for the work that Johns-Manville contracted to do, and that the indemnity provisions of the contract do not clearly show the intention of Standard and McKee to protect themselves from their own acts of negligence nor an intention of Johns-Manville to assume those obligations, as required by the authorities. Appellant points out that JohnsManville did nothing to affect the strength of the structure that fell, for as the evidence shows, there was no possibility of their operation in applying the insulating blankets affecting the structural strength or stability of the pressure vessels, and that the collapse of the units and the damage to the patent scaffolding resulted solely from the negligence of the owner, Standard, and the general contractor, McKee & Company, and it was so adjudicated when Patent Scaffolding Company was awarded judgment against Standard and McKee & Company and was denied recovery against Johns-Manville.

The public policy reasons which validate and make desirable an indemnification provision as indemnifying against the indemnitee’s own negligence are well expressed in United States Steel Corp. v. Emerson-Comstock Co., 141 F Supp 143 (ND Ill) when the court said:

“While there are early cases in some states expressing a public policy against indemnifying a tort feasor for his own negligence it is today well established that the parties may so contract. Modern legal theory does not ignore the desirable objective of accident prevention which motivated the earlier decisions. But it finds nothing in the financial arrangements by which the business community through insurance and indemnity agreements allocates losses, inconsistent with that objective. The one on whom the contract imposes the liability has the same incentive to prevent the losses. Increased premiums and increased cost of services or materials act to deter the insured or indemnitee in the long run. At the same time society benefits through the spreading of the burdens of these unfortunate events and business does not have to risk the uncertainties of uninsured or unindemnified losses.”
“Once it is determined that such agreements are to be deemed perfectly legitimate business arrangements, the only issue is that of determining whether the parties intended that the negligence of the indemnitee be a covered risk. For the leading cases applying Illinois and Indiana law in construing indemnity agreements to determine whether the language used should be fairly construed as encompassing the indemnitee’s negligence, see Insurance Co. of North America v. Elgin, J. & E. Ry. Co., 7 Cir, 229 F2d 705; Chicago & N. W. R. Co. v. Chicago Packaged Fuel Co., 7 Cir, 1950, 183 F2d 630, 632; Russell for Use of Continental Casualty Co. v. Shell Oil Co., 1949, 339 Ill App 168, 89 NE2d 415. In each of these cases it was held that language used was broad enough to include the risk of the indemnitee’s negligence although there was no express reference to that risk. . . .”

In that case the indemnitor agreed:

“To provide all proper safeguards in performing the work, to save harmless and defend American Bridge Company from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses and attorney’s fees, in any manner caused by, arising from, incident to, connected with or growing out of the performance of this contract.”

The court observed that the language in the indemnification agreement was all-inclusive and indemnified against even the indemnitee’s own negligence. Judge Hoffman, in discussing the intent to be found in such inclusive language used by sophisticated business concerns, observed that “Businessmen do not draft contracts using such all-embracing language if they have any such unexpressed reservations (as exempting the negligence of the indemnitee) in mind.” (141 F Supp at 145.)

Appellant contends that Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604, is the leading case in Illinois and latest reported expression on this subject by our Supreme Court. We consider the indemnification agreement in the Westinghouse case to be distinguishable from the one we have before us. In the Westinghouse case the indemnification clause was expressly limited to acts or omissions of the indemnitor, whereas in the instant case the indemnification clauses are broad and contain no such limitation.

The identical contention as is here made by JohnsManville was considered and rejected by the court in Russell v. Shell Oil Co., 339 Ill App 168, 171, 172, 89 NE2d 415, where the court said:

“. . . Plaintiff states that the leading case bearing upon the question before us is Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., supra, and contends that that case supports its position. The Westinghouse Co. case, in our judgment, is not an authority in support of plaintiff’s position. The indemnification provision in that case provided (p 432):
“ ‘The contractor further agrees to indemnify and hold the owner, the owner’s employees and agents, the Architects and Engineers, and the City of Chicago, wholly harmless from any damages, claims, demands or suit by any person or persons arising out of any acts or omissions by the Contractor, his agents, servants or employees in the course of any work done in connection with any of the matters set out in these specifications, and the contractor shall carry at his own expense insurance in a company satisfactory to the owner to cover the aforesaid liabilities.’ ”

In Russell v. Shell Oil Co., supra, cited in United States Steel Corp. v. Emerson-Comstock Co., supra, an independent contractor was engaged by Shell to paint a light pole. While an employee of the contractor was on the pole in performance of this work, the pole collapsed. The indemnification agreement in the contract between Shell and the contractor was:

“Contractor shall hold Shell harmless from any and all claims for injury (including death), to persons (including contractor’s agents and employees) or damage to property (including contractor’s property) resulting from or arising in connection with any of contractor’s operations, shall defend any such claim asserted or suit brought against Shell thereon, and shall pay any judgment against Shell resulting in any such suit; provided, however, that Shell shall have the right, at its option, to participate in any such litigation, without, however, relieving contractor of its obligations.”

The court ruled that this provision was sufficiently broad to protect Shell from its own negligence. In so ruling, the court said, at 339 Ill App 172:

“In the instant case, as appears from the complaint, Russell, the nominal plaintiff, was employed under a contract to paint certain light poles at one of defendant’s gas stations and among other things he was obligated to paint the particular light pole involved in the accident, and John Campbell, his employee, was in the act of painting at the time of the accident. It seems clear that the injury to Campbell arose in connection with the ‘contractor’s operations.’ As defendant argues, the contract includes all accidents ‘resulting from or arising in connection with any of contractor’s operations’; that ‘the indemnifying agreement is expressed in clear and explicit language and the intention of the parties is indicated in unequivocal terms.’ There is also force in the contention of defendant ‘that negligence of either party does not enter into the case, because the injury to the employee (Campbell) resulted from or arose in connection with one of the contractor’s operations against which he agreed to hold defendant harmless.’ We agree with the opinion of the trial court that the indemnity agreement constituted a complete defense to plaintiff’s cause of action.”

While appellant cites numerous Illinois cases holding that an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is required by clear and explicit language of the contract, which we agree is the Illinois rule of strict construction, we find that rule is qualified in each of those cases, and that each of them held that clauses similar to those we have here were sufficient to meet the test of clarity and unequivocal language; holding that the contracts were not ambiguous; and unless a contract is ambiguous none of the so-called “rules of construction” will be applied to vary its clear meaning. De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 233, 234, 195 NE2d 240; Newburg Const. Co. v. Fishback, etc., Inc., 46 Ill App2d 238, 245, 196 NE2d 513; Gay v. S. N. Nielsen Co., 18 Ill App2d 368, 374, 152 NE2d 468.

In De Tienne v. S. N. Nielsen Co., supra, a subcontractor agreed as follows:

“The subcontractor shall indemnify and save the Owner, Architect and General Contractor harmless against any and all claims for damages to persons, caused directly or indirectly or occasioned by the execution of the work included in this order . . . .”

In that case at page 234 the court said:

“. . . Courts are not authorized to make contracts for the parties but must construe them as written. A contract must be given a fair and reasonable interpretation, and from the entire language used and considered in the light of the circumstances under which it was made, the court must ascertain the intent of the parties ....
“A contract is to be construed as a whole, given meaning and effect to every provision and word, if possible, since it will be presumed that everything in the contract was inserted deliberately and for a purpose. . . .”

In the De Tienne case two of the subcontractor’s employees were injured due to the negligence of the general contractor. The same contention was made there that Johns-Manville is making here, namely, that it was the negligence of the owner and not the execution of the work which caused the injury, and the indemnification provisions should thus not be applicable. To this the court retorted (45 Ill App2d at 236):

“. . .) The subcontractor) agreed to assume, full responsibility for injuries for which the execution of its work presented a stage upon which causal agencies could act.
“The injuries to O’Shaughnessey and De Tienne . . . were occasioned by their being on the job, doing the work called for by Gateway’s contract. Unless they were working for Gateway, there would have been no opportunity for their injuries- to have taken place.”

The same is true in the instant case. The damage to the property was occasioned by its being erected and used to enable the performance of the work specified in the contract. Had the scaffolding not been erected for this purpose, there would have been no opportunity for it to have been damaged.

In 175 ALR 37, it is said:

“While the Courts as a rule are eager to limit the application of indemnity clauses so as to exclude coverage where the indemnitee is negligent, there are still quite a number of decisions upholding the application of indemnity clauses in such situations. Despite all the rules of interpretation discussed above, it cannot be stated, as a general principle, that an indemnity clause which does not expressly exclude coverage where the indemnitee is negligent will not be held to apply in such a case.”
“Where the language clearly indicates the intention of the parties that the agreement shall include negligence, the Courts will give effect to such intention despite their inclination to construe the agreement strictly against the indemnitee. Thus, where the indemnitor agreed to hold the indemnitee harmless for all loss or damages ‘arising from any cause or for any reason whatsoever,’ the agreement was held to include damage occasioned by the indemnitee’s own negligence. And the same result was reached under a clause indemnifying the indemnitee for ‘any loss by accident or otherwise.’ ”

In Moses-Ecco Co. v. Roscoe-Ajax Corp., 320 F2d 685, 687, the Circuit Court of Appeals, District of Columbia said:

“Losses incurred by Roscoe-Ajax through its own negligence are not specifically included, and MosesEcco urges here, as it did below, that no intention to include such losses ‘is otherwise clearly and unequivocally revealed.’
“We accept the principle that where, as here, the agreement does not specifically refer to losses incurred by the indemnitee’s own negligence, the intent to cover such losses must otherwise plainly appear from the agreement .... ‘No particular form or words are needed but the intent to waive negligence must be clear’. . . .
“The District Court concluded that the language of the indemnification agreement in the present case was so broad and sweeping as to plainly reveal an intent to encompass losses incurred in whole or in part by the negligence of the indemnitee. . . . We think the view of the District Court is correct.”

The bulk of reported decisions from other jurisdictions are in accord with the Illinois rule. As noted in United States Steel Corp. v. Emerson-Comstock Co., supra, the Illinois law follows “the overwhelming weight of modern authority with respect to the law applicable to a suit by an indemnitee for losses occasioned by the indemnitee’s own negligence.”

It is interesting to note that in Reed v. Long v. Johns-Manville Sales Corp., 204 F Supp 16 (E Dist Mich, S Div), the same procedure was followed in that case as is used here, and with the same Third-Party Defendant. Judgment had been entered in favor of Reed, and against Long, Defendant and Third-Party Plaintiff. The negligent Defendant and Third-Party Plaintiff sought to recover against Johns-Manville, Third-Party Defendant, on the basis of an indemnity provision very similar to those involved here. The court sustained the same contentions that appellees make here, i. e., that Johns-Manville Sales Corporation was liable on the indemnification provision even if it was established that the injury was occasioned by the negligence of the Defendant and Third-Party Plaintiff.

The first part of the indemnification agreement agrees to save McKee and Standard from any liability for any property damage. But the only manner foreseeable when the parties executed the agreement by which McKee or Standard could become liable for damages would be for at least one of them to be at fault or negligent. As was said in Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn 193, 288 NW 226, 227, if this sort of agreement were not applied to the negligence of the indemnitee, “there would be but little remaining purpose of the promise of indemnity.” Accord: Stern v. Larocca, 49 NJ Super 496, 140 A2d 403, 409 (which cited Russell v. Shell Oil Co., 339 Ill App 168, 89 NE2d 415, with approval). It thus must follow that when JohnsManville agreed to indemnify McKee and Standard against any liability they might incur for damages, it agreed to indemnify them against liability caused by negligence, for this is the principal basis upon which liability could arise. Progressing further into the indemnity agreement, Johns-Manville agreed to assume full responsibility for and hold the contractor and owner harmless for any loss or damage to tools and equipment used by your (Johns-Manville’s) workmen or subcontractors. There is no limitation that any damage to tools or equipment must occur in connection with the work or within any other special limitation; and since the same contract required Johns-Manville to furnish the scaffolding, it must have been the equipment referred to in the indemnifying agreement. We are unable to comprehend how permissive use of the scaffolding by the owner or general contractor could relieve Johns-Manville of its indemnity.

We conclude that the indemnity provision was intended to, and did cover acts of negligence of the indemnitees, and affirm the judgment of the Circuit Court of Madison County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       Russell v. Shell Oil Co., supra, Northern States Co., Inc. v. A. Finkl & Sons Co., 8 Ill App2d 419, 132 NE2d 59, and Newburg Const. Co. v. Fishback, Moore & Morrissey, Inc., 46 Ill App2d 238, 196 NE2d 513.

       Payne v. National Transit Co., 300 F 411, where the court said, “It is true that the courts have said that in order to indemnify against the indemnitee’s negligence, the language must be clear and unequivocal; but I do not understand that the indemnifying contract must contain express words against negligence.” Stern v. Larocca, 49 NJ Super 496, 140 A2d 403, where it is said, “By the overwhelming weight of authority, something less than an express reference in the contract to losses from the indemnitee’s negligence as indemnifiable will suffice to make them so if the intent otherwise sufficiently appears from the language and circumstances.” Jordan v. City of New York, 3 App Div2d 507, 162 NYS2d 145, where the court said, “There exists the requirement, however, that the contract express a clear and unequivocal intent to indemnify a party against his own negligence. This does not mean, in order to warrant a construction that it was so intended, that the contract must contain express language referring to the negligence of the indemnitee.” Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, 66 NM 41, 341 P2d 460, where the court said, “Perhaps the ‘ultimate’ unequivocal expression would have been to add ‘regardless of negligence on the part of the City or its engineer.’ However, the better reasoned eases do not require such a phrase when, as here, the intent to cover all damages arising by reason of the construction of the work is clearly manifest.” Mitchell’s, Inc. v. Friedman, 157 Tex 424, 303 SW2d 775, in which the court said, “It is not necessary, therefore, for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence. An obligation to hold harmless from claims, liability or damages resulting from a specific operation or instrumentality will be enforced according to its terms even though the indemnitee may thereby be relieved of the consquences of his own negligence.”