author: MR. JUSTICE McCORMICK

text:
    Ronna S. Daskal, Plaintiff-Appellee, v. Melvin H. Daskal, Defendant-Appellant.
    Gen. No. 51,079.
    First District, Fourth Division.
    June 10, 1966.
    Rehearing denied June 30, 1966.
    Morris L. Simons, of Chicago, for appellant.
    Theodore R. Sherwin, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

A separate maintenance suit was brought by Ronna S. Daskal, hereafter referred to as the plaintiff, against Melvin H. Daskal, hereafter referred to as the defendant. This appeal is taken from the order of the trial court denying defendant’s motion to vacate the temporary injunction issued against him. The complaint for separate maintenance was filed on October 1, 1965, and in that complaint there was a prayer that a temporary injunction, without notice and without bond, issue against the defendant, forbidding him from doing certain things which will later be discussed in detail. On the same day the court entered a temporary injunction. By its order the court enjoined and restrained defendant (1) from instituting proceedings for divorce in any other jurisdiction than Cook County, Illinois; (2) from “entering and occupying the present place of residence of the plaintiff and the minor children, . . . and from in any manner removing or causing to be removed any furnishings or personal property from the said place of residence”; and (3) from keeping company or being with one Sally Shayne, who was also named as a defendant. In its order the court set out that the rights of the plaintiff would be unduly prejudiced unless the injunction was issued without notice, and that good cause had been shown why the injunction should issue without bond.

After the injunction had been issued there were conferences between the parties and their attorneys, and on October 5, 1965, an order was entered in the trial court suspending the injunction and providing that either side could terminate the suspension by motion. The order further provided that it was “without prejudice to any rights the defendant may now have to vacate or dissolve the said injunction.”

On November 22, 1965, the plaintiff filed a motion that the suspension of the injunction be terminated. In that motion it was set out that the parties had failed in reconciliation negotiations, and that on November 10 the plaintiff had filed a motion for the defendant to pay alimony and support. In that motion it was also asked that the suspension of the injunction be terminated, and it prayed for an order on the defendant to produce certain books and records for inspection and copying inasmuch as defendant’s business partner had removed 70 per cent of the files from his office, and plaintiff feared that the necessary records would be destroyed. The motion also recited that settlement negotiations which had been pending were withdrawn by the defendant.

On November 24, 1965, the defendant filed his answer to plaintiff’s motion of November 22, 1965. In the answer the defendant stated that on October 1, 1965, the plaintiff had wrongfully, without notice and without bond, obtained the stated injunction against him. In his answer the defendant further alleged that upon the receipt of the notice of plaintiff’s motion for temporary alimony the defendant had voluntarily furnished copies of his income tax returns, current financial statements and supporting documents to the plaintiff; that all the information asked for in plaintiff’s motion with reference to the financial condition of the defendant had already been furnished to the plaintiff, and that attached to the answer was a copy of the defendant’s letter advising plaintiff of the disruption of his partnership. It was further stated that the defendant did not have money to make the mortgage payments on the home in which the plaintiff lived and of which she was the beneficial owner.

On November 24, 1965, the defendant filed a verified answer to the complaint for separate maintenance, in which he stated that the plaintiff had urged him to leave the home and that on or about November 26, 1964, he acceded to her request. It is admitted that four children had been born to the marriage and that they resided with the plaintiff. In answer to paragraph 5 of the complaint, which alleged that the defendant had commenced and continued a relationship with the defendant Sally Shayne (a divorcee who lived in close proximity to the residence where plaintiff had lived with her husband and family), the defendant stated that he had been friends with Sally Shayne for over 25 years; that she had been a client of his for over 10 years; that he was rendering substantial professional service to her at the present time and that he also saw her socially. He denied that Sally Shayne had anything to do with his marriage relationship. He also alleged that there were certain itemized articles of furnishings which he had purchased with his own money and which were not part of the household effects. The defendant stated he had no intention of removing his residence from the State of Illinois, nor of instituting proceedings in any other jurisdiction in connection with his marriage to the plaintiff. On information and belief he denied that the plaintiff feared or believed that he ever intended to remove his residence from Cook County, Illinois. He further stated that he had at various times from September 26, 1965, to October 1, 1965, visited with his wife and the children at their home.

On November 24, 1965, the defendant filed a verified petition to dissolve the injunction and suggest damages. In that petition it was set out that the defendant has resided in Cook County substantially all of his life; that he is a public accountant, certified by the State of Illinois; that for the last 18 years he has conducted his business under the name of M. II. Daskal & Co.; that he has always maintained his principal place of business in Chicago; and that up to the time of the filing of the action he maintained his wife and four children in a residence in Glencoe, Illinois, which residence cost approximately $125,000. The motion sets out that there is no authority in law, under the facts alleged in the complaint, to restrain or enjoin a husband from entering and occupying the “marital home.” However, if it was assumed that there was such authority, no facts are set out in the complaint which will excuse the giving of notice of the application for relief by injunction. The defendant also alleges that Sally Shayne is a client who in the past has paid him substantial fees and will pay him substantial fees in the future, which fees will be lost if the defendant is restrained by the court from associating with her; and that a substantial bond should be required of the plaintiff to indemnify the defendant for the loss of his client Shayne and other clients if the injunction is allowed to remain in force. The defendant prays that the injunction heretofore issued be dissolved and that damages be assessed against the plaintiff in the sum of $400.

On November 30, 1965, the trial court entered an order reinstating the injunction and setting defendant’s motion to dissolve the injunction for hearing on December 7, 1965. This was done subsequent to appearances having been made on November 29 by counsel for the opposing parties. In the abstract of these proceedings it appears that defendant’s counsel stated that he had a right to be heard on whether or not the injunction was going to be in effect again, and the court stated there had been no objection to the orders suspending the injunction. Plaintiff’s counsel said that the plaintiff had a right to reinstate it by motion and that the matter had been continued upon the court’s suggestion. The court said there should be a hearing and defendant’s counsel said that the plaintiff was “entitled to have the injunction again in effect, and at that moment” the defendant was entitled to proceed upon the petition for dissolution. The court stated, “Fair enough. That is the way it will be done.”

On December 7 the parties appeared in court and at that time the attorney for the plaintiff inquired if Sally Shayne was in court and said that he had served a subpoena on her. Her counsel said she was not there yet. The court then told counsel to proceed and certain witnesses were sworn. Plaintiff’s counsel then stated that he had a witness who was a member of a hotel agency and that she had a registration made by Melvin Daskal and Sally Shayne at a New York hotel. In order to save time counsel asked for an agreement. The defendant’s attorney said he thought the issue was a matter of law which was before the court upon his motion to dissolve the injunction, to which no answer had been filed. Counsel for the defendant said, “There has been no question raised as to the sufficiency of the complaint and the sufficiency of the injunction itself, so that I don’t think we need testimony on that, . . .” Defendant’s counsel further stated that since a verified petition to dissolve the injunction had been filed (to which there was no answer), he moved that the injunction be dissolved, and that a hearing be held on the question of the assessment of damages. He further stated that the crux of the petition was to dissolve the injunction because it was issued without notice and without bond.

Defendant Daskal was called as a witness on his own behalf. He was shown a copy of his petition to dissolve the injunction and was asked if he had signed the original. Counsel for plaintiff then objected on the ground that the motion was directed to the sufficiency of the complaint and to dissolve the injunction on the ground that it was issued without notice and without bond. The court sustained the objections.

The court, among other things, ordered the defendant and plaintiff to file memoranda of law in support and in opposition to defendant’s petition to dissolve the injunction. This was done at the end of the proceedings in which the defendant’s counsel chose to proceed on the question of the petition to dissolve the injunction rather than to offer testimony. The memorandum in support of defendant’s petition to dissolve the injunction was filed on December 10, 1965, and stated that the injunction must be dissolved because it was obtained without notice as required in chapter 69, section 3 of the Illinois Revised Statutes (1965), which in pertinent part states:

“No court or judge shall grant an injunction without previous notice . . . unless it appears, from the complaint or affidavit ...» that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.”

In the memorandum the defendant asserted that the allegations made by plaintiff to support that portion of the injunction which prohibited defendant from instituting divorce proceedings elsewhere were vague; i. e., the plaintiff broadly alleged that the defendant had “repeatedly stated” that he was going to get a divorce on his terms or leave the jurisdiction. Defendant further asserted that plaintiff had not alleged any acts of defendant as a basis for the other portions of the injunction, and that the “reason for the injunction to issue is based upon the plaintiff’s subjective fears unsupported by allegations of any overt activities on behalf of the defendants.”

In her memorandum filed on December 15, 1965, plaintiff maintained that her complaint was sufficient on which to base an injunction under the statutory provisions, and that “mere naked allegations were adequate in matrimonial litigation, when the same allegations would be inadequate in the ordinary law suit between strangers”; that the issuing of an injunction is not the act of the party applying for it, but an act of the court, and that issuing a temporary injunction without notice is within the discretion of the court. She also stated that the defendant’s memorandum was directed solely to the question of the injunction having been issued without bond and without notice, and that his memorandum did not challenge the sufficiency of the complaint as stating a prima facie case. She again recited the terms of her original complaint and argued that these had been sufficient to indicate that her rights would be unduly prejudiced and that she would suffer irreparable harm unless the court issued the injunction without notice and without bond. She urged that the injunction was neither broad nor drastic but merely preserved the status quo; that her fears were well founded; that the defendant recognized the propriety of the court’s order in issuing the injunction without notice and without bond because he requested a hearing on his petition to dissolve, and the defendant was called as a witness in support of that petition, and that such action constituted a waiver of the right to dissolve an injunction solely on the question of its issuance without notice and without bond.

On December 17, 1965, the trial court entered an order denying defendant’s petition to dissolve. At the same hearing the court entered an order dismissing Sally Shayne as a party to the suit. From the order of the court denying the motion to dissolve the injunction this appeal is taken.

In 21 ILP Injunctions § 123, p 621, it is stated that want of notice of an application for a temporary injunction may be taken advantage of either by appeal from the order granting the injunction or by motion to discharge the order. A party cannot raise the question of notice after a hearing on a motion to dissolve the injunction (§ 139) unless the failure to give notice is expressly urged as a basis for the motion. (Citing Stenzel v. Yates, 342 Ill App 435, 96 NE2d 813; Wagner v. Okner, 306 Ill App 601, 29 NE2d 385; Kessie v. Talcott, 305 Ill App 627, 27 NE2d 857.)

In Wagner v. Okner, 306 Ill App 601, 29 NE2d 385, Mr. Justice O’Connor said:

“We think we ought to say that the language used in a number of opinions in cases such as the Balaban & Katz [283 Ill App 615], Lange [273 Ill App 356] and Kessie [305 Ill App 627] cases above referred to (to the effect that where a preliminary injunction is issued without notice in a case where notice should have been given, it is the duty of the court ‘without reference to the merits of the cause’ to reverse the in junctional order), ought to be modified for the reason that in such a situation the merits of the case, as alleged in the complaint or affidavits must be considered to enable the court to pass intelligently on the question whether notice should have been given. Moreover, § 3 [Injunctions] above quoted requires this be done. For example, a complaint may allege facts warranting the issuance of a preliminary injunction upon notice but if no notice were given the in junctional order should be reversed.
“We are further of opinion that where a motion to dissolve a preliminary injunction specifies as grounds for such motion, the failure to give notice and other grounds which go to the merits, the failure to give notice is not waived. Balaban & Katz Corp. v. Rose, 283 Ill App 615; Kessie v. Talcott, 305 Ill App 627.”

In the instant case there is nothing in the complaint which would indicate that the rights of the plaintiff would be unduly prejudiced if notice had been given of plaintiff’s application for the injunction. The order of the court denying defendant’s motion to dissolve the injunction is reversed, the injunction is dissolved, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry L. Odom, Defendant-Appellant.
    Gen. No. 64-77.
    Fifth District.
    June 13, 1966.

      Phillip A. Theis, of Granite City, for appellant.
    Joseph R. Bartylak, State’s Attorney, of Edwards-ville, for appellee.
   EBERSPACHER, J.

This is an appeal from a conviction of the offense of burglary and theft. After a jury verdict of guilty, sentence of 3 to 8 years was imposed. Defendant was represented by the Public Defender who waived all post-trial motions.

Appeal is taken on three principal grounds: First, that defendant was deprived of procedural due process in that the conviction was based in whole or in part on an involuntary confession which was placed in evidence. Second, that defendant was deprived of procedural due process in that his court-appointed counsel’s lack of competency and/or diligence prevented defendant’s obtaining a fair trial. Third, that the court deprived defendant of his constitutional right to be represented by counsel of his own choice, or in the alternative, to appear and defend himself.

A defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, even though there is ample evidence aside from the confession to support the conviction. Jackson v. Denno, 378 US 368, 84 S Ct 1774; Blackburn v. Alabama, 361 US 199, 80 S Ct 274, 4 L Ed2d 242; Spano v. New York, 360 US 315, 79 S Ct 1202, 3 L Ed2d 1265.

From the evidence taken at the trial commenceing on February 5, 1964, we find that defendant was taken into custody at about 5:30 in the morning. Both he, his wife and his brother were conferred with at the police station immediately following his arrest with reference to his situation. Both he and his wife testified, that the conversations were with reference to cooperation between the police department and the family in an effort to get treatment for defendant at the Alton State Hospital, a mental institution. There is uncontroverted evidence that defendant had received tranquilizers and psychiatric treatment at Barnes hospital up until approximately a month previous to his arrest, and was taking prescribed medicine for his nerves at the time of his arrest. At about 3:00 o’clock in the afternoon of the same day, defendant signed a confession; he testified that it was brought to him typed up for signature and that he signed it to avoid humiliation and embarrassment to his wife and children, and with the understanding that it was to be used for his admission to the hospital, rather than a prison psychiatric ward. The police admitted that they had in the forenoon called Barnes Hospital to get defendant’s hospital record, and that they had also directed defendant to call the hospital to get such record, but that the record was never obtained. Defendant further testified that when he called the hospital, the secretary in charge advised him that he could give permission and the hospital would see about presenting the necessary records to have him admitted to the hospital, and that he signed a paper for this purpose which was never presented at the trial. In rebuttal the police officers testified only that no promises were made to him previous to and at the time of his signing the confession; they do not deny the various conversations between themselves and defendant and between themselves and his wife on that day, previous to the signing of the confession, to the effect that defendant needed treatment. That he had little or no sleep either before being apprehended or after, until such time as he signed the confession is apparent from the record. These facts combined give rise to a serious question whether the confession was not in fact the product of coercion. Courts recognize that coercion can be mental as well as physical, and as was explained in Blackburn v. Alabama, supra, the Fourteenth Amendment forbids the use of confessions so procured “because of the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.”

The record indicates that counsel was appointed on November 4, 1963, approximately four weeks after defendant’s arrest. On November 21, 1963 he filed a petition for a sanity hearing. The defendant was examined by two psychiatrists, one of which testified at the sanity hearing. Presumably, the public defender made no request for the making of a record of that proceeding, as no record was made of any portion thereof. After the jury returned its verdict that defendant was sane, a plea of not guilty was entered and his motion to reduce the bond was refused.

The public defender exercised none of the preliminary procedures available to him prior to trial. The case was brought to trial on February 5, 1964, some three months after the public defender’s appointment to represent him. During that entire time both client and attorney were in the same city, the former being confined in the county jail where he was always available for consultation. Despite this fact, his attorney failed to file a motion to suppress the confession under the provisions of Ill Rev Stats 1963, c 38, § Hill. Such a motion would have required the State to sustain the burden of satisfying the court that the confession was given voluntarily if such was to be used in evidence at trial. Due process requires that a coerced confession be excluded from consideration by the jury, and a defendant has a constitutional right to object to the use of a confession and to have a fair hearing on the issue of voluntariness, uninfluenced by the truth or falsity of the confession. Jackson v. Denno, supra. But in the instant case defense counsel made no effort to exclude the confession despite the fact that he must have known, if he conferred at all with his client or his client’s wife, that serious question existed as to the voluntariness of the confession. In so doing he gave his client no protection whatsoever against being convicted on the basis of a coerced confession. To compound the offense, no instruction was even given to the jury to disregard the confession if it found that it was given involuntarily. Even if this were done, the United States Supreme Court’s holding in Jackson v. Denno, supra, would condemn the conviction for:

“Due process of the law requires that . . . the issue of coercion be tried by an unprejudice trier. ... it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which . . . cannot be obeyed.
“Whether a confession is voluntary is a preliminary question which must be decided by the Court from evidence heard out of the presence of the jury.”

The natural import of the instruction given to the jury is that some weight was to be given the confession, and the jury was not instructed to disregard the confession even if it believed it to be a product of coercion rather than the exercise of free will. Defense counsel thus emasculated his client’s efforts to show that the confession was involuntary. Neither before nor in the course of trial did he ever confront the court or jury as to the voluntariness of the confession.

Similarly, the public defender failed to file a motion to suppress Exhibits #1, 2 and 4, the photographs taken and bills confiscated at defendant’s home. The record contains conflicting versions as to how these exhibits were obtained. The natural import of one of the officer’s testimony is that the search of defendant’s home at about noon was made through the use of defendant’s signed search consent. But defendant testified that he did not sign that consent until about 3:00 or 3:30 p. m., after his home had been searched, the photographs taken and the bills confiscated. That testimony is not directly contradicted. On the other hand, another officer testified that the search had been conducted pursuant to the obtaining of a search warrant. Mrs. Odom denied that neither the search consent marked Exhibit #3 nor the purported search warrant, which was marked Exhibit #6, but never offered in evidence, were produced before the officers commenced the search. Competent and diligent counsel would have demanded a more satisfactory foundation for the admission of Exhibits #1, 2 and 4 by filing a motion to suppress under the provisions of Ill Rev Stats 1963, c 38, § 114-12 as it is apparent that the officers could not have shown reasonable cause for the issuance of a search warrant at that stage of the investigation before they had obtained a confession, and if they had done so, they would not have asked defendant to sign a search consent some three hours later. It appears that they had neither a search warrant nor the search consent at the time the search was made and Exhibits #1, 2 and 4 obtained. It can hardly be asserted that the placing of Exhibits #1, 2 and 4 in evidence had no prejudicial effect on the defense. But these exhibits were placed in evidence without any objection on the part of defense counsel.

No question was raised by defense counsel as to why defendant was charged with the theft of Fifty-eight Dollars ($58) while Exhibit #4 was an envelope containing Sixty-six Dollars ($66), nor does the record contain any explanation for this disparity.

After allowing the confession, the photographs and the confiscated cash to go into evidence, without raising any serious opposition, and after the State rested its case, defense counsel saw fit to present only the testimony of defendant and his wife, who had testified previously. Through the testimony of Mrs. Odom, he made only a half-hearted effort to show that the confession was extracted through the use of promises of hospitalization and this testimony was stricken from the record.

The defense called first, defendant’s wife whose testimony concerning the day of defendant’s arrest and the various conversations with the police officers preceding the taking of the confession. The public defender also had her testify that defendant had previously been convicted of a felony, that it was burglary and that it was burglary of a police officer’s home, that defendant served a penitentiary sentence, and was released on parole. On her cross-examination the People went into further details of her knowledge of defendant’s commission of the crime of burglary on that occasion. The second defense witness was defendant himself, the defense again brought out the defendant had been convicted of burglary in 1960, received a sentence of one to four years, served 13 months, was paroled. On cross-examination the details of that offense were again gone into without objection. The result was that throughout the case for the defense the jury was constantly reminded of the prior conviction.

Appellant maintains that the public defender’s failure to submit to the court and resolve before trial the issues of the voluntariness of the confession and the legality of the manner in which the prosecution obtained Exhibits #1, 2 and 4, coupled with the lack of any jury instructions as to the issue of the voluntariness of the confession and the legality of the search and seizure constitute such incompetency and/or lack of diligence by defense counsel as to deprive defendant of procedural due process.

A public defender is expected to be zealous in defending the rights of those he is assigned to defend. People v. Morris, 3 Ill2d 437, 121 NE2d 810. A defendant’s right to aid of counsel is not satisfied by the mere formality of an appointment of an attorney by the court but requires effective representation throughout' all stages of trial, and where such representation is of such low calibre as to deprive him of a fair trial on the issues the guarantees of due process are violated. People v. DeSimone, 9 Ill2d 522, 138 NE2d 556; People v. Morris, supra; People v. Gardiner, 303 Ill 204, 135 NE 422; People v. Winchester, 352 Ill 237, 185 NE 580; People v. Schulman, 299 Ill 125,132 NE 530.

An independent investigation of this record discloses that it is replete with evidence of a lack of diligence on the part of court appointed counsel in violation of appellant’s right to a fair trial. As was said in Spano v. People of the State of New York, supra, “. . . in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from actual criminals themselves.”

We commend counsel appointed by this court for a concise and excellent brief and argument.

The judgment is reversed.

GOLDENHERSH, P. J. and MORAN, J., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Lawrence, Defendant-Appellant.
    Gen. No. 50,658.
    First District, Second Division.
    May 17, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a finding and judgment of conviction for the crime of Armed Robbery after a bench trial, with sentence in the Illinois State Penitentiary for a period of (1) one to (3) three years.

Defendant, James Lawrence, was indicted for the armed robbery of one Herman Beane, a cabdriver, and brought to trial. Evidence produced from the testimony of the State’s witness, the victim of the crime, was to the effect that on July 25,1964, at approximately 2:30 a. m. he was robbed of a certain amount of cash by defendant, who was armed with a sawed-off shotgun. Mr. Beane testified that he stopped at 312 West 61st Street in response to a call and saw a man, approximately 15 to 20 feet away. The witness described the street lighting as good. A police officer, who visited the scene of the crime at a later date, testified however, that although there were street lights he would characterize the area as poorly lighted.

Mr. Beane’s testimony further indicated that defendant came up to the door of the cab and proceeded to rob him after holding the shotgun on him, that defendant was facing him, that the dome light of the cab was on, that subsequently another man approached the cab, that he was required to remove himself from the auto and subject himself to a search, and that he was instructed to return to the cab and leave. Mr. Beane identified both defendant and the weapon, a sawed-off shotgun, in court. The witness had previously pointed out defendant as one of his assailants at a lineup conducted by the police approximately a month after the crime occurred.

The arresting officer, Stanley Robinson, was called by the State and related the incidents surrounding the arrest of defendant, the seizure of the weapon used in the commission of the robbery of Mr. Beane, and the identification of defendant by Mr. Beane.

Defendant, James Lawrence, testified in his own behalf and denied that he committed the robbery in question and stated that he was at home, asleep, during the time period when the crime took place. He also denied that he owned any gun, or had ever seen the sawed-off shotgun which had previously been introduced into evidence. He did state, however, that an acquaintance of his had thrown three guns into his automobile on the evening of the arrest.

The mother of defendant, Mrs. Catherine Lawrence, also testified for the defense. She stated that her son was home on the evening in question and to her knowledge did not leave the house until the next morning at around five or six o’clock. On cross-examination, Mrs. Lawrence stated that she believed she was asleep between the hours of 1:30 a. m. and 5:30 a. m. and did not recall if she had ever arisen during that time period.

After final arguments, the trial court reached a finding of guilty and on the finding sentenced defendant.

It is defendant’s theory of the case that the identification of defendant, by the complainant, as the perpetrator of the crime was not proven beyond a reasonable doubt in that the trial court overlooked certain factors. It is defendant’s position that in order to affirm the conviction, we must determine (1) that the complainant was not attempting to manipulate his testimony into that mold which he believed would support a conviction, (2) that the conditions of the occurrence were such as to give the complainant an opportunity to make a good identification, (3) that the description was sufficiently specific in detail, (4) that the complainant was not primed by the police prior to making his identification, and (5) that the identification was corroborated by other facts. See People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965).

Defendant first contends that complainant, by identifying defendant, was attempting to mold his testimony so it would support a conviction. Defendant points out that Police Officer Robinson refuted complainant’s claim that the street lighting was good by testifying that it was a poorly lighted street. We do not deem this alleged inconsistency significant.

Defendant next contends that the conditions under which the identification was made were poor. Defendant points out that complainant could not have seen his assailant for more than one minute and that he was unable to give the police a description of his assailant’s facial features. Defendant also points out that complainant had failing eyesight and had to wear bifocal glasses. We agree with the State that positive identification does not require in depth reflection. The closeness and direct facing of the parties involved in this encounter afforded more than sufficient opportunity for identification.

Defendant next contends that complainant’s description of his assailant was not specific. Defendant points out that the descriptions given to the police that the assailants were male Negroes, about 5T1", weighing about 160 pounds, on the thin side, one being of dark complexion and the other of light complexion, were too general and that these descriptions could fit thousands of other Negroes. We agree with the State that the description given was appropriate considering the circumstances. The possibility that it might apply to persons other than defendant does not destroy its worth.

Defendant next contends that complainant was primed by the police prior to the identification. Defendant points out that complainant was ordered to come down to the police station on numerous occasions and subconsciously wanted to identify someone so he would not have to spend his spare time at the police station. We agree with the concession made by defendant that he has indulged in speculation. Such speculation must be rejected by us.

Finally defendant contends that the identification was not corroborated by the other facts and circumstances. Defendant points out that complainant identified a shotgun as the shotgun used by the assailant, that the shotgun belonged to a different youth, and that the arresting officers admitted that they never saw defendant possessing said shotgun. It is defendant’s position that complainant only saw the barrel of the sawed-off shotgun and this description would fit thousands of shotguns. Thus, defendant concludes that the identification of the shotgun was based on speculation and did not corroborate complainant’s identification of the assailant. We agree with the State that the identification of the gun had some corroborative effect even though it might also have described other similar weapons.

Defendant refers to the case of People v. Reese, 34 Ill2d 77, 213 NE2d 527 (1966), as authority that the Appellate Court has an affirmative duty to evaluate the totality of the circumstances to determine if a reasonable doubt exists as to defendant’s guilt. We agree with this decision but do not agree that it has application to this case on the facts.

As the courts of Illinois have reiterated on numerous occasions, a trial court as the trier of fact is peculiarly suited to determine questions of truthfulness and a reviewing court will not readily substitute its own conclusion, unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt. People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963); People v. Jenkins, 24 Ill2d 208, 181 NE2d 79 (1962).

In the instant case, defendant points out that the State failed to comment on the fact that complainant had poor eyesight, due to old age, and therefore had to wear bifocal glasses and that complainant was totally unable to describe what the other assailant looked like. Defendant alleges that the failure of the State to comment on these factors leads to the conclusion that the State could find no argument to meet defendant’s position that these factors substantially weaken complainant’s identification of defendant. There was no testimony offered by defendant that complainant was incapable of making a proper identification due to his poor eyesight. In response to defendant’s allegation that complainant was totally unable to remember what the other assailant looked like, we find evidence that an identification was made as to both assailants by complainant.

For the above reasons the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Francis J. McGrain, Defendant-Appellee.
    Gen. No. 65-87.
    Second District
    June 6, 1966.
    Rehearing denied September 19,1966.

      Bruno W. Stanczak, State’s Attorney, and Jack Hoogasian, Assistant State’s Attorney, both of Waukegan, for appellant.
    Frank M. Daly, of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal by the People from an order of the Circuit Court of Lake County granting defendant’s ■amended petition to suppress evidence.

On May 2, 1964, Sergeant William A. Kennedy of the Waukegan Police Department requested the Assistant State’s Attorney to draft a complaint for search warrant. The reason for this request was to arrest and search the defendant, Francis J. McGrain. The complaint was drafted as follows:

“Now comes your affiant, William A. Kennedy, of the Waukegan Police Department, being first duly sworn on oath according to the law of the State of Illinois, and under oath does hereby complain to and informs this date, May 2, 1964, in Waukegan, Lake County, Illinois, that Francis J. ‘Bunch’ McGrain does have in his personal possession certain horse-race slips, papers, printed and written bets, books, scratch sheets, racing forms, and other related paraphernalia and papers dealing with the recording of bets and the registering of bets, and does further have in his possession monies and funds which have been bet or wagered on horse racing this 2nd day of May, 1964, and that such information is based upon reasonable and probable belief from personal observation, and investigation, by your affiant, and of members of the Detective Bureau, Waukegan Police Department, working under the control of your affiant in the matter herein, and further that the said Francis J. ‘Bunch’ McGrain is engaged in the unlawful act of gambling, as more fully set forth in the Criminal Code of 1961, Illinois Revised Statutes 1963.
“Your Affiant further states that he verily believes from observation and investigation that the said Francis J. ‘Bunch’ McGrain is accepting bets and wagers, and does have in his possession the described articles mentioned penultimately herein, including monies and funds which have been bet and wagered.
“Wherefore, your affiant prays that a search warrant may issue according to law.”

On this complaint a warrant was issued. On May 2, 1964, defendant, Francis J. McGrain, was arrested by officers of the Waukegan Police Department at 440 Franklin Street, Waukegan, and searched pursuant to the search warrant. On defendant’s person were found various items indicating he was making “book.”

We have taken with this case a Motion to Dismiss the Appeal. It is the defendant’s contention that in perfecting the appeal the People failed to serve a copy of the Notice of Appeal on defendant, as required by Supreme Court Rule 34; failed to serve Notice of filing of Praecipe, as required by Supreme Court Rule 36(1) (a); and failed to serve Notice of filing record on Appeal as required by Supreme Court Rule 36 (2) (f) (Ill Rev Stats 1965, c 110, §§ 101.34, 101.36(1) (a) and (2)(f)).

The record does not sustain defendant’s first two contentions and an appeal will not be dismissed for failure to serve written notice of filing of record on opposing party unless such failure has prejudiced such opposing party. Roesch-Zeller, Inc. v. Hollembeak, 5 Ill App 2d 94, 100 (3rd Dist 1955), 124 NE2d 662. Defendant has shown no prejudice and the motion is denied. The appeal herein is governed by Supreme Court Rule 27 (Procedure in Criminal Appeals) Illinois Revised Statutes, 1965, chap 110, § 101.27. Our examination of the proceedings discloses compliance with the requirements of Supreme Court Rule 27.

No testimony was offered at the hearing on the Petition to Suppress the Evidence obtained from the issuance of the search warrant. The sole issue here presented then is limited to the wording of the complaint. It is contended that probable cause cannot be established by a court for a search warrant which is purely conclusory, stating only the affiant’s belief that probable cause exists, without detailing any of the underlying circumstances upon which that belief is based.

The Illinois Code of Criminal Procedure, 1963, contains a section on Grounds for Search Warrant, Illinois Revised Statutes, chap 38, par 108.3. The standards for gauging the sufficiency of a complaint for a search warrant have been well established in People v. Close, 60 Ill App2d 477, 483 and 484, 208 NE2d 644, and there appears to be no need for us to again make this review.

In People v. Jackson, 22 Ill2d 382, 176 NE2d 803, one Davenport signed a complant for a search warrant which alleged his belief that there was policy paraphernalia in the premises and set forth “that as grounds for his belief he says said premises have been under surveillance and persons known by me to be employed in such activities of policy game or lottery have been seen by me entering said premises.” In upholding the issuance of the search warrant the court said at page 387: “The simple truth is that the complaint does not purport to be based on hearsay or conclusions, but upon facts within the complainant’s own knowledge, learned while the defendant’s residence was under surveillance.”

We conclude that the information based upon “reasonable and probable belief” from personal observations and investigation is well within the concept as determined in the Jackson case, namely that the complaint was based on facts within the knowledge of the complainant or learned from personal observation and investigation. Accordingly, the trial court did err in granting the Motion to Suppress the Evidence obtained from the search warrant proceedings.

The judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

MORAN P. J. and DAVIS, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Cornelius Roberson, Plaintiff-Appellee, v. Andrew Leak, Defendant-Appellant.
    Gen. No. 51,359.
    First District, Fourth Division.
    June 10, 1966.
    Ernest A. Greene, of Chicago, for appellant.
    Block & Levy, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Judgment was entered on a jury verdict in favor of plaintiff for $3,500. Defendant seeks review of that judgment.

Plaintiff has moved to dismiss this appeal because:

(1) Defendant filed no post-trial motion and the time for filing such a motion has expired.

(2) Section 68.1(2) of the Civil Practice Act provides that relief desired after trial must be by post-trial motion containing “the points relied upon, particularly specifying the grounds in support thereof,” and an appellant may not urge in the reviewing court any point not thus particularly specified in a post-trial motion. Ill Rev Stats (1965), c 110, § 68.1(2).

(3) It appears from defendant’s Notice of Appeal that the only review sought is of error alleged to have occurred during the course of the trial.

(4) Therefore, nothing has been preserved which could properly constitute a basis for review by this court.

We believe the point raised by plaintiff’s motion is valid, but consider that the appropriate action for this court to take, under the circumstances, is to affirm the judgment of the trial court, rather than to dismiss the appeal. Johnson Ford Co., Inc. v. Lewan, 71 Ill App2d 420, 218 NE2d 893.

The judgment is therefore affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.


text:
    Howard Hollis, Plaintiff-Appellee, v. Terminal Railroad Association of St. Louis, a Corporation, Defendant-Appellant.
    Gen. No. 65-83.
    Fifth District.
    June 15, 1966.

      Roberts, Gundlach, Lee & Stubbs, of East St. Louis (Norman J. Gundlach, David H. Bremer, and George P. Mueller, of counsel), for appellant.
    Chapman, Strawn & Pratt, of Granite City (Morris B. Chapman, of counsel), for appellee.
   EBERSPACHER, J.

Howard Hollis, employed as a switchman by the Terminal Railroad Association of St. Louis, brought suit against his employer in the Circuit Court of Madison County for damages under the Federal Employers’ Liability Act. Trial before a jury resulted in a verdict of $175,000 for the plaintiff. A remittitur was entered and judgment was entered for $125,000 upon defendant’s post-trial motion from which this appeal is taken.

On June 23, 1961, plaintiff was working the second shift in the Madison Yards of the defendant. Plaintiff’s job, basically, consisted of making up or breaking up trains within the yard. His job required him with great frequency to throw switches and particularly the Mason-Dixon Switch, which divided the yard and was used more than any other. On the day of the alleged injury, plaintiff was doing switching around 2:00 or 2:15 in the afternoon, he stooped over, grabbed the switch arm with his right hand, and threw it from right to left. In the words of the plaintiff “when the handle or arm was not hardly halfway, it just felt like it stopped and that’s when I had pain in the lower part of my back and it also went all the way down into the left leg.” The plaintiff did no more work that day because he was hurting and it was near the end of the shift. Saturdays and Sundays were his days off. The plaintiff worked on Monday and after work went to see a doctor. Plaintiff was hospitalized for approximately six days. He was released to go back to work on July 3, 1961, and did go back to work. Plaintiff was in the hospital again in May, 1963, as a result of hurting his back while pulling a cord on his lawn mower. Plaintiff worked for the defendant until September 7, 1963, at which time he was 29 years of age. On that date he again hurt his back while throwing a switch and as a result he was under medical care over a period of time which ultimately culminated in a laminectomy; and resulted in plaintiff, who had a ninth grade education, becoming permanently industrially unemployable.

Defendant’s basic theories for reversal of the judgment are that a submissible case for jury consideration was not made and that the verdict of the jury resulted in a miscarriage of justice which was predicated upon and compounded by a number of errors occurring during the trial of this case.

Defendant alleges as error that the trial court failed to sustain motions to strike allegations of the complaint, summarized as: failure to provide a good and efficient mechanically operated switch for plaintiff to use, failure to warn plaintiff of the dangerous and defective condition of the switch, failure to inspect and maintain the switch, and failure to provide sufficient help and assistance for the maintenance of the switch; or to direct verdicts on such allegations, and submitted to the jury improper charges of negligence both as to law and fact.

Under the Federal Employers’ Liability Act, a carrier is liable in damages for injury resulting in whole or in part from the negligence of any of its officers, agents or employees. Assumption of risk is no defense nor does contributory negligence bar a recovery. In determining whether a verdict in plaintiff’s favor is supported on the record, the sole question is whether there is any evidence, considered in the light most favorable to the plaintiff, that defendant was guilty of negligence which contributed in whole or in part to the injury. Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212. In Rogers v. Missouri Pac. R. Co., 352 US 500, 77 S Ct 443, 1 L Ed2d 493, it was held that under the Act, the test of a jury case is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury.

The evidence in this case shows that the switch in question worked “real stiff.” There was evidence that complaints had been made as to this switch and other switches in the Madison Yard. The record shows that the number of men employed to maintain these switches had been reduced since the year 1958, to the point where the switches were not inspected and maintained with the frequency that was required to keep them working freely. Defendant objected to this evidence, but we believe it to be germane to the condition existing on June 23, 1961. Complaints as to the condition of these switches had regularly been made to the company. Defendant cites the case of Atlantic Coast Line R. Co. v. Collins, 235 F2d 805, as sustaining its basis for striking various allegations of negligence contained in the complaint. The evidence in that case showed that the switch had been oiled on Friday and the accident occurred the following Monday. There was also evidence that it had been regularly inspected and oiled and that no defects in the switch had been reported. The court said the evidence was insufficient to go to the jury on question of railroad’s negligence. This is not true in the instant case as both witnesses Barton and Gentry testified that they had made complaints to their superiors. Here defendant contends that the trial court erred in allowing evidence as to the change in maintenance personnel, prior and since 1958. This evidence was not for the purpose of proving the condition of the switches in 1958 but for the purpose of establishing the fact that the railroad did not have sufficient help in 1961 to maintain the switches in efficient working order. We feel the jury had a right to consider this evidence in their deliberations as to whether or not the railroad was guilty of any negligence. We therefore hold that there was sufficient evidence to warrant the case going to the jury. It therefore follows that plaintiff’s Instruction No. 24, the issue instruction, was properly given.

Soon after plaintiff had returned to work, following his injury in June 1961, plaintiff executed a release of all claims for personal injuries, specifically including his injury of June 23, 1961, the consideration of which was $130, arrived at after plaintiff’s negotiation with defendant’s claim agent. The evidence shows that plaintiff had suffered a loss of wages of $132.96 on that occasion, and that the claim agent had confirmed by a telephone call to the hospital that plaintiff’s injury had, on that occasion, been diagnosed as a low back strain. Plaintiff and defendant’s claim agent, according to the testimony both gave in this case, did not agree as to whether the settlement was based on the injury or loss of wages. Defendant plead the release as an affirmative defense, to which plaintiff replied that the release was executed under a misapprehension of fact and erroneous conception as to the nature and extent of plaintiff’s 1961 injury; that it was supported by inadequate consideration and resulted from the overreaching of plaintiff; and that it was void because procured by fraud and deception.

Defendant objected to plaintiff’s instructions with reference to the release, contending the first was bad because not supported by evidence and because it did not incorporate the elements of “preponderance of relevant evidence” or “intent to deceive.” We agree that the applicable law to void a release in a case under this Act is stated in Callin v. Pennsylvania R. Co., 382 US 625, where at page 630 the United States Supreme Court said:

“Until the Congress changes the statutory plan, the releases of railroad employees stand on the same basis as the releases of others. One who attacks a settlement must bear the burden of showing that the contract he had made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under which both the parties acted.”

and that the degree of proof necessary to void the release was a preponderance of relevant evidence. See Purvis v. Pennsylvania R. Co., 198 F2d 631. Plaintiff’s second instruction properly instructed with reference to the degree of proof necessary to void the release and the burden of proof instruction advised the jury that plaintiff had the burden of proving that the release was procured by misrepresentation or by a mutual mistake of fact concerning the extent and nature of plaintiff’s injury. Defendant correctly contends that there is no evidence of fraud or deception, however, the evidence clearly supports plaintiff’s theory that at the time of the execution of the release both parties were mistaken as to the extent and severity of plaintiff’s injuries. Both plaintiff and defendant’s claim agent testified that at that time, they were under the impression that plaintiff had only suffered a low back sprain and it would clear up without significant injury. A preponderance of the relevant evidence, supported plaintiff’s contention that the parties misapprehended the extent of plaintiff’s injury, and, in our opinion the trial court could properly have found as a matter of law that the release should be set aside. Clancy v. Pacenti, 15 Ill App2d 171, 145 NE2d 802; Ruggles v. Selby, 25 Ill App2d 1, 165 NE2d 733; Child v. Lincoln Enterprises, Inc., 51 Ill App 2d 76, 200 NE2d 751. In view of the foregoing conclusion, we hold the giving of the instruction to be harmless error.

Defendant further contends that under the authority of section 65 of the Civil Practice Act (c 110, § 65, Ill Rev Stats 1963) and the decision in Moyers v. Chicago & E. I. R. Co., 43 Ill App2d 316, 193 NE2d 604, it was reversible error for the trial court to refuse two special interrogatories, which were objected to by plaintiff. The first: Was the defendant, acting through its agent, Mr. Biddle, guilty of fraud and deception in obtaining the plaintiff’s executed release from plaintiff? The second: Were the plaintiff and defendant under a misapprehension of fact and an erroneous conception as to the nature and extent of the disability suffered by the plaintiff at the time the release in question was executed by the plaintiff ?

Section 65 of the Civil Practice Act makes mandatory the giving of a special interrogatory, if it is on a material ultimate fact. The Moyers case (supra) points out that such interrogatory cannot be refused if the answer to the interrogatory will control the verdict, and will nullify the verdict if inconsistent therewith, and specifically held that the fact that the subject matter is covered by an instruction does not justify its refusal by the trial court. Here, the answer to either one of the interrogatories would not determine the jury’s finding as to the ultimate fact of whether the release was executed under such circumstances as would bar recovery. If one were answered in the negative, it would not control the verdict, because the ultimate fact could only be determined by a like finding on both interrogatories. Since neither interrogatory standing on its own, could control the verdict, the trial court properly refused the special interrogatories.

The testimony of Dr. Schaerer established the permanency of the injury suffered by plaintiff. His testimony also established the fact that the injury complained of could have been caused by the incident occurring on the 23rd day of June, 1961. He first saw the plaintiff on December 16, 1963, and upon hearing his history, he immediately thought, “This man has a ruptured disk.” Medical examinations proved him right and he operated on the plaintiff on April 28, 1964. Dr. Schaerer stated that in his opinion, the incident in June 1961, set up the state for the subsequent occurrences, including the final massive herniation. While doctors who had treated and examined plaintiff before Dr. Schaerer had made no record of injury to a disc, the evidence shows that such injury was suspected.

Defendant also assigns as error the fact that an instruction based on a mortality table was given (IPI 34.04). It is its contention that this instruction should be confined to factual situations where a party is deceased or where injury will permanently disable a person from gainful employment. The medical evidence sustains the fact that plaintiff will probably never be able to engage in the type of work which he has been doing most of his adult life. The defendant was allowed to give an instruction on the work life expectancy of a railroad employee (Defendant’s Instruction No. 5), as well as one not limited by the type of employment (Defendant’s Instruction No. 6). The giving of an instruction on life expectancy based on a mortality table is proper, where an injury is permanent, in order to aid the jury in their deliberations. This table was not introduced for the purpose of establishing a mathematical formula for pain and suffering.

Defendant also assigns as error the trial court’s failure to grant defendant’s motion for a new trial because of alleged highly prejudiced and inflammatory arguments and statements made by plaintiff’s counsel. Both counsel made some improper arguments and objection was sustained by trial court; they were not persisted in. An attorney is allowed wide latitude in Ms closing argument. We do not feel that the argument and statements made by plaintiff’s counsel were of such a nature that a mistrial should be granted.

Defendant has requested that an additional remittitur be ordered. The trial court heard the evidence, observed the witnesses and did order a remittitur in the sum of $50,000. There was evidence based on a mortality table that plaintiff’s life expectancy was 33.83 years, and that $126,510 would be required in order for plaintiff to draw monthly what he might have earned; under the work life expectancy of a railroad employee $113,331 would be required. The trial court is in the best position to determine whether an award is excessive or not, and there is no evidence of clear abuse of his discretion.

We therefore affirm the judgment of the Circuit Court of Madison County.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: MR. PRESIDING JUSTICE MORAN

text:
    Mary McGregor, Plaintiff-Appellee, v. Thor Power Tool Company, a Delaware Corporation, Arthur R. Collins, President, and George A. Kautz, Assistant Secretary, Defendants, Thor Power Tool Company, Arthur R. Collins, Defendants-Appellants.
    Gen. No. 65-104.
    Second District.
    June 16, 1966.
    Patrick W. O’Brien, Mayer, Friedlich, Spiess, Tierney, Brown & Platt, and William A. Wineberg, all of Chicago, for appellants.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, and Robert E. Haythorne, all of Chicago, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Defendants appeal from a judgment on the pleadings in favor of plaintiff in an action for writ of mandamus to compel the defendants to make available a list of its shareholders. The only issue presented by the appeal is whether there was an issue of fact in the trial court as to whether plaintiff’s alleged purpose for seeking defendants’ list of shareholders was in fact her true purpose. Defendants contend that there was such an issue of fact raised in its answer to the complaint and that judgment on the pleadings for plaintiff was erroneous.

It would appear from the complaint and answer that the plaintiff was the owner of two thousand four hundred (2,400) shares of the corporate defendant and that at the time of the filing of the complaint the market value of these shares was Thirty-One Thousand Two Hundred ($31,200) Dollars. Plaintiff had made several verbal requests and one written request to the corporate defendant’s management requesting the opportunity to examine the shareholder list. In her written request she stated in part:

“I am informed that Stewart Warner Corporation owns approximately 20 per cent of the Thor shares and it or its affiliates control the management of the company. By contrast I and all of the remaining shareholders have our own interest in maintaining the maximum value of our stock. This easily may be different from Stewart Warner’s interest.
“I wish to get in touch with other shareholders to see if they share my interest and are willing to join with me and share the expense incurred in protecting our interests in Thor. I cannot do this without the stockholders’ list, and this is the reason for which I demand the list.
“Obviously I cannot state a more specific purpose since I do not know what further action we may take until I determine the interest of my fellow shareholders. My attorney tells me that it is customary for corporate counsel to continue to ask a shareholder making a demand such as I am doing for more and more specific reasons. As stated above, it will be impossible for me to be more specific.
“P.S. — I have never request such a list of any other corporation and have no intention of doing so in the future.”

Defendants offered plaintiff the opportunity to examine certain books and records of the corporation but denied her access to the shareholders’ list. Plaintiff then filed a petition for writ of mandamus and statutory damages under section 45 of the Illinois Business Corporation Act. (Ill Rev Stats 1963, c 32, § 157.45.)

Paragraph 11 of the petition is as follows:

“In her written request, Plaintiff stated the purpose of her request as follows:
“ T wish to get in touch with other shareholders to see if they share my interest and are willing to join with me and share the expense incurred in protecting our interests in Thor. I cannot do this without the stockholders’ list, and this is the reason for which I demand the list.’
“and the stated purpose is in fact the purpose of Plaintiff’s request and is a proper purpose within the meaning of Section 45 of the Illinois Business Corporation Act.”

Defendants’ answer to paragraph 11 of the petition was as follows:

“Defendants admit that paragraph 11 of the plaintiff’s Complaint quotes from her letter to Thor of June 10, 1965; are without knowledge of whether the stated purpose is in fact the plaintiff’s purpose in demanding the list; and deny that the plaintiff has stated a proper purpose within the meaning of Section 45 of the Illinois Business Corporation Act.”

The petition for the writ of mandamus was verified. Defendants’ answer was likewise verified; however, the affidavit of verification did not contain any statement as to want of knowledge.

Plaintiff made no objection to the answer or verification thereto but moved for judgment on the pleadings. This motion was allowed by the trial court so the issue presented to us is as to whether the answer to paragraph 11 alleging a want of knowledge as to whether the stated purpose was in fact the plaintiff’s purpose in demanding the list raised a fact question which would preclude judgment on the pleadings.

Section 45 of the Illinois Business Corporation Act (Ill Rev Stats 1963, c 32, § 157.45), provides in part as follows:

“Any person who shall have been a shareholder of record or the holder of a Voting Trust Certificate for at least six months immediately preceding his demand or who shall be the holder of record of at least five per cent of all the outstanding shares of a corporation, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose, its books and records of account, minutes and record of shareholders and to make extracts therefrom . . . .”

It was held in Morris v. Broadview, Inc., 385 Ill 228, 52 NE2d 769 (1944), that in a mandamus action for inspection of a list of the holders of Voting Trust Certificates, the plaintiff must both allege and prove a proper purpose. At page 235, the court states:

“Arbitrarily withholding a list from stockholders who are interested in protecting their investment is a practice not to be tolerated by the courts under our statute. The other extreme of exercising the right of inspection for speculative or other improper purpose is equally bad. The duty of the courts is to ascertain from the facts in each case the good faith of the respective parties and apply the remedy so as to administer justice between the parties in each case.”

Cited in Sawers v. American Phenolic Corp., 404 Ill 440, 448, 89 NE2d 374 (1950).

Thus, in the absence of an admission by the answer that the purpose was proper the trial court should not have granted plaintiff judgment on the pleadings.

In The People v. City of Chicago, 378 Ill 479, 38 NE 2d 747 (1942), the Illinois Supreme Court held in a mandamus action that defendants’ answer, which stated that it lacked knowledge as to plaintiff’s claim that he was the assignee of certain judgments, raised an issue of fact and it was error to grant the writ of mandamus without hearing evidence. At page 486, the court stated:

“Section 40(2) of the Civil Practice Act, (Ill Rev Stats 1939, chap 110, par 164,) which applies to mandamus proceedings. (Ill Rev Stats 1939, chap 87, par 11,) provides: ‘Every allegation, except allegations of damages, not explicitly denied, shall be deemed to be admitted, unless the party shall state in his pleading that he has no knowledge thereof sufficient to form a belief, and shall attach an affidavit of the truth of such statement of want of knowledge’ etc. Here the answer stated defendants had no knowledge sufficient to form a belief as to the truth of the allegations that the judgments had been assigned to relator, and neither admitted nor denied same but demanded strict proof thereof. Attached to the answer was an affidavit of truth as to the statement of want of knowledge. This was, therefore, not an admission of the allegations with respect to ownership by assignment of the judgments. An issue of fact was raised on that question, and for this reason the court erred in awarding the writ of mandamus without having taken any proof.”

We hold that the answer to paragraph 11 stating that the defendants are without knowledge as to whether the stated purpose is in fact the plaintiff’s purpose in demanding the list raised a triable issue and that judgment should not have been entered on the pleadings.

Any defect in the verification of the answer in failing to allege therein the want of knowledge was waived by the plaintiff when she failed to object to this pleading. Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 49, 183 NE2d 547 (1st Dist 1962); Martin v. Cole, 331 Ill App 597, 600, 73 NE2d 633 (1947).

Plaintiff cites Affiliated Distillers Brands Corp. v. Gold Seal Liquors, Inc., 13 Ill App2d 249, 141 NE2d 659 (1957), as standing for the proposition that a plea of lack of knowledge does not create a triable issue. That case is to be distinguished from the situation here since the allegation of the complaint to which the defendant pleads want of knowledge was that the plaintiff was the holder and owner of certain trade acceptances. The original documents were presented to the trial court and since the possession of a note or other negotiable instrument is prima facie evidence of ownership, there was in fact evidence presented to the trial court in support of the allegation of ownership.

Plaintiff also cites Bloch v. Bloch, 176 Pa Super 355, 107 A2d 694 (Super Ct Pa, 1954). The Pennsylvania procedure rule involved in that case is substantially dissimilar from section 40 (2) of the Civil Practice Act and that decision is not helpful to us here.

It is, therefore, our opinion that the trial court erred in granting judgment on the pleadings. Defendants were entitled to have a trial on the issue of whether plaintiff’s purpose in requesting the shareholder list was proper.

In light of this ruling, it is not necessary for us to pass on other questions raised in the appeal pertaining to the issues of good faith of each party and the amount of the damages awarded.

Reversed and remanded.

DAVIS and ABRAHAMSON, J J., concur.


text:
    Village of Willowbrook, Plaintiff-Appellee, v. Paul J. Miller, Defendant-Appellant.
    Gen. Nos. 65-128M, 65-129M.
    Second District.
    June 16, 1966.

      Edward F. Zahour, of Chicago, for appellant.
    Popejoy, Bowman, Unverzagt & Nelson, of Glen Ellyn, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On July 1, 1965, the defendant, Paul J. Miller, was served an unverified “Illinois Uniform Traffic Ticket and Complaint” by an officer of the Village of Willow-brook Police Dept. A private citizen was the complainant and the offense charged was Reckless and Careless Driving on a residential street in violation of a village ordinance. The ticket was not in the form referred to in subdivision C of the Supreme Court Rule, effective on January 1, 1964, relating to procedures in traffic cases, quasi-criminal cases and certain misdemeanors. Chap 110, following sec 101.72, Ill Rev Stats 1965. The ticket purported to bring the ordinance violation in the name and by the authority of the People of the State of Illinois, and concluded that the offense was against the peace and dignity of the People of the State of Illinois. On the date specified on the ticket the defendant appeared, pleaded not guilty, and the case was then continued for trial to August 27, 1965.

On August 1, 1965, a “Non-Traffic Complaint and Arrest Ticket” charging the defendant with having committed the offense of Disorderly Conduct in violation of a village ordinance was subscribed and sworn to by a village police officer before a notary public, one Mark E. Tazelaar. On the following day, August 2, 1965, a warrant for the arrest of the defendant was issued by an Associate Circuit Court Judge; and two days thereafter, on August 4, 1965, the warrant was executed. As appears from the return of the warrant, the arresting officer was the same Mark E. Tazelaar before whom in his capacity as a notary public the complaint was initially verified. Upon execution of the warrant the defendant was required to post a One Hundred ($100) Dollar cash bond. The defendant thereafter appeared in court as directed, executed a jury waiver, pleaded not guilty, and the case was thereupon continued for trial to August 27,1965.

On August 27, 1965, the defendant appeared in court with his counsel on both the traffic and the disorderly conduct charges, the matters were treated as consolidated for trial, and the defendant filed a Motion to Dismiss both complaints. In effect, the motion attacked the validity of the traffic complaint on the grounds that it was not verified, and the disorderly conduct complaint on the grounds that it was not verified before a judge or magistrate. The motion was denied in both respects, and the consolidated matter continued for trial to September 24, 1965. On the continued trial date defendant’s counsel filed a Motion to Reconsider his Motion to Dismiss which was likewise denied. Over defendant’s objection, the consolidated trial thereafter ensued with the plaintiff presenting evidence and the defendant offering no defense nor apparently participating in the proceeding. The defendant was found guilty of both charges, with fines in the amount of One Hundred ($100) Dollars, plus cost and Twenty-Five ($25) Dollars, plus cost being imposed on the disorderly conduct and traffic complaints, respectively. This appeal followed.

We first consider the traffic complaint. It is the contention of the defendant that the “Illinois Uniform Traffic Ticket and Complaint” before us is void as not being verified. Athough we are satisfied that the conviction on the traffic complaint could properly be set aside on the grounds that the traffic ticket and complaint before us was not in the form referred to by Supreme Court Rule, supra, and purports to bring an ordinance violation in the name and by the authority of the People of the State of Illinois and concludes that the violation is against the peace and dignity of the same People of the State of Illinois (see City of Chicago v. Berg, 48 Ill App2d 251, 257, 199 NE2d 49 (1964)), we shall consider the defendant’s contention.

The necessity of verification of a uniform traffic ticket and complaint, and, for that matter, of any complaint, is considered at some length by the Supreme Court in the recent case of The People v. Harding, 34 Ill2d 475, 216 NE2d 147. Beginning with the observation that the Supreme Court Rule adopting a traffic ticket and complaint does not even contemplate verification, the court analyzes the ticket and complaint in terms of its constitutional sufficiency. Distinguishing between a sworn complaint as a prerequisite to the issuance of an arrest warrant and a complaint as a document by which a criminal prosecution may be commenced, the court concludes that the Constitution (section 6, article II of the Constitution of Illinois) does not require a sworn complaint as a jurisdictional prerequisite to the prosecution of a criminal offense but only as a prerequisite to the issuance of an arrest warrant. As the opinion points out, however, analysis of the want of verification in terms of constitutional requirement does not end the matter. The necessity of verification of a complaint is expressly set forth in article 111-3 (b) of the Code of Criminal Procedure of 1963, which but continues this long standing statutory requirement. (C 38, § 663, Ill Rev Stats 1961.)

We, therefore, adopt the ruling of the Harding case and hold that while there is no constitutional requirement that a complaint be verified in order to sustain a criminal prosecution, nevertheless, if the statutory deficiency of want of verification is raised by appropriate pretrial motion or objection, the prosecution can only proceed on a verified complaint. The want of verification having been appropriately raised in the case before us, the unverified complaint cannot sustain the judgment, and it is, accordingly, reversed.

We turn now to a consideration of that portion of the defendant’s motion directed at the disorderly conduct complaint. Although scarcely comprehendable, the motion appears to attack the notary verified complaint in terms both of its sufficiency to sustain a criminal prosecution and as a complaint upon which a warrant lawfully can issue.

Considering first the notary verified complaint’s sufficiency to support a criminal prosecution, we reiterate the holding of the Harding case that the Constitution does not require a sworn complaint as a jurisdictional prerequisite to the prosecution of a criminal offense; in short, a complaint as a document by which a prosecution may be commenced constitutionally need not be verified at all. As we have discussed above, the verification of a complaint as a prosecution commencing document, however, has always been a statutory requirement, the requirement being now set forth in article 111-3 (b) of the Code of Criminal Procedure of 1963, supra. The Statute simply provides that the “Complaint shall be sworn to and signed by the Complainant”; it contains no limitation or qualification upon the person or officer before whom the complaint is to be sworn to and signed. Literally construed, the Statute is concerned only with the fact of verification, and not with the officer before whom verification shall be effected.

Therefore, we are of the opinion that the Statute allows verification before any officer empowered to administer oaths. A complaint verified before a notary public satisfies the Statutory requirement and is sufficient to sustain a criminal prosecution.

Finally, we turn to a consideration of the sufficiency of a notary verified complaint as the basis for the issuance of an arrest warrant. In effect, the defendant contends that a complaint subscribed and sworn to before a notary public which is then presented to a court which examines the complainant under oath is not sufficient as a complaint upon which a warrant lawfully can issue. We cannot agree with the defendant’s contention in this respect. The procedure for the issuance of an arrest warrant is expressly set forth in article 107-9 (b) (4) of the Code of Criminal Procedure of 1963. (C 38, § 107-9 (b)(4), Ill Rev Stats, 1963.) This procedure simply requires that when a complaint, defined as a verified written statement other than an information or an indictment which charges the commission of an offense, is presented to a court, the court shall examine upon oath or affirmation of the complainant or other witnesses. The definition of the word “Complaint” in article 102-9 (chap 38, § 102-9, Ill Rev Stats, 1963), as well as the form of the complaint as contained in article 107-9 (b)(4), supra, both contemplate that the complaint shall be subscribed and sworn to by a complainant at the time that it is presented to the court. When presented with the verified complaint, it is the court’s function in accordance with the provision of article 107-9 (c) (chap 38, § 107-9 (c), Ill Rev Stats, 1963), to determine from the contents of the complaint and its examination of the complainant or other witnesses whether or not the person against whom the complaint was made has committed an offense.

An examination of the record before us indicates that the complaint charging the offense of disorderly conduct was subscribed and sworn to by the complainant on August 1, 1965, before a certain notary public, and that thereafter on August 2, 1965, the complainant presented the verified complaint to the court which after examination of the complainant under oath determined that the defendant had committed the complained of offense and accordingly issued a warrant of arrest. We are, thusly, of the opinion that the complaint verified before a notary public and presented to the court by the complainant who is thereupon examined under oath by the court was sufficient as the basis for the issuance of the warrant of arrest.

The judgment of the trial court on the traffic complaint, being case Number 65-128M, is accordingly reversed, and its judgment on the disorderly conduct complaint, being case Number 65-129M, is affirmed.

Judgment affirmed in case No. 65-129M.

Judgment reversed in case No. 65-128M.

DAVIS and ABRAHAMSON, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    Peter Skontos, a/k/a Panagiotis Skoundrianos, Plaintiff-Appellant, v. John C. Gekas, et al., and Nikitas Nomikos, a/k/a Nick Nomikos; and Steven P. Gianakas, a/k/a Stavros Gianakakis, Defendants-Appellees.
    Gen. No. 49,383.
    First District, Third Division.
    June 16, 1966.
    Affirmed.
    Peter S. Sarelas, of Chicago, for appellant; John C. Gekas, of Chicago, for appellees.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Appellee, v. Carl A. DeMarino and Noel D. Schiff, (Consolidated), Appellants.
    Gen. No. M-50,268.
    First District, Third Division.
    June 16, 1966.

      Schlaeger & Sklodowski, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Separate complaints were filed on August 2, 1964, against each of the above defendants charging them with having violated section 48.1 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1963, c 95½, par 145.1), commonly described as “drag racing.” Trial was held on October 15, 1964, at which time the court found both defendants Carl A. DeMarino and Noel D. Schiff guilty of violations of the above act. Carl A. DeMarino was put on probation for six months, and Noel D. Schiff was sentenced to fifteen days in the County Jail. Notice of appeal on behalf of DeMarino was filed on October 20, 1964, and notice of appeal on behalf of Schiff was filed on October 29, 1964. Thereafter, on November 23, 1964, the trial judge by orders stayed the mittimus as to each defendant, ordered that the records in the two cases be consolidated for the purpose of appeal, and denied a motion in arrest of judgment.

The defendants raised the following points: (1) The complaints were insufficient in that they did not specify as to what drag racing is and failed to specify any acts of defendants which would adequately inform them of the offense for which they are accused; (2) the language of the drag racing statute is not set forth in the complaint with sufficient certainty and definiteness to advise the defendants of the specific criminal acts for which they are accused; (3) the defendants were not proven guilty beyond a reasonable doubt.

The first two points raised by the defendants, each of which goes to the question of sufficiency of the complaints, may be discussed together. As before mentioned, the notice of appeal on behalf of DeMarino was filed on October 20, 1964, and the notice of appeal on behalf of Schiff was filed on October 29, 1964. Thereafter, on November 23, 1964, the trial court entered orders denying a motion in arrest of judgment. After the filing of the notices of appeal in these cases, the court had no jurisdiction to enter such orders. The excerpts from record, including the report of proceedings at the trial, do not disclose that any motion in arrest of judgment either oral or written, had been made in the trial court. When an appeal is taken from a judgment or decree the control of the trial court over the case is suspended until a disposition thereof on appeal. Nichols v. Bradley, 223 Ill App 377.

In American Smelting & Refining Co. v. The City of Chicago, 409 Ill 99, 98 NE2d 710, on page 102, the court said:

“Upon due consideration we held that when the notice of appeal is filed in the circuit court the case proceeds in the court of review, not as a new case but as the continuation of one that was pending in the trial court, and the jurisdiction of the reviewing court to take the case attaches when the notice of appeal is filed in the trial court, and that we have no jurisdiction to consider any proceeding of the lower court after notice of appeal was filed and served. We further held the only questions we could consider on appeal were those existing when the notice of appeal was filed. We also held to the same effect in 162 East Ohio Street Hotel Corp. v. Lindheimer, 368 Ill 294, and Francke v. Eadie, 373 Ill 500. In view of the provisions of section 76 of the Civil Practice Act, the holdings in these cases would seem to be academic.”

Defendants are now leaning upon orders of the trial court entered after the notices of appeal had been filed. It appears from this record that the obtaining of the orders of November 23, 1964, after the notices of appeal had been filed, was an afterthought, and since the court was without jurisdiction to enter such orders, the case stands before us as though no motions in arrest of judgment had been made. The objections which the defendants seek to raise to the complaints are not that the complaints did not charge an offense, but that the complaints did not with sufficient particularity charge an offense. Since no motions to quash or in arrest of judgment were filed or ruled upon in these proceedings prior to the filing of the notices of appeal, the question of the sufficiency of these complaints cannot now be raised on appeal. People v. Berkowski, 385 Ill 392, 52 NE2d 710.

The defendants next contend that they were not proven guilty beyond a reasonable doubt. It will be necessary to now discuss the facts brought out at the trial.

On August 2, 1964, at about 7:30 or 7:45 p. m., the two automobiles driven by the two defendants pulled out from a hot dog stand into Milwaukee Avenue, where the traffic at that time was comparatively light. As they pulled out, Police Officer Dvorak, who was at Waukegan and Milwaukee, noticed the two vehicles make a left turn. The turn was made with excessive noise of the mufflers of both cars. The two cars were stopped by a red light at Touhy and Milwaukee. The officer was following in a car at a distance of about 200 feet when the light turned green. Between Touhy and Harts Road the two cars again accelerated to an excessive speed and were again stopped by a red light at Harts Road. The defendants’ cars were being driven in a southerly direction on Milwaukee during all of this time. The officer, driving at a speed of 75 miles an hour, swung into the northbound lane in an effort to overtake the cars. One of the cars was in the inner lane and the other in the outer lane, side by side. The officer testified that he got about two or two and one-half blocks behind the cars, even though travelling at a speed of 75 miles an hour. Again, when the two cars were slowed by traffic at Albion and Milwaukee the police officer stopped them and told them to follow him back to the station. The officer also testified he clocked the speed of the defendants’ cars up to 75 miles an hour and they were actually exceeding 75 miles an hour. Upon making the arrest the defendant Schiff said that next time he would get a faster car. Officer Dvorak also testified that the defendants were driving their vehicles in excess of the posted speed limits. The defendants were charged with violating section 48.1 (UART) State of Illinois (Ill Rev Stats 1963, c 95½, par 145.1). This section reads as follows:

“Any person who, as an operator of a motor vehicle, is a participant in drag racing shall be confined in the county jail for not more than one year, and the operator’s license of such person shall be revoked in the manner provided by Section 6-205 of the ‘Illinois Motor Vehicle Law,’ approved July 11, 1957, as heretofore or hereafter amended.
“For the purpose of this Section ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him.”

Defendant DeMarino testified in his own defense that he was travelling between 25 and 30 miles an hour and never pulled abreast of Schiff, and that he was three or four car lengths behind Schiff. He further testified that he did not know Schiff and that it was just a coincidence that they were driving alongside one another. He further testified that the posted speed along Milwaukee Avenue at that location was 35 miles per hour, and that he told the officer this was his first time.

Defendant Schiff testified that he was behind De Marino and that he passed DeMarino in the right-hand lane; that he drove his car 35 miles per hour and that he was not speeding because he already had enough tickets and didn’t feel like doing any more speeding.

The defendants contend, based upon the foregoing evidence, the State failed to prove a violation of the aforementioned statute. They argue that the probative facts of drag racing would be excessive speed, improper lane usage, swerving, dodging, cutting off, tailgating, etc. With this statement we are not in accord. None of the foregoing appears in the statute with the possible exception of speed. The gist of the “drag racing” act is the competition of two or more individuals in motor vehicles racing on any street or highway in this State. It is not necessary that there be improper lane usage, swerving, dodging, cutting off, or tailgating. It is necessary under the statute only to show that two or more individuals were competing or racing on a street or highway in this State, and that one of the motor vehicles is to the side or the rear of another vehicle of a competing driver, and that the one driver attempts to prevent the competing one from passing or overtaking him. The evidence in this case showed that the defendants both accelerated their cars from a stopped position to excessive rates of speed and travelled side by side or in different lanes. One defendant testified that he passed the other defendant at one time while the other defendant testified that he was at all times three or four car lengths behind the car of the other defendant. To prevent a competing driver to pass or overtake the first driver can be accomplished by mere speed of the first driver. Proof of swerving or jockeying of the lead car is not essential under the statute. The purpose of the act is to protect the drivers of other cars and pedestrians in the use of streets or highways in this State. Racing of two or more cars on a public highway is far more dangerous than speeding by a single driver, and the legislature realizing this made the penalty for racing more severe than the penalty for speeding.

It was the function of the trial court to pass upon the credibility of the witnesses and that court in this case concluded that the testimony of the police officer was to be believed over that of the two defendants. The trial judge having seen the witnesses and having observed their demeanor and their candor or lack of candor while testifying, was in a better position than we to determine credibility, and having decided to believe the testimony of the police officer, we will not disturb that finding. Further, we believe it was the only conclusion the trial court could have reached.

Both defendants testified that they did not know each other prior to this occurrence. In the case of State of Connecticut v. Dionne, 24 Conn Supp 59, 186 A2d 561, 564, the court said: “It is not necessary that there be some prior agreement or understanding or some prearrangement before there can be a race; there can be a race by total strangers on the spur of the moment.”

In City of Madison v. Geier, 27 Wis2d 687, 135 NW 2d 761, the Wisconsin court, referring to a Connecticut case, said on page 764: “It was pointed out the idea of a race could be entirely subjective in the minds of each party and there may be a race in fact by reason of their competitive acts which could be determined by reasonable and logical inferences from observable circumstances.”

On two occasions the defendants accelerated their cars to high speeds quickly. Neither one yielded to the other. The inference to be drawn from these facts were for the trial court, and unless they are unreasonable they should be accepted on appeal. We do not believe that the inferences properly drawn from the facts in this case were unreasonable. The judgments are therefore affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.