author: MR. PRESIDING JUSTICE BRYANT

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leon Stepheny, Defendant-Appellant.
    Gen. No. 50,703.
    First District, Second Division.
    November 4, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, 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. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County which found the appellant, Leon Stepheny, guilty of the crime of voluntary manslaughter and sentenced him to the penitentiary for a term of from ten to twenty years. Appellant’s sole contention on this appeal is that he was not proven guilty of the crime of voluntary manslaughter beyond a reasonable doubt.

The facts of the case are as follows: Appellant and four other men, Lee Phillip Coleman, the deceased, Richard Coleman, deceased’s brother and appellant’s brother-in-law, Buck Field, and Willie Harris, were shooting craps at the home of Richard Coleman on the night of October 16, 1964. Both Richard Coleman and Buck Field testified that during the course of the game the appellant and the deceased became involved in an argument over their earnings and over the fact that the deceased had not accepted a bet in the sum which the appellant had accepted when the deceased was shooting the dice. Appellant informed the deceased that if the deceased ever offered to bet the appellant at any time, one of the two of them would have to be carried out of the place. Deceased then asked the appellant for a five-dollar bet, and the appellant, after repeating his previous warning, shot the deceased in the chest with a .45 caliber revolver.

Appellant, Leon Stepheny’s testimony was essentially the same as that of the two witnesses for the People. However, his testimony did differ in one essential matter. Appellant testified at the trial that he shot the deceased when the deceased turned on him with a .22 caliber revolver in his hand, at which time the appellant drew his revolver and shot the deceased. Stepheny further testified that he had seen the .22 caliber revolver earlier in the deceased’s pocket. However, no such gun as described by the appellant was ever found by investigating officers at the scene of the crime. The deceased’s brother-in-law contradicted the appellant on the possession of the gun, saying that he had not seen the deceased with a revolver on the night of the shooting.

Appellant was indicted for murder, but was found guilty of voluntary manslaughter. It is well established in Illinois that a verdict of guilty of voluntary manslaughter may be returned on an indictment charging murder, provided there is evidence to support the lower grade of homicide. People v. Lewis, 375 Ill 330, 31 NE2d 795. The sum and substance of appellant’s argument on this appeal is that the court should have found him guilty of murder or of nothing, that there was insufficient evidence to establish the provocation necessary to reduce a killing from murder to manslaughter. Appellant puts forth two propositions to support this contention. One is that mere words are not sufficient provocation to reduce a murder charge to voluntary manslaughter. The other is that the appellant was found guilty on the basis of a misconception of the trial court as to the relative deadliness of a .45 caliber revolver.

On the first point, it is clear that mere words are insufficient provocation to reduce a killing from murder to voluntary manslaughter. People v. Russell, 322 Ill 295, 153 NE 389; People v. Marrow, 403 Ill 69, 85 NE2d 34; People v. McMurry, 64 Ill App2d 248, 212 NE2d 7. We have searched the record in this case and find the deceased and the appellant did not only exchange harsh words, but engaged in a quarrel of some duration both during and after the crap game broke up over the betting in the game and over the amount of money the appellant and deceased were making. After the two men had been arguing for some time, appellant told the deceased that if the deceased ever tried to bet with the appellant again one of the two of them would end up being carried out of the place. At this point the deceased offered to make a bet with the appellant and was shot. On the basis of the facts in this case, we cannot say that there was lacking the provocation necessary to reduce a charge of murder to one of voluntary manslaughter.

On his second point, the appellant claims that the court convicted him on the basis of certain gratuitous comments regarding the size and relative deadliness of the gun which appellant was carrying and which he used to shoot the deceased. We do not feel that these remarks of the trial court were of any relevance in reaching a decision in this case. But, in any event, this contention is without merit. The Illinois Supreme Court has stated that where a record may disclose facts sufficient to sustain a conviction of murder as well as manslaughter, and the trier of fact returns a finding on the lesser charge, such a conclusion will not be disturbed, unless palpably contrary to the evidence presented. People v. Harris, 8 Ill2d 431, 134 NE2d 315; People v. Wiggins, 12 Ill2d 418, 147 NE2d 80. In view of the testimony of the two witnesses for the People and the admissions of the appellant it cannot be said that the conviction of the appellant rested on irrelevant remarks of the trial court, nor can it be said that the conclusion reached by the trial court was clearly contrary to the evidence.

For the above reasons the judgment is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Milton Kepler, Defendant-Appellant.
    Gen. No. 50,892.
    First District, Second Division.
    November 4, 1966.

      R. Eugene Pincham and Charles B. Evins, of Chicago (Earl E. Strayhorn, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Sammons, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was tried without a jury for the crimes of forcible rape and deviate sexual assault. He was found not guilty of sexual assault and guilty of forcible rape, and sentenced to 5 to 20 years in the penitentiary. He appeals.

The sole contention raised on this appeal is that defendant was not proven guilty beyond a reasonable doubt. He maintains that the evidence does not show the act complained of to have been forcible and against the will of the complaining witness.

Linda Linn, the complaining witness, was 20 years of age at the time of the alleged rape and lived with her mother and sister in Posen, Illinois. Miss Linn testified that about 10:30 p. m. on an evening in late October 1964, she was returning to her home from work when defendant, driving his automobile, halted her on the street. Miss Linn testified that he called her to his automobile but that she kept walking. He again called her and asked directions to Midlothian. She stated she gave him the directions and continued walking, but that defendant approached her and told her that he was new in the area, that he lived alone and that he asked her several questions concerning herself. He requested her telephone number and asked if he could drive her home, but she refused. Defendant, a salesmen supervisor, then gave her his business card, on which was printed the name of his employer and defendant’s name, office address and office telephone number. Miss Linn took the card and gave defendant her telephone number, “just to get away from him.”

Miss Linn testified that defendant thereafter telephoned her approximately once a week for the next three weeks and that in that period she again saw him pursuant to one of the telephone calls. On this occasion Miss Linn told defendant of her dislike for her job, and defendant apparently told her he would try to find employment for her with his company. A date was made for November 9th, and approximately 8:00 p. m. on that date defendant came to Miss Linn’s home and asked her if she would like to take a ride to Lockport, Illinois, where he had to contact some of his salesmen, and also to talk about her employment application. When they arrived in Lockport, defendant began making advances toward Miss Linn and attempted to kiss her. Defendant thereafter conversed with some of his salesmen, after which he and Miss Linn ate pizza in a restaurant and proceeded back toward Miss Linn’s home in Posen. Enroute to Posen defendant turned off the main highway onto an unlit country road. Miss Linn testified she asked defendant where they were going and defendant stated he was taking a short cut to her home. The automobile was then driven into a driveway which led to a farm house where defendant stopped the automobile.

Miss Linn testified that she asked defendant what was wrong but that defendant did not say anything. She stated that she became angry and demanded that defendant fill out the employment application as he had promised and to take her home. She attempted to get out of the automobile but defendant stopped her and took a job application from his glove compartment which he filled out. Miss Linn testified that after the application had been filled out, defendant again began making advances toward her, sitting on her lap, and putting his hands on her. Miss Linn attempted to push him off, but he was too heavy, and she attempted to reach for the door but defendant again restrained her.

Miss Linn testified that defendant then pushed her down on the front seat where he forcibly removed her boots, slacks and panties, and unbuttoned her blouse and removed her brassiere. She further testified that she was wearing tight-fitting, stretch type slacks which were looped at the bottom and tight-fitting, over-the-ankle boots which normally take two hands to put on. Miss Linn testified that she screamed and attempted to push defendant away but that he was too heavy. Defendant then squeezed her mouth, pushing her cheeks together and cutting the.inside of her mouth, and beat her head against the door telling her to be quiet. Miss Linn further testified that she had long fingernails and attempted to scratch defendant’s face, but that defendant grabbed her wrist and prevented her from doing so. She tried to open the door with her free hand but defendant caught hold of it, put it under him and lay on top of it. Defendant placed his forearm against Miss Linn’s throat and pressed it until she could not breathe. Miss Linn testified that defendant then proceeded to have intercourse with her, first rectally and then normally.

The entire incident lasted some 45 minutes, after which defendant went to the trunk of his automobile for a jacket. Miss Linn got dressed and the two proceeded back to her home in Posen. She testified that defendant parked in front of her house and that they made a date to see each other the following night because she “was supposed to go away with him.” Miss Linn told defendant to call her, said goodnight and went into the house. It was 1:00 o’clock or 1:30 o’clock in the morning. Miss Linn testified she immediately woke her mother and made complaint of what had allegedly taken place. Mrs. Linn called the police and Miss Linn was taken to the hospital for an examination. Defendant was arrested the following evening in front of the Linn residence as he was coming to see Miss Linn pursuant to the date made the previous night.

Miss Linn testified the only reason she went out with defendant was that she felt sorry for him because he said he was lonely and also because he promised to find her better émployment. She also testified that her clothing was completely intact after having been allegedly forcibly removed by defendant prior to the alleged rape, and that defendant bore no marks, abrasions or the like on his person after the alleged rape.

Defendant Kepler’s testimony substantially corresponded to that given by Miss Linn except as to the alleged rape. He testified that he met Miss Linn in the latter part of October 1964, when he stopped her on the street and asked her for directions. After she gave him the information, defendant asked her for her telephone number. Miss Linn gave him the telephone number and told him that it would be proper for him to call. Defendant telephoned several times and a date was made for the end of October. At this first meeting defendant met Miss Linn’s mother and sister, after which he and Miss Linn went to a hamburger stand for something to eat. Miss Linn told him that her mother was constantly nagging her; she stated she wished she could find new employment and get away from home. Defendant testified that he told her he could make arrangements with some persons in his office for a job interview. He then took her home, escorted her to the door, kissed her good-night and told her he would call her in the near future.

Defendant called Miss Linn a few days later and a date was set for November 9th. On the evening of November 9th they drove to Lockport in order that defendant could check on his salesmen, ate some pizza in a restaurant and returned to Posen. Prior to leaving for Lockport defendant testified that Miss Linn told him that she had to be home by 12:00 midnight. Enroute back to Posen, Miss Linn again brought up the subject of the job application and defendant pulled off the road near a farm house where they filled out the application. Defendant stated to Miss Linn that he would give it every consideration.

Defendant testified that Miss Linn was very elated because defendant was so nice to her and that she stated he deserved a kiss and kissed him. He testified that from that point they remained in a very close embrace and that he became very excited and reached a climax. He testified that Miss Linn was also excited and began unbuttoning her blouse. He stated that she proceeded to take off all her clothing and that they engaged in an act of intercourse. After the act of intercourse, defendant told Miss Linn that he would get a job for her and would help her move into an apartment away from home. Defendant then went to the trunk of his car and got a jacket as Miss Linn dressed. Enroute to Miss Linn’s home the subject of her job and home situation again came up, and defendant made arrangements to pick her up the following night to go apartment hunting. They reached Miss Linn’s house and defendant offered to escort her to the door, but she declined stating that her mother would be angry with her for coming home so late. Defendant testified that he then went home and was arrested the following evening in front of the Linn residence where he was pursuant to the date made the previous night. He denied having raped Miss Linn or in any way committing any act upon her against her will or by use of force or threat of force.

The law is well settled in rape cases that the testimony of the complaining witness must either be clear and convincing or must be corroborated by other facts and circumstances. People v. Rossililli, 24 Ill2d 341, 181 NE2d 114. The reason for this requirement is simply that the charge of rape is an accusation easily made, hard to prove, and even harder to be defended against by the accused. People v. Phipps, 338 Ill 373, 170 NE 305. A reviewing court will not hesitate to reverse a conviction where, after a review of all the evidence, there exists a grave and substantial doubt as to the guilt of the defendant due to a lack of credible evidence or the existence of improbable or unsatisfactory evidence. People v. Dougard, 16 Ill2d 603, 158 NE2d 596. On the entire record of the case at bar there exists a serious doubt that the act of intercourse in question was performed through force and against the will of the complaining witness.

According to Miss Linn’s own testimony she and defendant met for the first time at a nocturnal street meeting, at which time she gave defendant, a stranger, her telephone number. Defendant in turn gave her his business card containing his name, business address and telephone number, and the name of the company by which he was employed. Defendant thereafter repeatedly called Miss Linn on the telephone and Miss Linn finally stated she would go out with him because she “felt sorry for him because he was alone and didn’t know anyone.” Defendant then visited Miss Linn at her home and met her mother and sister. Miss Linn complained to defendant concerning household, job and maternal problems and conflicts. Defendant promised to find her employment with his company and a date was made to execute an employment application on November 9th. Defendant invited Miss Linn to take a ride to Lockport with him and to execute the employment application; she agreed. When they arrived at Lockport defendant and Miss Linn dined in a pizza restaurant. After leaving the restaurant they proceeded to a lonely country road where Miss Linn prevailed upon defendant to execute her job application. It is at this point that Miss Linn’s testimony leaves grave doubt of defendant’s guilt. She states that, in the small confines of the front seat of an automobile, apparently made smaller by the fact the seat was broken and pushed forward as far as it could go, defendant forcibily removed her clothing, which included tight-fitting, stretch type pants, tight-fitting boots, panties and a brassiere, after unbuttoning her blouse. (Miss Linn testified that she normally used two hands to put her boots on.) It is significant that Miss Linn testified there was not one rip, tear or break in any of her clothing, although it was allegedly removed by force. It is also significant that there is no evidence of a single scratch, abrasion or bruise on the person of the defendant, although Miss Linn said she struggled, had long fingernails, and the like. Other than Miss Linn’s testimony concerning the alleged cut on the inside of her mouth, there is no evidence of a single mark or abrasion inflicted upon her by the defendant. The alleged cut on the inside of her mouth was in no way corroborated by Mrs. Linn, the hospital records or the investigating police officer, although Miss Linn was examined immediately after she made complaint to her mother. Furthermore, although Miss Linn had an opportunity to escape after the alleged rape, it appears no serious effort was made to do so; when asked if she made an attempt to flee after the alleged rape, Miss Linn stated she “thought about it.” Finally, the single and most important fact which lends doubt to Miss Linn’s entire story is that she and defendant made a date to see each other the following night because she “was supposed to go away with him.” Such an act on her part is highly suggestive of her approval of what had transpired prior thereto. People v. Fryman, 4 Ill2d 224, 122 NE2d 573. See also People v. Buchholz, 363 Ill 270, 2 NE2d 80; People v. Tocco, 413 Ill 305, 108 NE2d 762. Corroborative of the fact that a date was made for the following evening is defendant’s arrest in front of the Linn home on the evening of November 10th.

The only facts which in any way tend to corroborate Miss Linn’s testimony of the alleged rape are her immediate complaint to her mother and the presence of spermatozoa found in the subsequent examination. The presence of spermatozoa alone is evidence only of a recent act of intercourse. People v. Grudecki, 373 Ill 536, 27 NE2d 51. Miss Linn’s immediate complaint is weakened by the facts testified to by her prior to her making the complaint and by the fact that she reached home at 1:00 or 1:30 in the morning, whereas she told defendant she had to be in by midnight. The complaint may well have been the result of a belated sense of guilt of what had transpired earlier in the evening. People v. DeFrates, 33 Ill2d 190, 210 NE2d 467. On all the facts we are unable to say that the State proved forcible rape beyond a reasonable doubt.

The judgment is reversed.

Judgment reversed.

BRYANT, P. J. and LYONS, J., concur.


text:
    Seatonville School District No. 96, Bureau County, Illinois, and Spring Valley School District No. 99, Bureau County, Illinois, as Successor in Interest to Seatonville School District No. 96, Plaintiffs-Appellants, v. Howard Helm, Esther Helm, The Ladd Community Consolidated School District No. 94, Bureau County, Illinois, and The County Board of School Trustees of Bureau County, Illinois, Defendants-Appellees.
    Gen. No. 66-41. (Abstract of Decision.)
    Third District.
    November 4, 1966.
    Perona & Perona, of Spring Valley, for appellants; Trimble & Trimble, of Princeton, for appellees.
   Opinion by PRESIDING JUSTICE CORYN. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee Brown, et al., Defendants-Appellants.
    Gen. No. 50,365.
    First District, Second Division.
    November 4, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Saul A. Perdomo, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This case represents an appeal from a judgment' of the Circuit Court of Cook County finding the appellants guilty of theft. Appellant Brown was sentenced to one year and appellant Sulauka was sentenced to six months in the Cook County jail. The sole issue on this appeal is the correctness of the trial court’s refusal to grant appellant Brown’s motion to suppress the evidence.

The facts of this case are as follows: At approximately 1:30 a. m. on September 10, 1963, Chicago Police Officer Roger Corcoran stopped a vehicle driven by appellant Brown, which vehicle Officer Corcoran had observed had no state license plates. When questioned appellant Brown admitted that he had no license plates nor city sticker; he was also unable to produce a driver’s license. Appellant Brown claimed he was coming from a used-car lot around North Avenue and Cicero in the City of Chicago, where he had just purchased the car. Brown showed the officer a title made out to the used-car dealer where he had purchased the automobile. The title was not dated or signed and did not contain his name. Appellant Sulauka, meanwhile, was sleeping on the back seat of the car. Also on the back seat was a set of golf clubs and some clothing, for which the appellant Brown could give no explanation. At this time Brown claimed that he was coming immediately from the dealer where be bought the car and was on his way to meet a girl friend around Rush Street.

Appellant Sulauka gave the officer a different version of the facts. He told him that from the dealer they had gone to his apartment in Lombard and that the items were his property since Brown was helping him move.

Officer Corcoran stated that he saw the golf clubs and wearing apparel for which Brown could not account while he was talking to Brown. Officer Corcoran decided to take the two appellants into the area police headquarters. Prior to doing this, the officer made the search of the trunk, which was the subject of the motion to suppress. In the search of the trunk the officers discovered two sets of golf clubs, shirts, raincoats, golf balls and some golf shoes.

The police officer had no warrant either for the search or the arrest of appellants. It is the contention of the appellants that it was improper to search the automobile’s trunk in this situation. It has long been established that the constitutional safeguards contained in section 6 of article 11 of the constitution of this State and the fourth amendment of the United States Constitution do not prohibit all searches made without a warrant but only those which are unreasonable, and that a determination of the unreasonableness of any given search must be made upon the facts there present. United States v. Rabinowitz, 339 US 56; People v. Watkins, 19 Ill2d 11, 166 NE2d 433.

Appellants refer the court to the case of People v. Lewis, 34 Ill2d 211, 215 NE2d 283, as authority for the proposition that the search in this case was unreasonable. In that case it was held to have been error to have refused the appellant’s motion to suppress evidence. In that case appellant was stopped by the police early in the evening for running a red light. Police officers noticed that the license number of the automobile was one wanted in connection with a burglary. Police proceeded to search the car, finding burglar tools in the trunk, which were placed in evidence at the appellant’s trial. The court held the search to be unreasonable in view of the fact that there was little danger that the goods could have been disposed of before a search warrant could be obtained, and the fact that the appellant was arrested for a minor traffic offense.

While the appellants in this case were shopped by the police for a failure to have license plates on the car, the attending circumstances were sufficient to have aroused a reasonable suspicion on the part of the police that they were dealing with something more serious than a mere violation of the Motor Vehicle Code. The hour was late, approximately 1:30 a. m., an hour when it would have been difficult for the police to have obtained a search warrant. When questioned, the appellant Brown was unable to produce a valid driver’s license. During the questioning in regard to the infractions of the Motor Vehicle Code, the arresting officer saw golf clubs and wearing apparel on the back seat of the car. When questioned about these items' appellant Brown was unable to give any explanation for them. Appellant Sulauka, however, testified that the items were his and that Brown was helping him move from Lombard to a new address in Chicago when they were stopped by the police for having no license plates. Further discrepancies in the stories of the two appellants appeared when appellant Brown stated they were coming directly from the used-car dealer’s lot where he bought the car, while appellant Sulauka said that they were coming from Lombard. The appellants likewise were unable to agree on their destination. Sulauka said they were on their way to his new apartment, while Brown stated that he was on his way to the Rush Street area to see his girl. In view of the lateness of the hour, the arousing of the suspicions of the police by the pile of goods in the back seat of the car and the discrepancies in the stories related by the two appellants, we hold that the trial court did not commit error when it refused to suppress the evidence obtained in the search of the trunk of the car belonging to Brown.

Because of our finding that it was not error to have refused the appellant Brown’s motion to quash the search warrant, we “find it unnecessary to consider the question of whether the appellant Sulauka, who did not join in the motion at trial, should be able to take advantage of appellant Brown’s motion.

For the above reason we affirm the judgment of the trial court as to each defendant.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marvin Haycraft, Defendant-Appellant.
    Gen. No. 65-77.
    Second District.
    November 7, 1966.
    Paul W. Kaiser, Jr., Assistant Public Defender, of Waukegan, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan (Robert J. Smart and Jack Hoogasian, Assistant State’s Attorneys, of Waukegan, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This appeal is prosecuted from an order, based on a jury verdict, entered on January 20, 1965, by the Circuit Court of the 19th Judicial Circuit, Lake County, that adjudged the defendant, Marvin Haycraft, guilty of the crime of robbery as charged in his indictment. The defendant was sentenced to a prison term of not less than eight nor more than twenty years.

The defendant was arrested on the 23rd day of July, 1964, several hours after the robbery of a tavern in the city of Waukegan, and charged with the commission of that crime. At the original arraignment on August 7, 1964, Haycraft entered a plea of not guilty and was remanded to the County jail for want of bail. Approximately one and one-half months later, Haycraft withdrew his first plea and, on rearraignment, pled guilty to the charge and petitioned the court for probation. He was released on his own recognizance at that time and the matter was continued until December 30, 1964, for a hearing on his petition.

During the interim, and in violation of his bond, Hay-craft was apprehended by the police in Phoenix, Arizona. It is apparent that the defendant realized, at this point, that his petition for probation was unlikely to succeed. He, therefore, orally requested on December 30 that he be allowed to withdraw his plea of guilty. His request was granted and, on his third arraignment, he entered his plea of not guilty and the matter was placed on the January 1965 Criminal Trial Calendar of the court. After several delays, the cause came to trial with the result already indicated.

Although reversal is urged by defendant on several grounds, we need discuss only one. Haycraft testified on his behalf, and was asked, during cross-examination, the following question:

“Q. Do you recall, too, Marvin, that at that time you had a conversation with Anthony Dohoney from the Probation Department?
“A. Oh, yes, I talked to a probation officer.
“Q. Now what did you tell the probation officer ?”

Defense counsel objected at this point and moved for a mistrial. Although the objection was sustained, the trial continued after a denial of the motion.

Subsequently, Anthony Dohoney, a probation officer for Lake County, was called to testify as a rebuttal witness for the State and, in answer to a question propounded to him, stated as follows:

“Mr. Dohoney: Well, in the process of preparing a probation report, I was interrogating the defendant as to what had taken place in the City of Waukegan for which he was charged; namely, a robbery. I asked him if he performed the act and since he had already pled guilty at that time, he . . .”

An objection was again promptly sustained and the court proceeded to strike all of Dohoney’s testimony and admonished the jury to disregard it in its entirety. However, a second motion by the defense that a juror be withdrawn and a mistrial declared was denied and it is from those denials that Haycraft appeals.

While Illinois has no precise law on the subject, the general rule in other jurisdictions appears to be that a plea of guilty, subsequently withdrawn by leave of court, is not admissible into evidence against an accused upon his trial on the substituted plea of not guilty. Kercheval v. United States, 274 US 220 (1927); People v. Spitaleri, 9 NY2d 168 (1961); State v. Joyner, 228 La 927, 84 So2d 462 (1955).

The Kercheval case, cited above, is the leading decision on the subject and did much to correct the conflict on the point that existed between various jurisdictions. Kercheval had been indicted for using the United States mails to defraud. He first pleaded guilty to the charge and was thereupon sentenced. He then petitioned for leave to withdraw his guilty plea and alleged that he had entered it only on the promise of the prosecution that his sentence would be minimal. The trial court granted his petition but permitted the prosecution to introduce his earlier plea into evidence during the trial on his substituted plea of not guilty. The Supreme Court rejected the position of both the trial court and the Circuit Court of Appeals that the prior plea was admissible, not as conclusive proof of guilt, but as in the nature of an admission against interest, and reversed both courts. In so doing, the court said in part:

“The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto . . . .”

Almost all subsequent cases agree with the Kercheval decision. In the case of People v. Street, 288 Mich 406, 284 NW 926 (1939), the Kercheval doctrine was expanded by the Supreme Court of Michigan. In that case, the accused was permitted to withdraw his guilty plea and went to trial on his denial of guilt. The prosecutor, in his opening statement to the jury, alluded to the prior plea. Objection was immediately made and sustained. The trial court instructed the jury that the accused had a right to withdraw his guilty plea and that the allusion should be disregarded but refused to declare a mistrial. The Supreme Court of Michigan reversed the trial court on that point and held that the accused did not receive a fair trial as a result. It stated, in part, as follows: ■

“While it is impossible to analyze the processes of the human mind, we cannot say that the jury was not impressed with the statement that defendant had previously pleaded guilty. No matter how great an effort a juror might make not to let it prejudice him, the statement was of such a nature that it could not be eradicated from the average juror’s mind by instruction of the judge . . . .”

We agree with the position of both the Kercheval and Michigan decisions cited. It is utterly inconsistent to permit a defendant to withdraw his guilty plea and then allow it, even inferentially, to be used against him. Once an accused has been permitted to withdraw his plea of guilty, he is entitled to all the privileges and presumptions that the law affords, including the presumption of innocence. State v. Reardon (Minn), 73 NW2d 192 (1955); People v. Spitaleri, supra (New York, 1961); State v. Joyner, supra (Louisiana, 1955).

It is also difficult to conceive a disclosure more apt to influence a jury than the information that the accused had at one time pled guilty to the commission of the crime with which he stands charged. The average juror, almost by definition, is unable to grasp the subtle technicalities of the law. Ordinarily, he would be unable to contemplate that a man would admit guilt to a crime if in fact he were not guilty. Furthermore, he would be unable to erase that disclosure totally from his mind regardless of an admonishment from the court, however prompt and however strong. The human mind is not a blackboard from which unwanted information can be erased at will. We can think of nothing more damaging to an accused in the minds of the jury than the disclosure, however brief, that he had admitted guilt to the charge against him, and once that disclosure has been made we cannot say that he has received the fair and impartial trial to which he is entitled.

Although Dohoney’s statement was promptly stricken by the trial court and the jury directed to disregard his testimony completely, irreparable damage had already been done. The jury was aware, however indirectly, that the defendant, Haycraft, had previously pled guilty to the crime of which he was accused. "Under the circumstances, he did not receive a fair trial as guaranteed by the Constitution of the State of Illinois and the United States of America.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

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


author: CORYN, P. J.

text:
    Catherine H. Mitchell and Margaret Murphy, Known as Margaret M. Adams, Plaintiffs-Appellees, v. Peoria Journal-Star, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 66-19.
    Third District.
    November 7, 1966.
    Rehearing denied December 9, 1966.

      McConnell, Kennedy, McConnell & Morris, of Peoria, for appellant.
    Kellstedt & Young, of Peoria, for appellees.
   CORYN, P. J.

Plaintiffs, Catherine Mitchell and Margaret Adams Murphy, who are sisters, filed a complaint in the Circuit Court against The Peoria Journal-Star, Inc., a corporation engaged in the business of publishing a daily newspaper at Peoria, to recover damages for an alleged defamation, of and concerning them, arising from defendant’s publication of the following article in the evening edition of its newspaper for June 22,1962:

“Liquor Violators Fined by Default.
“Two women and a man charged with violation of the city liquor sales ordinances were found guilty by default this morning and were fined $50 each by Justice of the Peace Lester Gerber.
“Arrested in a Sunday morning raid at the Men’s Social Club, 2406% SW Adams St., were Margaret M. Adams, 1202 W. Smith St., Catherine H. Mitchell, of the same address, and James D. Murphy, 714 Spring St.”

After alleging the publication of the foregoing article, the amended complaint averred that plaintiffs were engaged as partners in a tavern business known as the Shelly Tap, and that as a result of the defamation, the sales, income and receipts of said business were greatly reduced and that plaintiffs otherwise also sustained special pecuniary damage. The defendant admitted the publication of the article, denied that it was defamatory, and asserted the defense that the publication is true, and was published for justifiable ends under a qualified privilege to report judicial proceedings.

At the conclusion of the trial, the court instructed the jury, at the request of plaintiffs, that the publication complained of is libelous per se; that defendant is responsible for the acts of its employees; that compensatory damages are to compensate for financial injury; that punitive damages are an award made “to deter others from the commission of like offenses”; that if plaintiff is entitled to recover, punitive damages may be given as well as compensatory damages; and that the wealth of defendant may be considered in determining the amount of punitive damages. In addition, the trial court, at plaintiff’s request, submitted the following special interrogatory:

“The jury is instructed, based upon the evidence on the whole case, to answer the following question of fact:
“1. Did the defendant make the defense of truth of the matter charged, the libelous per se publication, with malicious intent ?”

The jury answered the special interrogatory affirmatively, returned verdicts in favor of the plaintiffs, awarding to each the sum of $4,000 for compensatory damages, and to each the sum of $12,500 for punitive damages. Defendant perfected an appeal from judgments entered on these verdicts and attempted to invoke the jurisdiction of the Supreme Court for a direct appeal on a constitutional issue. That court entered an order adjudicating that it has no jurisdiction for a direct appeal in this case and transferred the matter here.

In support of its alternative prayer for a reversal and judgment, or for a new trial, defendant argues that the judgments of the trial court abridge the guaranties of the First and Fourteenth Amendments to the Constitution of the United States, and of article II, § 4 of the Constitution of the State of Illinois; that the trial court erred in giving certain instructions for plaintiffs and in refusing some for defendant, and in submitting the special interrogatory; that defendant’s motions for a directed verdict at the close of plaintiffs’ case, and at the close of all the evidence, and for judgment N. O. V. and notwithstanding the special interrogatory, were erroneously refused; that the judgments are contrary to the manifest weight of the evidence and to the law; and that plaintiffs were erroneously permitted to testify concerning a decrease in the gross receipts of their business.

In Whitby v. Associates Discount Corp., 59 Ill App2d 337, 207 NE2d 482, we had occasion to review the Illinois decisions on the law of defamation. Under earlier decisions a slander was actionable per se or per quod, depending upon:

1. Whether the utterance complained of, by the plain and ordinary meaning of the words used, without resort to innuendo, fell within four certain categories of imputations (i. e., imputations of crime, of loathsome disease, of unchastity to a woman, or affecting one’s business, profession, office or calling), or

2. Whether it either (a) fell outside these categories, or (b) required a construction of the words, and resort to consideration of circumstances attending the utterance to demonstrate injurious meaning.

In instance (1) above, the slander was per se and no allegation or proof of special damage was required to sustain a recovery since at least nominal damages were presumed. In Instance (2) above, where the imputation was not within the four offensive categories, or where resort to innuendo was required to prove a defamation, the slander was per quod. To sustain a recovery for a per quod slander, it was necessary for the complainant to plead and prove special pecuniary damage, and where an offensive innuendo was claimed, to plead and prove the inducement or the extrinsic facts attending the utterance and establishing the innuendo. A slander was never per se if the words complained of were capable of an innocent construction. A written defamation, however, or a libel, as opposed to slander, was always considered actionable per se irrespective of special harm or of what offensive imputations the words imported. The communication of defamatory words by a writing was considered a special harm sufficient to sustain a recovery of at least nominal damages.

While the foregoing distinctions between libel and slander are still accepted as the rule by the American Law Institute, at Restatement of the Law, Torts, Vol III, § 569, and by a minority of American jurisdictions, (see Prosser, Law of Torts, 2d ed 1955, at 587, cf. Prosser, More Libel Per Quod, 79 Harv Law Rev 1629), and while one or more of us might be inclined to accept those distinctions as the better rule, we concluded in Whitby, supra, that Illinois law, by evolvement, had abolished all distinctions between slander and libel except as to whether the defamation was oral or written. We also concluded that the rules applicable to slander are now applicable to libel as well. Cf. Prosser, More Libel Per Quod, 79 Harv Law Rev 1629; but see, Eldridge, The Spurious Rule of Libel Per Quod, 79 Harv Law Rev 733 and 33 ILP, Slander and Libel, § 21. In Hudson v. Slack Furniture Co., 318 Ill App 15, 47 NE2d 502, for example, it was held that the publication of a mere wage assignment could not be considered libelous per se where such words do not prejudice a party in his profession or trade. In Parmalee v. Hearst Pub. Co., Inc., 341 Ill App 339, 93 NE2d 512, as another example, it was held that an offensive publication was not libelous per se because it did not impute a crime, or tend to harm plaintiff in his profession or occupation. Both decisions indicated that libel is to be treated like slander in the sense that, except for certain categories of imputations, a defamation is not actionable without proof of special damage. Other Illinois decisions, although not expressly equating slander and libel so far as narrow categories of imputation are concerned, admitted to a distinction between libel per se and libel per quod. White v. Bourquin, 204 Ill App 83. The recognition of this distinction abrogated the presumption that special damages always attends a written defamation. As noted by Prosser, Law of Torts (2d ed 1955) at 588, the fact that libel has come to be treated as slander, in the sense that the harmful import of the words must relate to certain categories of imputations to be actionable per se, resulted originally from some confusion about the dual meanings of per se, but in later cases, has represented a deliberate retreat from the rigors of former rules of libel. In the interests of protecting freedom of expression, the requirements of actionable libel have been conformed in Illinois, in our judgment, to the stricter requirements of actionable slander. This is to say only that damages are no longer always presumed from the mere fact of a writing, but that where actual harm is shown to have been caused, the publisher will be held responsible for an abuse of the right of free expression.

In the case at bar, the publication charges plaintiffs with the commission of a criminal offense, but the offense charged is that of violating a municipal liquor ordinance for which a fine was imposed for $50. In order to be actionable as a per se libel, for imputing a criminal offense, the defection charged must be an indictable one, involving moral turpitude and punishable by death or by' imprisonment otherwise than in lieu of fine. Restatement of the Law, Torts, Vol III, § 571. The publication here is not libelous per se as imputing the commission of a criminal offense, since the violation of a local liquor ordinance does not involve an indictable offense nor one punishable by death or imprisonment otherwise than in lieu of fine. We conclude, therefore, that the trial court erred in instructing the jury that the publication complained of here is libelous per se, and that it repeated this error by submitting the special interrogatory to the jury.

Notwithstanding that plaintiffs submitted instructions that the article here is libelous per se, and that were erroneously given, we conclude that the amended complaint does set out a cause of action for a per quod libel. Words charging an arrest for a liquor violation are, without resort to innuendo, hurtful by their plain and ordinary meaning, even though they may not import an offense within the categories of a per se libel. Where special damages have been sustained by a wrongful publication of such injurious words, as is alleged to be the fact here, then the utterance is actionable. But the “gist” or “sting,” i. e., the hurtfulness of the utterance, of the per quod libel which plaintiffs have pleaded, arises only from the report of the fact of an arrest for a liquor violation. Although plaintiffs have urged, with considerable emphasis, that they are injured by the false suggestion of the article that the arrest took place at the Men’s Social Club, and that this charge is a part of the defamation, no inducement showing an offensive innuendo regarding the place of arrest is pleaded. The words “Men’s Social Club” are not offensive on their face, and no facts are alleged in the complaint which suggest it to be an unsavory location. Accordingly, these words regarding the place of arrest do not comprise any part of the pleaded defamation, and the evidence would not support a finding that plaintiffs were libeled by this part of the newspaper report. The only offensive innuendo which the complaint suggests is that plaintiffs, who are persons engaged in the liquor business, because of the publication, were accused of conduct incompatible with the lawful exercise of that business. The defense set up against the pleaded libel is that the publication is not defamatory, because it does not reasonably support that innuendo, and that the fact of arrest, reported in the article, is true and was published for justifiable ends.

The evidence is uncontradicted that plaintiffs were in fact arrested on a Sunday morning, with James D. Murphy, the husband of Margaret Adams Murphy, on a charge of violating a municipal liquor ordinance, and that they were subsequently found guilty by default, and were fined $50 each by Justice of the Peace Lester Gerber. The evidence also shows, however, without contradiction, that the arrest took place at the Shelly Tap, and not at the Men’s Social Club, as reported in defendant’s newspaper. It is argued that to establish the plea of truth, the proof must be as broad and as narrow as the defamatory imputation itself, and that the proof here shows that the arrest did not occur at the place reported. As noted in Prosser, On Torts, (2d ed 1955) at 631, the requirements of the defense of truth were formerly carried to ridiculous extremes, but in modern times, it has not been required that the literal truth of even inoffensive details be established. Rather, it is sufficient to show that the gist or sting of the defamatory imputation is true. Prosser, On Torts, (2d ed 1955) at 632. The discrepancy as to the place of arrest did not arise in the judicial proceeding which defendant reported, but only in defendant’s newspaper report of it. However, the publication is accurate with respect to the fact of the arrest of plaintiffs, and this is the “gist” of the defamation pleaded and proved by plaintiffs. Watson v. Herald-Despatch Co., 221 Ill App 557; Wilson v. United Press Ass’ns, 343 Ill App 238, 98 NE2d 391. Plaintiff’s complaint did not allege any inducement showing that the false use of the words “Men’s Social Club” connoted some meaning that was libelous, and there is no evidence in the record to establish a libelous meaning for these words. We also conclude, from the state of the record herein, that the publication of the fact of plaintiffs’ arrest for violation of the liquor ordinance was made for justifiable ends under a right of the press to report a judicial proceeding. Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746. Further, the record does not sustain the conclusion that this news report of the activity of a governmental agency was motivated solely by malice. The finding of the jury that the defense of truth was maliciously asserted, rested for its validity upon the erroneous interrogatory and instruction given by the court instructing the jury that the article was per se libelous. By this opinion we are not condoning inaccurate reporting, but rather, we are holding that to recover for such inaccurate reporting on a per quod libel theory that there must be both allegations (the inducement) and proof of the damaging nature of alleged defamatory material in the inaccurate report, unless the “gist” or “sting” of the defamatory material is obvious.

In view of our conclusion that the defenses of truth and publication for justifiable purpose under a qualified privilege to report judicial proceedings was established by the record, as a matter of law, it is not appropriate that the cause be remanded for a new trial because of the error in instructions. It is also unnecessary that we should decide the other issues urged as error by defendant. The judgment of the Circuit Court accordingly is reversed.

Reversed without remand.

ALLOY and STOUDER, JJ., concur.


author: EBERSPACHER, J.

text:
    Herman Roewe, Plaintiff-Appellee, v. Sol Lombardo, Defendant-Appellant.
    Gen. No. 66-18.
    Fifth District.
    November 9, 1966.
    Rehearing denied December 7, 1966.

      Robert H. Rice, of East St. Louis, for appellant.
    Walker and Williams, of East St. Louis (David B. Stutsman, of counsel), for appellee.
   EBERSPACHER, J.

A jury returned a verdict of $16,500 for Herman Roewe, the plaintiff, a pedestrian, against Sol Lombardo, the defendant, based upon Roewe’s claim for injuries resulting from being struck by Lombardo while backing his automobile. The occurrence took place on the subzero morning of December 11, 1962, in East St. Louis, Illinois, just outside the defendant’s retail store at the southeast corner of the intersection of Tenth and State Streets in that city at about 11:00 A. M.

The trial judge denied that portion of the defendant’s post-trial motion seeking judgment notwithstanding the verdict. He further denied the defendant’s motion for a new trial, conditioned upon, and only after, the plaintiff agreed to a remittitur of $8,500. The plaintiff filed the required consent, and the trial judge entered judgment for $8,000.

The defendant appeals claiming error in the denying of his post-trial motion. He asserts that the plaintiff was guilty of contributory negligence as a matter of law; that the defendant was free of negligence; and that the defendant was prejudiced by certain rulings on admissibility of evidence in the course of the trial. He claims the defendant was prejudiced by repetitious questioning concerning his place of residence; that the plaintiff’s hospital bill, for want of a proper foundation, should not have been admitted in evidence; that the plaintiff’s counsel made improper and prejudicial statements during the closing argument, and that there were other errors.

The plaintiff asserting his statutory prerogative (c 110, Ill Rev Stats 1965, § 68.1 (7)), challenges the remittitur ordered by the trial judge. By virtue of this provision of the Practice Act his consent in the circuit court to the reduction in the jury’s award, filed to avoid a new trial, is not a waiver of his right to bring the question of the remittitur’s correctness before this court.

The defendant has operated a retail grocery and liquor store at the above location for over 20 years. It is called the “California Drive-In Market.” The area near the store’s entrance is paved, and there is no curbing to separate the sidewalk area from the portion of the city streets used by automobiles, so that motorists may drive right up to the market’s front door. The plaintiff, a United States mail carrier for 30 years, has regularly delivered mail to the defendant’s market for the past 10 years. He had just done so on this cold morning, leaving the market by the way of the front door, heading for the next point of delivery on his route. He was walking south along the Tenth Street side, or west wall of the market building, passing between it and the defendant’s automobile, which had been recently parked close to this wall, and parallel to it facing north toward State Street. About this time, the defendant too, emerged from the front door of the store, entering his car at, or about, the time the plaintiff walked past. The defendant got in the driver’s seat, and his passenger, Robert Gryzmala, entered the front seat from the side of the car nearest the building. Gryzmala had delivered the car to the defendant at the market after it had been serviced at the Cadillac Garage, his place of employment, and defendant was returning Gryzmala to the garage. It was Gryzmala who had, minutes before, parked the Lombardo car along side the building; and it was this witness who testified that at the time of the occurrence Lombardo was voicing criticism of being required to deliver Gryzmala to the garage, in view of the fact that Gryzmala’s employer had not provided defendant transportation to his place of business when he had left his car that morning.

Defendant was backing up south along his building preparing to drive forward into Tenth Street. While backing, he allegedly struck the plaintiff, knocking him to the ground. Both Gryzmala and the defendant heard the plaintiff shout or cry out, and the defendant immediately and suddenly stopped the car. Both men got out and found the plaintiff down behind the car. They helped him into the store, while Roewe was protesting that he was unhurt, just “shaken up.” He was trembling and apparently in pain. After sitting in defendant’s store for a while, and after an interview with a postal employee who was summoned to make a government report, plaintiff attempted to resume his mail route, but within 30 minutes he sought medical treatment. He had a bruise on his low back which could have been made by the automobile bumper. He was then confined for a week, and treated daily by a physician, thereafter, he attempted to return to work for 2 days. At the end of the second day, he was hospitalized with chest and back pains, remaining there for 22 days. It was April before he returned to work.

The defendant claims the plaintiff was guilty of contributory negligence as a matter of law; that the defendant, on the evidence, was not guilty of any negligence, and therefore the trial judge should have directed a verdict in his favor. The rule governing our appraisal of the evidence is plain:

“The well-established rule in both the Federal courts and the courts of Illinois is that a motion for judgment notwithstanding the verdict presents only a question of law as to whether, when all the evidence is considered, together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff’s case.” Hall v. Chicago & N. W. Ry. Co., 5 Ill2d 135, p 140, 141,125 NE2d 77.

Whether or not the plaintiff used reasonable care for his own safety in these circumstances is preeminently for the jury to decide. So is the question of whether or not the defendant was negligent. Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 835; Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106; Backlund v. Thomas, 40 Ill App2d 8, 189 NE2d 682; Williams v. Yellow Cab Co., 11 Ill App2d 112, 136 NE2d 582.

There is evidence to support the jury’s finding that the plaintiff used reasonable care for his own safety. He was walking on a sidewalk area, or at least where a sidewalk would have been if provision for pedestrians had existed there. There is no curbing separating the entrance to the “California Drive-In Market” from the adjoining streets. The name, “Drive-In” seems apt since the way is prepared for motoring to the front door. The door however can only be used by pedestrians. Roewe had just come out through the market’s front door, and was walking away from the rear of the defendant’s standing automobile. He was in plain sight of the defendant at a place where his presence was proper and foreseeable; he could not have chosen another path of more apparent safety. The plaintiff’s duty of reasonable care does not require that he keep a continuous lookout back over his shoulder to protect himself against the possibility that a standing vehicle, headed in the opposite direction, might come at him without warning.

It has been repeatedly stated by Illinois courts, that a pedestrian, even while crossing the apparent path ahead of a standing vehicle, can reasonably assume that it will not start up without warning. Hectus v. Chicago Transit, 3 Ill App2d 439, 122 NE2d 587, and Hart v. The City of Chicago, 315 Ill App 214, 42 NE2d 887. Crossing the vehicle’s path upon such an assumption does not amount to a lack of due care. A pedestrian is even more justified in assuming that a parked vehicle, headed away from him, will not come at him from the rear. In the nature of things, he must turn his back on some cars, as he walks his “appointed rounds.” There is evidence that the plaintiff was indeed seen by the defendant, walking with his back to the automobile, prior to the defendant’s starting his backward motion. The defendant apparently gave the plaintiff no warning. It can be inferred from the testimony that he backed up and struck the plaintiff without again looking. There is conflicting evidence as to how far the defendant moved the car at the time he heard the plaintiff cry out, but it can reasonably be inferred that he had attained enough momentum to make the stop, when it came, appear sudden and abrupt to his passenger. Gryzmala, in his testimony, could not rule out the possibility of sliding wheels. The defendant knew the conditions that surround his place of business as well as anyone; knew that pedestrians were to be expected, and knew, or should have known, of the plaintiff’s presence. Due care required a warning, a lookout, and a stopping of the vehicle sooner than the one the defendant made, which was apparently not until he heard the plaintiff’s crying out. We believe this record contains evidence which, when viewed as the law requires us to view it, in the light most favorable to the plaintiff, is evidence enough to provide the necessary foundation for the jury’s finding; evidence enough to prevent our holding there to be such a lack of evidence that the jury could not possibly or reasonably have found the facts essential to the plaintiff’s case.

The defendant was called under section 60 of the Civil Practice Act for questioning, “as on cross-examination.” He urges that the plaintiff’s attorney, in an improper, argumentative manner, repeatedly questioned the defendant concerning his residence, thus prejudicing the defendant to the extent that he was deprived of a fair trial. The defendant asserts that the plaintiff’s counsel was seeking to convey to the jury the impression that the defendant was the holder of a resident liquor license for East St. Louis, while actually residing in St. Louis, Missouri. The record, however, does not show that the plaintiff’s attorney was permitted to do this even if he had so intended.

The scope of cross-examination of a witness who is a party to the litigation, is generally broader than the scope permitted in the cross-examination of other witnesses. Brownlie v. Brownlie, 357 Ill 117, 191 NE 268; D. I. Felsenthal Co. for Use of Carpenter v. Northern Assur. Co., 205 Ill App 610; Card, Illinois Evidence Manual, Rule 481. As is pointed out in an annotation found in 37 ALR2d 742, the question as to the right to cross-examine a witness as to his place of residence arises most frequently in connection with the matter of admissibility of such evidence to effect the witness’ credibility, and it is quite commonly recognized that cross-examination on this subject for such purpose is proper. We find nothing in the record that indicates any other purpose of this examination, and the fact that defendant may have been sensitive about the matter, did not prejudice him to the jury. Dean Wigmore states, . . there is understood a general canon that on cross examination, the range of evidence that may be elicited for any purpose of discrediting is to be very liberal” and further points out that the limits are left to the determination of the trial court. Wigmore on Evidence, 3rd ed, § 944. “A trial court has broad discretion in controlling the scope of cross examination; a case will be reversed only if such discretion has been clearly abused and the abuse materially affected the results of the trial.” Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379; Meyer v. Williams, 15 Ill App2d 513, 146 NE2d 712. We cannot say that the quoted testimony, in the absence of any argument to the jury questioning defendant’s residency in this state while holding an Illinois license permitting the sale of alcoholic beverages, conveyed to the jury the idea that defendant might not be eligible for such license. Neither can we say, that the trial court abused his discretion by allowing some testing of the correctness of defendant’s statement of place of residence, and then by summary action, properly putting the matter to rest.

The defendant argues that expert medical testimony establishing causal connection between the injury and the hospitalization is necessary, but lacking, and that it was therefore error to admit the hospital bill in evidence.

The evidence shows that the plaintiff’s medical treatment and his hospitalization was all a part of continuing medical treatment which commenced immediately following the accident. It was apparently necessitated by nothing other than this accident. The plaintiff was a well man, not under treatment before. The fact that his hospitalization came a few days after the accident does not remove this case from the rule that for hospitalization or treatment in close proximity to the accident, expert testimony is not required to establish causation. Causation is a question of fact. There is evidence of causation sufficient to support the jury’s finding it, when, as here, the evidence shows the plaintiff to be well prior to the accident; unwell immediately following it; and under medical care from the time of the accident up to and including the time of his entering the hospital and leaving it. There was no break in his medical treatment that would require the plaintiff to produce specific medical evidence concerning his hospitalization and its cost. It had the same causal relationship to the accident as did the rest of his treatment. See: Chicago Union Traction Co. v. May, 221 Ill 530, 77 NE 933; Palmer v. DeFillippie, 321 Ill App 186, 53 NE2d 719.

The plaintiff has questioned the propriety of the remittitur of $8,500 required by the trial judge and the defendant still claims that the recovery thus reduced to $8,000 is excessive. The plaintiff is within his rights to make the assertion, (c 110, Ill Rev Stats 1965, §68.1(7)).

While the assessment of damages is a jury-function, it is for the trial judge in the exercise of a sound discretion, to determine whether under the instructions given the jury and the evidence before them their award had a foundation in the evidence and the elements they could consider in fixing the figure. Sarango v. Hedstrom Goal Co., 12 Ill App2d 118, 138 NE2d 829. In the Sarango case, supra, the court said:

“The responsibility rests upon the trial court to properly consider the evidence before it, and in a proper case where the verdict is excessive, to either enter a remittitur or grant a new trial.”

It is clear that this is the rule in Illinois, even in personal injury cases, where damages cannot be mathematically computed, and the limits are necessarily flexible. No abuse of this traditional discretion has been established by the plaintiff or appears in the record. We must conclude that the trial judge acted within the bounds of discretion by requiring the remittitur. The fact that the Practice Act has liberalized the Appellate Court’s opportunity to review remittiturs, did not narrow the trial court’s traditional discretional function.

While the closing arguments are not completely set out in the record, and the abstract only shows those portions objected to, with the court’s ruling and comments, an examination discloses that none complained of were inflammatory, and that the trial court properly ruled. The closing arguments were not reported by agreement of the counsel. As it is stated in Illinois Law & Practice, Vol 2, Appeal and Error, section 527, page 477:

“The reviewing court will not reverse a judgment on such ground unless the misconduct and its prejudicial nature are clearly shown by the record; so a judgment ordinarily will not be reversed on the ground of improper argument where all the arguments are not in the record, so that it cannot be determined whether the parts in question were provoked or made in response.”

The defendant asserts further error based on the fact that a witness was allowed to testify whose name was not furnished to the defendant’s counsel in response to written interrogatories to the plaintiff. The witness was the postal employee who was called to the defendant’s market to make the required report of the accident in accordance with post office procedures. Defendant had testified, when discovery depositions were taken, that plaintiff was not in his store on the day in question, and had testified at the trial, that he did not know whether plaintiff was in the store. Since this witness was not a witness to the accident and his connection with the occurrence was simply that he was in the defendant’s store with both the plaintiff and the defendant shortly after the accident, his identity and his knowledge were apparently as well known to the defendant as they were to the plaintiff. As a result, we do not conclude that the exclusion of his name from the plaintiff’s answer to the defendant’s interrogatories prejudiced the defendant. Whether or not the plaintiff properly answered the interrogatories and what sanctions were necessary were questions within the trial court’s discretion. Wright v. Royse, 43 Ill App2d 267, 193 NE2d 340.

Finding neither abuse of discretion, nor prejudicial error, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest Thompson, Defendant-Appellant.
    Gen. No. 50,700. (Abstract of Decision.)
    First District, Second Division.
    November 4, 1966.
    Dallin H. Oaks, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


text:
    Mack Kitten, Plaintiff-Appellant, v. Albert J. Stodden, Defendant-Appellee.
    Gen. No. 65-121.
    Fifth District.
    November 10, 1966.

      Ryan and Heller, of Mattoon (Harlan Heller and Nolan K. Sims, of counsel), for appellant.
    William E. Larrabee and Whitney D. Hardy, of Craig & Craig, of Mattoon, for appellee.
   EBERSPACHER, J.

This suit was filed to recover damages for personal injuries suffered by Mack Kitten occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, Albert J. Stodden, in driving his automobile. The jury rendered a verdict for the defendant upon which the trial court entered the judgment from which this appeal is taken.

The plaintiff appellant contends that the trial court committed four prejudicial errors as follows: (1) The court’s voir dire examination was inadvertently prejudicial; (2) The court erred in the admission of certain evidence; (3) The court erred in the giving of an improper instruction; (4) The court erred in refusing a proper instruction. Plaintiff also contends that the verdict of the jury was contrary to the manifest weight of the evidence.

The facts of the case are as follows: At approximately 2:00 in the morning on August 18, 1963, at a point about five miles north of Effingham on U. S. Route 45, vehicles driven by the plaintiff and defendant collided. Before the collision, the plaintiff was driving south and the defendant was going north. The collision occurred on the north slope of the Green Creek hill while the plaintiff was going downhill and the defendant was going up the hill. There were no witnesses other than the parties, each of whom was alone in his car. The plaintiff’s car continued down the hill, struck a bridge abutment and came to rest upside down off the highway in Green Creek, east of the highway. The car was demolished, and the plaintiff was thrown out of the car and seriously injured. The defendant’s car continued toward the top of the hill and came to rest, west of the highway, on the shoulder. It, too, was extensively damaged. The defendant was not injured and he left the scene of the occurrence and went home. Because the plaintiff’s car was knocked off the road, it was not discovered for several hours. Plaintiff finally was able to crawl out of the creek and up the hill to the road. A motorist stopped and took him to the hospital almost two hours after the collision.

During the voir dire examination, the court stated in effect that there had been statements made with reference to both parties having consumed alcoholic beverages, and remarked that “two drunks are still entitled to the same law as persons who are not intoxicated.” This remark was made on the voir dire examination of a Mr. Bierman who was then on the first seat of the third panel of four. Eight of the jurors had already been selected and seated. In Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 201 NE2d 742, the court made the following remark regarding statements made by the trial court, “The court should be conscious of the fact that he is the dominant figure in the courtroom in any proceeding and that his inadvertent comment on the evidence or attitude of belief or disbelief can well prejudice the jury.” In the instant case, the pleadings were void of any reference to either drinking or intoxication.

In the opening statements there undoubtedly were references made to the fact that the parties had been drinking. The drinking of an alcoholic beverage does not of itself raise the question of intoxication. This must be proved by the evidence and testimony of witnesses. As the court said in Shore v. Turman, 63 Ill App2d 315, 210 NE2d 232:

“Drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated.”

To this we would add that neither does drinking, nor evidence of drinking on one occasion, from which intoxication might reasonably be inferred, characterize a person, in either fact or law, as “a drunk.”

Plaintiff’s testimony was to the effect that in the approximate four-hour period preceding the accident while visiting with friends and dancing he had consumed beer and a small bottle of champagne; and that he was sober. Two witnesses who saw him at the last place he and his girl friend visited, and at which they each drank a small bottle of champagne, testified that they had been personally acquainted with plaintiff, observed him both at that time and place, and previously in the evening, and that when they last saw him he was sober. According to the evidence, that would have been less than an hour before the accident. His girl friend, whom plaintiff had left approximately 10 minutes before the accident, testified that he was sober. No witness testified that plaintiff was intoxicated at any time during the evening preceding the accident; all witnesses who had an opportunity to know were of the opinion that the plaintiff was sober.

Over plaintiff’s objection, defendant’s instruction No. 14, IPI No. 12.01 was given. It is as follows:

“Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.”

Intoxicating beverages affect different persons in different ways and some persons would be intoxicated by the consumption of the same quantity of intoxicating beverages that the plaintiff consumed, but the consumption of a similar amount by other persons would have no effect. Thus, no court has ever turned to an arithmetic solution to this problem. Bather, the courts have uniformly required the proof of facts which would tend to show intoxication, rather than the mere consumption of intoxicating beverages.

In Shore v. Turman, supra, the same instruction, as was here given, was given. There, too, the plaintiff admitted drinking but denied he was intoxicated, and his witnesses testified he was sober, while no witnesses testified he was intoxicated. There the error of this instruction’s being given was coupled with the giving of IPI 150.15, defining intoxication. However, a careful reading of that case leaves no doubt in our 'mind that the court in that case considered the giving of IPI 12.01 as reversible error. We consider the language of the last paragraph commencing on page 322 (63 Ill App2d) and on page 235 (210 NE2d) as appropriate in this case, but due to its length do not quote it here. There was no counterclaim in this case, and even though there was also evidence of defendant’s use of intoxicating liquor preceding the accident, as well as the opinion of a state trooper, that two hours after the accident defendant was intoxicated, the instruction was unmistakenly aimed solely at plaintiff. The instruction was prejudicial and the giving of it was reversible error.

Although the foregoing errors require a reversal and remandment for the benefit of a new trial, we feel compelled to rule on other errors raised by plaintiff.

Error is also assigned as to the testimony of Trooper Berry. The plaintiff introduced photographs, which were taken 8 to 10 hours after the accident, showing scratch marks on the pavement, which were in close proximity to the point of collision. Witnesses for the plaintiff testified that these marks were made by the wheel of the defendant’s car. Trooper Berry was called as a rebuttal witness by the defendant. He testified that early on the morning of the accident, he examined the road by flashlight. That he did not observe any gouge marks in the highway. When shown the photograph containing the marks, he replied he could not tell how those markings were caused or by whom. He was then asked the following question, “Do you have an opinion based upon a reasonable — based upon your experience and a reasonable degree of scientific certainty what could have caused those markings in that photograph?” Over counsel’s objection, he was allowed to state he had an opinion and answered as follows, “Almost anything dragging from a vehicle or a muffler or anything of that nature dragging could cause a scratch of that nature. “Looking at this picture, I couldn’t connect those things to either vehicle. Having looked at the picture and having made an investigation of the scene, I do not think I could connect it up.”

In Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826, plaintiff’s case rested largely upon testimony of expert witness. Plaintiff’s personal injuries were allegedly caused by defendant’s negligence in repairing a gas range. The expert, although not familiar with the gas range in question was allowed to answer a hypothetical question. The trial court granted defendant’s motion for a directed verdict. The Appellate Court in sustaining the trial court said:

“The normal function of a witness is to state facts within his personal knowledge. His opinions are, in general, irrelevant. To this general rule there is an important exception making admissible the opinion of an expert. He is considered qualified to provide the often necessary function of drawing inferences from facts which the jurors would not be competent to draw. As a safeguard upon the reliability of such testimony, however, the expert witness, no matter how skilled or experienced, will not be permitted to guess or state a judgment based on mere conjecture.”

Trooper Berry on cross-examination stated that the marks could have been caused by a wheel rim and stated further that if he had seen them, he could probably have drawn a conclusion of his own. In other words, since he did not see any marks on the highway when he examined the site, was guessing or basing his opinion on mere conjecture. He should not have been allowed to state his opinion as to the cause of the marks because he frankly did not know what caused them. Furthermore, his testimony that he saw no marks on the highway, was of itself, a rebuttal of plaintiff’s witnesses as to marks they allegedly had seen on the highway, since he had examined the scene of the accident prior to plaintiff’s witnesses.

Plaintiff contends that there was error in the court’s refusal to give his tendered instruction No. 5, which was as follows:

“Under Count II of the complaint, it was the duty of the defendant before and at the time of the occurrence to refrain from a course of action which shows an utter indifference to or conscious disregard for the safety of others.”

At the conference on instructions defendant’s objection was “the defendant objects to it as not being an IPI instruction and also to the language ‘utter indifference to or conscious disregard for the safety of others’ as not correctly stating the law as to wilful and wanton misconduct.” The court denied the instruction “simply because it’s not an IPI instruction.” The instruction meets the requirements of Supreme Court Rule 25-1 (a) as to simplicity, brevity and being impartial and free from argument. That rule provides for the giving of non IPI- instructions after the court determines that the jury should be instructed on “that particular issue,” which was here, wilful and wanton misconduct. Obviously the court considered that issue to be in this case when he gave IPI 14.01, defining wilful and wanton misconduct, as well as the burden of proof instruction, IPI 21.02. Although there is a duty instruction with respect to negligence, IPI 10.04, which was properly given, none appears in IPI on duty with respect to wilful and wanton misconduct. We consider the instruction to be a proper statement of the law; the first portion of it is a direct quote from IPI 10.04, and the balance from IPI 14.01, which defines wilful and wanton misconduct. We do not consider that it singles out a particular phase of the case any more than does IPI 10.04, or that it is repetitious of IPI 14.01 or IPI 21.02. We believe it should have been given.

With reference to plaintiff’s contention that the verdict is contrary to the manifest weight of the evidence; a review of the record convinces us that there is sufficient evidence favorable to each of the parties that reasonable men might differ on the inferences to be drawn and the conclusions reached. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. We consider the language of Bibby v. Meyer, 60 Ill App2d 156, 161, 162, 208 NE2d 367, 369-370, to be applicable.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Jones, Defendant-Appellant.
    Gen. No. 50,549. (Abstract of Decision.)
    First District, Second Division.
    November 4, 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 William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.