author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John F. Dillon, a/k/a Edward McCormick, Defendant-Appellant.
    Gen. No. 51,153.
    First District, First Division.
    March 18, 1968.

      Julius Lucius Echeles and Jo Anne F. Wolfson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Arthur Zimmerman, and Alan Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

A complaint was filed in the Third Municipal District in which the complainant, Mrs. Estelle Ellison, as agent for Chesterfield Interiors, “. . . states that John F. Dillon, a/k/a Edward McCormick, a/k/a E. Leonard has, on or about June 26, 1965 . . . committed the offense of theft of labor and services in that he knowingly obtained by deception the use of services and property upon which complainant had a lien and claim for services and materials furnished, which said property exceeds in value, the sum of $150.00, in violation of Chapter 38 Section 16-3 Illinois Revised Statute . . .” The defendant waived a trial by jury, and was found by a magistrate guilty as charged in the complaint. The court sentenced him to eight months in the County Jail.

On appeal, the defendant contends:

(1) that the complaint does not set out a violation of the criminal laws;

(2) that the complaint, such as it is, charges a felony; therefore, the magistrate had no jurisdiction to try the case and render ultimate judgment;

(3) insufficient evidence was introduced upon which the magistrate could make a finding of guilty;

(4) that the magistrate ordered defendant to testify in violation of his constitutional right to remain silent; and

(5) that the evidence disclosed that the state was a willing vehicle in the collection of delinquent accounts for complainant.

We summarize the evidence. Estelle Ellison, Secretary-Treasurer for Chesterfield Interiors, Inc., testified that on June 8, 1965, she received a phone call from a woman, representing herself to be Mrs. Dillon, and that Mrs. Dillon requested that someone be sent out to her home to estimate the cost of reupholstering three chairs and a sofa. Robert Ellison, President of Chesterfield Interiors, testified that he went out to 630 Maple Court in Mount Prospect, Illinois, to make the estimate previously referred to. He met a man at the door who stated that he was John Dillon. The witness then identified the defendant as the man who had claimed to be Dillon. Ellison further testified that the defendant told him to wait until his wife got home. When the defendant’s wife arrived, Ellison showed her sample fabrics and they agreed on a price for the work. Ellison then made out an order for the work which he stated was signed by the defendant with the name of John Dillon. An order signed “J. Dillon,” which set forth certain work to be performed on a sofa and three chairs by Chesterfield Interiors, was then introduced in evidence. Ellison testified that he received a $25 deposit from the defendant and arranged to have the furniture picked up the following morning. After the work on the furniture had been completed, delivery was arranged for Saturday, June 26.

Ronald McHugh, a driver for McHugh Van Lines, testified that on June 26, 1965, he delivered a sofa and three chairs to 630 Maple Court in Mount Prospect, and was met at the door by the defendant, who said to bring the furniture inside. McHugh further testified that he then told the defendant that an amount of $400 C.O.D. was due, and that the defendant responded by stating, “Mr. Dillon is out and he didn’t expect delivery until around 2 o’clock.” The defendant represented himself to McHugh as the brother-in-law of Mr. Dillon. McHugh stated that he then called the office and was told to get the defendant’s signature on the delivery receipt. According to McHugh, the defendant signed the receipt; and a delivery receipt of Chesterfield Interiors, stating that the furniture had been accepted for “Mr. Dillon” and signed by one “E. Leonard” was introduced in evidence.

Estelle Ellison also testified to the fact that on June 26th, she received a phone call from a man who claimed to be Mr. Dillon, and Dillon, at that time, complained that the work done on the furniture was unsatisfactory in some respects. Robert Ellison testified that on the evening of June 26, he went out again to the defendant’s home. The defendant complained about the sofa frame, and Ellison offered to send a man out the next day to fix it; Ellison also offered to take $20 off of the price, and asked the defendant to pay him the balance. Ellison testified that the defendant said no, and stated that he would pay the man when the work was finished. He and the defendant agreed that the “finisher” would come out the next evening, but the defendant was not at home when the man arrived to fix the furniture. Ellison stated that the defendant retained the reupholstered furniture and never made any attempt to pay the total amount due of $463.76.

The defendant took the stand and stated that his name was Edward McCormick, and that he, his wife, his child, and John Dillon, his brother-in-law, all resided together at 630 Maple Court in Mount Prospect. He testified that on June 9, 1965, he and his wife returned home and found his brother-in-law talking with Mr. Ellison. His wife then joined the conversation and he went into another room to talk on the phone. He further testified that the articles of furniture reupholstered by complainant were owned outright by John Dillon. McCormick denied that he talked to Ellison at any time after June 9th; and he also stated that he had neither given the $25 deposit to Ellison nor signed the order for the work. On June 26th, when McHugh came to deliver the furniture, he told him that he wouldn’t sign the delivery receipt, and he didn’t sign it.

John Dillon testified that he resided with the McCormicks, and that he had lived with them at 630 Maple Court for a little over a year. He further testified that he owned the furniture that had been reupholstered, and that he, and not his brother-in-law, Edward McCormick, had made the deal with Ellison and paid the $25 deposit. Dillon stated that he had not signed the order. Dillon said he called up to complain about the quality of the reupholstery work, and he was at home when the man was supposed to come out to fix the furniture; however, no one showed up. When recalled as a State’s witness, Dillon produced his driver’s license which showed that he resided at 5853 North Winthrop Avenue in Chicago. He stated, however, on cross-examination, that the aforementioned address was where his mother resided, and although he received his mail there and had his car registered to that address, he travelled two-thirds of the time. When he came to Chicago he said he stayed with the McCormicks.

At the conclusion of the evidence, the court denied the motion to dismiss, which it had previously taken under advisement at the close of the State’s case, and found that the defendant had been proven guilty beyond a reasonable doubt.

The defendant contends that the complaint failed to set out a cause of action, and therefore, the court was without jurisdiction to enter judgment, and the conviction is void. He argues that the complaint fails to allege a violation of section 16-3, chapter 38 of the Illinois Revised Statutes (1965) upon which it is based. Section 16-3 provides:

A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services.

The complaint, in the instant case, charged that the defendant obtained knowingly by deception, “the use of services and property upon which complainant had a lien and claim for services and materials furnished.” Defendant argues that since the Statute in section 16-3 does not cover a “lien for services” the complaint was fatally defective; and that a “lien for services” cannot be construed to be within the statutory language by implication because the Committee Comments to section 16-3, written by Professor Charles Bowman, state that section 16-3 is a codification of the “temporary use” aspect of certain former sections of the old Criminal Code. He further contends that the absence in the complaint of the statutory language “available only for hire” renders the complaint a further nullity.

We cannot agree with these points raised by defendant. A complaint need not specifically recite the statutory language on which the charge is based. People v. Pronger, 48 Ill App2d 477, 199 NE2d 239. The function of a complaint is to advise the accused of the nature and cause of the accusation against him so as to enable him fully to prepare his defense and sustain a plea of judgment in bar of any further prosecution for the same offense. People v. Martin, 62 Ill App2d 97, 210 NE2d 587. We conclude that the defendant in the instant case was fully apprised in the complaint of the nature of the offense with which he was charged. The complaint adequately alleges the essential elements of a violation of section 16-3 in charging the defendant with the theft, through knowing deception, of property upon which the complainant had acquired a lien and claim for services. Furthermore, we are of the opinion that by the enactment of section 16-3, the Legislature intended to protect all types of businesses from the unscrupulous practices of prospective customers, and not just those commercial enterprises previously covered in the old Criminal Code as enumerated by Professor Bowman. The plain meaning of the statutory language does not limit its scope to specific businesses, and therefore, we cannot assume legislative intent to be otherwise. Hagen v. City of Rock Island, 18 Ill2d 174, 163 NE2d 495. The absence in the complaint of the statutory phrase “only for hire” does not render it defective, as it is apparent from the face of the complaint that the complainant is a commercial firm with a lien for services performed.

It is next contended that since the complaint charged the defendant with the commission of a felony offense, the magistrate was without jurisdiction to hold a full-scale trial. Defendant argues that section 16-1, chapter 38 of the Illinois Revised Statutes is applicable to the instant case. That section provides that a person convicted of theft of property from the person, or exceeding $150 in value, shall be imprisoned in the penitentiary for a period of from one to ten years. The defendant reasons that since magistrates have no authority to enter judgment in cases wherein the defendant can be sentenced to terms in the penitentiary exceeding a term of one year, (Ill Rev Stats 1965, c 37, § 624) the conviction in the instant case must be reversed because the magistrate exceeded his authority.

It is clear, however, that the defendant is not charged with the kind of theft set out in section 16-1, but rather he is charged with a violation of section 16-3 which deals with theft of labor or services, and the penalty for which is provided in section 16-3 (b). This section provides that a person convicted of a violation of section 16-3 can be imprisoned for a period of no more than a year in a penal institution other than the penitentiary. We conclude, therefore, that the magistrate had jurisdiction to hold trial, enter judgment, and sentence the defendant.

The defendant next contends that insufficient evidence was introduced upon which to make a finding of guilt. The argument is made that “it is nowhere alleged in the complaint that ‘Chesterfield Interiors’ is a corporation.” It is true that the corporate status of Chesterfield Interiors is not alleged in the complaint. However, during the direct examination of Mrs. Ellison, the defendant’s counsel stipulated that Chesterfield Interiors is a corporation licensed by the State. Therefore, if there was any error in this regard it was clearly waived by the defendant.

Defendant’s next contention is that while the complaint alleged that Chesterfield Interiors had furnished services and materials, the proof demonstrated that another unincorporated entity, Unity Furniture and Upholstery, had performed all of the services on the furniture. We have concluded that the proof supports the allegations of the complaint in this regard. The record reveals that the complainant performed a service for the defendant (picking up the furniture and procuring the materials), and exerted labor at the defendant’s request (having the furniture reupholstered while supervising the job). Whether the actual labor on the furniture was performed by Chesterfield Interiors is of no consequence under the facts and circumstances of the instant case.

Finally, in regard to the sufficiency of the evidence, the defendant contends that the verdict of the magistrate is not supported by substantial evidence. In this regard we deem it appropriate to quote from the opinion of the Illinois Supreme Court in People v. Finley, 22 Ill2d 525, 177 NE2d 149, where the court stated at page 529: “. . . where a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable.” (Citation omitted.)

At the trial of the instant cause there were many conflicts in the evidence. These conflicts were for the resolution of the magistrate. The magistrate could have found from the evidence that the defendant gave the complainant a false name in ordering the reupholstery work, and also gave a false name to McHugh when he attempted to deliver the sofa and chairs. The magistrate could reasonably have concluded from the foregoing facts that the defendant had never intended to pay for the work he requested of the complainant, and that he was using fictitious names as a means of avoiding payment. The behavior of the defendant was clearly a deceptive activity aimed at obtaining labor and services of the complainant without paying for them, and was, therefore, within the purview of section 16-3.

It is also urged by the defendant that the magistrate ordered the defendant to testify in violation of his constitutional right to remain silent by stating to defense counsel, after the State had rested its case, “put your man on the stand.” We do not feel that the statement by the magistrate compelled the defendant to testify. The defendant was represented by counsel of his own choice. We are satisfied that the comment by the magistrate, while ill-advised, was understood by counsel, coming as it did after the magistrate had reserved ruling on defendant’s motion for a directed verdict, to mean that the defense could present any evidence it wished to offer. Defense counsel made no objection to the magistrate’s statement, and proceeded to call the witnesses for the defense, voluntarily placing the defendant on the stand. The fact that the magistrate reserved his ruling on the motion for a directed verdict at the close of the State’s evidence was not prejudicial to the defendant; counsel for defendant could have rested on his motion for a directed verdict at the close of the State’s case, and he didn’t have to produce any evidence.

Defendant’s final contention, that the State’s Attorney acted as a collection agency for Chesterfield Interiors, is without merit. There is no evidence in the record to support this charge.

For the foregoing reasons the judgment is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gilbert Fennema, Plaintiff-Appellant, v. Michael T. Vander Aa, Defendant-Appellee, The Village of South Holland, a Municipal Corporation, and Maria Pochopien, Administratrix of the Estate of Joseph Pochopien, Deceased, Defendants.
    Gen. No. 52,287.
    First District, First Division.
    March 18, 1968.
    Rehearing denied April 11, 1968.

      William M. Freeman, of Lansing, for appellant.
    R. R. McMahan, Lord, Bissell & Brook, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order dismissing a petition filed under section 72 which seeks to vacate an order of dismissal of plaintiff’s personal injury action.

Plaintiff, Gilbert Fennema, a member of the volunteer fire department of the Village of South Holland, was riding in a Village fire engine, on January 10, 1958, when he was injured in a collision. Suit was commenced on April 6, 1959. An order of dismissal for want of prosecution was entered on April 28, 1964, because of the failure of any of the parties to appear for a pretrial conference. On January 6, 1967, plaintiff filed a petition pursuant to section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72) to vacate and reinstate the cause, and this appeal was taken from the order denying the plaintiff’s petition.

Plaintiff’s petition to vacate the dismissal of the cause is supported by the affidavit of his attorney, William M. Freeman. The petition alleges, inter alia, that the dismissal “. . . should not have been entered for counsel had received no notice of a pre-trial conference in this cause for April 28, 1964 or for any other date . . .” Counsel for defendant objected to the petition on the grounds that it was filed more than two years after the order sought to be vacated was entered, in violation of paragraph (3) of section 72 of the Civil Practice Act, and that no facts were alleged in the petition or in its supporting affidavit to toll the running of the two-year limitation of paragraph (3) of section 72. The petition to vacate was denied on the basis of the foregoing objections.

Plaintiff contends, on appeal, that the order of dismissal was void within the meaning of subparagraph (7) of section 72 which provides that, “Nothing contained in this section affects any existing right to relief from a void order . . .” (Ill Rev Stats 1965, c 110, § 72(7).) Defendant contends, on the other hand, that it is well established law in Illinois “. . . that a judgment is void only if the court entertaining it lacked jurisdiction of the subject matter or parties, or the judgment was procured by fraud upon the court.” We have concluded that the issue framed by the respective contentions of the parties is dispositive of this appeal, and therefore, we find it unnecessary to consider other allegations of the petition or the other contentions raised on appeal.

Although section 72 is an appropriate method for calling a void judgment to the attention of the court, it is not a necessary method, and the petitioner’s exercise of due diligence, a question generally raised under a section 72 petition, cannot be considered in determining whether or not the judgment should be vacated. Oak Park Nat. Bank v. Peoples Gas, Light & Coke Co., 46 Ill App2d 385, 197 NE2d 73. A void judgment is subject to attack at any time, and section 72, in sub-paragraph 7, provides for the setting aside of void judgments. McDonald v. Neale, 35 Ill App2d 140, 182 NE2d 366.

The petition alleges that counsel for plaintiff received no notice of the pretrial conference at which the cause in the instant case was dismissed for want of prosecution. This allegation of fact was not contradicted by defendant, and therefore, must be taken as true. Washington Mfg. Co. v. American Uniform Rental Co., 73 Ill App2d 49, 218 NE2d 499. Furthermore, the record reveals that on May 7, 1964, nine days after plaintiff’s suit had been dismissed for want of prosecution, respective counsel appeared before the motion judge at which time plaintiff presented and argued a motion to vacate a previous order entered by the motion judge quashing service of summons on the defendant, Maria Pochopien. The court entered an order denying plaintiff’s motion. It is apparent that neither the court nor the respective counsel were aware at the time that the cause had been previously dismissed on pretrial. These further proceedings in the cause, after the order of dismissal had been entered, clearly support plaintiff’s allegation that he received no notice of the pretrial conference, and also support an inference that neither party had been informed of the calling of a pretrial conference on April 28th. In the instant case, the court had no authority to commence proceedings and enter an order without seeing that the parties had received notice of the conference. We conclude, therefore, that the court exceeded its authority in dismissing plaintiff’s suit for want of prosecution when plaintiff had received no notification of the pretrial conference. Therefore, the order it entered dismissing the suit was void (see Armstrong v. Obucino, 300 Ill 140, 133 NE 58), and the court erred in denying plaintiff’s petition to vacate the void order.

A pretrial conference is primarily a procedure to simplify and speed up the trial. It encourages the parties to agree to stipulations of fact and to the admission of documents and generally formulates the issues. The conference frequently leads to a settlement through the aid of the pretrial judge. The conference should not be used for the purpose of summarily dismissing a cause when the plaintiff fails to appear, or, on the other hand, for the purpose of striking the defendant’s answer and permitting the plaintiff to prove up his claim when the defendant fails to appear.

As we stated in Wolder v. Wolder, 30 Ill App2d 98, 173 NE2d 546, a postal card mailed by the court’s clerk or a phone call to the respective attorneys by the court’s bailiff, would have obviated the summary dismissal of the action. This procedure should particularly be followed in pretrial conferences, and it would insure the fact that the attorneys have notice. Every means available should be exercised by a judge so as to protect the rights of a litigant to have a trial on the merits.

The order denying the petition to vacate the dismissal of the cause is reversed, and the cause remanded to be reinstated on the trial calendar.

Reversed and remanded with directions.

ADESKO and MURPHY, JJ., concur.


text:
    Niles Improvement Association, a Non-Profit Corporation, Harris Trust & Savings Bank, Trustee Under Trust No. 13952 Dated April 1, 1956, Shelby C. Johnstone and Sharmer Johnstone, His Wife, Plaintiffs-Appellees, v. J. Emil Anderson & Son, Inc., a Corporation, Harcourt, Brace & World, Inc., a Corporation, A. Harold Anderson, Defendants-Appellants, Nicholas B. Blase and Robert H. Wente, and Village of Niles, Illinois, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 52,376.
    First District, First Division.
    March 18, 1968.

      Jacob Shamberg and Gilbert T. Graham, of Chicago, for appellants.
    L. Louis Karton, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an interlocutory order of the Circuit Court restraining and enjoining defendants from using their land within fifty (50) feet of plaintiffs’ north lot line as a parking lot.

This action was instituted by plaintiffs, Niles Improvement Association, a nonprofit corporation; Harris Trust & Savings Bank, as owner and holder of residential property, as trustee; and Shelby C. Johnstone and Sharmer Johnstone, his wife, as beneficial owners of the trust property commonly known and described as 7401 North Caldwell Avenue, Niles, Illinois (hereinafter referred to as the Johnstone Property), against defendants, Harcourt, Brace & World, Inc., as the lessee or owner of the premises and real estate immediately adjoining the Johnstone Property to the north, which is commonly known and described as 7555 North Caldwell Avenue, Niles, Illinois (hereinafter referred to as the Harcourt, Brace Property) ; J. Emil Anderson & Son, Inc., as lessor or owner of the Harcourt, Brace Property; A. Harold Anderson, the President of J. Emil Anderson & Son, Inc.; Nicholas B. Blase, President of the Village of Niles, Illinois; and Robert H. Wente, one of the Trustees of the Village of Niles, Illinois. Subsequent to the filing of the action the complaint was amended to join the Village of Niles as a defendant.

It would serve no purpose to detail the allegations in the pleadings or the evidence introduced. Suffice it to say that the plaintiffs filed this action in chancery seeking a temporary restraining order and thereafter a permanent injunction, enjoining the defendants from violating the provisions of Section IX, A, Paragraph 4, of the Niles Zoning Ordinance by constructing property or facilities or adjuncts to property immediately adjacent to the Johnstone premises and property, and within less than fifty feet from the north lot line of the Johnstone Property. The pleadings reveal that at issue in this action was the paving of the Harcourt, Brace Property within fifty feet of the Johnstone Property for use as a parking lot. In their answer the defendants alleged that the parking lot had been built in compliance with the specifications of Section X-B of the Niles Zoning Ordinance.

By order of court, the cause was referred to a Master in Chancery for a hearing and report on the application for the temporary restraining order, and on the application for a permanent injunction. After holding hearings, the Master presented his report in favor of defendants. The plaintiffs filed objections thereto, which were overruled. Exceptions to the report of the Master were heard by the Chancellor who entered a decree sustaining certain specified exceptions to the report. Insofar as this interlocutory appeal is concerned, the defendants have appealed from those decretal provisions construing Section 9A of the Niles Zoning Ordinance to be applicable to defendants’ parking lot, and section 10 of the Ordinance inapplicable; and they have also appealed from the order restraining them from using the Harcourt, Brace Property as a parking lot within fifty feet of plaintiffs’ north lot line. Plaintiffs have filed a cross-appeal in which they contend that the Chancellor erred in not entering a permanent injunction, and in not reserving jurisdiction for the purpose of awarding reasonable attorney’s fees to plaintiffs.

The question presented on appeal, whether the plaintiffs have the right to prevent parking on the Harcourt, Brace Property within fifty feet of the north lot line of the Johnstone Property, involving as it does the construction of the Niles Zoning Ordinance, raises only a question of law.

The record reveals that the Johnstone Property is improved with a residence in a single-family residential classification. The Harcourt, Brace Property, which is zoned for a limited manufacturing use, is improved with a one-story warehouse and office building in which the lessees, Harcourt, Brace & World, Inc., conduct the business of distributing books. The Harcourt, Brace Property has a parking lot which was installed by Harcourt, Brace to a line five feet parallel to the north line of plaintiffs’ premises.

The same rules are applied by the court in the construction of a zoning ordinance as in the construction of a statute. Markiewicz v. City of Des Plaines, 41 Ill App2d 127, 190 NE2d 387. (Abstract only.) The basic consideration in construing an ordinance is to ascertain and then give effect to the intention of the lawmaking body. Dean Milk Co. v. City of Chicago, 385 Ill 565, 53 NE 2d 612. The plaintiffs rely on the provisions of Section IX, under the heading of “Manufacturing District” in the Zoning Ordinance of the Village of Niles, which refers to “General Requirements-M. District.” In particular, they rely upon Section A-4 which reads, as follows:

4. No buildings, structures, or parcel of land, which is used for the manufacturing, fabricating, assembly, disassembly, repairing, storing, cleaning, or servicing of materials, products, or goods shall be located within 50 feet of any lot line of a lot located in a Residential District; and when directly across a street from a Residence District, there shall be provided for such uses a yard along such street of not less than 40 feet in depth.

The defendants, on the other hand, rely on the provisions of Section IX-B-7 which reads:

7. Off-Street Parking.
Parking spaces in accordance with provisions set forth in Section X of this ordinance.

They further rely on Sections X-B-8 and X-B-9 (c) which read as follows:

9. Design and Maintenance
C. Screening and Landscaping All open automobile parking areas containing more than four parking spaces shall be effectively screened on each side adjoining or fronting on any residential or institutional property by a wall or fence not less than five feet high or more than six feet high, or a densely planted compact hedge not less than five feet in height; and wheelstops of masonry, steel, or heavy timber shall be placed not nearer than five feet from the street line in districts where a front yard is not required, or from side lot lines.

Defendants contend that Section IX-B-7 incorporates by reference the provisions in regard to parking of Section X into Section IX. They further contend that the specific provisions of Section X-B-9 (c) for off-street parking prevails over the general language to be found in Section IX-A-4, and that the use they intend to make of their property for parking is provided for in Section X-B-8. Defendants argue that Section IX-A-4 which provides that “no . . . parcel of land, which is used for manufacturing . . does not refer to the specific use of parking, and therefore, parking cannot be read into Section IX-B-4 by implication.

Plaintiffs contend that the clear legislative purpose of Section IX-A-4 is to keep all manufacturing uses at least fifty feet from a lot in a residential district. They argue that not only “buildings” are referred to in the section, but also a “parcel of land” when used for manufacturing, etc., cannot be located within fifty feet of a residential lot. “Since the parking lot furnishes a place to park, incidental and auxiliary to the building, it must be considered as essential to manufacturing as the building itself.”

We are dealing here with two sections of the same ordinance. The Illinois Supreme Court stated in National Products Co. v. DuPage County, 314 Ill 74, 145 NE 298, at pages 80 and 81: “It is a well settled rule of construction that where there are two provisions, one of which is general and designed to apply to cases generally, and another is particular and relates only to one subject, the particular provision must prevail and must be treated as an exception to the general provision.” (Citation omitted.) A particular enactment in a statute is held to be operative against general provisions dealing with the same subject matter in the same statute. People ex rel. Myers v. Pennsylvania R. Co., 19 Ill2d 122, 166 NE2d 86. Of course these aforementioned rules cannot be used to defeat legislative intent. The safest guide in determining legislative intent lies in an examination of the plain meaning of the words used in the enactment, and this meaning cannot be altered by implication beyond the clear import of the language used. Svithiod Singing Club v. McKibbin, 381 Ill 194, 44 NE2d 904.

Applying the foregoing rules to the provisions of the Niles Zoning Ordinance before us in the instant case we conclude that defendants’ use of the Harcourt, Brace Property for a parking lot within fifty feet of the north lot line of the Johnstone Property is governed by the provisions of Section X in regard to such use. Section IX-B-7, which is included in the section that generally governs defendants in the use of their property, plainly states that parking spaces are to be governed “. . . in accordance with provisions set forth in Section X of this ordinance.” Furthermore, Sections X-B-8 and X-B-9 (c) clearly make provision for the kind of parking facilities proposed by the defendants. Plaintiffs’ argument that a parking lot on the Harcourt, Brace Property should be governed by the provisions of Section IX-A-4 is based on the implied inclusion of parking lots within the manufacturing uses set out in that section, and is not supported by specific references to parking elsewhere in the ordinance nor by the plain meaning of the language of the ordinance. It is clear to us that the legislative intent was to have the kind of use proposed by defendants governed by the provisions of Section X of the zoning ordinance.

Taking this view of the case we need not decide other questions presented in this appeal. The temporary restraining order appealed from is reversed with directions to dissolve the temporary injunction and cancel the writ of injunction.

Reversed.

ADESKO and MURPHY, JJ., concur.


text:
    In the Matter of the Estate of William J. Pokorney, Sr., Deceased. Jeanette Newberg, Petitioner-Appellee, v. William J. Pokorney, Jr., Administrator of the Estate of William J. Pokorney, Sr., Deceased, Appellants.
    Gen. No. 52,482.
    First District, First Division.
    March 18, 1968.
    Rehearing denied April 9, 1968.

      George A. Bosomburg, of Chicago, for appellant.
    Norman R. Silverman and John A. Klawans, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by William J. Pokorney, Jr., as the Administrator of the Estate of William J. Pokorney, a/k/a William J. Cmunt, from a judgment order of the Probate Division of the Circuit Court, directing him to turn over to Mrs. Jeanette Newberg, petitioner, all of the stock certificates representing the cumulative number of 208 shares in American Telephone & Telegraph Company, and also to sign and execute all necessary documents or authorizations necessary to effectuate the transfer of said stock and all dividend checks arising therefrom. The order further recites “that there is no just reason for delaying enforcement or appeal from said final order.”

It appears from the pleadings, and from the testimony of William J. Pokorney, Jr., that William J. Pokorney, Sr., died intestate leaving his son, William J. Pokorney, Jr., as his only heir at law. During his lifetime the deceased purchased the aforementioned 208 shares of American Telephone & Telegraph Co. stock with his own funds. At his direction, the stock was issued or reissued in the names of William J. Pokorney, Sr., and Mrs. Jeanette Newberg, as joint tenants with the right of survivorship, and not as tenants in common. The decedent kept exclusive possession of the stock certificates until his death. At his direction the Company had authority to issue dividend checks payable to himself or to Jeanette Newberg, his sister, and he further instructed American Telephone & Telegraph Company to send the stock dividends to him. The decedent included all dividends in his annual Income Tax Returns, and paid the tax thereon; and the American Telephone & Telegraph Company reported to the Internal Revenue Service all dividends on the stock as being income of the deceased.

The Administrator argues that a joint tenancy was never created because a written agreement was never entered into between the parties. He further contends that the gift of the stock to the petitioner was never consummated for want of delivery, and also because the possession of the stock never left the deceased and he alone received the dividends. We cannot agree with these contentions.

The stock was registered upon the books of the American Telephone & Telegraph Company, creating a joint tenancy in compliance with the statutory requirements of section 2 of the Statute on Joint Rights and Obligations (Ill Rev Stats 1961, c 76, § 2(b)), which recognizes the right to create a joint tenancy in corporate stock. It is not necessary for the creation of a joint tenancy in stock that a signed agreement be executed. The registration of stock ownership upon the books of the corporation, in appropriate statutory language, is sufficient to vest legal title, and registration in the appropriate manner dispenses with the necessity of common

law principles which govern creation of joint tenancies. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850. Furthermore, a prima facie presumption of donative intent exists where the proof shows, as it does in the instant case, that the Statute on Joint Rights and Obligations has been complied with; and our Supreme Court, in Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470, dealing with the question of joint tenancy bank accounts, stated at page 591:

We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended.

It is clear to us that the Administrator did not carry his burden of establishing by clear and convincing evidence that the decedent did not intend a gift in joint tenancy of the American Telephone & Telegraph Company stock to the petitioner. Indeed, an examination of the pleadings and the testimony of the Administrator fails to show any evidence that would rebut the presumption of donative intent. The retention by the decedent of the possession of the stock certificates does not show a lack of delivery of the gift, nor does his receipt of dividends and payment of taxes on the stock show that he failed to part with exclusive possession of the securities. Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850; Armstrong v. Daniel, 88 Ill App2d 31, 232 NE2d 218. The trial judge correctly held that the 208 shares of stock in American Telephone & Telegraph Company are the property of Jeanette Newberg as the surviving joint tenant. The gift was fully consummated during the lifetime of the donor.

The Administrator cites Fanning v. Russell, 94 Ill 386. This was an action commenced by creditors of the deceased and did not involve stock held in joint tenancy, and therefore, is clearly inapplicable on the facts to the case at bar. In Dudley v. Uptown Nat. Bank of Moline, 25 Ill App2d 514,167 NE2d 257, Cede Voss, the decedent, had purchased a non-negotiable certificate of deposit made payable by the decedent to herself and “payable on death to Pamela Dudley.” The decedent continued to retain possession of the certificate until shortly before she entered the hospital at which time she gave petitioner (who had filed the action as Guardian of Pamela Dudley) the certificate, along with other “important family things” and “family papers,” for safekeeping. However, shortly before the decedent’s death, Cede Voss’s husband obtained the certificate from petitioner. The husband took it to Cede Voss at the hospital where the decedent endorsed her name thereon; and Mr. Voss, at his wife’s direction, surrendered the certificate to the bank; and the proceeds, with interest, were placed in the Voss’s joint bank account.

The court held that the decedent had not intended to make a present, executed gift, but rather had intended to make a testamentary disposition of the certificate to Pamela Dudley. The court reasoned that the surrender of the certificate and the placing of the proceeds in the joint bank account demonstrated that the decedent had not intended to part with the sole ownership of the certificate during her lifetime; and that the delivery of the certificate at one point to petitioner did not represent delivery with the intention of vesting title and possession immediately and irrevocably in Pamela Dudley.

In the instant case donative intent was established, prima facie, by showing the creation of a joint tenancy in stock in compliance with the applicable statutory provisions ; and no evidence of a clear and convincing nature was introduced to show that a gift had not been intended by the decedent. The Dudley case did not deal with the evidentiary situation created by showing a joint tenancy in compliance with the statute, and therefore, is distinguishable. Furthermore, in that case the court had before it compelling evidence of a lack of donative intent in the alleged donor, a situation factually distinct from the one in the case at bar.

The judgment of the Probate Division of the Circuit Court is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    Sally D. Dear, Plaintiff-Appellant, v. Ralph C. Dear, Defendant-Appellee.
    Gen. No. 67-108.
    Second District.
    March 19, 1968.
    Sally D. Dear, pro se, of Wheaton, appellant;
    no brief filed in behalf of appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James York, Defendant-Appellant.
    Gen. No. 67-120.
    Second District.
    March 19, 1968.
    John Vogel, of Glen Ellyn, for appellant.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Frank Wesolowski, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from a judgment of conviction of burglary after a jury trial and a sentence of not less than one year nor more than five years.

The defendant claims reversible error in the voir dire examination of one juror, urging that on the whole record he was thereby deprived of a fair trial.

The record discloses that, after the court had questioned the first panel, the State inquired of the first juror called: “Do you know any attorneys that practice law as far as defense of criminals is concerned?” The court overruled the defense objection to this question. Defendant argues that this resulted in his being labelled as a “criminal,” and his counsel demeaned.

Immediately prior to that particular question being asked, the State had inquired of the juror as to acquaintance with anyone in the State’s Attorney’s office. Following the challenged question the State asked whether the juror could be fair to both sides and whether the juror would sign a verdict of not guilty if the State failed to meet its burden of proof — to which the juror responded affirmatively.

The court, preliminary to the voir dire examination, had carefully and thoroughly explained that the defendant had pleaded not guilty and thereby denied the charge against him; that the jurors were to determine whether defendant was guilty; that the indictment was a mere formal charge and not evidence; that the defendant was presumed to be innocent; and that the burden was on the State to prove the defendant guilty beyond a reasonable doubt. In its examination of the particular juror, the court inquired whether the juror had any bias or prejudice simply because of the charge that the defendant had committed an offense. The juror answered “No.”

At the close of the case the jury was fully instructed on the issue of the presumption of innocence and no error is claimed as to instructions.

The defendant accepted the juror.

While the challenged question was inept and objection to it should have been sustained, no substantial error resulted in the context of the entire questioning on voir dire, the admonishment and instructions of the court.

Defendant’s argument based on People v. Trotter, 84 Ill App2d 388, 228 NE2d 467 (1967) is not persuasive. There the prosecutor’s argument inferred that defendant was guilty of a crime not in evidence. Nor is the case of People v. Harges, 87 Ill App2d 376, 231 NE2d 650 (1967) helpful to the defendant. In that case the defendant was asked before the jury whether he had ever seen the police station before the day he was taken to it in connection with drunken driving charges. This was obviously prejudicially improper as an attempt to bring a prior arrest to the jury’s attention, but has no real bearing on the instant case.

The voir dire question here cannot be raised to a similarly prejudicial status. People v. Jenko, 410 Ill 478, 485, 102 NE2d 783 (1952). It is also noted that the defendant did not avail himself of his peremptory challenges, which lends strength to the assumption that the jury was not affected by the remarks. People v. Sleezer, 9 Ill2d 57, 61, 136 NE2d 808 (1956).

The defendant argues that he was prejudiced by the voir dire examination because there was no overwhelming evidence that the defendant took or intended to take anything out of the premises in question; and that many persons had access to the premises.

Defendant’s counsel, as public defender, has flagrantly violated the rules requiring the submitting of a sufficient abstract. However, the court has considered the whole record and has concluded that it amply supports the verdict. The case is not close.

The owners of the premises in question testified that they did not give the defendant permission to enter the premises; one of the owners testified that prior to February 28, 1967, she was at her property and everything was in order, and she detailed the items missing after that date. Walter Kowalczyk testified that he had permission to use the premises. He identified a pair of shoes as the pair that were left by him in the property. Detective Odie Smith testified he took the shoes from defendant while he was in custody. Mrs. Kowalczyk testified that she had permission to use the premises and she never gave the defendant permission to enter them; that she was the last person to be in the property prior to February 28th, and she locked the doors securely; that when she went to the premises on February 28th she found a hot pot of coffee on the front room floor; the rear door had the glass broken out; and the premises were described as a “mess.” Three sets of fingerprints were found on the premises and identified as those of the defendant — one set on both sides of the glass that was removed from the rear door; one on a bottle and another on a can located in the premises.

The witness Kowalczyk volunteered that he had purchased the shoes at a certain Penney store, and there was direct testimony by the manager of that particular store that they did not carry these sizes in stock. However, on cross-examination, he stated that the size in question could be obtained by special order, and that he placed at least one special order each day. All of these facts went to the weight of the testimony only. The triers of the facts were peculiarly suited to determine questions of truthfulness. People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963).

The purpose of review has often been stated. It is not to decide whether the record is perfect, but to determine whether the defendant has had a fair trial free from substantial and prejudicial errors, and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. People v. Sleezer, 9 Ill 2d 57, 62, 136 NE2d 808; People v. Conrad, 81 Ill App2d 34, 54, 225 NE2d 713 (1967). The fingerprint identification was evidence of the highest order. People v. Malmenato, 14 Ill2d 52, 150 NE2d 806 (1958). That evidence coupled with his possession of the shoes when arrested established the defendant’s guilt beyond a reasonable doubt. People v. Napue, 83 Ill App2d 41, 227 NE2d 143 (1967); People v. Wilson, 84 Ill App2d 215, 228 NE2d 585 (1967).

The defendant was proven guilty beyond a reasonable doubt and had a fair trial. The conviction is affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold Johnson, Defendant-Appellant.
    Gen. No. 50,950.
    First District, Fourth Division.
    March 20, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel W. Weil, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty by a jury of the murder of Albert Romano. He was sentenced to a term of not less than forty nor more than ninety years in the Illinois State Penitentiary.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt.

2. Prejudicial evidence of other wrongdoing prevented a fair trial.

3. Evidence that the victim, Albert Romano, lived with and supported his invalid mother was prejudicial.

4. Hearsay testimony was wrongfully admitted.

5. The prosecutor’s closing argument was prejudicial.

The Evidence

The Prosecution

Early on the morning of March 5, 1964, the body of Albert Romano was found in the rear of 4137 West Grenshaw. He had been killed by a bullet which entered the left side of his chest and was fired from close range. He had abrasions on his neck and both wrists. There was medical testimony that the bullet wound was a “contact wound”; that such a wound almost never bleeds and that the bullet was recovered in the body.

Testimony of Victoria McCormick

In September of 1962 she went into the business of selling narcotics with defendant. Early in 1963 defendant bought a laundromat at 63rd and South Park. In June of 1963 he bought a record shop at 206 South Pulaski called “Harold’s Record Mart.” She and defendant were still in the business of selling narcotics but the business had become bad because of the poor quality of the merchandise and defendant was having difficulty meeting some of his financial obligations. Early in 1964 defendant began talking to the decedent about the possibility of his purchasing narcotics from the decedent. Decedent said he had very good quality narcotics and defendant took a sample to the witness’ apartment to be tested. He found that the narcotics were not as good as decedent had said but were satisfactory and the decedent began to be his supplier. The witness worked in the record shop and decedent began coming there to demand money for his goods. He began calling and coming around quite often but defendant refused to pay, saying that the merchandise was inferior and could not be sold. Defendant was generally not in when decedent arrived and she gave messages to him and also relayed his responses. One week before his death, decedent came into the record shop and was quite angry. He told her to tell Johnson he was not going to let Johnson “mess him around”; that his people are “more or less pressing him” and that Johnson is “standing him up.” When she related this conversation, defendant told her:

What does he mean like he is giving me some sort of ultimatum or something. I don’t like the way that so and so talks anyway.

The following day defendant and decedent met in the record shop and after an argument they made arrangements for defendant or the witness to meet decedent and give him some money. The debt was no greater than $600.

On March 4 the witness arrived at her apartment at 226 North Karlov at 6:30 p. m. and found decedent being held on the couch at gunpoint by defendant. Decedent pleaded with her to talk defendant out of killing him. Defendant had the witness tie decedent’s hands. She further testified that decedent said:

“Man give me a break, don’t kill me. I have got a mother and my mother is an invalid and I have got to take care of my invalid mother.” Harold told him to shut up. Harold told Alberto, “Man, you were just pressing me too hard, and I couldn’t stand all the pressure, but you think I’m a damn fool anyway because I’m a nigger, did you ever think a nigger would kill a dago gangster?”
“Alberto said, ‘Man, I don’t see how you could even think you are going to say about me thinking you are a damn fool, you know my wife is colored, man you shouldn’t bring this kind of stuff in.’ ”

Defendant told the witness to stuff a handkerchief in decedent’s mouth. Defendant then picked up a throw pillow, put it on top of the gun, moved to within eight inches of decedent and shot him. To make sure he was dead, since he was not bleeding, defendant strangled him with some nylon stockings. He then emptied decedent’s pockets, keeping the money but burning decedent’s other possessions. She and defendant left and arrived at the record shop at about 7:30 p. m. where defendant called his nephew, Ronald Maxey, to ask him to get rid of the body. Ronald Maxey and defendant left the record shop together and arrived back at 9:30 or 10:00 p. m. driving the black Oldsmobile which she had parked in front of her house and which belonged to Ronald Maxey.

Miss McCormick testified further that she was not a partner in defendant’s record shop or laundromat but that she would go to defendant for money whenever she needed it, that although defendant had a wife and family she had been living with him, that she had been a prostitute at times and supported men with earnings from prostitution and that she helped defendant get his start in business in this manner. She stated that a boiler exploded in defendant’s laundromat but she didn’t know on what date. According to the witness both Paul McCoy and Prancine Morris worked in the record shop and had seen decedent there. McCoy had repaired guns for defendant on occasion. Decedent used narcotics but defendant did not.

At the end of May 1964 she left defendant and went to live with William Smith. Defendant asked her to return but she said that she would after she had “time to sort of get myself together.” On June Vt, 1964, defendant came to her apartment with a friend and she left with them. Defendant then threatened to strangle her for doublecrossing him and shook her and applied pressure to her neck but told her he would give her one more chance and to get in the car with them. Defendant told his friend that she could send him to the electric chair and asked him if he needed to kill her to avoid it. His friend said no and defendant let her out of the car. He had threatened her on other occasions. On June 18, because of her fear of being killed, she called David Connolly of the Federal Narcotics Bureau, told him of the killing and arranged to meet him.

She was living in police custody, was being guarded at all times, and the police provided her with lodgings, medical services and food. She knew she was guilty of murder but had not yet been indicted; that there was pending a narcotics charge against her in Federal Court on which the arresting officer was Connolly and she didn’t know whether the State’s Attorney would help her with the federal charge. She had used five or six aliases to avoid detection by the police; had both sold and used narcotics; had been a prostitute and she was twenty-nine years old and had a six-week old baby.

Testimony of David Connolly, an employee of. the United States Treasury Department, Bureau of Narcotics.

He arrested Victoria McCormick on March 5, 1964, for a federal narcotics violation. However, no indictment had been returned and prosecution was still pending. He had also arrested Miss McCormick on March 14, 1961. Victoria McCormick called him on June 18, 1964, and the next day he took her into protective custody. He turned her over to the State’s Attorney on July 22, 1964. On July 24 he spoke to defendant in his cell in the police station.

I told Harold Johnson that I understood he was being charged with the murder of Albert Romano. He said, “yes they really got me backed up tight this time.” I told him I understand the girl is going to be a state witness. He said, “that is what I understand. I didn’t think she would turn me in, but in any case it doesn’t make much difference, it is her word against mine.”

Testimony of Raymond Romano

He was decedent’s twin brother. Decedent lived with their mother who was a semi-invalid and decedent was in the exterminating business.

The Defense

Testimony of Ronald Maxey

He was defendant’s nephew and was currently under indictment for charges growing out of the present case. In 1964 both he and his brother James were employed at defendant’s laundromat. On Wednesdays defendant would come to the laundromat to collect the coins. He remembered that on Wednesday, March 4, one of the boilers at the laundromat blew up and that defendant on that particular Wednesday had arrived at the laundromat at between 6:45 and 7:15 p. m. but had remained until 10:00 or 10:15 p. m. waiting for the boiler to be repaired. His brother James and one Luther Fuller, a salesman, were there and the boiler was repaired by Paul McCoy. He did not help defendant remove a body from Vicky McCormick’s apartment nor had he ever been there. His black Oldsmobile was parked on the street until March 20 of that year and was not used before this because he had neither acquired license plates nor a city sticker before then. He did not get the license plates immediately because the place where he had bought the car burned down and he had difficulty getting the title.

Testimony of James Maxey

He worked at the laundromat, was there on the evening in question and defendant arrived at about 6:30 and was still there when the witness left at 9:00.

Testimony of William Lenz

He was a police officer and had investigated this murder. He talked to a person named Carol or Karen Bridges of 4141 Roosevelt, Apartment 403, shortly after March 5, 1964, and she claimed to have seen Romano at 7:30 on the evening of March 4 in the Park Row Lounge. He had not tried to contact her since April 1964. On July 24, 1964, he searched Miss McCormick’s apartment and the 1958 Oldsmobile and took objects and samples of materials to the crime laboratory but none of the various tests showed any blood.

Opinion

1. Defendant first contends that his guilt was not proved beyond a reasonable doubt. He argues that the testimony of Miss McCormick was not sufficient to convict because she is a dope addict and an accomplice, her testimony is uncorroborated and contains certain discrepancies. Although these factors do affect credibility they do not as a matter of law render the testimony incredible. The adequacy of the proof depends on the individual facts of each case. In People v. Palmer, 26 Ill2d 464, 187 NE2d 236, defendant was convicted of burglary by the testimony of an accomplice who was also a dope addict. In that case defendant’s girl friend testified that he was with her in Missouri at the time of the burglary. His landlord testified that defendant hadn’t been at home during the relevant time period and defendant’s friend explained that he and not the defendant had placed one of the stolen machines in defendant’s apartment and that he had gotten the machine from the prosecution’s witness. In upholding the conviction the Supreme Court said at page 469:

While the evidence linking defendant to the scene of the crime is the testimony of his accomplice, Yancey, a convicted felon and a narcotics addict, nevertheless such evidence is competent, even without corroboration, and we have repeatedly held that a conviction can be sustained by the uncorroborated testimony of an accomplice if the trier of fact is convinced of guilt beyond a reasonable doubt. People v. Flaherty, 396 Ill 304, 314; People v. Leslie, 18 Ill2d 420, 424.

Defendant suggests, however, that discrepancies in Miss McCormick’s testimony impeach her. It is urged that at the trial Miss McCormick testified that when defendant and his friend came to threaten her they came into her apartment and made her leave a note for the man with whom she was living while before the Grand Jury she did not mention a note and said that she met the men outside her apartment. Miss McCormick also testified:

I had threats from Harold Johnson on more than one occasion. On the first occasion I did see them outside the apartment, when I met Sonny. That was the first time I ever saw him, Pulaski and West End. Evidently I had gotten the first time and the second time and connected them together.
The earlier threat was where I saw Sonny and Harold on a street. We got in the car and drove way out and we were talking and he was telling me he was going to have to kill me if I didn’t go along with what he wanted me to do. This was the threat that I did not tell to the Grand Jury.

It was for the jury to decide whether there actually was a discrepancy in the testimony and if so to determine the weight to be given to it. See People v. Clay, 27 Ill2d 27, 187 NE2d 719.

2. Defendant’s next contention is that evidence of other wrongdoing prejudiced his case and deprived him of a fair trial. Evidence of other crimes is admissible where the evidence is independently relevant to identity, absence of mistake or accident, motive or intent, or the existence of a common scheme or design. People v. Prohaska, 8 Ill2d 579, 134 NE2d 799. Defendant argues that evidence of his narcotics transactions with the decedent should not have been admitted since the existence of

the debt itself was sufficient to show motive. He argues that how the debt arose has no bearing. We disagree. The motive for this killing was not as simple as a mere obligation to pay $600. Decedent was being pressured for money by his supplier of narcotics who warned that “his people” were pressing him. Under these circumstances we do not believe that this debt for narcotics can be considered as an ordinary debt. Defendant seeks support for his argument in People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330. In that case defendant sought to defend against a charge of robbery by an alibi. The prosecution introduced evidence that defendant was committing a second robbery (not the one for which he was being tried) during the time he claimed to be at his mother’s house. The court held that it was prejudicial to permit evidence of what defendant was doing when the witness saw him. The fact that he was seen in a grocery store would have sufficed to contradict the alibi and therefore the commission of the robbery was not independently relevant. In the instant case the manner in which the debt arose was relevant to the pressures brought to bear on defendant and the likelihood of his responding with murder. In Woodward v. State, 197 Ga 60, 28 SE2d 480 the accused was charged with murder. In determining the admissibility of evidence regarding a transaction in Pennsylvania, the court stated at pages 484 and 485:

There was evidence in the record to the effect that the accused and the deceased were jointly engaged in what is commonly known as fake race horse bets, and that a man in Pennsylvania had been swindled out of the sum of $30,000, and that there was a dispute and hard feelings between the accused and the deceased over the claim of deceased to a part of this fund. Evidence tending to establish a motive for a homicide is admissible, even though it relates to a separate and distinct illegal transaction. (Citing cases.)

There was no error in the admission of the narcotic transactions.

Defendant argues that it was prejudicial to admit evidence that he was under the surveillance of a narcotics agent, that a relative of his used narcotics, that defendant himself did not use narcotics, that he was having illicit relations with Victoria McCormick, and that he had accepted money from a prostitute. As to surveillance, the testimony was stricken and the jury instructed to disregard it. The other evidence was elicited without any specific objection to the questions or to the answers. People v. Burage, 23 Ill2d 280, 178 NE2d 389.

3. Defendant’s next contention is that he was prejudiced by the admission of evidence that decedent lived with and supported his invalid mother. Miss McCormick testified that the decedent mentioned this while pleading with defendant to spare his life. As such it was a part of the res gestae and properly admitted. Davids v. People, 192 Ill 176, 61 NE 537.

4. Defendant also contends that prejudicial hearsay testimony was admitted. He argues that Officer Lenz should not have been allowed to testify as to the nature of Paul McCoy’s job (which included repairing a weapon), how long McCoy had worked for defendant and whether or not McCoy was an addict because he would in fact merely be reiterating the out of court statements of another. There is no showing of where Lenz got his information or that it was the mere reiteration of another’s out of court statement. Defendant made no inquiry of Lenz to ascertain where he obtained his knowledge. We cannot say that this was hearsay. Defendant also contends that Officer Lenz’s testifying that he got an affidavit from McCoy saying that there were thirty-two caliber bullets in a wall of the record shop was hearsay. Officer Lenz was trying to establish the probable cause for his search of the record shop. He was not offering the statement to establish its truth. It was not intended to show that there were bullets in the wall of the shop. This was not hearsay. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738. Moreover, Lenz was called as a witness by defendant and was responding to direct examination about the contents of the search warrant. Furthermore, defendant made no objection to the procecutor’s question as to whether McCoy was an addict.

5. Defendant’s final contention is that the prosecutor’s final argument to the jury was prejudicial. Most of what he objects to, however, was a reiteration of testimony legitimately in evidence and the prosecutor’s reference to it in the final argument was not prejudicial. Defendant also objects to the prosecutor’s argument that:

Harold Johnson lived off the earnings of Victoria McCormick. If the fact that she engaged in prostitution makes her a less desirable person what does it make Harold Johnson living off of her?

While this may have been improper we do not feel that it was seriously prejudicial. People v. Davis, 10 Ill2d 430, 140 NE2d 675. Defendant also objects to the prosecutor’s explanation that he did not call certain witnesses because they might take the Fifth Amendment and defendant might move for a mistrial as being outside the scope of the evidence. Again, we feel this did not harm defendant. Finally defendant argues that the prosecutor’s comment on the absence of Luther Fuller from the trial was grounds for reversal under People v. Rubin, 366 Ill 195, 7 NE2d 890. In Rubin the prosecutor said that the witness was not called because he would have said defendant was guilty. Here the prosecutor said:

I ask you where is Luther Fuller ? I asked him for a card, a name, and an address, anything for me to find the Luther Fuller and I got nothing, no, no, no, no, no.

The strongest inference possible from this was that Fuller would not have supported the alibi of defendant, that he was at the laundromat on the night of the murder. Furthermore, this was a legitimate response to defendant’s closing argument that if Luther Fuller wouldn’t have supported his alibi the prosecution would have produced him. People v. Smith, 24 Ill2d 198, 200, 181 NE2d 77.

In closing argument defendant’s counsel acrimoniously characterized Victoria McCormick as “vermin,” “roach” and “hot pad” [sic]. Yet the jury believed her. We find no reason to override their determination.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest V. Hayes, Defendant-Appellant.
    Gen. No. 51,582.
    First District, Fourth Division.
    March 20, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Allan Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant received a bench trial and was found guilty of rape. On appeal his sole contention is that his guilt was not proved beyond a reasonable doubt.

Evidence

Testimony of Nancy Aderman, Prosecutrix

On Sunday, October 24,1965, she was living alone in a one-room apartment at 839 Diversey in Chicago. She had met defendant four or five times when he was with her friend Roberta Lindenthaler who lived in the same building. Roberta spent the night of the 23rd in the prosecutrix’s apartment remaining until 1:30 or 2:00 o’clock on the afternoon of the 24th. Between 4:30 and 4:45 defendant rang the buzzer in the lobby and asked her over the intercom if Roberta was there. Prosecutrix told him that Roberta wasn’t there and he left but he rang the buzzer a minute later and asked if he could come up and talk to her about Roberta. Prosecutrix said, “Yes” and let the defendant into her apartment. The conversation was concerned with the fact that the defendant was upset because Roberta had started drinking and “running around” ever since the prosecutrix had called her a thief. This had grown out of a dispute over $75 which the prosecutrix had left with Roberta and which had disappeared. The prosecutrix and the defendant then went to Roberta’s apartment and she was not at home. Defendant left and she returned to her own apartment.

At approximately 5:15 or 5:30 p. m. the defendant rang her bell again and requested to come up to her apartment. She let him come up and upon opening the door defendant stepped in and pulled out a knife. The defendant said that she had better do what he wanted or he would cut up her face. He then slapped her across the face and told her to take off her clothes. The defendant put the knife in his back pocket and she did not see it again until after two acts of intercourse. She took off her own clothes and lay down on the bed. The defendant told her that she had better satisfy him or he would cut her up. She responded by saying, “Well, when you are being forced, you can’t put your heart into anything.”

After having intercourse, the prosecutrix and the defendant had a conversation about Roberta. Then they engaged in another act of intercourse. Following the second act of intercourse, defendant said what he was doing was not right and he told prosecutrix to go to the bathroom and get dressed. While they had been in bed, she did not see a knife. Shortly thereafter, defendant came into the bathroom and at the point of a knife forced prosecutrix to perform an act of oral copulation. Before defendant left her apartment he offered to call the police and turn himself in, but she refused. The defendant left her apartment about 6:00 or 6:30.

Dressed in the same clothes she wore prior to being raped, prosecutrix attempted to call her aunt, but she was not at home. However, she spoke to another individual at her aunt’s house, but she did not mention the incident to that person. While she was at the phone, she made no attempt to call the police. She then returned to her apartment and her buzzer was rung by Roberta’s brother William. She did not mention to him that she had been raped. Upon going out in the hall to meet William, whom she had invited upstairs, she ran into the defendant and another man. After a short conversation William and the other man left and defendant remained. He offered once again to turn himself in to the police, but prosecutrix again refused. It was actually at this point she was going downstairs to call her aunt for the first time.

On the way upstairs, she ran into the defendant and Roberta. Prosecutrix and Roberta went into her room and closed the door while the defendant waited outside. She apologized to Roberta for calling her a thief, but did not tell Roberta that she had been raped. Even when Roberta asked her what she was crying about, prosecutrix did not tell of the rape.

On cross-examination prosecutrix testified there were eight or ten apartments on her floor; that her clothing was not torn and that she made no outcry or scream. She did not attempt to pound on the wall or make any attempt to escape. Moreover, she made no effort to seek aid from her neighbors during and after the alleged acts. Prior to her rape she had heard a story about another girl in the building who had been raped by a man with a knife.

When the prosecutrix finally spoke to her aunt on the telephone, she did not mention that she had been raped. At 7:00 or 7:30 when her aunt arrived at her building, she told her what had happened. At approximately 1:00 a. m., eight hours after the act, prosecutrix reported the incident to the police. She went to the Illinois Masonic Hospital for an examination about 2:00 a. m. She did not show the doctor where she had been slapped. There was no mark.

Testimony of Dr. Robert MaeNerland

The parties stipulated that Dr. Robert MaeNerland, if called, would have testified that he examined the prosecutrix at 2:00 a. m. on October 25 at Illinois Masonic Hospital, that he found no signs of trauma or abrasion in the vaginal area, that there were deposits of spermatozoa present but that he could not tell for how long because of the passage of time.

Defendant’s Testimony

He is forty years old. He denied that he raped prosecutrix or that he committed a deviate sexual assault. He had conversed with the prosecutrix over the intercom from the lobby on the afternoon of October 24. He asked her where Roberta was; she told him at the corner restaurant. He then went to the restaurant. He returned and went to the room of prosecutrix. They argued about the $75 he had given Roberta with the understanding that she was loaning it to prosecutrix and that he would get it back. He was only in the apartment for five or ten minutes. He went out with Roberta and later dropped her off at the building. He then went for parts for Roberta’s brother’s car and brought the car back. He was arrested at 1:00 a. m. in front of the building where prosecutrix lived while returning the car keys to Roberta.

Opinion

Defendant contends that the crime of rape was not proved beyond a reasonable doubt because (1) the evidence is not clear and convincing and (2) the testimony of prosecutrix is not corroborated by other facts and circumstances. In People v. Scott, 407 ILL 301, 305, 95 NE2d 315, the court said:

It is a fundamental rule in such cases that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will. (Cases omitted.)

In the instant case prosecutrix testified that she was threatened with a knife. However, she stated that after displaying the knife defendant put it in his pocket before she got into bed and she did not see it when she was out of bed between the acts of intercourse; she saw it again when he forced her to commit a deviate act. There was, however, no evidence that a knife was found on defendant. She testified that while the alleged acts were transpiring, she complained it was difficult to satisfy him under the circumstances. Although the defendant offered to turn himself over to the police, she told him not to. She claims she was too afraid of defendant to call for help while he was there, or to ask him to turn himself in to the police or to use the pay phone on the third floor to seek the help of friends or neighbors or the police. Although her attacker had been in and around the building after the attack, the prosecutrix felt no compulsion to leave the building to get away from this dangerous individual or to have him arrested. In People v. Qualls, 21 Ill2d 252, 171 NE2d 612, the prosecutrix claimed to have been forced to have intercourse by one of the defendants who displayed and threatened her with a knife. In reversing the conviction the Supreme Court, at page 257, used language which is appropriate to the instant case:

We are constrained to say, after a careful reading of the entire record, that the testimony of the prosecuting witness lacks verisimilitude. In such instance the evidence of a prosecutrix should be corroborated by some other testimony, fact or circumstance. (Cases omitted.)

Defendant then argues that there was no corroboration of prosecutrix’s story. It is a well established rule that prompt complaint is corroborative of the prosecutrix’s testimony in a rape case. People v. DeFrates, 395 Ill 439, 70 NE2d 591. In the instant case rather than prompt complaint the evidence discloses an unexplainable delay. Prosecutrix did talk to someone at her aunt’s house but made no complaint to her. She talked to Roberta shortly after the occurrence but still made no complaint. She said nothing to Roberta’s brother. She even talked to her aunt on the phone without complaining. It was only later at 7:00 or 7:30 when she was in her aunt’s company that she claims to have made her first complaint that she had been raped although complaint to the police was not made until 1:00 a. m., eight hours after the alleged assault. The aunt did not testify. The acts of the prosecutrix and her aunt were not of that spontaneous character which is corroborative of testimony of the character given. As stated in People v. Carruthers, 379 Ill 388, 393, 41 NE2d 521, a rape case:

There is inherent improbability in the testimony of the prosecutrix under the undisputed evidence of surrounding facts and circumstances admitted to be true. This undisputed testimony not only does not corroborate the prosecutrix but tends to discredit her story.

Since the testimony of prosecutrix was not clear and convincing and since there was no substantial corroboration of her story, defendant was not proved guilty beyond a reasonable doubt.

The judgment is reversed.

Reversed.

MCCORMICK, P. J. and ENGLISH, J., concur.


text:
    Oscar Marion and Sophie Marion, Claimants-Appellants, v. In the Matter of the Estate of Stanley Wegrzyn, Respondent-Appellee.
    Gen. No. 52,331.
    First District, Fourth Division.
    March 20, 1968.

      Irving Block, of Chicago, for appellants.
    Maurice H. and Fred S. Ruttenberg, of Chicago, for appellees Lorraine Jarzynski and Stanley Ciesla.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Claimants appeal from an order refusing to strike defendant’s answers to the bills of particulars and from a dismissal of their claims.

On June 2, 1966, claimants filed claims alleging performance of services for decedent in his tavern from April 1944 to August 1954. Oscar Marion claimed $13,000 and Sophie Marion $13,180. On August 26,1966, defendant moved for a bill of particulars requesting that claimants set out whether the contract for services was oral or written, the nature of the work performed and whether any money or consideration was paid to claimants during decedent’s lifetime. Claimants filed their particulars stating that they had been employed by Mary Wegrzyn, deceased wife of decedent, on or about June 1944; that their services were terminated on September 21, 1956; that decedent was fully aware of these employments. They then described their work and alleged that Oscar was due $49,303.50 at the prevailing rate of $1.50 per hour and that Sophie was due $26,551.20 at $1.25 per hour. Amended claims were filed and answers thereto demanded strict proof, denied the services and asserted a bar of the Statute of Limitations. On motion of defendant amended claims were stricken on the ground that they were barred by the five-year limitation of the Statute of Limitations and second amended claims were filed on January 4, 1967. These alleged that personal services were rendered to decedent from June 1944 to September 1956 and that on numerous occasions within the last five years decedent acknowledged that he was indebted to and owed claimants money for services performed by them. Defendant’s answers to the amended claims were ordered to stand as answers to the second amended claims. On March 21, 1967, defendant asked leave of court to answer the bills of particulars and filed answers neither admitting nor denying the allegations inasmuch as the coexecutors had insufficient knowledge.

On April 19 the claimants moved to strike the answers as not in compliance with section 37 (3) of chapter 110, Illinois Revised Statutes (1965). This section provides:

If a bill of particulars, in an action based on a contract, contains the statement of items of indebtedness and is verified by oath, the items thereof are admitted except in so far as the opposite party files an affidavit specifically denying them, and as to each item denied states the facts upon which the denial is based, unless the affidavit is excused by the court.

Claimants urge error in the court’s refusal to strike defendant’s answers to the bills of particulars. These sworn answers stated that the coexecutors had insufficient knowledge to form a belief as to the truth and veracity of the claims and asked for strict proof. Plaintiffs contend that defendant’s failure to specifically answer each item constituted an admission under section 37 (3). The Historical and Practice Notes to that section state that section 37 (3) “should be read with Section 40 (2) ” which states:

Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.

We find no logic in an interpretation under which a defendant who has sworn he has no knowledge of the facts and is seeking specific information is deemed to have admitted those very facts because he has not denied them. The court did not err in refusing to strike the answers to the bills of particulars.

We would also point out that the bills of particulars related to the original claims. A bill of particulars is deemed to be part of the complaint which it particularizes (Louis v. Barenfanger, 81 Ill App2d 104, 226 NE2d 85). Therefore, when the original claims were superseded by the second amended claims, the bills of particulars no longer applied. See Cantow v. Foute, 335 Ill App 574, 82 NE2d 696 (abst.).

Furthermore, when the court refused to strike the answers to the bill of particulars, this action could be construed as an exercise by the court of its statutory discretion to excuse an affidavit of denial. Ill Rev Stats, c 110, § 37 (3), quoted above.

There was no evidence introduced at the trial as to the nature and extent of the claimed services. It was stipulated that two witnesses would testify to certain wage scales for general work in a tavern and for a bartender.

Other evidence was submitted by claimants consisting of the depositions of six persons to show that decedent had acknowledged that he was indebted to and owed money to claimants for services rendered to him. Three of the witnesses testified to the same conversation of April 1965. One stated that decedent had said to the claimants:

You have done so much for me during the time you have worked for me. I will repay you this gratefully.

Another,

Zos, I owe you a lot. You did a lot for me.

And third,

I will never forget you as far as reimbursing you financially for what you did for me.

Mr. and Mrs. Korsak testified to a conversation with claimants in July 1965 in which decedent said:

Oscar is a good man. He helped me. In my will I will take care of him “financially.”

Mrs. Korsak also stated:

We did discuss the Marions and he told us how they took care of his business while he was away; how they took care of him when he was sick, how they kept the business and cleaned the halls and that he would take care of them in his will.2

Marion Marion, a sister of Oscar Marion, testified that decedent told her in 1964 that:

... he liked my brother and that he was going to take care of him financially, that he owes him a lot of favors, when he takes his vacation my brother and his wife take care of the tavern and are responsible for weddings there and he never paid him.

In Keener v. Crull, 19 Ill 189, the court in its opinion first stated the background, at page 190:

The case shows that the wife, while sole and of full age, remained with her father, and worked in the family from 1833 to 1838; that, in 1850, the father, who is the defendant’s testator, in a conversation with one Longwith, said “that he had agreed to give his daughter, (the now feme covert plaintiff with her husband), two hundred dollars per year for her work, and he had not paid her yet, and she had gone to Ohio.” The debt, if one existed, was barred by the statute, and the question is, whether, by reason of the admissions of her father in 1850, the plaintiffs are entitled to recover against his executor?

The court held that plaintiffs could not recover, stating at page 191:

The language of the defendant’s testator was used to a stranger having no concern in the matter, or right to act for the party in interest, the amount of the debt was not named or in any manner indicated, nor was there any language unequivocally importing a present intention or undertaking to pay. (Emphasis supplied.)

Claimants did not prove by a preponderance of the evidence that there was a new promise within five years which would remove the bar of the Statute of Limitations and in fact produced no evidence to support their claims.

The judgment of the Circuit Court dismissing the claims is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats (1965) c 83, § 16.

       This contradicts claimants’ bill of particulars that they worked continuously for twelve years, Oscar fifty-three hours a week when decedent was in town and sixty-three hours when out of town, for a total of $49,303.50. Sophie claimed thirty-six hours a week and later [sic] forty-six hours per week for a total of $26,551.20.