text:
    Panhandle Community Unit School District No. 2 of Montgomery, Macoupin and Christian Counties, Illinois, Plaintiff-Appellant, v. Carl L. Goebel, Thelma Goebel, Morrisonville Community Unit School District No. 1 of Christian and Montgomery Counties, Illinois, County Board of School Trustees of Montgomery County, Illinois, County Board of School Trustees of Christian County, Illinois, Defendants-Appellees.
    Gen. No. 67-92.
    Fifth District.
    May 27, 1968.

      Miley & Meyer, of Taylorville, for appellant.
    Paul M. Hickman, Bullington, White & Hickman, of Hillsboro, for appellees.
   MORAN, J.

The County Board of School Trustees of Montgomery County entered an order detaching a certain tract of land from Panhandle Community School District No. 2 of Montgomery County and annexing same to Morrison-ville Community Unit School District No. 1. The Panhandle District brought a proceeding for administrative review in the Circuit Court of Montgomery County and appeals from an adverse decision of that Court affirming the action of the County Board of School Trustees. It contends that the decision was against the manifest weight of the evidence.

The area described in the detachment petition contains 160 acres and the petitioners, Carl Goebel and Thelma Goebel, his wife, are the only residents and voters in that area. They have six children, aged 10, 8, 6, 5, 2 and 1, respectively. The three oldest children attend parochial school in Morrisonville and the five-year-old child attends public school kindergarten there, on a half-day basis. The three older children ride the public school bus to and from Morrisonville, while the parents take the five-year-old to kindergarten in Morrisonville at noon and he rides the bus home in the evening. They pay $365 per year tuition for the five-year-old child to attend kindergarten. The Goebels go to church in Morrisonville and do all their business there. His folks also live on the Morrisonville bus route.

Goebel testified that they would have no more children in kindergarten for three years and therefore would have to pay bus fare for the school bus to take their children, who attend the Catholic school, to Morrisonville. It was then pointed out to him that there were no provisions in the Illinois law for him to pay for bus transportation under any circumstances.

The School Superintendent of the Panhandle District appeared in opposition to the petition and informed the County Board of School Trustees that the Panhandle School Board opposed the detachment. He testified that there was a primary school in Harvel, about two miles from where the petitioner lived, and that the Panhandle District would furnish bus transportation to and from there. There was no kindergarten at Harvel, but there was one at Raymond, which is a few miles from Harvel. If the Goebels had a child attending kindergarten, the Panhandle District would furnish bus transportation from petitioners’ home to Raymond and back to Harvel.

“Pupils attending other than a public school. The school board of any district that provides any school bus or conveyance for transporting pupils to and from the public schools shall afford transportation, without cost, for children who attend any school other than a public school, who reside at least 1 Vz miles from the school attended, and who reside on or along the highway constituting the regular route. . . .”

Chapter 122, section 7-6, Illinois Revised Statutes, 1965, provides in part:

. . Prior to the hearing the secretary shall submit to the county board of school trustees maps showing the districts involved, a written report of financial and educational conditions of districts involved and the probable effects of the proposed changes. . . . The county board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted, and in case non-high school territory is contained in the petition the normal high school attendance pattern of the children shall be taken into consideration. . . .”

There was no contention at any stage of the proceedings in this case that the granting of the petition would affect the ability of either district to meet the standards of recognition prescribed by the Superintendent of Public Instruction; that it would affect the educational welfare of the students in either district; that it would affect the division of the funds and assets; or that it would in any way affect the financial or educational condition of either district.

The record disclosed that the estimated value of the tract sought to be disconnected was $24,000 and that the estimated revenue loss to the Panhandle District was $410 per year. The assessed valuation of the Panhandle District is $27,484,899, the approximate area is 169 square miles, and the tax rate is 1.886. The assessed valuation of the Morrisonville District is $23,983,640, the approximate area is 118 square miles and the tax rate is 1.5910. It is clear that the disconnection will not have a perceptible effect on the assessed valuation, the territory or the tax rate of either district. It is also apparent that the change could have no effect whatsoever on the educational program of either district.

Appellant argues that personal preferences and conveniences standing alone do not meet the statutory standards necessary to support a petition for detachment from one district and annexation into another and cites Oak-dale Consol. Community School Dist. No. 1 v. County Board of School Trustees of Randolph County, 12 Ill2d 190, 145 NE2d 736, and various Appellate decisions to sustain its position, while appellee argues that the present case is distinguished from the cases cited by appellant and cites Virginia Community Unit School Dist. No. 64 of Cass and Morgan Counties v. County Board of School Trustees of Cass County, 39 Ill App2d 339, 188 NE2d 886, to sustain its position.

The facts in that case disclose that the petitioners were the only two residents and voters on a twenty-acre tract of ground which they sought to have disconnected from the Virginia School District and Annexed to Ashland Community Unit School District No. 212. They had three small children, all of whom were under school age at the time of the hearing. The evidence disclosed it would be much more convenient for them to bus their children to Ashland than Virginia; that their children’s playmates were all in the Ashland District and that petitioners went to church in and did all their trading in Ashland. The evidence also disclosed that the education facilities of both districts were equal and that the transfer would not affect the educational program or the tax revenue of either district.

In affirming the decision of the County Board of School Trustees of Cass County granting the petition for detaching the disputed territory as requested by petitioner, the Appellate Court carefully distinguished Oakdale Community Consol. School Dist. No. 1. v. County Board of School Trustees of Randolph County, supra, and a number of Appellate cases which were authority for the proposition that the personal desires and conveniences of a few petitioners will not alone justify a boundary change to the detriment of others as not being applicable to the factual situation which the record in that case presented. The court pointed out that in the Oakdale case the court held that the granting of the petition would create a serious depletion of the tax resources of one district and the crowding of another and that in the other cases cited there would be a detriment rather than an improvement in the area involved. The court went on to say:

“. . . However, in none of these cases do we find the Court indicating that equality of educational facilities alone affords a sufficient basis for denying a petition to detach, nor do we find any statement therein to the effect that proof of personal conveniences to the petitioners must be excluded from the consideration of the Board. Indeed it would be difficult to conceive of a situation where the personal desires and conveniences of the petitioners would not to some degree prompt the decision to initiate a detachment proceeding. The Courts have not held that the expression by petitioners of a personal desire to have territory detached condemns their petition to failure, but have merely said that such factor standing alone is not sufficient to change the established boundaries of a school district.
“Here the Board heard evidence that there is no difference in the educational facilities of the two districts; that the detachment sought would not affeet the ability of the Virginia School to meet the standards of recognition prescribed by the superintendent of public instruction; that the tax revenue of neither district would be materially affected; that the distance from petitioners’ home to Ashland is much less than it is to Virginia; that there is a well established identity of the territory involved with the Ashland district. These educational factors including the desire and convenience to the petitioners were all entitled to be considered by the Board in determining whether allowance of the petition would tend to promote the best interests of the schools of the area affected and the educational welfare of the pupils residing therein. This we think represents much more than mere proof of petitioners’ personal desires. Burnidge v. County Board of School Trustees of Kane County, 25 Ill App2d 503, 167 NE2d 21.” Id. 344-345.

We agree with the rationale of the Virginia case and find that the present case is factually in point with that case. We therefore find that the decision of the County Board of School Trustees is supported by substantial evidence.

Appellant next contends that this case should be remanded to the County Board of School Trustees of Montgomery County for a new hearing because of the failure of the secretary of that Board to submit a written report of the financial and educational conditions of the districts and the probable effect of the proposed disconnection prior to the meeting as required by chapter 22, section 7-6, prior to the hearing. He argues the submission of this report is mandatory and the decision of the Board cannot stand unless the report is furnished and considered.

Plaintiff filed a motion in the Circuit Court asking to strike the “fact sheet” on the ground that the fact sheet was not considered by the Board at the time of the hearing, but was prepared at a later date and attached an affidavit to that effect signed by Fred Ewald, County Superintendent of Schools and Ex-Officio Secretary of the County Board of School Trustees of Montgomery County. Appellees filed a counteraffidavit signed by the same Fred W. Ewald, the pertinent part of which stated:

. . Affiant further states that several hearings on the detachment of land involving Carl L. Goebel and Thelma Goebel have been heard with the last one prior to this hearing having been heard on January 6, 1964; that on these previous hearings, including the one of January 6, 1964, fact sheets were submitted; and the fact sheet involved in the present motion was submitted to the County Board of School Trustees of Christian County, Illinois; that the conditions prevailing at the time of the hearing held on January 9, 1967, were not changed from those prevailing at the hearing held on January 6, 1964; that the County Board of School Trustees of Montgomery County, Illinois, were well aware of all the information contained in the fact sheet for a long period of time before the hearing of January 9, 1967.”

In view of the fact that no objection was made to the lack of a report at the hearing; that the County Board of School Trustees had full knowledge of the financial and educational conditions of the districts involved at the time of the hearing and so found in their order approving the disconnection and in view of the fact that the granting of the petition could not under any conceivable circumstances affect the financial or educational condition of either district, we find that the failure to furnish the report did not invalidate the hearing on the petition for disconnection. Sesser Community Unit Dist. No. 196, Franklin County v. County Board of School Trustees of Franklin County, 74 Ill App2d 152, 219 NE2d 364; Long v. County Board of School Trustees of Morgan County, 15 Ill App2d 162, 145 NE2d 741; Savanna Community High School Dist. No. 200 v. County Board of School Trustees of Carroll County, 73 Ill App2d 202, 218 NE2d 811.

For the foregoing reasons the judgment of the Circuit Court of Montgomery County is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.

       Chapter 122, section 29-4, Illinois Revised Statutes provides in part:


source: Caselaw Access Project

author: PRESIDING JUSTICE ABRAHAM-SON.

license: Public Domain

text:
    Sharon Gibbons, Plaintiff-Appellee, v. William Gibbons, Defendant-Appellant.
    Gen. No. 67-158.
    Second District.
    May 28, 1968.
    Smith, Penniman, McGreevy and Donohue, of Rockford, for appellant; Roald A. Jacobsen, of Rockford, for appellee.
   Opinion by

PRESIDING JUSTICE ABRAHAM-SON.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    John Steinwart and Dean Anderson, Plaintiffs-Appellees, v. Louis Susman, Richard E. Voland, Escrowee, and and Fox River Valley Ice Cream Co., Inc., an Illinois Corporation, Defendants, Louis Susman, Defendant-Appellant.
    Gen. Nos. 68-22 and 68-29.
    Second District.
    May 28, 1968.

      Orlikoff, Prins, Flamm & Susman, of Chicago, for appellants.

      Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellants.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Louis Susman, appealed under Supreme Court Rules 307(a) and 307(b) (Ill Rev Stats 1967, c 110A, pars 307(a), (b)), from the interlocutory order entered by the trial court appointing a receiver pendente lite for the defendant corporation, Fox River Valley Ice Cream Co., Inc., and from the order denying his motion to vacate said order. The two appeals were perfected in that Susman questioned the adequacy of the notice of the application for the appointment of the receiver. Supreme Court Rule 307(a) relates to appeals from interlocutory orders where notice has been given of the application for such order, and Supreme Court Rule 307 (b) relates to such appeals where the order was entered ex parte. The latter rule requires a motion to vacate the order prior to taking an appeal. The appeals were consolidated in this court.

Count I of the complaint alleged that the defendant, Louis Susman, as sole owner of the capital stock of the Fox River Valley Ice Cream Co., Inc., contracted to sell all of his stock to the plaintiffs, John Steinwart and Dean Anderson; that Susman made false and fraudulent representations in the contract as to prior sales of the corporation ; that he otherwise made “a false and fraudulent representation ... at and prior to the time of the execution of the contract . . and that said sale was voidable under the Illinois Securities Law of 1953, (Ill Rev Stats 1965, c 121%, pars 137.1 et seq.). The prayer of Count I of the complaint was that the contract be declared null and void and that the plaintiffs recover a judgment against the defendant, Susman, for the monies paid to him.

Count II of the complaint further alleged that the plaintiffs had operated the corporation subsequent to the execution of the contract, but that the corporation was insolvent and that there were assets of the corporation which should be preserved and protected pending the outcome of the litigation. In Count II, the plaintiffs asked for the appointment of a receiver pendente lite for the assets and property of the corporation.

The complaint was filed December 18, 1967, but was not served on Susman until December 21, 1967. However, on December 13, 1967, the plaintiffs appear to have mailed a notice from Aurora, Illinois, to the defendant, Susman, in Elgin, Illinois, advising him that on Monday, December 18, 1967, at 9:30 a. m., they would move for the appointment of a receiver pendente lite. On December 18, the matter was continued to December 19, at which time the receiver was appointed. Susman was not present on either of these occasions.

The order appointing the receiver pendente lite, recited that it was based upon the verified complaint; that due notice had been given; and that the action was necessary to preserve the status quo and to protect the assets of the corporation. The order required that the receiver post a bond, but did not require a bond of the plaintiffs.

The order of the trial court appointing the receiver must be reversed for a number of reasons, the most apparent of which is its failure to require a bond of the plaintiffs. Paragraph 54 of the Chancery Act (Ill Rev Stats 1965, c 22, par 54) provides:

“That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages including reasonable attorneys’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.”

The plaintiffs — applicants for the appointment of the receiver — did not post bond; nor was there a full hearing, upon notice, at which good cause was shown, permitting such appointment without bond. The bond required of the applicant is not the same as, nor may it be substituted by, that of the receiver. The applicant’s bond, as indicated by the statute, is given to the adverse party as security for any damages sustained by such party, including attorneys’ fees, in the event the appointment of the receiver is revoked or set aside. The requirement of such a bond may not be waived or forgiven except as provided by the statute. In the case at bar, the only bond given was that of the receiver, which ran to the People of the State of Illinois, in the sum of $1,000. The obligation of the bond was the faithful performance of the duties of the receivership.

The order of the court appointing the receiver did not purport to waive the bond requirements of the plaintiffs. As pointed out in Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill App 450, 451, 452 (1925), it is not sufficient to merely recite in the order appointing the receiver that the bond requirement is waived “upon good and sufficient showing.” The order must clearly indicate that the court was of the opinion that a receiver should be appointed without such bond, based upon facts shown in such order. In the case at bar, there was no pretense of meeting this requirement. It was totally ignored. Obviously, there was not the full hearing required by the statute.

Nor, can the rather cavalier manner in which the plaintiff sought the appointment of the receiver be justified under the somewhat unusual circumstances presented as the basis for the appointment. The application for the appointment of a receiver is addressed to the sound discretion of the court. The appointment of a receiver is an extraordinary and drastic remedy to be exercised with utmost care and caution, and only where the court is satisfied there is imminent danger of loss if it is not exercised. Bagdonas v. Liberty Land and Inv. Co., 309 Ill 103, 110, 111, 140 NE 49 (1923); Frank v. Siegel, 263 Ill App 316, 322, 323 (1931).

The right to this drastic remedy rests upon the rationale that the applicant have some clear right or some lien upon the property for which the receiver is sought, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim; and that the possession of the property by the defendant was obtained by fraud, or that the property itself or the income therefrom is in imminent danger of dissipation if a receiver is not appointed to maintain the status quo. Bagdonas v. Liberty Land and Inv. Co., supra, 110; Simpson v. Adkins, 311 Ill App 543, 550, 551, 37 NE2d 355; 31 ILP, Receivers, § 7. The appointment of a receiver pendente lite is warranted only where there is no other adequate remedy or means of accomplishing the desired result. Fox v. Fox Valley Trotting Club, Inc., 349 Ill App 132, 137,110 NE2d 84 (1953).

The defendant suggests that it is not appropriate for one who is in possession of property to seek the appointment of a receiver pendente lite for such property. Certain cases and texts seem to support this proposition. Simpson v. Adkins, supra, 552; 75 CJS, Receivers, § 11, p 671, n 66; 45 Am Jur, Receivers, §§ 8, 36.

The plaintiffs cite Firebaugh v. McGovern, 404 Ill 143, 88 NE2d 473 (1949) and Liddell v. Smith, 43 Ill App 2d 57, 193 NE2d 45 (1963) as authority to support their contention that the plaintiffs, as stockholders of the defendant corporation, may apply for the appointment of a receiver for the corporate assets. In Firebaugh, however, there was a dispute among the discordant stockholders as to who were the duly elected and qualified officers and directors. As a result, banks refused to honor corporate checks and a suspension of business and a material depreciation in the value of the corporate assets was thus threatened. In Liddell, the two sole stockholders of the corporation were in utter disagreement, and the continued operation of the corporation pending the litigation, absent the appointment of a receiver, was rendered extremely difficult.

The distinction between Firebaugh and Liddell, and the instant case is apparent. Here the plaintiffs are in sole and exclusive possession of the property over which they seek the appointment of a receiver. There is no claim to such right by Susman. The plaintiffs assert in their complaint that the corporation is insolvent and that they are unwilling to operate the business, and have, in fact, ceased operations. They have chosen to walk away from this precarious business.

The defendant, Susman, contends that the plaintiffs wish to abandon this failing business solely to protect their personal credit standing and reputation, and that the desire of a businessman to take refuge from his failing business is not a sufficient ground for the appointment of a receiver. See: 45 Am Jur, Receivers, § 36.

Susman — the party not having control or possession of the property — further asserts in his brief that he does not desire such control or possession, or the appointment of a receiver. He admits that if, in the exercise of their honest business judgment and without breach of their contractual or fiduciary obligations, the plaintiffs determine that the continued operation of the corporation is not justified, then cessation or liquidation of the business may be pursued by them. He argues that a receivership is not the only alternative, and urges that if the plaintiffs are correct in the allegations of their complaint, they will be entitled to the return of their money and he will have returned to him the corporate stock, in which event he will readily bear the benefit or the burden of the failure to appoint a receiver.

We set forth these facts to illustrate the reasons why the appointment of the receiver in such a summary manner was not proper, and not to suggest that upon full hearing a receivership is definitely inappropriate in this case or in all cases where the applicants are in possession of the property. While the great majority of cases in which receivers are appointed are those where persons other than the applicants are in possession, we do not believe that possession of the property by the applicants necessarily eliminates the possibility of the appointment of a receiver.

If the applicants have a definite interest in a particular property, which is in grave and immediate danger of dissipation, and only through the appointment of a receiver can immediate or substantial injury be prevented and complete justice be done, the fact that the applicants are in sole or partial possession of the property should not necessarily bar their right to the appointment of a receiver. The right would still depend upon the particular factual situation and the necessity of such action for the protection of all interested parties, and not for the protection of the applicants alone.

It is clear that a court should act to appoint a receiver, without bond, only upon the showing of good cause and upon notice and full hearing. The appointment of a receiver, without notice, is limited to such cases of emergency as make such appointment absolutely necessary. A receiver pendente lite should be appointed before answer by the defendant, only in cases of extraordinary emergency where such immediate and summary action is necessary for the protection of the property and the status quo. Simpson v. Adkins, supra, 550; Nartzik v. Ehman, 191 Ill App 71, 80, 81 (1914); 31 ILP, Receivers, §§ 23, 24; 45 Am Jur, Receivers, §§ 83, 84.

No such emergency is shown by the facts in this case. The trial court ordered the appointment of the receiver pendente lite solely on the basis of the complaint, which does not in our opinion suggest any such emergency as to permit the appointment without a full hearing, at which both sides are afforded an opportunity to present evidence and be heard. The short notice, prior to the filing of the complaint and the service of summons, and the holding of the hearing prior to the time that summons was served upon the defendant, Susman, did not give him an adequate opportunity to be heard.

The hearing on the defendant's motion to vacate the order was not a substitute for the hearing he should have been afforded before the appointment of the receiver. The motion stated, among other grounds, that there was no emergency shown such as to justify the appointment of a receiver prior to answer; that there was an inadequate showing for the appointment; that the order was entered without proper notice; and that good cause was not shown for the waiver of the applicants’ bond.

We agree with the defendant’s contentions in these respects, and are of the opinion that his motion to vacate the order should have been granted. The facts set forth in the complaint do not warrant the appointment of a receiver without a full hearing upon adequate notice, neither of which was afforded the defendant. See: Cohen v. Financial Acceptance Co., 56 Ill App2d 359, 363, 364, 206 NE2d 308 (1965).

For the reasons stated, the order of the trial court appointing the receiver pendente lite is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl K. Haney, Defendant-Appellant.
    Gen. No. 51,577M.
    First District, Fourth Division.
    April 10, 1968.
    Rehearing denied May 17, 1968.

      Johnson, Snow, Mountcastle & Schroeder, of Chicago (Lendol D. Snow, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Robert Zadek, and John Ward, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Driving while under the influence of intoxicating liquor.

Judgment

After a bench trial, defendant was found guilty arid fined $100.

Contentions on Appeal

(1) The information does not charge a crime.

(2) The evidence does not prove defendant’s guilt beyond a reasonable doubt.

(3) The court erred in sustaining the State’s objection to a line of cross-examination designed to reveal bias on the part of the arresting officer.

Evidence

Vincent Sodaro-, for the State

On the morning of December 27,1965, Sodaro, a police officer, was proceeding in a squad car west on West 95th Street, Oak Lawn, when he observed that as defendant’s car approached from the opposite direction, it crossed the center line, causing Sodaro to pull onto the right shoulder of the road to avoid a collision. He thereupon turned the squad car around and pursued defendant. As the squad car drew alongside defendant’s car, defendant did not stop immediately but continued driving on the right shoulder. When defendant stopped and got out of his car, he was staggering and holding on to the door. Sodaro also smelled the odor of alcohol.

Sodaro then took defendant to the Oak Lawn police station, observing the manner in which defendant walked from the squad car to the station, a distance of 150 to 200 feet. On the basis of his observation, he found that defendant was very belligerent, his walking was very bad, his balance was at all times swaying and wobbly, his speech was thick-tongued, and his eyes were bloodshot. Sodaro was an experienced police officer, having made 500 such arrests over a period of eight years. In his opinion, defendant was under the influence of intoxicating liquor and was unfit to drive. At the police station defendant refused to take a breathalizer or any other tests. Defendant asked for and was given permission to phone his attorney.

On cross-examination, Sodaro testified that he had authorized defendant to drive his car into a parking lot on the other side of 95th Street because, while he knew defendant had been drinking, he had no opinion of defendant’s intoxication at that time.

The defense sought to examine Sodaro to show that he had believed defendant was connected with the Liquor Mart at 87th Street and Ridgeland Avenue, and that because of this connection he had called defendant a gangster. He testified, however, that he had not known defendant before the time in question; that he had connected defendant with the Liquor Mart only because defendant had in his possession a vehicle sticker registered to that address; and that he had not called defendant a gangster. The court then sustained the State’s objection to this line of questioning.

Later in the proceedings, in answer to the court’s direct question, Sodaro stated that defendant explained the crossing of the center line of the street by saying that he was reaching for his cigarette.

Earl K. Haney, defendant

He claimed that the officer mistakenly associated him with the Liquor Mart because of the vehicle sticker which, in fact, belonged to his brother; that the officer, because of his beliefs about the management of the Liquor Mart, referred to him as a gangster and was “thoroughly abusive.” He told the officer that he had inadvertently crossed the yellow line in the street while trying to retrieve a lighted cigarette which he had dropped in his lap; and that he had not stopped immediately because he had not realized at first that the officer was trying to stop him. He also told the officer that he had consumed four drinks during the course of the evening. He declined to take the breathalizer test on prior advice of counsel.

Lendol D. Snow, for defendant

(This witness was counsel for defendant, but he received the court’s permission to testify.) Based on his interview with defendant at the police station within an hour after his arrest, and on his telephone conversation with defendant twenty minutes earlier, it was his opinion that defendant was not in any manner intoxicated or under the influence of alcohol, although he was obviously agitated and upset. Defendant had told Snow that the officer had been abusive and had called him a gangster.

Opinion

(1) Defendant contends that the judgment is void because the information failed to charge a crime. Such an error may be challenged for the first time upon review. See People v. Stringfield, 37 Ill App2d 344, 346, 185 NE2d 381, and cases cited therein.

The information stated that defendant had operated a motor vehicle upon a public highway in violation of the applicable statute (see footnote above) by “driving under the influence of liquor.” This section provides that it is unlawful for any person who is “under the influence of intoxicating liquor” to drive any vehicle within this State. The point raised by defendant is, therefore, whether the omission of the word “intoxicating” on the face of the information rendered it fatally defective. We are aware of no Illinois decision on this point.

Article II, § 9 of the Illinois Constitution declares that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. “The purpose of this guaranty is to give the accused such specific designation of the offense as will enable him to prepare his defense and to plead the judgment in bar of a subsequent prosecution for the same offence.” People v. Brown, 336 Ill 257, 258, 168 NE 289, and see People v. Petropoulos, 59 Ill App2d 298, 317, 318, 208 NE2d 323, affirmed, 34 Ill2d 179, 214 NE2d 765, for reference to numerous other authorities on this point.

Where the language of an information is as fully descriptive of the offense as is the language of the statute denouncing it, and alleges in substance every essential element of the offense, the information is sufficient, even though it may not be couched in the precise language of the statute. People v. Smith, 57 Ill App2d 74, 206 NE2d 463, cert denied 383 US 910; People v. Vysther, 49 Ill App2d 223, 199 NE2d 668; People v. Clarke, 407 Ill 353, 95 NE2d 425. And the courts will not make “so technical a construction of an indictment (or information) as to serve as a protection for the guilty rather than a defense for the innocent.” People v. Grigsby, 357 Ill 141, 147, 191 NE 264.

The question thus becomes whether or not the term, “under the influence of liquor,” is descriptive of the same condition as “under the influence of intoxicating liquor.” In our opinion it is, as we believe that the word “liquor,” as commonly used, means “intoxicating liquor.” State v. Gulczynski, (Del Gen Sess), 2 WW Harr 120, 120 A 88, 89; Shahan v. Hardwick, 30 Ga App 528, 118 SE 575; Clay v. State, 24 Ga App 811, 102 SE 367; Armstrong v. State, 150 Tenn 416, 265 SW 672, 673.

In Middleton v. Commonwealth, 197 Ky 422, 247 SW 40 (1923), the court found that an indictment which charged the defendant with “transporting liquor” was sufficient in law as a charge of the statutory crime involving transportation of “spirituous, vinous, malt, or intoxicating liquors.” We shall quote rather fully from this opinion because we feel that the courts of Kentucky should be, and very probably are, preeminently qualified in their knowledge of what is, and what is not, liquor. At page 41 the court stated:

While it is true, of course, as urged, that there are many liquors other than spirituous, vinous, malt, and intoxicating liquors, and which may be transported lawfully, that fact of itself is not sufficient to render the indictment fatally defective, if the word “liquor” by itself, according to its usual acception in common language, is such as to enable a person of common understanding to know that intoxicating liquor only was intended, since, as we have seen, this is all that is required. That the word “liquor” and the words “intoxicating liquor” are commonly used synonymously is a matter of common knowledge, and that such was its use here, it seems to us, must have been understood by any person of common understanding, and in our judgment the court did not err in overruling the demurrer to the indictment.

By statute in Illinois there has been created the Illinois Liquor Control Commission, and the mayors of cities, presidents of villages, etc., are designated the local liquor control commissioners. Their authority comes from the Illinois Liquor Act. From all these titles, the qualifying words “intoxicating” or “alcoholic” are conspicuously absent, yet they cause no confusion as to their meaning. Ill Rev Stats (1965), c 43, § 94, et seq.

Furthermore, in the case on appeal, the information charged defendant with being under the influence of liquor. Patently, when modified by the phrase, “under the influence of,” the word “liquor” must be synonymous with “intoxicating liquor” as that term is used in the statute.

On the basis of the foregoing, we conclude that the information sufficiently charged defendant with the conduct proscribed by the statute. The case of People v. Stringfield, 37 Ill App2d 344, 347-348, 185 NE2d 381, cited by defendant, does not stand for a contrary principle, but is, in our opinion, entirely consistent with the conclusion we have reached on this point.

(2) Next, defendant contends that the evidence does not establish defendant’s guilt beyond a reasonable doubt. As we have seen, the evidence is in conflict, the arresting officer having given his opinion that, based on his observations and experience, the defendant was intoxicated, while defendant testified that he was not. (The testimony of defendant’s attorney did not constitute full corroboration of defendant’s testimony because he did not see his client until an hour after the arrest.) Clearly at issue, therefore, was the witnesses’ credibility, which is essentially a matter for determination by the trial court. This principle is so well established as to require no citation of authority. We find no basis in the evidence which would justify reversing the judgment of the trial court on this score. Remarkably similar on the facts to the instant case, and also affirming convictions despite conflicting evidence on intoxication, are People v. Raddle, 39 Ill App2d 265, 188 NE2d 101, and People v. Buzinski, 64 Ill App2d 194, 212 NE2d 270.

(3) Finally, defendant contends that the trial court erred in not permitting his counsel to continue pursuing a line of cross-examination designed to reveal what he alleges was bias on the part of the police officer, generated by the latter’s belief that there was a connection between defendant and a certain liquor establishment.

However, it appears from the record that the officer did testify that he did not know of defendant’s connection with the Liquor Mart before he stopped him, that he made the connection when he found a vehicle sticker registered to the address of the Liquor Mart in defendant’s possession, and that he did not call defendant a gangster. Only after this testimony did the court sustain the State’s objection to the line of questioning.

Further, defendant, himself, testified in great detail to the alleged hostility and abusive conversation of the officer. Defendant’s counsel also testified that the same story was related to him by defendant at the police station. The State made no objection to this testimony. Viewing the entire record, we cannot see how defendant was prejudiced in not being allowed further cross-examination of Sodaro. Limitation of cross-examination is a matter which is ordinarily left to the sound discretion of the trial judge, and his exercise thereof will be upheld in the absence of a showing of prejudice. People v. Naujokas, 25 Ill2d 32, 37, 182 NE2d 700; People v. Caldwell, 62 Ill App2d 279, 284-285, 210 NE2d 556, and cases there cited.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

      Ill Rev Stats (1965), c 95½, §144. Uniform Act Regulating Traffic on the Highways of Illinois, § 47.


text:
    People of the State of Illinois, Appellant, v. Mario T. Sprovieri, Appellee.
    Gen. No. 51,609.
    First District, Fourth Division.
    April 10, 1968.
    Rehearing denied May 17, 1968.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Thomas M. Burnham, and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellant.
    Bellows, Bellows & Magidson, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Prior to trial, defendant, who was indicted for murder, filed a motion to suppress certain evidence, and the motion was allowed. The State appealed, contending that the trial judge erred in suppressing as evidence articles found in open view in defendant’s garage by police officers who had entered without a warrant for the avowed purpose of arresting him.

The only evidence adduced at the hearing was the testimony of Officer William Lenz, one of the policemen present at the garage when the items were discovered and seized. From his testimony, the court made the following statement for the record which we accept as a summary of the evidence:

The Court finds from the evidence that on May 29, 1965, about 3:20 p. m. a body of a victim was found in the trunk of a car at the rear of 2059 Grand Avenue in Chicago without identification. Defendant was present at about 4:15 p. m. and had occasion to view the body and stated he did not know the person but “looked like a cab driver he knew.”
Later, on May 30th, 1965, which was the following day at 4:35 a. m. the police did learn the identity of the victim. They spoke to the mother of Judith Blaha and determined that the daughter had lived with the victim and that the defendant had threatened the victim with bodily harm.
The officers also learned from one Carol Stroud the defendant had threatened deceased if he ever caught deceased with Judith Blaha. The officers learned from Judith Blaha’s landlord that Judith had left the apartment with a male fitting the description of the defendant and was carrying a red suitcase.
Police also learned that Judith had a white 1959 or a 1960 T Bird convertible and that the evidence further showed that the police spoke to about five people, two of whom stated that the defendant was not in Chicago.
Officer William Lenz on May 30th, 1965, between 1:00 p. m. and 6:30 p. m. without an arrest or search warrant went together with other officers to the home of the defendant at 2632 West Superior Street, Chicago, had a conversation with the tenant on the first floor, front apartment, went to the rear apartment of the defendant and received no response.
Officer Lenz then went to the window and received no response. Thereupon he peered through the window and the home appeared empty. He saw a couch with a red suitcase and part of woman’s apparel over the back of the couch.
The officers slipped the lock and entered the home through the front door. Nothing whatever was taken from the apartment, at least insofar as the motion is concerned.
The Police Officers Lenz, Barrett, Angelo and Miskula then went to the rear of the lot to a private garage to the south end door and looked into the garage through a hole in the door where the lock had been removed. They saw a white T Bird, tank, and other articles inside and in view through this hole.
The officers then went to the public alley side of the garage, turned the handle of the overhead door which was not locked, lifted the door, entered and seized the items in question and called the Crime Laboratory.
Subsequently after May 30th, 1965, a warrant for the arrest of the defendant was obtained and defendant was taken into custody.

The State argues that since there existed probable cause sufficient to sanction the arrest of defendant without a warrant, then it should be permitted to use the articles taken from the garage for evidentiary purposes. We are constrained to agree with this proposition under the authority of People v. Barbee, 35 Ill2d 407, 220 NE2d 401.

The facts in Barbee were strikingly similar to those in the instant case. The police entered Barbee’s home for the purpose of arresting him. While looking for him, they found a stolen automobile under a tarpaulin in the garage attached to his home. On motion to suppress, it was determined that the police did not have a valid warrant. However, the Supreme Court, finding that the police had reasonable grounds to believe that Barbee had committed a criminal offense, reasoned:

A police officer may arrest without a warrant “when a criminal offense has in fact been committed, and he has reasonable grounds to believe that the person to be arrested has committed it.” (Citations.) And when an officer is authorized to make an arrest, he is also authorized “to break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.” (Citations.) It is of course true that in the present case the officers who entered Barbee’s home made no arrest. But this circumstance cannot be significant. Just as “a search is not to be made legal by what it turns up,” (Citation) so the legality of the conduct of the officers in this case is to be determined upon an appraisal of the situation that confronted them, and not upon the success or lack of success of their efforts. (P 411.)

The court went on to hold

that the officers were lawfully present in the garage where the stolen car was found. They were not required to overlook the stolen car which was before them in plain view when they removed the tarpaulins in their search for Barbee. Here, as in Abel v. United States, 362 US 217, 238, 4 L Ed2d 668, it would be without reason to say that the officer must overlook or return an article subject to lawful seizure “because it was not one of the things it was his business to look for.” (P 412.)

As in Barbee, if the police were in the garage for the purpose of making a lawful arrest, there exists no rule of law which would blind them to what lay in open view. The fact that the garage, while on defendant’s property, was not physically attached to the apartment, is of no importance. Under the circumstances which then existed, a search for defendant in the garage was as reasonable as a search of the apartment.

Defendant argues that the police did not reasonably believe that he was actually home at the time they entered. Although the police were told he wasn’t at home, they were not required to rely on these statements. Just as in Barbee, where the defendant’s wife told the police he was not home, rudimentary police procedure dictates that a suspect’s residence be eliminated as a possible hiding place before a search is conducted elsewhere. And it should be borne in mind that, on the motion to suppress in this case, defendant had the statutory burden of proving that the seizure was unlawful. Ill Rev Stats (1967) c 38, § 114-12 (b), quoted above in footnote 1. Under the circumstances of this case, this burden resolved itself into a burden of proving that the police had entered defendant’s garage for a purpose other than to arrest him, since the evidence otherwise established that the police had probable cause to believe that defendant had committed a crime. The record is insufficient to sustain defendant’s burden on this point, the contrary being quite well established.

Defendant next contends that his constitutional right to privacy was invaded when the police peeped through his apartment window and through a hole in his garage door. This point is also without merit. Since the police had the right to break into any building in which they reasonably believed defendant could be found, they certainly had the right to look inside before breaking in. To hold otherwise would be to demand that the police expose themselves unnecessarily in apprehending dangerous suspects, not to mention the encouragement such a ruling would give to the wasteful destruction of property.

Therefore, if the police were authorized to arrest de-r fendant without a warrant, the motion to suppress should have been denied. And the police were so authorized if they had reasonable grounds to believe that defendant had committed an offense. See Ill Rev Stats (1963), c 38, § 107-2 (c). In fact, the trial judge expressly found that such reasonable grounds did exist. We agree, and defendant’s position that the police might have had the opportunity to obtain a warrant is not germane, under the circumstances.

The legality of the officers’ actions should not be assessed on the basis of finespun theories applied through hindsight, but, rather, in the light of the factual and practical considerations of everyday life upon which reasonable and prudent men act. People v. Davis, 34 Ill2d 38, 213 NE2d 531. Nor are we concerned with whether or not there was then sufficient evidence to convict the person arrested. E. g., People v. Jones, 31 Ill2d 240, 201 NE2d 402.

The police in this case knew that a violent and brutal murder had been committed. They believed that defendant had a motive to commit this crime based on the relationship which had existed among him, the victim, and Judith Blaha. They learned that defendant had lied when he denied knowing the victim. They also learned that defendant had threatened the victim with bodily harm. Coupled with information that defendant intended to depart Chicago, it was reasonable to believe not only that defendant had committed the murder, but, also, that prompt action to accomplish his arrest was imperative. The fact that the attempted arrest might not be considered to have been in “fresh pursuit” when the time is computed from commission of the crime, is beside the point. The reportedly imminent departure of defendant from the area imparted all necessary urgency to the conduct of the police.

Seizure of the evidence in question was reasonable and lawful. The order appealed from is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MCCORMICK, P. J. and DRUCKER, J., concur.

      Ill Rev Stats (1967), c 38, § 114-12.
      (a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:
      (1) The search and seizure without a warrant was illegal; . . ,
      (b) . . . The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.

       See People v. Zeravich, 30 Ill2d 275, 195 NE2d 612, on the State’s right to appeal.


author: MR. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John W. Sessions, Defendant-Appellant.
    Gen. No. 51,032.
    First District, First Division.
    April 15, 1968.

      Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, John W. Sessions, prosecutes this appeal following a jury verdict finding him guilty of the crime of battery. The court entered judgment on the verdict and sentenced defendant to six months in the County Jail plus a $500 fine. No question is raised on the pleadings.

The complaint charged that the defendant committed the offense of battery on May 7, 1965, in that he “. . . did, without lawful or legal justification . . . knowingly and intentionally cause bodily harm by physical contact with . . . complainant Paul J. Steffen, to-wit; struck Paul J. Steffen with his fists in violation of Chapter 38 Section 12-3 of the Illinois Revised Statute.”

The facts are, for the most part, not in dispute. On May 7, 1965, at about 10:15 p. m., Mrs. Mary Steffen, who resided on premises which are litoral property on Lake Michigan in Winnetka, heard the horn of a police boat followed by the voice of an officer on the boat ordering someone to leave because they were trespassing on a private beach. Accompanied by her husband, the complainant, Paul J. Steffen, she left her house and proceeded down the stairs to the Steffens’ private beach. From the beach she observed about fifteen youngsters, who were standing about three hundred feet away from her, standing in a line; the boys in the group were shouting obscenities at the police boat, and were also exposing their naked buttocks to the boat. Then four from the group began walking towards the Steffens, and crossed on to their property. At this point the four young men went through the same routine of exposing their back sides to the police boat. Mrs. Steffen sent her eldest son, Paul Steffen, Jr., to ask the boys to leave. One of the boys who had come on to the Steffens’ property was the defendant, and another was George Hildreth. Young Steffen informed the boys that they were on private property and that they should leave, which they began to do. Then a girl, Rona Barth, appeared, and accused Mr. Steffen, in an obscene way, of being a police officer. Miss Barth then began to follow the young men off of the Steffens’ property; however, she walked backwards, and constantly deluged Mrs. Steffen with a highly insulting stream of profanity, calling her, among other things a “f — ing woman” and a “f — mouth.”

During this period, Mrs. Steffen walked along the beach with the Barth girl. When Miss Barth reached the marker line of the Steffens’ property she called Mrs. Steffen a “s-mouth.” Mrs. Steffen grabbed her by the hair, and threatened to hold her until the police arrived. Mrs. Steffen held the girl by the hair for a few seconds and then let her go. The Barth girl then ran over to the other boys, who had by now left the Steffens’ property, screaming to the defendant, “John, John!” The defendant and George Hildreth then came back on to the Steffens’ property. Rona Barth aimed a punch at Mrs. Steffen, and when Mrs. Steffen raised her arms to defend herself, the defendant forced her arms downward. Mr. and Mrs. Steffen both testified that the defendant struck Mrs. Steffen at this time. Mr. Steffen then went to his wife’s assistance, and the defendant, in inflammatory language, asked Mr. Steffen if he wanted to fight. Witnesses for the State testified that the first punch was thrown by the defendant; a witness for the defense stated that Mr. Steffen threw the first punch. In any event, it is uncontradicted that the complainant, after the first punch was thrown, grabbed Sessions around the neck, and they both fell to the ground with the defendant on top of Steffen. While he was on top of him, the defendant punched Mr. Steffen. There was also testimony to the effect that George Hildreth struck both Steffen and his son, Peter, during the altercation.

Mr. Steffen testified that the defendant was on top of him for approximately forty-five seconds, and that after the fracas he had bruises on his cheek and back. Some young friends of the Steffens’ children, who had gathered on the Steffens’ beach for a party that night, then pulled the defendant off of Mr. Steffen, and Sessions and Hildreth fled. Shortly thereafter they were picked up by the police and arrested. On June 15, 1965, the date of trial, the defendant moved for a severance of his complaint from two other complaints, one of which charged George Hildreth with battery, and the other of which charged Rona Barth with disorderly conduct. This motion was denied, and the defendant, Barth and Hildreth were all tried together. All three were found guilty, the jury noting on the verdict as to Sessions that it recommended clemency.

The defendant contends on appeal that the court erred in failing to grant his motion for a severance; in admitting improper, irrelevant and inflammatory testimony; in sentencing the defendant to the maximum punishment under the Statute; and in not conducting a hearing in aggravation and mitigation, as provided by statute, since the defendant was statutorily entitled to consideration for probation.

The defendant concedes that people jointly indicted are to be tried jointly, unless the individual defenses deprive one or more of the defendants of a fair trial. People v. Grilec, 2 Ill2d 538, 119 NE2d 232. Furthermore, the question as to whether a severance should be granted is largely one within the sound discretion of the trial court. People v. Connolly, 33 Ill2d 128, 210 NE2d 523. Where two or more defendants have not been joined together in a single charge the Criminal Code provides:

The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. (Ill Rev Stats 1965, c 38, § 114-7.)

The situation under which offenses and defendants can be joined in a single charge is defined as follows:

(a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.
(b) Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or in the same comprehensive transaction out of which the offense or offenses arose. Such defendants maybe charged in one or more counts together or separately and all of the defendants need not be charged in each count. (Ill Rev Stats 1965, c 38, § 111-4.)

We agree with defendant’s contention that two defendants cannot be convicted jointly at the same trial of separate and distinct offenses growing out of separate transactions. However, we cannot agree with his contention that there were “no related offenses” present in the instant case so that the doctrine of joinder would not apply. The offenses charged against the three defendants at trial arose out of one comprehensive transaction participated in by all three defendants. The evidence shows that the defendant’s companion, Rona Barth, having trespassed on to the Steffens’ private beach, directed vicious obscenities at Mrs. Steffen, causing the latter to grab her by the hair. The defendant and the Barth girl then attacked Mrs. Steffen, immediately following which the defendant and Hildreth both pummeled Mr. Steffen. The offenses charged all arose naturally out of a single comprehensive transaction of violence and lawlessness engineered by the defendant and his two companions, and therefore, the three of them were properly tried together. As the trial judge did not abuse his discretion in denying the defendant’s motion for a severance we will not, on review, overrule his decision. People v. Patris, 360 Ill 596, 196 NE 806.

The defendant next contends that the court erred in allowing certain evidence to be considered by the jury. He objects to the testimony that Hildreth assaulted the Steffens’ son, Peter; that Rona Barth used foul language ; and that Hildreth kicked Steffen. He claims that this evidence was irrelevant and inflammatory. We conclude that the evidence complained of was relevant to the charges placed against Hildreth and Barth who were properly being tried along with the defendant, and was, therefore, admissible. Where several defendants are tried jointly, evidence which is competent against one or more of them is admissible. 23 CJS, Criminal Law, § 1032(4). Furthermore, upon examination of the record, we find that the trial judge was careful to limit the evidence introduced to the particular party implicated by it, and instructed the jury in consonance with this limitation. See People v. Stella, 344 Ill 589, 176 NE 909.

The defendant complains of evidence to the effect that four boys, among whom were the defendant and Hildreth, removed their clothing and exposed their buttocks to the police boat, while standing on the Steffens’ property; that the defendant had been drinking beer prior to the altercation; and that the defendant used foul language both prior and subsequent to the incident in question, and after his arrest, threatened to kill Mr. and Mrs. Steffen. He argues that the foregoing evidence neither proved nor tended to prove the guilt of the defendant of the offense with which he was charged and was calculated only to prejudice the defendants with the jury.

Evidence of other offenses committed by the accused generally is inadmissible; however, it is admissible where it is part of the res gestae, where it helps to disclose motive, intent, or design, or where it helps to establish the identity of the accused and places him in proximity to the time and place of the crime. People v. Lewerenz, 24 Ill2d 295, 181 NE2d 99; People v. Tranowski, 20 Ill2d 11, 169 NE2d 347. In a criminal prosecution the State may offer a continuous narrative of the events that formed the context of the arrest. People v. Alexander, 69 Ill App2d 27, 216 NE2d 180; People v. Johnson, 34 Ill2d 202, 215 NE2d 204. If this narrative includes connected crimes, proof of these crimes is permissible as part of the res gestae. People v. Pargone, 327 Ill 463, 158 NE 716; People v. Murphy, 276 Ill 304, 114 NE 609. The evidence introduced by the State in the instant case which tended to prove that the defendant had committed the crimes of indecent exposure and drinking under age, and which showed the use of profanity and threats by him both prior and subsequent to his arrest, was admissible as part of a continuous narrative of the violence and lawlessness of the accused at and around the time that he committed the battery upon Mr. Steffen. The profanity and threats were relevant to the defendant’s intent at the time of the battery, and the crimes shown were so closely connected to the battery that they were part of the res gestae.

The defendant’s final objection in regard to the admission of evidence at the trial has to do with the testimony of Officer Caskey, who ordered the group of youngsters off of the beach near the Steffens’ property prior to the incident in question. Defendant cites several instances of testimony by Caskey which he believes demonstrate that the officer was unworthy of belief by the jury. The credibility of Caskey’s testimony was for the jury to determine. Furthermore, even if they had chosen to completely disbelieve him, sufficient evidence was introduced by other witnesses to sustain the jury’s finding that the defendant was guilty beyond a reasonable doubt.

The defendant next contends that the sentence imposed by the trial judge was excessive. We express no opinion as to this contention because we have decided to remand the cause for the purpose of the court holding a hearing in aggravation and mitigation.

The record in the instant case does not disclose that a hearing in aggravation and mitigation was held prior to the imposition of sentence upon the defendant. Nor does the record disclose a hearing for the purpose of determining whether the defendant should have been admitted to probation, although Sessions was eligible for admission. (Ill Rev Stats 1965, c 38, § 1-7 (b); Ill Rev Stats 1965, c 38, § 117-1.) The State argues that the Criminal Code does not make a hearing in aggravation and mitigation mandatory, and that the failure of the record to disclose such a hearing is the fault of the defendant. We cannot agree.

The Criminal Code provides for a hearing for the purpose of determining the sentence to be imposed in the following provision:

(g) Mitigation and Aggravation
For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense. (Ill Rev Stats 1965, c 38, § 1-7 (g).)

As pointed out in People v. Smice, 79 Ill App2d 348, 223 NE2d 548, Illinois Appellate Courts have differed in their interpretation of the foregoing section as to whether it makes mandatory a hearing in aggravation and mitigation prior to the imposition of sentence. We agree with the conclusion of the court in Smice that the legislative spirit and intent in drafting section 1-7 (g) was to make the hearing mandatory unless understandingly waived by the defendant and not requested by the State; “and that a transcript of the inquiries of the court and the answers of the defendant, if any, pertaining to such waiver should be made, as well as a transcript of the hearing, when not so waived by the defendant or when requested by the State.” 79 Ill App2d at page 352. Under Supreme Court Rule 615(b) (4) (Ill Rev Stats 1967, c 110A, par 615 (b) (4)) we possess the authority to reduce the sentence imposed by the trial court. It is essential, in light of the power of the reviewing court to reduce sentence, that this court have before it information as to the defendant’s moral character, life, family, occupation and criminal record, if any, as provided for in section 1-7 (g). People v. Evrard, 55 Ill App2d 270, 204 NE2d 777. It is apparent to us that the legislature intended both the trial court and the reviewing court to have relevant information to assure the imposition of a proper sentence. As the American Bar Association Project On Minimum Standards For Criminal Justice states in its tentative draft on “Sentencing Alternatives and Procedures,” published in 1967, at page 205: . . . serious consequences turn on the correct resolution of the sentencing decision, and it is sheer folly to attempt such a decision without more information than is typically provided by the guilt determining process.” A hearing in aggravation and mitigation is especially important when, as in the instant case, the offender is eligible for probation because rehabilitation is more likely to result from a carefully supervised period of probation than it is from a term in the state penitentiary. People v. Evrard, 55 Ill App2d 270, 204 NE2d 777.

Because the holding of a hearing in aggravation and mitigation is a mandatory procedure prior to the imposition of sentence, we hold that the State has the burden of showing that the defendant expressly and understandingly waived his right to such a hearing. See People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331. The State has not carried its burden of showing that such a waiver was made in the instant case. Therefore, under the power vested in us by Supreme Court Rule 366 (Ill Rev Stats 1967, c 110A, § 366(a) (5)), we affirm the judgment on the verdict of the jury finding the defendant guilty. We reverse the sentence and remand the cause to the trial court so that the trial court can procure a probationary or presentence report, and thereupon consider the matter of probation. In the event that the facts warrant a denial of probation, the trial court should hold a hearing in aggravation and mitigation taking into consideration any evidence introduced at the hearing relevant to. the moral character, life, family, occupation and criminal record, if any, of the defendant, as well as the evidence received at the trial, and then pass sentence upon him.

Affirmed and remanded with directions.

ADESKO and MURPHY, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Willie C. Jackson, Appellant.
    Gen. No. 51,243.
    First District, First Division.
    April 15, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley 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, James Zagel, and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Willie C. Jackson, was tried before a judge sitting without a jury under a two-count indictment which charged him with rape and attempt rape. Defendant, after a trial, was found guilty of attempt rape, and after a hearing in aggravation and mitigation, was sentenced to a term of not less than ten nor more than fourteen years in the Illinois State Penitentiary. The defendant appeals from the judgment entered on the verdict. No questions are raised on the pleadings.

The defendant contends, on appeal, that (1) sufficient credible evidence was not introduced at trial identifying him as the perpetrator of the offense charged, and (2) that the prosecutor introduced incompetent evidence in aggravation which resulted in the imposition of an excessive sentence upon him.

Mrs. Ruth Lanier, the prosecutrix, testified that on September 8,1965, at about 9:00 or 9:30 p. m., she was in the basement of her apartment with her daughter washing clothes when a man entered the basement and asked directions as to how to get to Springfield. Mrs. Lanier told the man he was far out of his way. The man then started to approach Mrs. Lanier and her eleven-year-old daughter, Ruth Mae. He pulled a gun out of his pocket and Ruth Mae began to scream. The man told Mrs. Lanier that if she didn’t stop her daughter from screaming he would kill the girl. He then forced Mrs. Lanier and her daughter into a closet in the basement, told Mrs. Lanier to come back out, and proceeded to lock Ruth Mae inside the closet, where the girl remained screaming throughout the entire incident. The man told Mrs. Lanier to lie down, and she complied with his request, lying down on her stomach. He then told her to turn over; he unzipped his pants, and got on top of Mrs. Lanier for about two minutes. “During the two minutes he inserted his penis into my vagina.” Mrs. Lanier further testified that during the two minutes the man was on top of her she was able to observe his face, haircut, and clothes.

On direct examination, Mrs. Lanier testified that the man had achieved penetration; however, on cross-examination she admitted that she had told the police after the incident that she didn’t think the man had been able to achieve penetration “because it didn’t seem to be hard.” A vaginal smear taken from Mrs. Lanier on the night of the incident revealed the presence of sperm. Mrs. Lanier further testified that on October 10, 1965, she had picked the man out of a six-man lineup at the Filmore Police Station; and she then proceeded to identify the defendant, in court, as the man who had been in her apartment on the night of September 8th, and as the man she had identified in the lineup of October 10th. On cross-examination, Mrs. Lanier testified that she didn’t see a scar on the defendant’s forehead, although later testimony revealed that he did have one. On redirect she testified that she had told the police about her attacker’s height, skin color, and the color of his shirt, pants, jacket and shoes. She also told the police about the weight of her attacker.

The testimony of Ruth Mae Lanier essentially corroborated her mother’s version of what occurred on the night in question. She further testified that she had seen the man once before the night of the incident in the alley outside of her apartment. She then identified the defendant as the man who had been in the apartment on the night of September 8th, and further stated that she had recognized him in the lineup of October 10th.

Police Officer George Mays testified that he had arrested the defendant on October 9, 1965, and that the defendant was carrying a toy pistol in his coat at that time.

The defendant, testifying in his own defense, denied the entire incident. He stated that he did not leave his home at 1515 East 65th Place on the evening of September 8, 1965, until 10:00 or 10:15 p. m., at which time he left for work at the Princeton Plating Company, which is located in the 300 block of West 29th Street. He testified that he had been at home watching television on the night in question until he left for work. The defendant further testified that he had paid the rent at around 7:30 p. m. on September 8th, and a rent receipt tending to corroborate this testimony was introduced in evidence. A time card from the Princeton Plating Company, which showed the time at which the defendant reported for work, was also introduced in evidence.

The defendant’s alibi was essentially corroborated by his wife, sister and brother, all of whom lived in the same building along with the defendant.

The defendant contends that the evidence as to his guilt is not sufficient because the testimony of Mrs. Lanier and her daughter is not credible, particularly in regard to the identification of the defendant as the perpetrator of the alleged act, whereas the defendant has denied his participation and his alibi has been supported by the uncontradicted testimony of three witnesses. He argues that identification, no matter how positive, will not prove guilt beyond a reasonable doubt when there is a sufficient alibi.

Any questions as to the credibility of the witnesses were for the resolution of the trial judge, and we will not interfere with his determinations in this regard. The fact that Mrs. Lanier failed to remember certain physical characteristics of her assailant does not, as a matter of law, render her identification of the defendant unworthy of belief; for, when an identification has been positively made, precise accuracy in the description is not necessary. People v. Miller, 30 Ill2d 110, 195 NE2d 694. Therefore, the failure of Mrs. Lanier to remember the fact that the defendant had a scar, while making her identification of him, does not create a reasonable doubt as to his guilt. The defendant was positively identified by Mrs. Lanier both in the police lineup and in court as the man who had entered her apartment, and this identification was corroborated by her daughter. Furthermore, the fact that the defendant produced an alibi, supported by three witnesses, which contradicted the testimony of Mrs. Lanier and her daughter, does not, in and of itself, constitute reasonable doubt as to his guilt. As we have pointed out, conflicts in the testimony were for the resolution of the trial judge, and he was not obliged to believe the alibi testimony of the defendant and his relatives over the positive identification of Mrs. Lanier and her daughter, even though the alibi testimony was given by a greater number of witnesses. People v. Setzke, 22 Ill2d 582, 177 NE2d 168.

The defendant cites the cases of People v. Ricili, 400 Ill 309, 79 NE2d 509, and People v. Gooden, 403 Ill 455, 86 NE2d 198. In Ricili the prosecutrix did not make a positive identification of her alleged assailant at a police lineup, and her testimony that the defendant had been the driver of the car in which she had been abducted was contradicted by positive testimony that he could not, and never did, drive a car. Furthermore, the court there concluded that other evidence adduced at trial, along with the weak identification of the defendant, raised a reasonable doubt as to his guilt. In the instant case, the prosecutrix made a positive identification of the defendant at the lineup, and he was also identified by her daughter. Nor are there other factors present in the record, as there were in Ricili, which raise a reasonable doubt of the defendant’s guilt, and therefore, questions as to the identification and whereabouts of the defendant at the time of the crime are properly left for determination by the trial judge. In Gooden the identification of the defendant was uncorroborated, and his alibi was supported by three unrelated witnesses. However, in the case at bar, Mrs. Lanier’s positive identification was corroborated by the testimony of her daughter, and the only support for the defendant’s alibi was given by three of his relatives. We are convinced that the factual situation in Gooden is substantially dissimilar from the one presented in the instant case and we conclude, therefore, that the Gooden decision is not controlling here.

The defendant next contends that his sentence was excessive, apparently as the result of incompetent evidence introduced by the prosecutor at the hearing, in aggravation and mitigation, and he asks us, if we fail to reverse the cause, to reduce his sentence pursuant to Supreme Court Rule 615(b)(4). (Ill Rev Stats 1967, c 110A, par 615(b) (4).) Specifically, the defendant calls our attention to attempts by the prosecutor at the hearing in aggravation and mitigation, to introduce evidence of his prior arrest record and various hearsay evidence. We have examined the record and it is evident that the trial judge did not consider the evidence complained of and was not misled by the remarks of the prosecutor in his determination of the sentence to be imposed. See People v. Grodkiewicz, 16 Ill2d 192, 157 NE2d 16. Furthermore, we conclude that the sentence imposed in the case at bar was justified under the circumstances, and the sentence being within the minimum and maximum limits fixed by the legislature for the particular offense, we will not interfere with the trial judge’s determination in this regard. People v. Smith, 14 Ill2d 95, 150 NE2d 815.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesus Cervantes Garcia, Defendant-Appellant.
    Gen. No. 51,495.
    First District, First Division.
    April 15, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the crime of robbery and waived trial by jury. He was convicted and sentenced to the penitentiary for a term of not less than one, nor more than four years. He prosecutes this appeal raising only the issue that he was not proven guilty beyond a reasonable doubt.

Rose Wroblewski was walking on Oakley Boulevard when she was jumped from behind and knocked down. She did not know if two or three men had jumped her and she was unable to identify any of the men. Her purse was grabbed and the men ran off. She did not testify to the presence of any weapons.

Joseph Majka was emerging from his grandmother’s house on Oakley Boulevard and started to cross the street when he saw a tussel on the lawn in front of an apartment building. At first he thought it was boys playing football, but he then heard a woman screaming for help. Majka, who was a personal bailiff to a Circuit Court Judge, removed his revolver and fired a warning shot into the air. Defendant and one of the men ran west towards Western Avenue. The third man ran down Oakley Boulevard. Majka gave chase, firing two shots at the pair of fleeing men. The defendant stopped and Majka cornered him and held him up against the garage door. When Majka turned around, the defendant jumped him and tried to get the revolver, but Majka was able to control him. The police arrived and defendant was placed under arrest. Defendant tried to explain to Majka that he did not do anything, but had seen the woman being attacked and had come to her assistance.

A detective from the Chicago Police Force testified that he arrested the defendant and corroborated the defendant’s story of telling the detective he saw the woman being attacked, that he tried to assist her and that when Majka fired the shot he stopped.

Defendant took the stand on his own behalf and testified that he was at a party at the home of a friend at Wood and Division streets. He was starting to walk home when he saw two men attacking Mrs. Wroblewski and he came to her aid. When the shot was fired, the two men started to run and defendant gave chase. When the shots were fired in his direction, however, he stopped. He testified that he tried to explain to Majka that he did not know what happened here and he also gave this story to the police officers who arrested him.

Defendant on appeal contends that he was a good Samaritan, coming to the aid of a person being attacked. He relies on the case of People v. Johnson, 31 Ill2d 321, 201 NE2d 367 (1964), on the theory that the facts in the instant case may be explained on an hypothesis of innocence as well as a theory of guilt. Defendant argues that when such conflicting hypothesis may be equally applied to the facts of a case, it is the duty of the court to accept the explanation of innocence. We do not agree that this principle is applicable here. The mere fact that the defendant’s story conflicts with that of the prosecution witnesses does not require application of the “hypothesis of innocence” doctrine.

Majka, the chief witness for the State, was 35 feet away from the victim during the time she was being attacked. He testified that he saw defendant’s hands around her waist. Although defendant denied ever touching the victim around the waist, this was a question of credibility for the trier of fact. If the defendant’s story is that he was trying to assist the woman, it is more likely he would have been engaged in a fight with one of the other two men, rather than having his hands around Mrs. Wroblewski’s waist.

This court will not substitute its judgment on the matter of credibility of witnesses and the weight to be given their testimony. The trial judge who saw and heard the testimony concluded that defendant participated in the robbery and was not a good Samaritan. Unless that conclusion of the trial judge rests on doubtful, improbable, or unsatisfactory evidence, or clearly insufficient evidence, we will not substitute our judgment even though there is conflict in the testimony in the trial court. People v. Barney, 89 Ill App2d 180, 232 NE2d 481 (1967).

For the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    Virgil Turner, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 51,514.
    First District, First Division.
    April 15, 1968.
    Patrick E. Mahoney and Seymour Lacob, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Harry H. Pollack, Special Assistant Corporation Counsel, and Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff filed his action against the City of Chicago for personal injuries which he sustained in a fall on a public sidewalk in the City of Chicago. At the close of plaintiff’s evidence, the trial court entered a finding for the City. Plaintiff prosecutes this appeal from that adverse finding.

The plaintiff produced two independent witnesses who identified photographs of the sidewalk in front of 2208 West 13th Street in Chicago, Illinois. The photographs clearly show one cement square of the sidewalk as higher than the adjacent square and a gap between these two squares. One of the witnesses testified that this condition has existed since 1958.

Plaintiff testified that he was walking along the sidewalk when his foot stepped into the “hole” between the level cement square and the raised cement square. Plaintiff fell over on his left shoulder and could not raise his arm after the fall. He went to Cook County Hospital and stayed there for two days and two nights. He described the treatment he received at the hospital which included placing his arm in a cast and putting weights on the end of his arm to stretch it out. Plaintiff also testified, and this was corroborated by one of the independent witnesses, that he worked as a bartender prior to the accident, but subsequently was unable to continue this work. His pay as a bartender was $65 per week. The accident occurred on January 19, 1963, and plaintiff did not go back to work until September 23, 1963. He claimed the only money that he lost was $2,080 in wages.

At the close of plaintiff’s evidence, the following colloquy occurred:

The Court: “Do you have any medical testimony ?”
Plaintiff’s Attorney: “No.”
The Court: “Finding for the defendant, if there is no medical.”

This ruling by the trial court was erroneous and the case must be remanded for a new trial. There is no requirement that a plaintiff produce medical testimony where the plaintiff clearly testifies to his injuries and the medical treatment he received. There is no conflict in this case as to the nature of the injury or its causation.

In the case of Palmer v. DeFilippis, 321 Ill App 186, 53 NE2d 34 (1944), the plaintiff testified as to injuries she received but did not produce any medical testimony with respect thereto. This court stated at page 198:

“The law does not require that plaintiffs in every personal injury case produce a doctor to testify as to injuries alleged to have been sustained. Nor did defendants contend at the time of the introduction of the testimony in question that it was necessary for plaintiffs to produce medical experts to testify as to their injuries. It is customary for plaintiffs in injury cases to testify as to injuries they claim they received. If the instant contention of defendants is sound, then if a plaintiff lost an arm or a leg in an accident he would be compelled to call a doctor to testify to that fact.”

The City contends that “the trial court, as the sole judge of the credibility of plaintiff’s uncorroborated testimony, properly found that the plaintiff suffered no damage.” From the above quoted colloquy between counsel and the court, it does not appear that this was the basis of the trial judge’s ruling. However, such a finding would be against the manifest weight of the evidence. Plaintiff testified to pain and suffering in connection with his fall on the City’s sidewalk. He further testified to the medical treatment he received, including a description of having his arm placed in traction. It is also uncontradicted that he still suffers pain in his arm and shoulder. In addition, plaintiff testified to lost wages. The fact that plaintiff worked as a bartender was corroborated by an independent witness. These facts constitute a prima facie showing of damages. The City had the burden of going forward with the evidence to show either that plaintiff was not injured on its sidewalk, or that he suffered no loss of wages or any other damages.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John F. Prendergast, Junior, a/k/a John F. Pendergast, Junior, Defendant-Appellant.
    Gen. No. 51,724.
    First District, First Division.
    April 15, 1968.
    Edward J. Bradley, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the crime of reckless homicide and after waiving trial by jury was found guilty by the trial judge. He was placed on probation upon the condition that he not be allowed to drive an automobile in Illinois until he reached the age of 21. He now prosecutes this appeal claiming only that the evidence was not sufficient to establish his guilt beyond a reasonable doubt.

Defendant was a 16-year-old high school student, who was out riding in his mother’s automobile along with two school friends. The accident which gave rise to the instant indictment occurred on Northwest Highway near the Village Green Shopping Center in Park Ridge, Illinois. Northwest Highway is a four-lane highway running in a northwest-southeast direction. The Village Green Shopping Center is located on the west side of the highway. Defendant was familiar with the area around the shopping center and was also aware that the speed limit was 35 miles per hour. Although the area is not residential, there are homes across the street and down the block from the shopping center. The collision occurred at about 12:30 p. m. on a bright, clear sunny day.

Mrs. Melendy, driving westbound on a side street just north of the shopping center, came to a stop at the intersection between Northwest Highway and the side street. She looked in both directions and upon seeing no traffic proceeded to cross the northwest bound lanes and make a left turn into the southeast bound lanes. Her intention was to go into the curb lane and enter the shopping center, where she was employed. As she prepared to go over into the curb lane, she heard the squealing of tires behind her and at that instant a car pulled over on her right and passed her at a very high speed. This occurred about 35 feet southeast of the side street and about at the middle of the area covered by the shopping center. Mrs. Melendy estimated defendant’s speed, as he passed her on the right, at about 60 miles per hour.

Mrs. Edna Meyer was northwest bound on Northwest Highway. She had come to a stop preparing to make a left turn into the shopping center. In the car she was driving were her father, her aunt and her granddaughter. As she made her left hand turn across the southeast lanes of the highway, she was struck by defendant’s car and her three passengers were all killed. The collision occurred in the curb lane of the southeast bound lanes. At the time of the trial, Mrs. Meyer was unable to recall how the accident happened.

Another student, who attended defendant’s high school, testified that he saw defendant’s car southeast bound on the Northwest Highway at an intersection about ten blocks west of the shopping center. Defendant was stopped for a traffic signal and, when the light changed, accelerated at a rapid rate of speed, estimated at approximately 60 miles per hour.

A carpenter, standing near his truck, about 250 yards northwest of the shopping center, saw the defendant’s car driving southeast on the highway and estimated its speed at approximately 80 miles per hour. He observed defendant’s car swerve around Mrs. Melendy’s car and strike the Meyer automobile.

A Park Ridge police officer testified that skid marks left at the scene of the collision by defendant’s car measured 38 feet and six inches. Further, the car came to rest forty-three feet and 2 inches from the point of impact.

Defendant argues that the only evidence against him in the instant case is that he was travelling at an excessive rate of speed and that this factor alone cannot substantiate the finding of guilty on a charge of reckless homicide. The statute provides that if a person causes the death of another while driving an automobile, he is guilty of reckless homicide if “his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill Rev Stats 1965, c 38, § 9-3 (a).)

Defendant relies on People v. Potter, 5 Ill2d 365, 125 NE2d 510 (1955), to sustain his argument that speed alone will not constitute reckless homicide. However, in the instant case, we have more than just excessive speed. Defendant was driving in an area which he was familiar with. There was a large shopping center where large numbers of people and vehicular traffic were to be expected. Defendant’s speed was anywhere from 25 to 45 miles over the speed limit.

Defendant attempts to pass the blame for the accident on Mrs. Melendy, claiming that she emerged into the southeast bound lanes of Northwest Highway, thereby obstructing his view of Mrs. Meyer and of northbound traffic. He also argues that Mrs. Melendy’s actions forced him to swerve around her which caused him to strike the Meyer automobile. However, Mrs. Melendy testified that she observed traffic in both directions before entering into Northwest Highway and it was only because of defendant’s excessive speed that he was forced into swerving around her. This distinguishes the instant case from People v. Potter, supra, where at about 1:20 a. m., a car suddenly appeared from a side street into a path of a bus. Estimates of the bus driver’s speed ranged from 15 to 50 miles per hour in a 25 mile per hour zone and on a main thoroughfare without any traffic in front of him.

In conclusion we feel that defendant’s conduct by excessively speeding in an area immediately adjacent to a large shopping center at the noon hour, continuing at that inordinate rate of speed after swerving around an automobile, striking another automobile and killing three persons, is conduct which may properly be classified as criminal recklessness and his conviction for reckless homicide was proper.

For the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.