text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Fred Davis, Defendant-Appellant.
    Gen. No. 51,078.
    First District, First Division.
    April 10, 1967.

      Norman Nelson, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Kenneth Fred Davis, was indicted and tried for murder before a jury. Three forms of verdict were submitted to the jury, (1) a guilty verdict in manner and form as charged in the indictment; (2) a finding of not guilty; and (3) a finding of guilty of manslaughter. The jury found the defendant guilty of manslaughter and the other two verdicts were returned unused and unexecuted. The court sentenced the defendant to the Illinois State Penitentiary for the crime of manslaughter for a term of ten to twenty years.

The principal assignment of error raised by the defendant is that there is no statutory crime of “manslaughter” in Illinois making the verdict void and a nullity. Also since the verdict does not designate either “voluntary manslaughter” or “involuntary manslaughter,” the trial court did not have authority to impose the maximum sentence of more than a ten-year term on the defendant.

The two-count indictment in this case charged the defendant only with murder without mention of either voluntary manslaughter or involuntary manslaughter. The defendant states that while the Illinois Criminal Code sets out and defines “voluntary manslaughter” and “involuntary manslaughter,” nowhere does the code designate or define the word “manslaughter,” nor does it make it punishable. Therefore, the defendant argues, there is no crime of manslaughter because, “[a] 11 felonies in Illinois are defined by and required to be prosecuted under the Criminal Code, and every indictment for felony in Illinois is required to be construed in accordance with this code.” People v. Corder, 306 Ill 264, 272, 137 NE 845.

However, it is well established in Illinois that the crime of manslaughter is embraced in the charge of murder, and that one who is indicted for murder may, upon that indictment, be convicted of manslaughter if the evidence authorizes it. People v. Beil, 322 Ill 434, 153 NE 639; People v. Johnson, 54 Ill App2d 27, 203 NE2d 283.

Defendant further claims that, “[i]t was required by this jury to return a specific verdict setting out particularly what criminal offense defendant was being found guilty of so the court could be informed as to what punishment to mete out.” It is well settled that verdicts are not to be construed as strictly as indictment, but rather are to be liberally construed and all reasonable intendments indulged in their support. People v. Pignatelli, 405 Ill 302, 90 NE2d 761. In determining the meaning of a verdict, the entire record will be searched, and all parts of the record interpreted together. People v. Quesse, 310 Ill 467, 142 NE 187.

The defendant contended at the trial that he killed the deceased in self-defense. He testified that on Sunday evening, March 21, 1965, he drove to a Pizza Parlor at 4409 West Fullerton Avenue. When he opened the door he said a gang of boys attacked him. He stopped one boy from hitting him with a coke bottle and another boy hit him on the head with his fists. He didn’t know any of the boys and when he started to leave the deceased threatened to kill him if he was “Tex” who was messing around with his girl, and when he showed him his identification card to prove he wasn’t “Tex” the deceased apologized, they shook hands, and he left the store. He testified further that he had some beer to cool off and twenty minutes later he returned to the Pizza place to straighten the matter out and avoid trouble. Upon his return, about 8:45 p. m., he and the deceased again got into an argument and a scuffle and he was threatened by the other boys, and he and the deceased went outside the store to settle the dispute. He said when he started to close the door five or six boys came out so he pulled out a gun from his belt and told them to stay inside and no one will get hurt. He testified further, when the boys came out again while he and the deceased were talking, he fired one shot in the air to scare them. He said they circled him and when one of the boys said “it’s a blank, let’s kill the son of a bitch” he was afraid for his life and fired about six shots at the crowd of boys, but at no one in particular. Herschel Boardman with whom he quarreled was killed and two of the other boys were wounded.

On the State’s side the evidence reveals that Kenneth Fleischer who was wounded and Emil Schmidt who was shot twice, testified that they did not know the defendant. When he came in the Pizza Parlor the first time they were sitting separately in a booth and from a short distance away heard him argue with the deceased. They testified that no violence took place and the defendant was not threatened or attacked by anyone. Schmidt testified that the defendant and the deceased were arguing and the latter “grabbed him and asked him if his name was Tex and he said no.” He said after the deceased apologized to the defendant, the latter left the premises and he went out and told him that the deceased was sorry for pushing him and the defendant replied “well, you go back in there and tell Pete [deceased] I will be back in thirty minutes with the Cobras.” He said nobody took this threat seriously. Both witnesses testified that the defendant came back in about twenty minutes and he and the deceased argued again and they went outside alone at the suggestion of the victim. They said many patrons gathered at the front store window and some one shouted that the defendant had pulled out a gun. Fleischer said he opened the door and the defendant said “don’t come out or I’ll shoot,” but he started out and the defendant started shooting. He was wounded and went back in the store and he saw people bring the deceased back in the restaurant. Schmidt testified that Fleischer opened the door and tried to get the defendant to put his gun away. He said when the shooting started he ran outside, he noticed that Fleischer appeared to be shot and then the defendant shot him twice. Both witnesses testified that neither the deceased nor they had any weapons.

Among the instructions given to the jury was one on self-defense submitted by the defendant. State’s instruction No. 4 defining voluntary manslaughter was the only instruction given on manslaughter.

The evidence in this case only supports a finding of voluntary manslaughter. The defendant testified he shot the decedent in self-defense. The offense of voluntary manslaughter is established where a person intentionally or knowingly kills another, when at the time of the killing he believed the circumstances to be such, that, if they existed, his conduct would be justified under the law of self-defense, but his belief and conduct is unreasonable. Ill Rev Stats 1965, c 38, § 9-2(b). Self-defense presupposes the intentional use of force in defense of one’s person, and as such no conviction of involuntary manslaughter would be justified when a killing occurs in self-defense. People v. Johnson, 54 Ill App2d 27, 203 NE2d 283. The record is also clear that the defendant offered no instruction on involuntary manslaughter. He did not object when the voluntary manslaughter instruction was given or when the verdict was read nor when he made a post-trial motion. The jury correctly found the defendant guilty of manslaughter, a lesser included offense in the charge of murder.

People v. Brown, 383 Ill 287, 48 NE2d 953; People v. Swinson, 406 Ill 233, 92 NE2d 758 and People v. Ellis, 309 Ill 51, 139 NE 902, are cited for authority that the court erred in not sentencing the defendant for involuntary manslaughter. In Brown the indictment was insufficient to charge the offense of which the defendant was found guilty, but was sufficient to charge another form of larceny. This is distinguishable from the instant case where, in the indictment charging murder, the jury may return a verdict of manslaughter. The intention of the jury to find the defendant guilty of voluntary manslaughter is clearly shown by the evidence and by the instructions of the court and is distinguishable from Swinson and Ellis where the verdicts failed to find a material statutory element. The sentence imposed by the court was in our judgment directly responsive to that finding.

For the reasons given the judgment of the criminal division of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MURPHY

license: Public Domain

text:
    Murray Wolbach, Jr., Plaintiff-Appellant, v. The Zoning Board of Appeals of The City of Chicago, Lake Shore Drove Synagogue, Frank J. Oehlschlaeger, Owners of 59-65 E. Oak, Owners of 111 E. Oak, The Greater North Michigan Avenue Association, Rose Minwiggen (Same Person as Rose Mangan), Mary Goller, 103-107 E. Oak Street Property, Inc., and Mrs. George Dow, Defendants-Appellees.
    Gen. No. 51,328.
    First District, First Division.
    April 10, 1967.

      Samuel W. Block and Muller Davis, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellee, Zoning Board of Appeals of the City of Chicago.
    Irving Goodman, of Chicago, for appellee, Lake Shore Drive Synagogue.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action in a zoning case. Plaintiff appeals from a Circuit Court judgment, which affirmed a special use order of the Zoning Board of Appeals of Chicago for the construction of a synagogue at 70-104 East Oak Street, Chicago.

Plaintiff’s theory of the case is that the Zoning Board of Appeals committed reversible error by: (1) giving an unreasonably vague decision which is incapable of enforcement; (2) making findings which were insufficient as a matter of law; (3) making an essential finding which was not supported by competent evidence; and (4) the admission of prejudicial hearsay evidence.

Plaintiff states that East Oak Street, between Rush and Lake Shore Drive, is predominantly a retail commercial street in its first floor and English basements on both its north and south sides, with heavy automobile traffic. There are various small shops, including art galleries, men’s and women’s apparel stores, decorative hardware stores, a beauty salon, a portrait photographer, dry cleaning establishments, a wedding consultant, and others. There is a motion picture theater, a Christian Science reading room, and three taverns. Sixteen percent of the frontage is residential.

The record before the Zoning Board included the application affidavits, letters, an order of Zoning Administrator, dated July 6, 1965, stating that the application was not approved, and a report from the Commissioner of the Department of Development and Planning, dated September 13, 1965, indicating a conditional approval of the application. Public hearings were had, and witnesses for the applicant and for the opponents testified at length.

The Rabbi for the applicant testified that the synagogue has been identified with Oak Street since 1962 and is presently located on the second floor of 50 East Oak Street. 70-104 East Oak was selected because the location is central to the Jewish population residing in the area, beginning with the River and going north to North Avenue. It serves both the Jewish residents who live in the residential area as well as the transients in the hotels within walking distance of the synagogue. They were unsuccessful in their attempts to find another suitable location. The Rabbi further testified that their plans do not call for off-street parking. The members of the congregation are prohibited by their faith from the use of motor vehicles on the Sabbath and high religious holidays. Services are held during the week, attended by 10 to 50 people. The synagogue has a membership of 300 persons. The planned structure will include a chapel for about 50 to 75 seats and a sanctuary with expanding walls to accommodate up to 500 persons. There will be two clubrooms for youth clubs and a small social hall. Weddings and memorial services will be conducted but not funerals.

Plaintiff testified that the construction of any building, religious or not, which breaks up the continuity of the commercial character of the north side of Oak Street, will diminish pedestrian traffic on the street because of the lack of interest created by the withdrawal of interesting commercial space. The present synagogue is on the second floor, and there are shops below. He further stated: “Oak Street is just developing. We would prefer to see the development of an Oak Street of a commercial character because we believe that it is to the advantage of both sides of the Street to have it so. ... I think it is pretty widely known that the continuity of commercial property along a commercial street is extremely important.”

The decision and order was entered September 28, 1965, as follows:

“WHEREAS, the Lake Shore Drive Synagogue, for the Continental Illinois National Bank and Trust Co. of Chicago, Trustee, filed July 29, 1965, an application for a special use under the zoning ordinance for the approval of the location and the erection of a church building, in a B7-6 Restricted Central. Business District, on premises at 70-104 East Oak Street; and
“WHEREAS, the decision of the Office of the Zoning Administrator rendered July 6, 1965 reads:
“ ‘Application not approved. Proposed improvement does not conform with the requirements of the Chicago Zoning Ordinance.’
“and
“WHEREAS, a public hearing was held on this application by the Board of Appeals at its regular meetings held on September 15 and September 23, 1965 after due notice thereof by publication in Chicago’s American on August 27,1965; and
“WHEREAS, the district maps show that the premises are located in a B7-6 Restricted Central Business District; and
“WHEREAS, the Board of Appeals, having fully heard the testimony and arguments of the parties and being fully advised in the premises, finds that in this case the proposed use is to be located in a B7-6 Restricted Central Business District; that the said congregation is a member of the Orthodox faith of Judaism which prohibits the use of motor vehicles on the Sabbath and on the high religious holidays; that the proposed use is necessary for the public convenience at this location; that it is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and that it will not cause substantial injury to the value of other property in the neighborhood in which it is to be located, it is therefore
“RESOLVED, that the application for a special use be and it hereby is approved and the commissioner of Buildings is authorized to issue a permit to erect a church building, on premises at 70-104 E. Oak Street, upon condition that applicant endeavors to make arrangements with some parking facility in the immediate area to store automobiles and alleviate any traffic generated because of the construction of the proposed synagogue; that all applicable ordinances of the City of Chicago shall be complied with and that plans in triplicate shall be identified as the plans approved by the Board of Appeals before a permit is issued.”

Initially, we agree with plaintiff that part of the Board’s decision is vague, viz., the provision that the application is approved “upon condition that applicant endeavors to make arrangements with some parking facility in the immediate area to store automobiles and alleviate any traffic generated because of the construction of the proposed synagogue.”

Plaintiff argues that the parking facility condition is incapable of enforcement, and for that reason the decision of the Board should be reversed. Missouri Pacific R. R. v. Commerce Comm., 401 Ill 241, 81 NE2d 871 (1948), is cited for the rule that orders of an administrative agency may be so indefinite as to be invalid (p 250). We believe that every reasonable doubt should be resolved in favor of the Board’s order. We do not view the parking facility condition as a determinative factor in the consideration of the merits of the Board’s order. Therefore, we have determined the validity of the Board’s approval of the special use without regard to the vagueness of the parking facility condition or its enforceability.

Plaintiff next contends that the findings of the Board are “in the words of the Municipal Code of Chicago” and are insufficient as a matter of law. Supporting citations include International Harvester Co. v. Zoning Board, 43 Ill App2d 440, 193 NE2d 856 (1963), where it is said (pp 450-451):

“We are of the opinion that findings of fact must be made in cases of special use; that in the present case no findings were made in reference to the performance standards; that the findings which were made in reference to the other standards were too general and just repeated verbatim the language of section 11.10-4 of the ordinance, and in one or two instances the findings were not supported by substantial evidence.”

On this point, plaintiff argues that the Board’s resolution has “no specific fact findings, insofar as public convenience or substantial injury is concerned.”

Without further discussion, we agree that findings of facts specifying the reason or reasons for making the variation are required in special use cases, but we are not persuaded that the findings of the Board resolution are insufficient here. There is substantial evidence in this case which supports the conclusions and findings of the Board that the proposed special use is necessary for the public’s convenience at the location, that public health, safety and welfare will be protected, and that it will not cause substantial injury to the value of the other property in the neighborhood. Considering the special use intended here, we hold that the Board findings were sufficient as a matter of law, although the findings may have been substantially set forth in the language of the Municipal Code of Chicago.

Plaintiff also contends that the finding in regard to health, safety and welfare is not supported by competent evidence. Plaintiff asserts that “the only evidence in the record of any support to this finding is that generally the present membership walks and the synagogue does not ‘officially permit’ vehicular transportation on the Sabbath and the High Holidays. This testimony obviously does not cover other days in the year, Synagogue activities to which the public is invited, or expanded membership. The uncontradicted evidence relevant to these subjects was that the Synagogue membership was expanding, the planned edifice would have a seating capacity of 500 persons, the Street was congested with traffic, . . . and there would be many Synagogue activities, of a public nature, not occurring on the Sabbath or the High Religious Holidays for which there was no prohibition on the use of vehicular transportation. The Report of the Department of Development and Planning includes the contradictory conclusions that ‘the lack of off-street parking may create traffic problems,’ and ‘the location of the proposed synagogue [is] acceptable trafficwise.’ The mere recitation of this hearsay, not illuminated by cross-examination, illustrates why it cannot be accepted as evidence to support the finding where the testimony failed so to do.”

As contended by plaintiff, this court may set aside administrative findings if manifestly against the weight of the evidence. (Menning v. Department of Registration, 14 Ill2d 553, 561, 153 NE2d 52 (1958).) “On administrative review the court does not weigh the evidence and its function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence.” (De Grazio v. Civil Service Commission, 31 Ill2d 482, 489, 202 NE2d 522 (1964).) In order to reverse the administrative order, it is required that an opposite conclusion be clearly evident. Bruno v. Civil Service Commission, 38 Ill App2d 100, 107, 186 NE2d 108 (1962).

The increased traffic arguments advanced by plaintiff, if followed, would be sufficient to bar all religious worship from the commercial areas of Chicago. “Such arbitrary prohibition is not consonant with the constitutional guarantees of freedom of religion . . . .” (Columbus Park Congregation v. Board of Appeals, 25 Ill2d 65, 73, 182 NE2d 722 (1962).) We note plaintiff testified that the proposed synagogue would diminish pedestrian traffic because of the lack of interest created by the withdrawal of the interesting commercial space. We think this same reasoning could apply to vehicular traffic. We believe remarks made by our Supreme Court in Columbus Park Congregation v. Board of Appeals (p 72) apply here:

“It is apparent that churches in any location will add to traffic and parking congestion during hours of worship. However, there is no evidence in the record before us to show any danger of a traffic or parking problem that would justify this particular use of the police power to limit the fundamental right of freedom of worship. . . . We, therefore, hold that to deny plaintiffs the right of worship at this location, upon the speculative fears of traffic congestion, bears no reasonable relation to the general health, safety and welfare.”

Plaintiff next contends that the Board received and replied on hearsay evidence on the “vital issue of traffic congestion.” The record includes a letter from John G. Duba, Commissioner of the Department of Development and Planning, to John P. Maloney, Zoning Administrator, dated September 13, 1965, in which it is said: “The Department of Streets and Sanitation finds the location of the proposed synagogue acceptable trafficwise ; however, they suggest that applicants endeavor to make arrangements with some parking facility in the immediate area to store cars and alleviate any traffic generated because of construction of this synagogue at this location.” The record shows that counsel for plaintiff objected to the “City Planning Commission” recommendations “upon the ground that I have not had the opportunity to cross-examine the City Planner in respect to the recommendations which he made.” The Board findings do not specifically refer to the September 13, 1965, report of the Department of Development and Planning. A finding was made that the decision of the Office of the Zoning Administrator read: “Application not approved. Proposed improvement does not conform with the requirements of the Chicago Zoning Ordinance.” If the Duba report was favorably considered by the Zoning Board, including the suggested parking facility condition, the record does not show that plaintiff was deprived of the right to subpoena and cross-examine Mr. Duba or to offer evidence in rebuttal to his report. Accordingly, we find no merit to the contention that the Board relied upon hearsay evidence in its findings or that the use of hearsay “materially affected the rights of any party and resulted in substantial injustice to him.” Ill Rev Stats, c 110, § 275(2).

We have examined the authorities submitted by plaintiff to show how other communities have dealt with traffic problems created by church activities, but we find no guidelines that are persuasive here or that require discussion.

This record shows that the Board conducted a full, fair and impartial hearing after adequate notice, with an opportunity to all parties to know of the evidence to be submitted or considered, to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. See Rutledge v. Department of Registration and Education, 77 Ill App2d 103, 123, 222 NE2d 195 (1966). We hold that the findings of the Board were based on substantial evidence in the record and are not manifestly against the weight of the evidence.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Babitsch, Defendant-Appellant.
    Gen. No. 51,145.
    First District, Second Division.
    April 11, 1967.
    Rehearing denied and opinion modified May 23,1967.

      Warren J. Carey, of Chicago, for appellant.
    Daniel P. Ward, 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 BURKE

delivered the opinion of the court.

William Babitsch was indicted and tried with Eugene Miller for the crime of abortion. Both men were found guilty by a jury and sentenced to five to ten years in the penitentiary. William Babitsch appeals. Eugene Miller prosecutes a separate appeal.

The facts are fully set out in People v. Miller, 82 Ill App2d 304, 226 NE2d 413.

William Babitsch maintains on this appeal that the arresting police officer was permitted to implicate him in the abortion by means of improper testimony; that evidence of unrelated crimes in which defendant was allegedly involved was allowed to go to the jury; that the trial court improperly allowed into evidence medical instruments seized from codefendant Miller’s automobile; that the trial court erred in allowing inflammatory testimony with respect to outcries made by the complaining witness after the alleged abortion; that the trial court improperly allowed conversations into evidence against defendant which took place prior to the time defendant entered the alleged conspiracy to commit the abortion; and that defendant was deprived of certain of his constitutional rights.

Defendant initially maintains that in view of the fact his motion for a severance was denied by the trial court and the fact the trial court assured him statements made by Miller incriminating Babitsch would be inadmissible, it was error for the trial court to have allowed the arresting police officer to testify that Miller told the officer Babitsch had committed the abortion. However, the jury was admonished to disregard all testimony given by the officer relating to what Miller told him concerning Babitsch. Furthermore, no objection was made to the testimony at the time it was given.

While defendant contends that no degree of admonition to the jury could have cured the prejudice allegedly created by this evidence, we feel that the testimony was not prejudicial to defendant since the jury was admonished by the court to disregard it and since there was ample competent evidence upon which defendant could have been found guilty. The cases cited by defendant in support of this position are distinguishable. In People v. Clark, 17 Ill2d 486, 162 NE2d 413, the court stated that confessions or admissions made by an accomplice outside the presence of a defendant are inadmissible against the latter and that it was error to deny defendant’s motion for a severance. In People v. Smuk, 12 Ill2d 360, 146 NE2d 32, the trial court allowed testimony by a witness concerning what was told to him by a codefendant outside the presence of the defendant. On review, the Supreme Court stated this evidence should not have been allowed to go to the jury and reversed the conviction. In the case at bar, however, the matter testified to by the arresting police officer, that Miller told him Babitsch had performed the abortion, was stricken by the trial court and the jury admonished to disregard it, and was not objected to at the time it was offered. See People v. Swift, 319 Ill 359, 150 NE 263. Furthermore, there was ample and sufficient evidence apart from the testimony of the police officer in this regard for the jury to have found the defendant guilty of the abortion.

Defendant further maintains that the officer’s testimony allegedly relating to his investigation of Miller on robbery charges prejudiced Babitsch in the eyes of the jury by implying that Babitsch was involved in the robberies. The record is devoid of any evidence through which the jury could have inferred that Babitsch was involved in the officer’s investigation of Miller.

Defendant contends that the medical instruments found in Miller’s automobile were improperly admitted into evidence. This contention has been disposed of in People v. Miller, 82 Ill App2d 304, 226 NE2d 413. With respect to the argument that the instruments, having been seized from Miller’s possession, were inadmissible against Babitsch, the testimony of the State’s witnesses clearly established the existence of a conspiracy between Miller and Babitsch and it is well settled that evidence taken from one conspirator is admissible against his coconspirator. People v. Lloyd, 304 Ill 23, 96-97, 136 NE 505.

Defendant’s argument regarding Miss Watkins’ testimony concerning Miss Grossman’s outcries after the abortion has also been dealt with in People v. Miller, 82 Ill App2d 304, 226 NE2d 413. The case of People v. Bernette, 30 Ill2d 359, 371-372, 197 NE2d 436, cited by Babitsch is not in point for the reason that the evidence there could have had no purpose other than to inflame the jury against the defendant. As the court there pointed out, it had “no relevance to guilt or innocence.”

The conversations admitted into evidence which occurred before Babitsch entered the conspiracy were not improperly admitted against him as he maintains. None of the testimony in this regard in any way involved Babitsch.

Babitsch further maintains that a statement made by him to the arresting officer when the officer asked him if he performed an abortion upon Miss Grossman constituted a confession and was not admissible against him for the reason that the State failed to inform him of the existence of the statement at the time he made his pretrial demand for such matters. However, the statement, to the effect that Babitsch asked what he would receive in return for answering the officer’s question, was stricken by the trial court and the jury specifically instructed to disregard it on the precise ground of which defendant complains here.

Defendant contends that the trial court improperly limited his cross-examination concerning the fetus allegedly discharged by Miss Grossman after the abortion and that the trial court improperly allowed leading questions by the prosecution. The record in no way supports the first contention; it appears the defense counsel did not attempt to pursue the matter on cross-examination. As to the later claim, the allowance of leading questions is within the sound discretion of the trial court and the record reveals no abuse of this discretion. People v. Neyland, 73 Ill App2d 61, 219 NE2d 701.

Defendant also maintains that he was denied his constitutional right to be confronted by his accuser, in that the arresting officer, rather than Miller, testified to what Miller stated concerning Babitsch. As has been stated above, all statements made by Miller to the officer concerning Babitsch were stricken by the trial court and the jury instructed to disregard them.

Defendant finally maintains that the sentence of five to ten years in the State penitentiary is excessive. This matter was raised and answered in People v. Miller, 82 Ill App2d 304, 226 NE2d 413.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


author: JUSTICE BRYANT.

text:
    Helen Scheurer, Plaintiff-Appellant, v. William H. Christopher, Defendant-Appellee.
    Gen. No. M-51,083.
    First District, Second Division.
    April 11, 1967.
    Vaeearello, Retrucelli and Simon, of Chicago, for appellant; Greenberg, Ziv & McCarthy, of Skokie, for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Miller, Defendant-Appellant.
    Gen. No. 51,122.
    First District, Second Division.
    April 11, 1967.
    Kehearing denied May 23,1967.

      Bellows, Bellows & Magidson, 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 BURKE

delivered the opinion of the court.

Eugene Miller was indicted and tried with William Babitsch for the crime of abortion. Both men were found guilty and sentenced to five to ten years in the penitentiary. Eugene Miller appeals. William Babitsch prosecutes a separate appeal.

Defendant raises several grounds for reversal: that the trial court allowed improper and prejudicial testimony by the arresting police officer to be heard by the jury; that the trial court erred in failing to suppress evidence illegally seized by the arresting police officer after defendant’s arrest; that the prosecuting attorney engaged in prejudicial final argument; that defendant made a statement to the police without first having been warned of his right to counsel and of his right to remain silent; and that the evidence was not sufficient to prove defendant guilty beyond a reasonable doubt.

The complaining witness, Elaine Grossman, lived in an apartment in Chicago which she shared with a roommate, Violet Kay Watkins, Eugene Miller’s girl friend. In September of 1964, Miss Grossman was fearful that she had become pregnant and Miller, a chiropractor, was consulted. Miller performed a series of tests upon her which confirmed the pregnancy. Miss Grossman testified that she at first attempted to terminate the pregnancy by the use of laxatives and pills provided by her boyfriend. Miller thereafter advised Miss Grossman to have the baby, but later informed her that he knew two doctors who would perform an abortion. He stated that he could procure the services of the better of the two doctors for the operation and that the fee would be $400, which amount was thereafter paid to Miller by Miss Grossman and Miss Watkins.

In October Miss Grossman received a telephone call from a Dr. Williams and a tentative date for the abortion was set for October 17th. The doctor failed to keep the appointment on the 17th and again contacted Miss Grossman and a date was set for the 21st. On that date Dr. Williams, later identified by Miss Gross-man as defendant William Babitsch and who, like Miller, was a chiropractor, came to the Grossman apartment and performed an abortion upon Miss Grossman. Miss Grossman testified that Babitsch inserted a number of surgical instruments which he brought with him into her vagina and, after he had finished, inserted a long flexible tube into the vagina and left the apartment, calling later to inquire about her condition. Both Miller and Babitsch visited the apartment the following evening. Miss Grossman received a series of shots “to speed things up.” During the night of October 22nd, Miss Grossman went to the washroom where she discharged a fetus. She preserved the fetus in alcohol as Babitsch directed and later turned it over to him.

Miss Grossman thereafter began to suffer bleeding from the vaginal area and on November 19, 1964, she consulted a physician and was admitted to the Edgewater Hospital. She remained in the hospital for a period of ten days during which time she underwent an operation to remove one of her ovaries and to repair a tear in the uterine wall.

Miss Violet Kay Watkins testified that, at the time he was consulted, Miller stated he knew two doctors who would perform an abortion, that Dr. Williams was the more proficient of the two and that the fee would be in the vicinity of $600, which he later reduced to $400. After the abortion Miss Watkins testified that she witnessed a tube protruding from the vagina of Miss Gross-man and that the latter complained of pain and stated that she was dying and that she wished she would die. The witness further stated Miss Grossman discharged a fetus which Miss Grossman preserved and later gave to William Babitsch.

Eugene Miller was arrested by Detective Frank Collurafici at Miller's place of r^idence, a private home where he resided while caring for a bedridden invalid person. The home was owned by the invalid's mother, Mrs. Johnson, who also resided there. At the time of the defendant’s arrest the officer received permission from Mrs. Johnson to search the house and found the medical instruments which were later admitted into evidence at the trial. Mrs. Johnson further gave the officer permission to search automobiles in the garage. A Volkswagen, bearing license plates registered in the name of Mrs. Johnson, was searched and a black medical bag containing surgical instruments capable of use in an abortion was discovered. Although the Volkswagen was owned by Miller, the officer testified that at the time of the search he believed the automobile belonged to Mrs. Johnson since a prior investigation revealed that the license plates were registered in the name of Mrs. Johnson. The officer further stated that at the time of the arrest Miller told him that Babitsch had performed the abortion upon Miss Grossman; that he and Babitsch had split the $400 fee received therefrom; that he, Miller, performed six other abortions himself; and that the surgical instruments found in his Volkswagen were used in that line of work. A pretrial motion to suppress the instruments as evidence was denied and they were admitted into evidence. At the end of the officer’s testimony regarding his conversations with defendant Miller, all testimony relating to William Babitsch was stricken by the court and the jury instructed to disregard it.

Eugene Miller offered no evidence in his own behalf.

Defendant first maintains that the trial court allowed prejudicial testimony by the arresting officer to be heard by the jury. The testimony complained of related to the fact that the officer was assigned to a robbery detail investigating Eugene Miller at the time the officer arrested him on the abortion charge. He also maintains it was error to permit the officer to testify that defendant told him he had performed six other abortions. The record shows defendant was in no way prejudiced in this regard.

Officer Collurafici scrupulously tried to avoid any reference to the fact that he was investigating Miller on a robbery charge after initial objections by defense counsel in this regard were sustained by the trial court and the jury instructed to disregard the references thereto. The officer continued to testify a short while and the trial court finally instructed the jury to disregard his entire testimony. It should be noted that no specific incident was referred to by the officer. Furthermore, the references to the “robbery detail” to which the officer had been assigned were merely collateral to the main line of the officer’s testimony. The colloquy between the court and counsel after the references were made, outside the presence of the jury, clearly indicates that the trial court was concerned that the officer’s testimony might leave the jury with the impression that defendant was involved in robberies. He was, however, of the opinion that the officer’s testimony had no adverse effect upon the jury, but he nevertheless instructed the jury to disregard the testimony. The record discloses that this matter was not deliberately brought out by the State, that the witness tried to avoid references to the matter and the trial judge acted promptly to cure the harm, if any, which might have arisen therefrom. See People v. Naujokas, 25 Ill2d 32, 182 NE2d 700.

Defendant’s conversation with the officer, that he had engaged in six other abortions, constituted an admission by the defendant. The officer’s testimony was not a conclusion, as defendant maintains; the officer was repeating what defendant had told him and was not rendering an opinion based upon what he heard or observed, as was the situation in the case of People v. Rongetti, 338 Ill 56, 170 NE 14, cited by defendant in support of this position. Furthermore, defendant requested no instruction limiting the effect of this evidence, nor the use to which it could be employed by the jury.

The search of defendant’s automobile in the garage and the seizure of the medical and surgical instruments therefrom were reasonable under the circumstances. After Officer Collurafici searched the house, he received permission from the owner and possessor of the premises to search the automobiles in the garage. Having investigated the license plate registration of the Volkswagen some two weeks prior to this time, the officer found that the plates were registered in the name of Mrs. Johnson. Although the Volkswagen was in fact owned by Miller, the officer testified that at the time of the search he thought the automobile belonged to Mrs. Johnson. Under the circumstances we feel that it was reasonable that the officer believed the Volkswagen belonged to Mrs. Johnson and that he acted reasonably in searching the Volkswagen and seizing the black medical bag and its contents.

With regard to the admission into evidence of the medical instruments, the fact that they may not have been the same instruments used in the abortion of Miss Grossman is not controlling. The testimony showed that the abortion had been performed by William Babitsch. There was evidence that Eugene Miller was a coconspirator and accessory both before and after the operation by Babitsch. In our opinion the admission of the instruments, without proof that they were the same instruments used on Elaine Grossman was relevant and proper. See People v. Magby, 37 Ill2d 197, 226 NE2d 33.

Defendant next contends that the testimony of Miss Watkins, to the effect that Miss Grossman complained of pain and stated she was dying after the operation, was prejudicial and inadmissible. We disagree. The statements were made by Miss Grossman very soon after the operation was performed and served to corroborate the fact that an abortion had been performed. It clearly does not appear from the record that this testimony was used to arouse the passion of the jury. The statements of Miss Grossman testified to by Miss Watkins are somewhat akin to the complaint of a rape victim as corroborating the fact of the crime. Furthermore, the testimony was not objected to at the time it was offered.

The contention that the prosecuting attorney engaged in prejudicial final argument by referring to the black medical bag and its contents, by stating that Miller was an abortionist, and the like, is without merit. It does not appear that trial counsel transcended the legitimate bounds of proper final argument to the jury. People v. Lloyd, 304 Ill 23, 99, 136 NE 505.

Although defendant raises the argument that he was denied his constitutional rights in that he was not informed of his right to remain silent and of his right to counsel before making statements to the arresting officer, it does not appear that this case presents the proper circumstances under which such a claim may be advanced; Miranda v. Arizona, 384 US 436, is not controlling. See Johnson v. New Jersey, 384 US 719. It further appears that this point was not raised at trial.

Defendant also maintains that the sentence of five to ten years in the penitentiary was excessive, in view of the fact that he was a chiropractor and the fact that he did not perform the abortion upon Miss Gross-man. The sentence is within the limits prescribed by the statute and although this Court has the authority to reduce sentences in appropriate cases, nothing in this record warrants such a reduction. Ill Rev Stats 1965, c 38, Pars 23-1 (a), 121-9(b) (4). It also does not appear that, as defendant maintains, the trial judge based the sentence upon any improper evidence. People v. Smith, 55 Ill App2d 480, 204 NE2d 577.

Defendant’s final contention is that he was not proven guilty beyond a reasonable doubt. The record in this regard shows this position to be untenable; the State’s evidence amply supports the jury’s verdict of guilty.

The judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bahige N. Abdallah, Defendant-Appellant.
    Gen. No. M-51,766.
    First District, Second Division.
    April 11, 1967.

      Redman and Shearer, of St. Charles, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Ronald Magnes and Robert Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of violating the posted speed laws of the State of Illinois in operating his automobile 14 miles per hour in excess thereof. He was assessed a fine of $10 and costs of the suit in the sum of $5. He appeals.

State Police Officer F. J. Schmelzer testified that during the early morning on May 28, 1966, he set up a radar device on his patrol car on a section of highway in Cook County bearing a posted speed limit of 65 miles per hour. The officer tested the radar device by means of a tuning fork which was cut to read 65 miles per hour. The frequency emission, or pitch, of the tuning fork, when struck, activated the needle on the radar device which in turn indicated a reading of 65 miles per hour. At approximately 3:40 that morning defendant’s automobile passed through the field of influence generated by the officer’s radar device and caused the meter to read 79 miles per hour. Defendant was pursued, arrested and given a citation for speeding.

The officer further testified that he had one-half day training in the operation of the radar device with a fellow officer and that he had some five and one-half years on-the-job experience with radar equipment of the type used on the night in question prior to defendant’s arrest. The officer stated that the tuning fork test was the only means used by him to determine the accuracy of the radar device. The device was tested in this manner immediately before the defendant’s automobile drove through its zone of influence, resulting in a reading of 65 miles per hour. It was similarly tested several times later that night and on each occasion the meter showed a reading of 65 miles per hour.

The court denied a defense motion for judgment in defendant’s favor made during the State’s case in chief; the motion was renewed after the State rested its case. The grounds of the motion were that the “prosecution had failed to prove the accuracy of the radar by failure to submit expert evidence of its scientific reliability, and that there had been an improper foundation set down before the admission into evidence of the reading on the [radar] graph.” The motion was denied and the defendant was found guilty. The defendant did not offer any testimony.

Defendant maintains on this appeal that the trial court improperly took judicial notice of the application of the scientific principles of radar to the accurate measurement of speed, or, in the alternative, that the operator of the radar unit was not properly qualified to testify to the accuracy and operation of the instrument in that the accuracy of the instrument could not have been established solely by means of a single tuning fork which was itself untested for accuracy.

The term “radar” is derived from the phrase “radio detection and ranging.” The true radar device is that developed and in use by the military which determines the range, direction and speed of a target object. It operates on a pulse, or constant interval principle, a beam of short electromagnetic waves which are reflected from the target object. The “radar” device presently in common use by law enforcement agencies for the determination of speeds of moving vehicles, on the other hand, operates on the Doppler principle, that is, the emission of a continuous electromagnetic wave which enables the speed of a target object to be determined by measuring the difference in frequency between the wave emitted from the radar device and the wave reflected from the object. Kopper, The Scientific Reliability of Radar Speedmeters, 33 NCL Rev 343. It is presently so well settled that the Doppler principle is an accurate means of determining the speed of a moving object that a court may take judicial notice thereof; and expert testimony is unnecessary to establish the usefulness of the method. City of Cleveland v. Ferell, 168 Ohio St 298, 154 NE2d 630; State v. Dantonio, 18 NJ 570, 115 A2d 35; People v. Magri, 3 NY2d 562, 147 NE2d 728, 730; see also 49 ALR2d 469 and 61 CJS, Motor Vehicles, §§ 647, 648.

While the principles underlying radar may serve as a proper foundation for taking judicial notice that radar is an accurate means of determining the speed of a moving object, it does not necessarily follow that any given radar unit, standing alone, is able to accurately detect the speed of a moving object. Where the accuracy of a particular radar device is unproven, the results thereof will be insufficient to convict for a traffic violation, although such results are admissible as evidence. People v. Magri, 3 NY2d 562, 147 NE2d 728. Where, on the other hand, there is reasonable and sufficient proof of the accuracy of the radar instrument, the reading taken therefrom may of itself be sufficient for a conviction. People v. Dusing, 5 NY2d 126, 155 NE2d 393.

Defendant maintains that the tuning fork used to test the accuracy of the radar device was itself untested for accuracy and that therefore the operator was not qualified to testify to the accuracy of the device. We disagree. The officer testified that he made several tests with the tuning fork prior and subsequent to the time defendant passed into the radar field, and that the meter on each occasion showed a reading of 65 miles per hour. The officer further testified that it was his opinion the radar unit was working properly, that there was no outside interference which could have influenced the reading, and that only defendant’s automobile was within the zone of the radar beam at the time the meter showed a reading of 79 miles per hour. The officer had been instructed in the operation of the radar device and had five and one-half years on-the-job experience in its use. We are of the opinion that there was sufficient proof of the accuracy of the radar unit for the trier of fact to find defendant guilty of speeding based solely upon the reading taken from the radar unit.

Defendant maintains that the arresting officer was “wholly unqualified to operate any radar set under any circumstances,” because he had no knowledge of the scientific principles involved in the operation of a radar instrument, had no knowledge of the frequency or power output of the instrument, and had no knowledge of the scope of the radar beam, and the like. The operator of a radar instrument does not have to be an expert in the science or theory underlying the functions of the instrument. It is sufficient that he is familiar with the device and its operation, the evidence of which presents a question of weight and credibility for the jury. People v. Johnson, 23 Misc 11, 196 NYS2d 227. In the case at bar the officer had five and one-half years on-the-job experience with this type of radar equipment.

Defendant relies on the case of City of St. Louis v. Boecker (Mo App), 370 SW2d 731 (1963), in support of his proposition that the testing of a radar device by a single tuning fork will not suffice to establish its accuracy. However, the Court in the Boecker case at 370 SW2d 731, 737, specifically limited its reversal of the defendant’s conviction on the fact that the only test of the radar unit there employed in determining the speed of defendant’s vehicle was made at “some unknown time and some unknown place” prior to defendant’s arrest. No test was made at the time and place of the arrest. The Court concluded that because the accuracy of the instrument could have been influenced by movement, locality, etc., the accuracy was not sufficiently proven and the evidence derived from the instrument, standing alone, was insufficient to prove defendant guilty. In the case at bar, however, a test of the radar equipment was made at the site of the arrest immediately before the arrest was made and again several times thereafter, and in each instance the equipment was shown to have been properly functioning.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Verdis Earls, Defendant-Appellant.
    Gen. No. 51,633.
    First District, Fourth Division.
    April 14, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial the defendant, Verdis Earls, was convicted of robbery and was sentenced to the penitentiary for a term of not less than one nor more than three years.

Contention on Appeal

Defendant’s sole contention is that he was not proven guilty beyond a reasonable doubt.

Evidence

The complaining witness, Robert Powell, testified that as he was entering a vestibule of an apartment building four men approached (one of whom he positively identified as the defendant, whom Powell had seen previously in the neighborhood); two of them shoved him inside the vestibule, turned him around facing the door and robbed him of his money and wallet while holding a knife to his throat. The door had a window, through which Powell observed the defendant and another man, standing outside. The defendant was watching inside the vestibule as the robbery took place and was also looking down the street. After the robbery was completed all four men fled and were pursued by Powell. In the course of his pursuit Powell hailed a police car and the policemen chased the men, apprehending only defendant. The policemen then placed Powell and defendant in their squadrol for transportation to the police station. Powell testified that, en route, defendant told him: “. . . if I didn’t sign a complaint he would see I got my money back.”

One of the police officers, Robert McCormack, testified that as he and his partner were on patrol in their squadrol they observed three or four men coming around the corner, running, but when the men spotted the police they began walking at a normal pace. Powell then came around the corner, chasing them and yelling for help, after which the men resumed running. Officer McCormack further testified that they chased the men down an alley and apprehended the defendant but the others escaped. Upon questioning, defendant told the police that he was running from his girl friend but that he did not know where she was. Defendant denied that he had been with any other men.

Neither defendant nor his girl friend testified at the trial.

Opinion

A person is legally accountable for the conduct of another when “either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill Rev Stats 1965, c 38, § 5-2 (c). According to the evidence adduced by the prosecution, four men including the defendant approached Powell as he was entering the vestibule; defendant stood outside the vestibule and acted as a lookout while two of the men robbed the victim at knifepoint; defendant was arrested after being pursued by the defendant and the police; and defendant offered to see that the victim’s money was returned if he refused to sign a complaint. This evidence, believed by the trial judge as trier of fact, is sufficient to prove beyond a reasonable doubt that defendant intentionally aided and abetted the commission of the crime of robbery. Defendant is therefore as legally accountable as if he had actually held the knife to Powell’s throat and taken the money and wallet.

Holding on Appeal

The judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ivory Cuttley, (Impleaded), Defendant-Appellant.
    Gen. No. 51,101.
    First District, First Division.
    April 17, 1967.

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

delivered the opinion of the court.

A jury found defendant guilty of robbery, and he was sentenced to 4 to 12 years. On appeal, he contends he was not proved guilty beyond a reasonable doubt and his constitutional rights were violated when the State was allowed to present to the jury evidence of defendant’s prior convictions.

On April 26, 1965, at 1:30 a. m., Robert Lea, a cabdriver, was robbed by two men. Shortly thereafter, while at a police station, he identified defendant as one of the robbers, and later identified defendant in a lineup. The cabdriver and a police officer testified that defendant admitted his guilt. Defendant denied the robbery or any admissions.

At the trial, Lea, the cabdriver, identified defendant in the courtroom. Lea testified that defendant and Hosea Johnson entered his cab, and after being driven around, they robbed him of $41. Defendant Cuttley “put a knife on my neck . . . the blade was open.” After the robbery, Lea jumped out of the cab, and “Cuttley was chasing me. I was getting a little distance between us so I snatched a picket off a fence . . . and I turned on him and he turned and they ran through an alley, between Lawndale and Ridgeway.” He lost sight of them and reported the matter to a passing police car.

Later that morning, and at a police station, defendant Cuttley was brought in, and Lea said, “That’s the guy right there that stuck me up.” While in the presence of the arresting officers, defendant Cuttley asked Lea for a cigarette and Lea gave him a whole package, and “I told him that if he had asked me for some money I would have given him some money. That he didn’t have to stick me up. He said, ‘Well, I didn’t hurt you, did I,’ and that’s all he said, that’s all I heard him say.” Later, at 11th and State Street, Lea saw Cuttley and Johnson in a lineup. This was the first time he saw Johnson after the robbery. Present were Officers Alford and Morley, and “Cuttley was accusing Johnson of having the knife and Johnson was accusing Cuttley of having the knife. I can’t remember the exact words of the conversation.”

James Alford, a police officer, testified for the State and identified Cuttley and substantially corroborated Lea’s testimony as to the happening at the police station. He heard Lea ask, “ ‘Why did you rob me?’ He said, ‘If you wanted some money why didn’t you ask for it.’ He said, T know what it is like not to have any money, and I would have given you some money had you asked for it.’ And at that time the defendant asked Mr. Lea for a cigarette and Mr. Lea gave him a pack of cigarettes and then the defendant said, ‘Well, I didn’t hurt you, did I?’ ”

Officer Alford further testified that he had arrested Hosea Johnson on information given him by Cuttley, and at 11th and State Cuttley and Johnson accused each other of having or holding the knife. After Lea left the police station, and in the presence of Detective Morley and Johnson, Officer Alford asked Cuttley why he committed the robbery, and “he stated that he wanted to get some money to purchase an automobile.”

On cross-examination, Officer Alford stated that he did not get a written statement from Cuttley, and “I never wrote down any of the admissions he made.”

Defendant Cuttley testified and denied the robbery or any admissions. He was arrested by Officer Alford and interrogated about a shotgun. He was taken to the police station, where he saw Lea, the cabdriver, who said nothing. Later Cuttley asked Alford for a cigarette, and the cabdriver gave him a package and said, “ T am giving you this package because you robbed me.’ I said, T didn’t rob you, mister, you know.’ So he said, ‘You put a knife on me.’ I didn’t know what he was talking about. I accepted the pack of cigarettes from him. I really did. I never said to him, T didn’t hurt you, did I ?’ ” Cuttley denied saying to Officer Alford that he would “beat this case in court,” and on cross-examination said, “ [H] e was asking me did I rob him and I told him no, I did not rob him. So the detective told me, he said, ‘If you did rob him,’ he said, ‘You should have robbed him,’ and I asked him why. . . . that is when he said, T will see to it that you get ten years.’ ”

In rebuttal, Robert Lea and James Alford testified that Alford never told defendant he was going to get ten years. Officer Thomas Morley also testified in rebuttal that “I was present at 1121 South State Street at a lineup. I had never heard the detective tell the defendant that he should have done the robbery anyway because he was going to get ten years anyway.”

Defendant’s first contention is that during the trial, oral confessions were admitted in violation of section 114-10 (Ill Rev Stats, c 38), and except for the improperly admitted evidence, the State’s'case was based on a single identification, which was inherently weak.

The record shows that on December 13, 1965, after prospective jurors were sworn for examination upon their voir dire and placed in the jury box, the court recessed further questioning of the jury until 2:00 p. m. of the same day. At two o’clock, and before the questioning of the prospective jurors was resumed, the State asked leave “to amend its list of witnesses of those persons present at the time of an oral statement by the defendant, Ivory Cuttley, and the defendant, Hosea Johnson,” and stated to the court, “Prior to trial counsel for the defense moved for a list of witnesses and also for the list of persons present at the time of written and oral statements. At that time we advised the defense in writing of the witnesses to be called at the trial. We advised the defense that there was no written statement by either defendant in this indictment, and we advised the defense as to both defendants Mr. Robert Lea and Detective James Alford were present at the time of oral statements. . . . and it just came to our attention over the noon recess that Detective Morley was present at the time of oral statements to Mr. Lea and Detective Alford. And we had no knowledge of this fact until about half an hour ago, and we will have Detective Morley available at this time, any time today or tomorrow morning for the defense, if they wish, to interview him. We ask at this time before the trial is commenced to amend the list to include his name.”

Counsel for the defendant objected to the amendment. The court allowed the motion and offered defense counsel any time necessary to interview the person added. After discussion, the court offered to allow a motion for mistrial if counsel for defendant made it. Another recess was taken, after which counsel for defendant stated: “Let the record show I have spoken to Detective Morley and I still object to the inclusion of his name, but we are ready to proceed.” The examination of the jury then proceeded until twelve jurors were accepted by both sides and sworn to try the issues.

As to the amendment of the list of witnesses and the receipt in evidence of the testimony of Lea and Officer Alford of the oral admissions of defendant Cuttley, we find that the provisions of sections 114-9 and 114-10 were complied with. Although we believe the provisions of section 114-10 (c) applied to the testimony of Officer Morley, we note that he was called only in rebuttal and then was not questioned about any admissions of defendant. We find no error in the procedure followed by the court in permitting the amendment to the list of witnesses or in the receipt of the testimony of Lea and Officer Alford regarding the oral admissions of defendant.

We find no merit in defendant’s contention that his identification was weak. Lea’s testimony shows an extended exposure to the defendant during the robbery, followed by an immediate identification at the station. The alleged oral admissions of defendant to Lea buttressed the identification, but the previous identification was positive and based on sufficient happenings. A single positive identification by a credible witness is sufficient for conviction.

Defendant next contends that “the admission of evidence of defendant’s prior criminal record deprived defendant of his constitutional right to a fair trial.” After the State rested and after the court had been informed that it was the intention of defendant to testify, a discussion was had between court and counsel of the State’s desire to introduce in evidence, after the defendant testified, proof of three prior felony convictions, of which one was a Cook County conviction. Over the objection of defendant, the court gave permission to the State to advise the jury “that the defendant Ivory Cuttley has been previously convicted of a felony, to-wit, robbery, and that the jury may consider this fact for the purpose of judging and weighing the credibility of the defendant, and for that purpose only.” This was done, and the jury was so instructed.

Defendant argues that “evidence of defendant’s prior criminal record is deemed by the courts to be so prejudicial that it violates defendant’s right to a fair trial.” Citations on this point include People v. Gregory, 22 Ill2d 601, 177 NE2d 120 (1961), where it is said (p 603):

“Under our concepts of a fair and impartial criminal trial, it is elementary that a defendant, no matter how reprehensible his crime or how black his history of past misdeeds, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. Accordingly, it is well settled that evidence of other offenses unrelated to the crime for which a defendant is on trial is incompetent. And where such irrelevant material is contained in an otherwise competent statement or confession, it must be deleted before the statement or confession is read to the jury, unless to do so would seriously impair its evidentiary value.”

In United States v. Banmiller, 310 F2d 720 (1962), where the court discussed whether it was possible for a jury to consider evidence of the defendant’s prior conviction for certain purposes and still not be so prejudiced against defendant as to prevent a fair determination of his guilt, it is said:

“Certainly such a feat of psychological wizardry verges on the impossible even for berobed judges. It is not reasonable to suppose that it could have been accomplished by twelve laymen brought together as a jury.”

Defendant further argues, “The Courts have constantly held that the State cannot by indirection, present to a jury evidence which is improper for the State to present directly. People v. Pelkola, 19 Ill2d 156, 166 NE2d 54; People v. Tunstall, 17 Ill2d 160, 161 NE2d 300. In the area of prior convictions of the defendant, it is improper to present to the jury evidence demonstrating defendant’s general propensity to commit crime. To do so is to deny defendant’s constitutional right to a fair trial. To allow the State, under the guise of some rule based on history, to do indirectly, what they are not allowed to do directly, does not make the trial any less unfair. Under the Due Process Clause and the Sixth Amendment of the Federal Constitution as well as under Article II of the Constitution of the State of Illinois, an accused in a criminal prosecution is accorded, and indeed guaranteed, the right to a fair and impartial trial. Jurymen cannot be impartial when the fact that the accused has been previously convicted for the same crime is formally disclosed to them at this trial’s outset.”

As to this contention, the State argues, “Here, the stipulated evidence of defendant’s prior conviction was introduced in rebuttal consonant with statutory and case law. ... No prejudice was suffered by defendant.”

The introduction of the record of conviction of an infamous crime for the purpose of affecting the credibility of such a witness is authorized by the Evidence Act (Ill Rev Stats, e 51, § 1) and by the “Code of Criminal Procedure of 1963” (c 38, § 155-1). See, also, People v. Schanda, 352 Ill 36, 185 NE 183 (1933); People v. Buford, 396 Ill 158, 161, 71 NE2d 340 (1947). The record here and the law on this point show that the action in the trial court was proper and, therefore, we find no error.

We conclude that this record shows that the defendant was given a fair trial under the law and proved guilty beyond a reasonable doubt. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    Marjorie Conley, Plaintiff-Appellant, v. H. G. Kuerner, Defendant-Appellee.
    Gen. No. 50,733.
    First District, Second Division.
    April 18, 1967.

      Meyer Z. Grant, Nat P. Ozmon and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Forrest L. Tozer and Richard E. Mueller, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for damages for personal injuries allegedly sustained by plaintiff when the automobile in which she was a passenger was struck from the rear by defendant’s automobile. Judgment was entered on the jury’s verdict for defendant. Plaintiff appeals on the theory that the court erred in denying her motion for a directed verdict on the issue of liability on the basis that defendant was guilty of negligence as a matter of law or, in the alternative, that the court erred in failing to grant plaintiff a new trial because the verdict was against the manifest weight of the evidence.

At approximately 7:30 a. m. on January 31, 1958, a Friday morning, plaintiff was being driven to work by her husband in the family automobile. The Conley automobile was traveling in an easterly direction on Grand Avenue, a four-lane, southeast-northwest thoroughfare, approaching Cicero Avenue in Cook County. Traffic near the Grand and Cicero Avenues intersection at this time of the morning was very heavy and was moving at a rate of approximately 15 miles per hour. The evidence conflicted as to weather and pavement conditions. There was evidence that the pavement surface was clear and also that it was covered with slush due to salt, snow and ice. The weather was described as both “clear” and “snowy, requiring the use of windshield wipers.” A weather report received into evidence showed a “trace of precipitation, snow or sleet” on this day.

Plaintiff testified that the Conley automobile crossed the intersection at Cicero Avenue with a green light, whereupon the automobile in front of the Conley automobile came to a gradual stop. The Conley automobile also came to a gradual stop immediately behind the automobile in front, stood for a few seconds at a complete standstill, and was then struck from the rear by the Kuerner automobile. Plaintiff testified she heard no horn nor screech of brakes prior to the impact. The Conley automobile was pushed into the automobile in front and plaintiff testified that she was thrown backward and then forward into the dashboard and windshield, sustaining injuries.

Mr. Conley testified that prior to the time of the incident his automobile was in good functioning condition. He stated that after his automobile crossed Cicero Avenue the automobile in front of his automobile stopped and that he then brought his automobile to a gradual stop. The Conley automobile was in a standing position from 5 to 8 seconds before it was struck in the rear by the Kuerner automobile.

Defendant testified that he was driving a new automobile at the time of the occurrence which was in good functioning condition. He testified that he was following the Conley automobile, traveling east on Grand Avenue and approaching the intersection with Cicero Avenue, and that his speed was approximately 15 miles per hour. Defendant stated that there was a steady stream of traffic in front of his automobile. Defendant was traveling in the lane closest to the center line of Grand Avenue and, as he approached Cicero Avenue, a Chicago Transit Authority bus pulled away from the southwest curb of Grand and Cicero Avenues traveling in the same direction as defendant and moved a few feet into defendant’s lane of traffic. At the time the bus pulled out defendant’s car was approximately abreast of the rear wheels of the bus. Defendant testified that the other automobile traffic in front of him was in front of the bus and that there was approximately three-quarters of a length of a car between himself and the next automobile in front. Defendant stated he removed his foot from the accelerator and applied his brakes slightly, as the bus eased back into its own lane of traffic along the curb. At this time defendant was approximately at the center of the bus.

As the bus moved into its own lane of traffic defendant returned his eyes to the traffic in front of him and saw the Conley automobile standing in his lane of traffic. Defendant immediately applied his brakes but his automobile skidded on a patch of ice in the center of the intersection and struck the rear of the Conley automobile. Defendant testified the patch of ice was approximately 8 feet wide and elongated, and that it was the only ice he had seen in the mile and a half he had driven on Grand Avenue that morning. He further testified that he did not see the ice before applying his brakes.

Defendant and Mr. Conley alighted from their automobiles and exchanged information. Mr. Conley told defendant an automobile had cut in front of him from the curb lane of traffic, causing him to stop, and that no one was injured in the Conley automobile. Defendant further testified that the only damage to his automobile was a slight raise in his front bumper and that the only damage to the Conley automobile was a slightly raised bumper and a small dent in the trunk. The police were not summoned for the reason that the amount of damage to the automobiles did not warrant it.

Where a party moves for a directed verdict the trial court must consider all of the evidence in the case, and if there is any evidence, standing alone, together with all reasonable inferences therefrom, which tends to prove the contentions of the opposing party, the motion must be denied. If there exists any conflict in the evidence on material issues which necessitates the weighing of the evidence or a determination of the credibility of witnesses by the trier of fact, from which conflict it appears that reasonable minds might reach different conclusions, the motion must be denied. Palmer v. Poynter, 24 Ill App2d 68, 71, 163 NE2d 851.

A new trial on the grounds that the verdict is contrary to the manifest weight of the evidence will not be granted by a court of review where such determination entails a mere substitution of judgment for that of the trier of fact; an opposite conclusion must be clearly evident from all the evidence before a new trial will be granted on such grounds. Arboit v. Gateway Transp. Co., 15 Ill App2d 500, 507, 146 NE2d 582; Palmer v. Poynter, 24 Ill App2d 68, 72, 163 NE2d 851.

On the evidence in the case at bar the trial court properly denied plaintiff’s motions for a directed verdict and for a new trial. On the day of the occurrence both vehicles were proceeding in a southeasterly direction on Grand Avenue near the intersection with Cicero Avenue, during the morning rush hours. It is undenied that both vehicles were traveling approximately 15 miles per hour as they approached the intersection and that they were about one automobile length apart. Defendant testified, and the jury had a right to believe, that he was told by Mr. Conley immediately after the incident that the Conley automobile was cut off by a car in the curb lane cutting in front of him. A Chicago Transit Authority bus, which had been stopped in the right eastbound lane to board or discharge passengers, suddenly pulled out into defendant’s lane of traffic. As the bus returned to the right-hand lane defendant observed that the Conley automobile was stopped and he immediately applied the brakes, but his automobile skidded on an isolated patch of ice and struck the rear of the Conley automobile. Upon this evidence the jury could have found defendant to have been acting reasonably under the circumstances and that defendant was not following the Conley automobile too closely nor driving too fast for conditions. While other conclusions may be drawn from the evidence, we cannot say that the collision of defendant’s automobile with the Conley automobile was inexcusable nor that he was negligent as a matter of law.

Plaintiff has cited several cases, commonly known as “rear-end collision” cases, in support of his position that defendant was negligent as a matter of law in colliding with the rear of a standing automobile: Ceeder v. Kowach, 17 Ill App2d 202, 149 NE2d 766; Houchins v. Cocci, 43 Ill App2d 433, 193 NE2d 597; Kocour v. Mills, 23 Ill App2d 305, 162 NE2d 497. In Ceeder v. Kowach, defendant’s automobile skidded on wet pavement into plaintiff’s automobile which was legally stopped for a red light. The Appellate Court reversed the judgment for the defendant on the ground that it was foreseeable that plaintiff’s automobile might have to stop for the red light and that defendant should have correspondingly anticipated such an event. In Houchins v. Cocci, the evidence showed that plaintiff’s automobile was standing waiting to make a legal left turn when struck by defendant’s automobile. The trial court’s judgment for defendant was reversed on the ground that the defendant had the duty to keep her automobile under such control that she could have brought it to a stop without running into other traffic lawfully stopped waiting to make a left turn. In Kocour v. Mills, as in the Ceeder case, plaintiff’s automobile was stopped waiting for a red light when it was struck from the rear by defendant’s automobile. Again, the defendant’s failure to anticipate plaintiff’s stop at the traffic light was the basis for the Appellate Court’s reversal of the judgment for defendant. In all three cases cited by plaintiff the conditions under which the mishaps occurred differed substantially from the conditions in the case at bar. In the cases cited, the plaintiffs were lawfully stopped at a place where other vehicle operators had a duty to anticipate that a stop might be made. Likewise, in the recent case of Sughero v. Jewel Tea Co., 37 Ill2d 240, 226 NE2d 28, the evidence clearly showed that the driver of defendant’s vehicle was negligent in failing to keep his vehicle under control in the light of the fact that three other vehicles confronted with the same situation were safely brought to a stop in their proper lanes of traffic. In the case at bar the evidence before the jury was that the Conley automobile came to a sudden stop at a point where a stop could not have been reasonably anticipated and that the defendant was confronted with the hazard created by the Chicago Transit Authority bus when it moved into his lane of traffic. The other “rear-end collision” cases also cited by plaintiff are distinguishable from the instant case on similar grounds.

In Foster v. VanGilder, 65 Ill App2d 373, 213 NE2d 35, the court said, 378: “Liability cannot be inferred as a matter of law merely because defendants’ [vehicle] collided with the rear of the [vehicle] in which plaintiff was a passenger.”

We think that the trial judge was right in refusing to direct a verdict for plaintiff on the issue of liability and in holding that the judgment is not against the manifest weight of the evidence.

Therefore the judgment is affirmed.

Judgment affirmed.

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


author: CREBS, J.

text:
    Harold E. Williams, et al., Administrator of the Estate of Leroy Scranton, Deceased, Plaintiffs-Appellants, v. Madison County Mutual Automobile Insurance Company, Defendant-Appellee.
    Gen. No. 65-52.
    Fifth District.
    April 19, 1967.
    Rehearing denied May 13, 1967.

      Wiseman, Hallett, Mosele, Shaikewitz & Struif, of Alton, for appellants.
    Burton C. Bernard and Joseph R. Davidson, of Granite City, for appellee.
   CREBS, J.

Following an automobile accident in 1956, Appellants filed personal injury suits and eventually obtained sizable judgments. Appellants, being unable to collect their judgments, brought this suit based on an automobile liability insurance policy issued by Appellee. While the original suits were pending, Appellee filed a declaratory judgment action.

Appellants were named as defendants in the declaratory judgment action and service was obtained. Before any further proceedings, they filed motions to be dismissed on the grounds that they were not proper parties to the proceedings. The trial court granted their motions and dismissed them from the case. Then with only the named policyholder remaining as a defendant, appellee obtained a judgment holding that the policy was not in force on the date of the accident in question. The trial court dismissed appellant’s first amended complaint on the pleadings as barred by the declaratory judgment. This appeal followed.

The issue in this case is whether or not the findings in the declaratory judgment proceedings are binding on the appellants.

Appellee has cited Western States Mut. Automobile Ins. Co. v. May, 18 Ill App2d 442, 152 NE2d 608, as authority for holding the declaratory judgment binding whether or not appellants were represented in that proceeding.

The holding in Western States has been directly overruled by Sobina v. Busby, 62 Ill App2d 1, 210 NE2d 769, and Fourniotis v. Woodward, 63 Ill App2d 79, 211 NE2d 571. Sobina is based on the proposition that the injured party in an automobile accident is a real party in interest as regards an insurance policy issued to the person causing the accident. On this point we will follow the Sobina case. See also 18 ALR2d 887, Anno 891, 69 ALR2d 849, Anno 858.

Appellee also claims that appellants are estopped by reason of having been made parties in the declaratory judgment proceeding and having been dismissed as parties on their own motion. They also point out that after the trial court pronounced judgment, appellants tried to reenter the case and have the declaratory judgment order changed.

No cases were cited directly on this point nor have we found any that we consider controlling.

The purpose of making persons parties in a law suit is to permit them to participate in the proceedings, to present their side of the case, and to be able to appeal if the decision is against them. When these purposes are not accomplished, it is generally held that such persons are not affected by subsequent judgments. Miller v. Miller, 263 Ill 18, 104 NE 1078; Restatement, Judgments, § 79, page 357.

Appellants having been dismissed as parties before any hearing on the merits have not had an opportunity to present their side of the case. While they tried to reenter the case after judgment, they were not granted leave to intervene and they were never in a position when they could have taken an appeal.

Even though the error in dismissing them as parties was induced by their own counsel, they have not had their day in court. While the finding in the declaratory judgment action was in appellee’s favor, appellee could still have appealed the order which dismissed appellants from the case. No such appeal was taken. In a matter of this type where appellants are so vitally interested we hold that their erroneous dismissal, even though induced by their counsel, since it preceded any hearing on the merits, prevents appellants being bound by a subsequent judgment.

Reversed and remanded for further proceedings consistent with this opinion.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: PRESIDING JUSTICE LYONS.

text:
    Elaine Vrandack, Incompetent, Petitioner-Appellee, v. Frank Vrandack, Conservator, Respondent-Appellant.
    Gen. No. 51,371.
    First District, Second Division.
    April 18, 1967.

      Karras, Greene, Licastro and Licastro, of Chicago, for appellant; no brief filed for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.