text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Allum, Defendant-Appellant.
    Gen. No. 51,109.
    First District, Fourth Division.
    January 4, 1967.

      J. Tobias Dixon, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, James Allum, was convicted after a jury trial of murder and was sentenced to the penitentiary for not less than twenty nor more than forty years.

Contentions on Appeal

(1) Defendant was not proven guilty beyond a reasonable doubt;

(2) Defendant did not receive a fair trial because:

(a) remarks of the prosecutor to the jury were prejudicial;
(b) the trial judge (in the presence of the jury) improperly commented upon the testimony of a prosecution witness and subsequently threatened defense counsel with contempt;
(c) defendant’s request for a recess to study a statement of a prosecution witness was improperly denied and the trial judge refused to call a police officer as a hostile witness;
(d) the trial judge erroneously refused to give certain jury instructions proffered by the defendant and improperly gave one proffered by the prosecution.

Evidence

According to the evidence adduced by the prosecution the deceased, Mrs. Helwig Soderberg, died of cerebral injuries caused by blows with a fist. The deceased had multiple contusions and lacerations on her head, face, neck and arms and in addition had a fractured nose. The deceased’s housecoat, slip and undergarments were ripped; blood and skin scrapings were observed on her fingernails. Officer Robert Casey, who arrived at the decedent’s apartment in response to a call, looked through the bedroom window while standing on a ladder after attempting in vain to gain entry to the apartment; he observed the defendant on the bed on top of the deceased (his “common-law wife”) performing an act of sexual intercourse. Defendant was wearing a pajama top with a red stain which appeared to be blood. The officer yelled to the defendant: “We’re the police. Open the door.” In reply the defendant said they should obtain a search warrant and then threatened to shoot the officer. Several officers then broke in the back door and discovered the deceased lying on the bed. Defendant was apprehended shortly thereafter outside the front door of the apartment clad only in a bath towel wrapped around the lower portion of his body. Defendant’s face and hands were covered with blood and scratches were observed on his back.

At the trial defendant denied having a fight with the deceased or knowing that she was injured. He testified that he had returned from a vacation on the day of the occurrence in question and had been drinking most of the day; that he went to bed but was awakened by noise; that he called to the deceased and, receiving no answer, went to shake her; that he then observed the light being shined in the bedroom window and went outside in his shorts where he saw the officer.

Opinion

(1) Defendant predicates his argument that he was not proven guilty of murder beyond a reasonable doubt primarily upon the premise that “the striking of a blow with the fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences and no inference of an intent to kill is warranted from such an act.” An intent to kill is inferred from the vicious character of an assault. People v. Winters, 29 Ill2d 74, 198 NE2d 809. According to the evidence in the instant case the deceased died of cerebral injuries, and in addition had contusions and lacerations on her head, face, neck and arms as well as a fractured nose. The assault being so vicious, we find that defendant’s intention to kill Mrs. Soderberg was proven.

Defendant also argues that “the criminal agency was not proved beyond a reasonable doubt, the pathologist merely stating that the injuries were caused by cerebral injuries.” However, according to the pathologist who testified at the trial, the fatal injuries were caused by blows from a fist.

The evidence in the instant case is sufficient to prove the defendant guilty of murder beyond a reasonable doubt.

(2) (a) Defendant next argues that various statements of the prosecutor in the opening statement and in the argument to the jury were prejudicial. However, no objection to the remarks in question was made during the trial and therefore the issue has been waived. People v. Donald, 29 Ill2d 283, 194 NE2d 227.

(b) Defense counsel attempted to impeach the testimony of a prosecution witness by reading from a statement made by the witness at the coroner’s inquest. After counsel had read a portion of the statement the prosecution objected on the ground that no impeachment had yet been shown. The objection was overruled. After a further, extensive reading from the statement the prosecution again made an objection and it was sustained, the trial judge stating:

Counsel, I have given you an ample opportunity to show any substantial deviation. You haven’t done it. I suggest you go on with this witness.

No objection was made to the statement of the trial judge nor was it of such a nature as to prejudice the defendant in the eyes of the jury (People v. Jones, 29 Ill2d 306, 194 NE2d 239), and in addition the jury was subsequently instructed that the court expressed no opinion on the credibility of any witness.

The trial judge threatened defense counsel with contempt of court only after counsel called a prosecution witness (Officer Casey) as a witness for the defense and persisted in following a line of questioning over sustained objections, of the prosecution and warnings by the trial judge not to repeat questions to which an objection had been sustained. Defense counsel cannot by his own conduct elicit an admonition and then claim error. People v. Smith, 66 Ill App2d 257, 213 NE2d 135.

(c) Defense counsel sought to call Officer Casey, a witness for the prosecution, as a hostile witness. However, no hostility was shown and the trial judge in his discretion denied the request. We find that the, trial judge did not abuse his discretion. People v. Collins, 25 Ill2d 605, 186 NE2d 30.

With regard to defendant’s contention that a recess was improperly denied, upon an examination of the record we find that no recess was ever requested.

(d) None of the instructions in this case was abstracted by the defendant. It is well settled that error cannot be predicated on refused instructions when all of the pertinent instructions given and refused are not abstracted. People v. Miller, 33 Ill2d 439, 211 NE2d 708.

Holding on Appeal

We find that the defendant was proven guilty beyond a reasonable doubt and that he received a fair trial. Therefore the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: ALLOY, J. CORYN, J.,

license: Public Domain

text:
    Martin N. Neurohr, Plaintiff-Appellant, v. Masten Richmond, Defendant-Appellee.
    Gen. No. 65-91.
    Third District.
    January 4, 1967.
    Rehearing denied January 24, 1967.

      Wolslegel & Armstrong, of Ottawa, for appellant.
    Hupp & Irion, of Ottawa, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of LaSalle County, following action of the trial court in granting to defendant Masten Richmond, a judgment notwithstanding the verdict. The jury had returned a verdict for the plaintiff Martin N. Neurohr in the sum of $27,500. The jury had also answered a special interrogatory submitted by defendant on the question of contributory negligence to the effect that plaintiff was not guilty of contributory negligence. The basis of the allowance of the motion for judgment notwithstanding the verdict by the trial court was that plaintiff was contributorily negligent as a matter of law. The trial court denied defendant’s alternative motion for a new trial.

On appeal in this court, plaintiff urges that the question of contributory negligence was one of fact for the jury. The defendant contends that the trial court properly set aside the verdict of the jury and the answer of the jury to the special interrogatory, and also asserts that the court should have allowed defendant’s motion for a new trial on the ground that the verdict of the jury and the answer of the jury to the special interrogatory were against the manifest weight of the evidence. Defendant prays alternatively that if the judgment is not affirmed that this court remand the case for a new trial.

The record discloses that on a clear, sunny day at 9:30 a. m. defendant was driving his 1958 Oldsmobile in a southerly direction on a gravel road in Kutland Township, LaSalle County, Illinois, approaching an intersection. East-west traffic at the intersection was controlled by stop signs. The intersection was described as a “bad one” because of a hill just to the south of the intersection. The north-south road was 22 feet wide and the east-west road was 15 feet wide. It was indicated that defendant had a clear view in the direction in which he was driving for three quarters of a mile as he approached the intersection where his automobile collided with plaintiff’s eastbound truck. It was shown that defendant had driven over the road many times and was familiar with the hill which crested approximately 100 feet south of the intersection.

Defendant testified that although he was looking at the road he did not see plaintiff’s truck prior to the time of impact. Defendant asserted that it was his opinion that the impact occurred at the center of the intersection. Damage to defendant’s car was on the right front and on the right side. The truck was struck at the left front wheel and was turned upside down on the west side of the road to the south of the intersection. Plaintiff was thrown out of the truck and was lying in the ditch with a broken right leg. Defendant estimated his speed at approximately 45 miles per hour although he did not know his exact speed. Defendant stated he did not have time to apply his brakes and was only 10 to 15 feet from the truck when he first noticed it. There were no skid marks on the road north of the point of impact and apparently the impact occurred just to the east of the center line of the northbound lane of the north-south road and in the eastbound lane of the east-west road.

Plaintiff testified that he was driving east on the east-west gravel road approaching the intersection. Because of the hill to the south of the intersection, he stated, it was difficult to see to the south at the intersection. He testified that he stopped a little past the stop sign and looked in both directions. He also testified that he observed defendant’s southbound car about 300 feet down the road to the left (the north side of the road on which he was traveling) and “figured” that he had time to cross the intersection. He shifted gears and started to cross going five to ten miles an hour and keeping his eyes to the right due to the dangerous hill crest about 100 feet south of the intersection. At the time he looked to the left the defendant’s car was between the first and second telephone poles on the east side of the road. There was some controversy as to how far this would have put defendant’s car from the intersection (between 300 and 450 feet). Plaintiff apparently looked at defendant’s car coming and after he had determined that he had time to cross ahead of such automobile he did not look again in the direction of the defendant’s car but was watching the area to his right which he considered a more dangerous area from standpoint of traffic.

On a motion for judgment notwithstanding the verdict, the basic question raised is whether there is any evidence which taken in its aspects most favorable to the plaintiff, proved or tended to prove the cause of action (Moss v. Wagner, 27 Ill2d 551, 190 NE2d 305 (on remand 44 Ill App2d 180, 194 NE2d 481); Guidani v. Cumerlato, 59 Ill App2d 13, 207 NE2d 1). On the basis of the record before us, it is obvious that the jury could properly have concluded that defendant was negligent. The next basic question is whether the trial court properly concluded that the plaintiff was guilty of contributory negligence as a matter of law. The record in this cause showed that plaintiff stopped for the stop sign. It also showed that he looked and seeing defendant’s car either 300 or 450 feet away concluded that he could safely cross the intersection. Plaintiff could reasonably have concluded that other automobiles not yet visible behind a hill that crested about 100 feet south of the intersection (defendant’s evidence indicated 258 feet) might have been closer to the intersection than was defendant’s car. On appeal in this court, the appellee emphasizes that plaintiff did not again look to' his left to see where defendant’s automobile was and that this circumstance justified the conclusion of the court in granting the motion for judgment notwithstanding the verdict as a matter of law, on the theory that a “second look” was required.

It is the duty of a trial court to determine as a matter of law whether or not there is any evidence, which, taken with its intendments most favorable to plaintiff, tends to establish that plaintiff was in the exercise of due care (Pennington v. McLean, 16 Ill2d 577, 158 NE2d 624). If there is such evidence, the issue of due care is a question of fact for the jury. On the facts before us, whether .the automobile driven by defendant was approaching the intersection so closely as to constitute an immediate hazard to plaintiff so that plaintiff should not have entered the intersection was a question of fact for the jury (Pennington v. McLean, supra; Emond v. Wertheimer Cattle Co., Inc., 19 Ill App2d 389, 153 NE2d 870). To assert that the plaintiff was guilty of contributory negligence as a matter of law for failure to look a second time is also inconsistent with precedents in this state (Quigley v. Crawford, 19 Ill App2d 454, 153 NE2d 867; Ritter v. Hatteberg, 14 Ill App2d 548, 145 NE2d 119; McDonald v. Stiner, 342 Ill App 651, 97 NE2d 573; Hamilton v. Family Record Plan, Inc., 71 Ill App2d 39, 217 NE2d 113). In Quigley v. Crawford, supra, the court determined that the question of contributory negligence was one for the jury when plaintiff looked in both directions when she .was. at a point 300 to 400 feet from the intersection and did not look again though if she had looked again she “could have seen the defendant’s car.” The, precedents in this state have not arbitrarily concluded that a person about to enter the intersection would be guilty of contributory negligence if he did not take a “second look” or “third look,” but such cases have consistently concluded that whether or not such person is guilty of contributory negligence was for the jury to determine. The jury might have concluded, under the facts before us, that a second look or a third look was required of plaintiff and if such was the jury’s conclusion the court would not disturb it.

There was some discussion as to location of the stop sign and the distances involved at the intersection, none of which, on the basis of the record before us, do we consider conclusive or justifying the entry of the order for judgment notwithstanding the verdict. As stated in De Legge v. Karlsen, 17 Ill App2d 69, at 79, 149 NE2d 491:

“. . . Defendant here exercised his judgment and ‘thought’ there was sufficient time for him to cross the intersection. We cannot say that under the circumstances reasonable men would not differ as to whether his judgment was good or bad, therefore, it was for the jury to determine whether his judgment came up to the standard of the average man in the community.
“The conception that a motorist on a road protected by stop signs has the right of way over motorists on intersecting subordinate streets does not mean that the latter, having stopped at the stop sign, must refrain from crossing the favored street whenever another vehicle is approaching thereon, no matter how far distant.
“. . . the motorist confronted by a stop sign may, exercising reasonable care, proceed over the crossing after he has stopped and yielded the right-of-way to such vehicles on the through road as constituted an ‘immediate hazard,’ the question whether a particular vehicle constituted such a hazard in a particular case being one for the jury. . . .”

We must, therefore, conclude that under the record in this cause, the entry of the judgment notwithstanding the verdict was improper and should be reversed.

On the basis of the record, also, the jury was justified in determining that the negligence of the defendant was the proximate cause of the accident and plaintiff’s injuries, and under such circumstances this determination was also a question of fact for the jury (Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74). We likewise conclude, on the basis of the record, that the general verdict of the jury and the special finding of the jury are not against the greater weight of the evidence. The trial judge was correct in denying such motion for new trial.

In viewing defendant’s conduct, it is obvious that he traveled along a road he knew well on which he had a clear view at a speed not specified but around 45 miles per hour; that he did not slow down in spite of the hill which both parties considered dangerous and that he ran into plaintiff’s six foot high blue pickup truck in the wrong lane of traffic or partially out of his lane without seeing the truck until it was 10 or 15 feet away.

On the basis of the record before us, therefore, the cause will be reversed with directions to the trial court to vacate the judgment notwithstanding the verdict and to enter judgment on the verdict in favor of plaintiff and as against defendant in the sum of $27,500 and costs.

Judgment reversed with directions.

STOUDER, J., concurs.

CORYN, J.,

dissenting:

I disagree with the majority opinion in this case, as I believe that the trial court was correct in granting the defendant’s motion for judgment notwithstanding the verdict. There was no significant conflict of evidence in this case, and all the evidence on the issue of liability came from the testimony of the plaintiff and defendant. The testimony of the plaintiff and defendant do not contradict one another. The only conflict in the evidence is in the opinion by the plaintiff of the distance from the intersection where the accident occurred to the hill to the south of this intersection, and the measurement of this distance by Deputy Sheriff William Dummett. Defendant testified that he was driving his automobile in a southerly direction on a preferred gravel road at an estimated speed of forty-five miles per hour. He says he had a fairly good view of the intersection, but did not see plaintiff’s truck until he was ten to fifteen feet from said truck, at which time he took his foot off the accelerator, but did not have time to apply the brakes before the impact.

Plaintiff stated he was driving his half-ton pickup truck in an easterly direction along a gravel road, and was approaching the intersection of this road with a north-south gravel road, and that the traffic upon the road he was traveling was required by a sign to stop for traffic on the north-south road. It was a clear, sunny day. He stated that there is a hill seventy-five to one hundred feet south of this intersection, and that it is difficult for a driver approaching this intersection from the west, as he was, to see to the south because of an embankment on the south side of the east-west road. Neurohr stated that he came to a stop at the intersection, and looking to his left, observed the Richmond car about 300 feet to the north on the preferred gravel road. He said he figured he had time to cross the intersection. Therefore, he kept his eyes to the right because of the hill which was seventy-five to one hundred feet south of the intersection, and then shifted gears and proceeded into the intersection at a speed of approximately five to ten miles per hour. The vehicles collided in the intersection. He said he merely glanced at the defendant’s vehicle, as he was more worried about traffic that might be coming from his right. Neurohr testified that he never again looked back to his left after this glance, and that he was looking to his right when the accident occurred. Neurohr made no estimate of the speed of the defendant’s vehicle. The hill to the south of this intersection was measured by Deputy Sheriff William Dummett to be 258 feet from the center of the intersection, rather than seventy-five to one hundred feet as stated by the plaintiff.

In an automobile negligence case, a plaintiff is required to prove that he was exercising due care for his own safety at the time of the occurrence, or, to phrase it another way, that the plaintiff was free from contributory negligence at the time of the occurrence. Contributory negligence is conduct for which the plaintiff is responsible amounting to a breach of the duty which the law imposes on persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which the defendant is responsible, contributes to the injury complained of as a proximate cause. The standard by which conduct for which the plaintiff is responsible is measured is the conduct of an ordinarily prudent person under the same or similar circumstances. Whether due care has been exercised, or whether the plaintiff has been guilty of contributory negligence, depends on the circumstances of each particular case. 28 ILP, §§ 121, 122, 123, Negligence.

I am of the opinion that under the evidence in this case the only logical conclusion that can be reached is that the plaintiff was guilty of contributory negligence as a matter of law. The plaintiff was an experienced driver familiar with the intersection at which the accident occurred. When he stopped at the stop sign and made a momentary glance to his left he discovered defendant’s vehicle approximately 300 feet from the intersection. The plaintiff made no estimate of the speed of the defendant’s vehicle, and the only evidence in the record regarding this speed is the defendant’s testimony that he was traveling approximately forty-five miles per hour. At a speed of forty-five miles per hour, a distance of 300 feet will be traveled in four and one-half seconds, as an automobile moves sixty-six feet each second at forty-five miles per hour. Having discovered this danger in the presence of defendant’s vehicle, a reasonably prudent man, in my opinion, would wait until the known danger from his left had passed, and then keeping an eye to his right for cars coming over the crest of the hill to the south, would have proceeded safely into and through the intersection. That the defendant’s vehicle constituted an immediate hazard within the meaning of the applicable statute (c 95½, Ill Rev Stats § 167 (c)) would have been evident to the plaintiff had he taken a longer look or made additional looks to his left before entering the intersection.

In Ritter v. Nieman, 329 Ill App 163, 67 NE2d 417, at 171, the duty of a motorist obliged to stop at a stop sign was defined in the following language:

“What is the purpose of a stop sign? Certainly, it does not signify that a motorist should stop, and then blindly proceed through a protected intersection without determining that he can do so with reasonable safety. The operator of a motor vehicle, when he stops at a preferred highway, should ascertain if he can proceed safely across such highway. If he cannot, he should not enter it. Merely stopping some place near a stop sign does not necessarily discharge one’s duty. There is no virtue in stopping at a place where one cannot see. A stop sign is a challenge to a motorist to stop at a point where, by the use of one’s faculties, one can definitely ascertain if he can safely proceed into the protected ' thoroughfare.”

In the Hering v. Hilton case, 12 Ill2d 559, 147 NE2d 311, the suit proceeded to trial on a single count of ordinary negligence. At the close of the plaintiff’s evidence, the defendant was permitted to file an affirmative de"fense alleging that his work in maintaining the public roads for Bushnell Township, because of the doctrine of governmental immunity, relieved him from liability for ordinary negligence. Subsequently, the plaintiff filed an additional count to his complaint charging the defendant with wilful and wanton misconduct. The trial court denied the defendant’s motion for a directed verdict on the wilful and wanton count, and the jury returned a verdict awarding the plaintiff damages in the amount of $7,000. The defendant appealed from the judgment entered on this verdict, and the Appellate Court reversed the ease, holding that the defendant was not guilty of wilful and wanton conduct as a matter of law.. The Illinois Supreme Court reversed the Appellate Court, and in so doing stated;

“It is evident that the stop sign alerted defendant to the dangers of the intersecting highway, and imposed upon him a duty of waiting until he could traverse the preferred highway with safety. This the defendant failed to do. After his initial stop, he failed to keep a lookout, even though he knew that a vehicle was approaching from the west, and he entered the intersection without again looking in that direction to ascertain if it was safe to proceed, and without heeding a warning of plaintiff’s car horn. Inasmuch as such conduct plainly involved an unreasonable risk with a high probability of danger, of which defendant should have had knowledge, the wilful and wanton count could have been properly submitted to the jury.”

The underlying principle upon which I base my opinion that the trial court was correct in determining that the plaintiff was guilty of contributory negligence as a matter of law in the instant case is that “[0]ne cannot knowingly expose himself to danger and subsequently recover damages for an injury which, by the employment of reasonable precaution and circumspection, he might have entirely avoided.” Carter v. Winter, 82 Ill2d 275, 204 NE2d 755, at 284.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Butler, Defendant-Appellant.
    Gen. No. 50,619.
    First District, Third Division.
    January 5, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, 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 Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was tried by jury for the crimes of rape and burglary with intent to commit rape. After a finding of guilty on both counts, he was sentenced to serve from 14 to 25 years in the penitentiary. On appeal he contends that (1) the State failed to prove guilt beyond a reasonable doubt; (2) the improper argument of the prosecutor prejudiced the jury; (3) the trial court erred in providing the jury with only one not guilty verdict although two separate crimes were charged. No evidence was offered on behalf of defendant, and the case rests on the testimony of the complaining witness as corroborated in substantial aspects by her son, her pastor and the arresting officers.

The prosecutrix Frances Farmer lived in a first floor apartment in Chicago with her three children. She testified that at about 4:00 a. m. on April 22, 1964, she and her 11-year-old son were awakened by a knock at the door. They did not open it, but asked the person to identify himself. The caller said, “I want Melvin,” to which Mrs. Farmer replied, “Melvin does not live here.” When he left, Mrs. Farmer raised a window and observed a man under a streetlight in front of the building. She asked him, “Why don’t you try the other two floors, maybe Melvin lives up there,” but the man disappeared without replying. At the trial Mrs. Farmer and her son identified the defendant as the person they had seen under the streetlight.

The following day, April 23, Mrs. Farmer was asleep in bed with her 7-year-old daughter when about 4:00 a. m. she was awakened by an intruder who knelt at the bed holding a gunlike object and said, “Don’t move and don’t holler, this is a gun, if you holler, I’ll kill you and your children, too.” He placed a rag over her face and proceeded to have intercourse with her. She testified that during the act of intercourse she was able to move the rag from her eyes and get a good look at the man, whom she later identified as the defendant. Her daughter remained asleep throughout the occurrence. When the attacker finished, the prosecutrix said (in order, as she later testified, to trap him): “You can leave by the back door,” and as he left she said, “Now you be sure to come back now.” She then awakened her children and her son ran out and stopped a passing motorist, who took them to the police station. Mrs. Farmer was taken to Mount Sinai Hospital where an examination revealed the presence of sperm. She then returned to her apartment.

At about 2:00 o’clock that afternoon she was awakened from a nap by a knock at the door. She went to the window and observed the defendant in a car parked in front of the building. Thereafter she called the police to report the license number of the car and to inform them that she had spoken with the man in the parked car and asked him to return at 5:00 o’clock. According to the prosecutrix, this was another attempt to arrange a trap.

Later in the day she called her pastor, Reverend J. M. Stone, and asked him to come over with a gun so that he might protect her in the event the defendant returned. Defendant did not return at 5:00 o’clock. At about 9:00 o’clock that evening Police Officer John Palmer went to the apartment building. He met Reverend Stone on the street and when they entered the building, they saw the defendant knocking on Mrs. Farmer’s door. When they asked him to explain his presence, he replied that he had a date with the lady who lived at that address, that he had met her earlier in the day but did not know her name. Officer Palmer arrested the defendant, searched him and found a toy pistol. When questioned regarding the pistol, he said it belonged to his son and that he had other toys in his car. Palmer and another policeman searched the car, but did not find any toys. The prosecutrix returned home while the arrest was in progress. The officer asked her if the defendant was the man she had observed and she replied, “That’s him, that’s him right there.” Mrs. Farmer’s testimony was corroborated by the testimony of her son and that of the police officers and of Pastor Stone. Defendant offered no testimony, but contended nevertheless that the State failed to prove him guilty beyond a reasonable doubt. There is no merit in this contention.

The prosecutrix and her son both identified the defendant and gave the police an accurate description of him. He was apprehended at the door of her apartment and at that time had a toy gun in his possession. This and the other evidence establishes the State’s case. Counsel appears to be under the misapprehension that some special rule applies to the corroboration of the testimony of a prosecutrix in a rape case. He relies on Lord Hale’s dictum that rape is easy to charge, hard to prove and harder to defend against. With all due regard for this ancient truism, it does not supplant the legally established measure of proof that the evidence should be sufficient to support a finding of guilt beyond a reasonable doubt. People v. Mack, 25 Ill2d 416, 185 NE2d 154. The testimony of one witness may be sufficient to identify a defendant as the perpetrator of a crime. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; People v. Tunstall, 17 Ill2d 160, 161 NE2d 300.

Defendant contends that the State did not prove that the act of intercourse was against the will of the prosecutrix. He points to Mrs. Farmer’s testimony that her daughter lay quietly beside her at the time of the occurrence. This, it is argued, shows that she did not struggle with the intruder. The evidence is conclusive, however, that defendant had what appeared to her to be a gun, a toy gun, to be sure, but nevertheless what appeared to the prosecutrix to be a weapon.

That there were inconsistencies in the testimony of the prosecutrix, as argued by defendant, is true. There are few cases in which there are not some such inconsistencies. She testified at the preliminary hearing that defendant forced her to remove her “slip, panties and topper.” At the trial, however, she testified that she had been wearing only a half slip and that he did not have to remove it. Considering the conclusive evidence that the intercourse was against the will of the prosecutrix, this cannot be regarded as important. Immediately following the event in question, she asked the aid of a passing motorist, went to the police station, maintained close contact with the authorities, and enlisted the aid of her pastor in an attempt to trap the rapist. Her conduct was thoroughly inconsistent with the theory of consent, and her plan for trapping her attacker, although unusual, proved successful. There is ample evidence that she had reason to fear for her own safety and that of her children.

During the course of the closing argument the prosecutor referred to the defendant as a “beast,” and defendant now argues that since there was no evidence of bestiality in the record, the remark unjustly imputed deviate conduct to the accused and was therefore im: proper and prejudicial. He cites People v. Garreau, 27 Ill2d 388, 189 NE2d 287. In that case the prosecutor said the defendant would rape a dog and every member of the jury if given the opportunity. This clearly denoted bestiality. In the instant case the reference to defendant as a beast did not imply bestiality, but only brutishness, as that term is commonly used. Also, his closing argument related to defendant’s failure to deny that he was the man who committed the offense when in identifying him, Mrs. Farmer said, “That’s him, that’s him right there.” The prosecutor told the jury that under such circumstances silence constituted a tacit admission of guilt. Although the defendant did not object to this argument at the trial, he now contends that the comment was made solely for prejudice. Our courts have observed that it is the nature of innocence to be impatient of a charge of guilt, and that an innocent person will usually spontaneously deny an accusation. If the accused heard the accusation and had the opportunity to reply but failed to do so where a man similarly situated would ordinarily have denied the imputation, his silence may be deemed an admission. People v. Smith, 25 Ill2d 219, 184 NE2d 841; People v. Bennett, 3 Ill2d 357, 121 NE2d 595; People v. Nitti, 312 Ill 73, 143 NE 448. The comments of the prosecutor are supported by evidence of the accusation and by the defendant’s failure to respond. Moreover, the argument to the jury was not objected to and does not warrant a reversal in any event.

The final point raised is that the court erred in providing the jury with only one not guilty verdict, when the defendant was charged with two separate crimes. The crimes were separate counts of the same indictment and were based on the same occurrence. We must credit the jurors with sufficient intelligence to acquit the defendant on one or the other of the counts if they saw fit to do so.

The evidence proved that defendant was guilty beyond a reasonable doubt, and we find no reversible error in the record. The judgment is affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE McCORMICK

text:
    R. D. Meyer, Plaintiff-Appellee, v. Southern Railway Company, Defendant-Appellant.
    Gen. No. M-50,499.
    First District, Fourth Division.
    December 23, 1966.

      Bruce E. Brown, of Chicago, for appellant.
    H. Haskell Lurie, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

This action was brought for alleged damage to a carload of produce during shipment from McClintock, Colorado, to Birmingham, Alabama. The case was tried by a magistrate without a jury. The magistrate found the issues for the plaintiff and entered judgment in favor of the plaintiff in the sum of $1,048.53.

The facts as to the movement of the shipment are not in dispute. On July 30, 1960, the Southern San Luis Valley Railroad Company received a carload of lettuce and spinach from Mizokami Bros. Produce at McClintock, Colorado, consigned to J. Weingarten, Inc., at Houston, Texas. The routing as shown in the bill of lading was “SSLV-DRGW-C&S-FWD.” On August 4, 1960, Mizokami Bros. Produce sent a diversion order to the Fort Worth & Denver Railroad Company at Houston, Texas, which read in part

ART 32523 lettuce out McClintock, Colo., July 30th, now consigned J. Weingarten, Inc., Houston, Texas routed SSLV-DRGW-C&S-FWD; Std. Refrigeration 3% salt based on amount ice supplied.
Divert to: DEKLE BROKERAGE CO., Birmingham, Ala., routed: SSLV-DRGW-C&S-FWD-Houston-MOPAC-New Orleans-SOU; Change service to Standard Refrigeration, 5% salt at each regular icing station based on amount ice supplied, protect thru rate.
MIZOKAMI BROS /a/ Dick Winn

Accordingly, the shipment moved from Houston to New Orleans by Missouri Pacific; from there it was moved by the New Orleans and Northeastern Railroad Company to Meridian, Mississippi, then by the Alabama Great Southern Railroad Company into Birmingham, Alabama, its final designation.

The New Orleans and Northeastern Railroad Company is a Louisiana corporation; the Alabama Great Southern Railroad Company is an Alabama corporation; the Southern Railway Company is a Virginia corporation; all of them are members of the Southern Railway System. Southern Railway System is not a legal entity. The Southern Railway Company does not have any line of railroad between New Orleans, Louisiana and Birmingham, Alabama. It does, however, have extensive lines of railroad in Birmingham, and the warehouse of Dekle Brokerage Company (the consignee in the diversion order) was served by spur tracks jointly by the Southern Railway Company and the Alabama Great Southern Railroad Company. It appears from the record that the Southern Railway Company did not handle the shipment herein involved. It is uncontradicted that the defendant did not receive any of the freight charges, nor did it pay any of the costs of handling the shipment. The freight bill was issued on a printed form of the Alabama Great Southern Railroad Company; superimposed on the top of the printed form was the stamp of the Southern Railway Company. The freight bill is stamped paid, and this stamp bears the name, Southern Railway Company; underneath the name are the initials A.G.R.R. The shipper, Mizokami Bros. Produce, assigned its claim to plaintiff, R. D. Meyer, for a recited consideration of One Dollar.

The lettuce and spinach were in good condition when received by the initial carrier, SSLV Railroad Company; when delivered at destination they were in a decayed condition, with approximately 60 percent bacterial soft rot.

On January 6, 1965, the trial court entered judgment on its findings in favor of the plaintiff, R. D. Meyer, and against the defendant, Southern Railway Company, in the sum of $1,048.53. From that judgment the defendant took an appeal. At the time the judgment was entered the court made the following oral statement in open court:

“I was very much concerned with the Carmack Amendment, . . . and the common law liability, if there is no conflict, could impute liability on the defendant railroad company, here, who, it is agreed upon, was not the delivering carrier — rather, the delivering carrier was the Alabama, Great Southern Railroad Company.”

The court further said:

“. . . it didn’t take the Court long to determine that the defendant, Southern Railway Company, was probably responsible as a corporation involved, rather than the Southern Railway System, in my opinion, and that is one of the findings I make. (6
“One [issue of fact] that concerned me most was whether or not — in 63 M 1588 — whether we could determine that the Southern Railway Company is responsible, even though we all agree that the Alabama, Great Southern Railway Company delivered car . . .
“The Court feels that in that capacity, they acted as agents of the Southern Railway Company, and therefore the Southern Railway Company is liable, if the specific negligent acts were created, in fact, by the Alabama, Great Southern Railway Company, so that there was a major point that concerned the Court to a great extent, . . . a
“I believe that the Carmack Amendment does include, under these circumstances, that not only was the delivering carrier, or one who had the responsibility of delivering, but also the original carrier, would also be responsible, if it uses on its own, another railway company as its agent, and that will be the finding that I have concluded.”

The court then orally pronounced judgment. How the trial court reached its conclusion is not clear; to make such a determination the court must necessarily have found that the Southern Railway Company was the delivering carrier. The only question in the suit is the application of the Carmack Amendment, 49 USC § 20(11). Under the Amendment it is affirmatively required that the initial carrier issue a receipt or bill of lading when it receives property for transportation from a point in one state to a point in another. Southern Pac. Co. v. Stewart, 245 US 359, 62 L Ed 349, 38 Sup Ct 130. The initial carrier is also made liable to the lawful owner thereof for any loss, damage or injury to the property caused by it. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 US 319, 60 L Ed 1022, 36 Sup Ct 555. It is also made liable for* any loss, damage or injury to such property by any common carrier, railroad or transportation company to which such property may be delivered or under whose line or lines such property may pass within the United States when transported on a through bill of lading. St. Louis, I. M. & S. R. Co. v. Starbird, 243 US 592, 61 L Ed 917, 37 Sup Ct 462. In the case before us the uniform straight bill of lading was issued by Southern San Luis Valley Railroad Company; thus, as the initial carrier, SSLV would have been responsible for the initial damage or for any damage on the connecting lines, on the theory that the SSLV had appointed such connecting lines its agents. The question of any possible liability of SSLV is not involved here.

The entire weight of plaintiff’s argument and the trial court’s finding is that the defendant was liable under the further provision of the Carmack Amendment which is:

“. . . any common carrier, railroad, or transportation company delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such propperty may be delivered or over whose line or lines such property may pass within the United States 99

In order to reach such conclusion the court must take the view that the diversion order rerouting the shipment of produce from Houston to New Orleans was a direction to route it over the Southern Railway Company. As a matter of fact, the Southern Railway Company has no railroad line running from New Orleans to Birmingham, although it does have lines in Birmingham, and the spur tracks leading to the Dekle Brokerage Company in Birmingham, Alabama, were jointly owned by the Southern Railroad Company.

The Carmack Amendment further provides that the delivering carrier shall be construed to be “the carrier performing the line-haul service nearest to the point of destination and not a carrier performing merely a switching service at the point of destination.” The trial court’s determination must have depended upon its interpreting the “SOU” as meaning the Southern Railway Company and not the Southern Railway System. The Alabama Great Southern Railroad Company was the last carrier to bring the car into Birmingham. It is a member of the Southern Railway System. It is apparent from the record that the Southern Railway System is a complex system of railroad companies, and that in some instances, in cooperation with its member companies, it maintains joint employees and allocates the proportion of freight charges to each of its constituents.

The Southern Railway Company did not have any contact with the shipment in question. The plaintiff and the trial court relied heavily on Mirski v. Chesapeake & Ohio Ry. Co., 31 Ill2d 423, 202 NE2d 229; however, that decision, while factually in point, is not determinative of the issue here. In that case the plaintiff had purchased 1,715 boxes of cherries which were shipped to Chicago, then at plaintiff’s direction the shipment was diverted to Cincinnati, Ohio, arriving there aboard the defendant carrier. It was not contended that there was any undue delay in transportation. When the car was opened the cherries allegedly were found to be in a state of decay. That case turned on two issues: 1) whether plaintiff established a prima facie case of liability which defendant failed to rebut; and 2) if so, whether the appropriate measure of damages was applied.

In the case before us there is neither the question of proving a prima facie case of liability, nor the question of damages. Accepting the alleged damages to be a fact, and that the proper measure of damages was applied, the question that must first be determined, and the sole issue before this court, is whether the Southern Railway Company is a proper party to "assume this liability and pay the damages.

There is uncontradicted evidence in the record that in the routing order “SOU” was intended to mean that the shipment be made by the best route over the Southern Railway System lines, and this custom was not only used within the system, but by other shippers and carriers. It would seem farfetched to interpret “SOU” as meaning that the shipper would designate the Southern Railway Company when it did not have lines running from New Orleans, Louisiana to Birmingham, Alabama. Arrangements between corporations for economy and convenience do not necessarily make the parties generally responsible for each other’s liabilities.

Plaintiff cites cases which hold that where one railroad acts as agent to another railroad in transporting a particular shipment, liability will result. Missouri Pacific v. Reynolds-Davis, 268 US 366, 69 L Ed 1000, 45 Sup Ct 516, was cited by plaintiff, but is inapplicable here, since there is no proof of the employment of the Alabama Great Southern Railroad by the Southern Railway Company. Also, this case was decided before the enactment of the Carmack Amendment. The other cases cited by the plaintiff follow the principle that each connecting carrier on through routes in the transportation of a shipment is the agent of the initial carrier to perform the contract. Those cases are not applicable here, since the Alabama Great Southern and the defendant, Southern Railway Company, were not connecting carriers on that shipment. Chicago, R. I. & P. R. Co. v. North American Cold Storage Co., 244 Ill App 522, holds that the Chicago, Rock Island & Pacific Railroad, which transported the car from Omaha, Nebraska to Chicago, was the delivering carrier, and that the Pennsylvania Railroad Company, which performed a switching service at the destination, was the agent of the delivering carrier and was not the proper party-plaintiff in a suit in replevin to recover the shipment which had been misdelivered. There is nothing in the record before us to indicate that the Alabama Great Southern was performing a switching service, nor is there anything in the record to show that the defendant ever had possession of the shipment, or ever did anything to engage the Alabama Great Southern to make the delivery, or to indicate that it acquiesced or consented to such delivery. Nor is there anything in the case to show that the defendant had in any way assumed any responsibility for the delivery.

In order to prove a prima facie case the plaintiff must prove by a preponderance of the evidence that the defendant was the delivering carrier and that the goods were delivered to it. Upon proving such facts, the plaintiff makes out a prima facie case and the burden of going forward shifts to the defendant carrier. Missouri Pac. R. Co. v. Elmore & Stahl, 377 US 134, 12 L Ed2d 194, 84 Sup Ct 1142. Plaintiff’s reliance on cases such as the Sun Insurance Office v. Be-Mac Transp. Co., 132 F2d 535, is misplaced. In order to so rely, the plaintiff must take as a fact not only that “SOU” in the diversion order meant Southern Railway Company, but also that the Southern Railway Company had actually come into possession of the car in question. Only if those issues were proven could the question of agency arise.

The judgment of the Circuit Court of Cook County, First Municipal District, is reversed.

Reversed.

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


author: MR. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Chavis, et al., Defendants-Appellants.
    Gen. Nos. 50,153, 50,154, 50,155, 50,156 and 50,157.
    First District, Fourth Division.
    January 4, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, of counsel) , for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants, Anthony Strong, Wesley Bynum, Dennis Bynum, William Monroe and William Chavis, were jointly indicted and tried (in a bench trial) for attempted murder, attempted robbery and aggravated battery. They were found guilty “in manner and form as charged in the indictment.” Chavis, Monroe and Dennis Bynum were sentenced to the penitentiary. Strong and Wesley Bynum were sentenced to the Youth Commission. Each defendant filed a separate appeal, all of which were consolidated upon motion of the defendants.

Contentions on Appeal

I. Anthony Strong

A. Evidence which was obtained by an illegal search and seizure was erroneously introduced at the trial;
B. The evidence was insufficient to prove him guilty of attempted murder because the requisite intent to commit murder was not shown.

II. The Remaining Four Codefendants

A. Their alleged confessions were inadmissible and no other competent evidence was adduced connecting them with an attempt to commit murder.
B. The requisite intent to commit murder was not proven.
C. Alternatively, their sentences should be reduced because the evidence does not show that they intended to murder the complaining witness.

Evidence at Trial

According to the evidence adduced by the prosecution, on May 6, 1964, at approximately 9:00 p. m., defendants Strong and Chavis entered Harry’s Liquor Store, ordered a short beer and walked out. Shortly thereafter Strong and Chavis reentered the store, Chavis went to the rear and ordered a beer from the bartender (Elijah Brown) and Strong went to the cash register in front, where he was approached by the operator of the liquor store, Harry Berkowsky. Strong pointed a gun at him and announced that “This is a stickup,” after which he (Berkowsky) grabbed for a gun which was beneath the counter and was shot by Strong. (Berkowsky could not remember whether he fired any shots at Strong, but Strong stated that he fired at Berkowsky after the latter grabbed a gun and started shooting.) Elijah Brown rushed to the front of the store but Strong had fled; he grabbed Berkowsky’s gun and held it on Chavis until the police arrived.

Chavis was arrested, after which he described the other four defendants and said that they lived at 1668 Christiana. Wesley Bynum and William Monroe were arrested by Officers Roney and Phelan who were en-route to that address, and were taken to the liquor store where they were identified by Chavis. Wesley Bynum was left in the company of other officers and Officers Roney and Phelan rode around the neighborhood of the Christiana address in the company of Monroe. Monroe told them that Strong had shot Berkowsky and also admitted his own complicity in the attempted robbery, stating that:

(1) along with Wesley Bynum and another boy, he obtained a clothes line and was waiting outside the store until an “all clear signal was given; (2) that they were then going to enter the store and tie up the patrons; and (3) they heard shots and ran. Monroe further told the officers that Strong was shot and, as far as he knew, Strong was at home. Officers Roney and Phelan then returned to the liquor store, informed the other officers of their conversation with Monroe and, along with two other officers (and Monroe), proceeded to the Christiana address where Anthony Strong lived with his family in a third-floor apartment. The officers entered and searched Strong’s apartment after being told by his sister that Strong had been taken to the hospital with a bullet wound. In a search of Strong’s bedroom the officers found a black waist-length jacket, a white shirt with stripes, and a black felt hat (all of which were lying in open view on the bed). There were bloodstains and a hole in the right shoulder of the jacket and shirt. The officers also found a holster in a dresser drawer. Defendants filed a motion to suppress all of the aforesaid items and, after a hearing thereon, only the holster was ordered suppressed. The officers took Monroe to Cook County Hospital where Strong was found and identified by the bartender, Elijah Brown. (Strong was also identified at the trial by Berkowsky, who was unconscious for approximately one week following the robbery.) Monroe and Strong conferred, after which Monroe told the police that the gun was in “Cookie’s apartment.” (Cookie was Dennis Bynum.) The gun was found and Dennis Bynum was subsequently arrested. At the police station Dennis Bynum admitted his complicity in the attempted robbery, identified himself as the third person who was outside the liquor store awaiting the “all clear” signal, and related the same facts as those told to the police by William Monroe upon the latter’s arrest. Subsequently Chavis gave the police a confession implicating all of the defendants herein which he signed and which was also signed by Monroe and Dennis Bynum. Wesley Bynum, who claimed he could not read or write, did not sign the statement but acknowledged that it was accurate.

At the trial all of the defendants denied attempting to rob the liquor store but admitted that they had considered it. Strong admitted entering the store with Chavis, with a gun in his possession, but stated that he only wanted a pack of cigarettes. Monroe and Dennis Bynum stated that they signed the confession only as witnesses, but according to Chavis the police were asking questions of all the defendants and they all signed the confession as their own. Wesley Bynum stated that he refused to sign the confession because he didn’t attempt to rob the store.

Evidence at Hearing on Motion To Suppress

At this hearing Officer Phelan testified that the officers knocked on Strong’s apartment door with their guns drawn; that a sister of Strong opened the door and informed them that Strong had been taken to the hospital by their parents because he had been shot; that she granted them permission to search the apartment; and that they found the aforesaid articles.

Defendant’s sister (Katie Strong) testified that there was a knock on the door; that another sister started to open the door after a voice said “It is me”; that the door was kicked open and the police officers, with guns drawn, demanded to know the whereabouts of “Willie”; that she told them Willie was at St. Charles (Willie was another brother); that they then searched the house and took the articles in question; and that after discovering the articles they inquired as to the whereabouts of her brother, Anthony.

In refusing to suppress the articles found on the defendant’s bed the trial judge stated:

Considering all of the evidence, there could be no doubt that the police had grounds to believe that a crime had been committed. . . .
[T]he police had a right to enter the third floor living quarters [Strong’s apartment] ... in pursuit of Strong who was named by Monroe, who was at least a suspected participant in the crime. Once within the premises in a search for Strong which they had a right to do, I hold that the police had a right to seize anything in open view that appeared to have some connection with the crime.

Opinion

I. Anthony Strong

A. The trial judge was correct in his refusal to suppress the articles of clothing which were lying in open view on defendant’s bed. At the hearing on the motion to suppress Officer Phelan testified that after Monroe was arrested he admitted his participation in the attempted robbery and implicated Anthony Strong; that Monroe further stated that as far as he knew Strong was at home; and that Monroe took the officers to Strong’s home. Moreover, Strong’s address was given to the police by Chavis as being the address where the other participants in the crime could be found. Therefore, when the police arrived at Strong’s apartment they had reasonable grounds to believe that Strong had committed a crime and that he was at home. They could then legally enter the apartment even without the consent of Strong’s sister, who opened the door.

While defendant asserts that the police believed Strong’s sister when she told them that Strong was not at home we find no substantiation for this assertion in the record. In response to the somewhat unclear question: “Did you walk around the apartment with your gun drawn with that fourteen or fifteen year old girl . . .” (referring to defendant’s sister who let them in), Officer Phelan said: “No, sir, we did not.” However, on cross-examination Phelan stated that they entered the apartment looking for Anthony Strong and their guns were drawn “until we determined that Anthony Strong was not in the apartment.” Therefore, once within the apartment in a legal search for Strong, the police had a right to seize anything in open view that appeared to have some connection with the crime. People v. Stewart, 23 Ill2d 161, 177 NE2d 237.

B. Strong was charged in the indictment (in separate counts) with attempted murder, attempted robbery and aggravated battery and the trial judge as trier of fact found him guilty “in manner and form as charged in the indictment.” This finding is sufficient to sustain the conviction on any count of the indictment (People v. Spector, 47 Ill App2d 103, 196 NE2d 507; People v. Strong, 21 Ill2d 320, 172 NE2d 765), and there fore Strong was found guilty on each of the aforesaid counts in the indictment. Defendant does not strenuously contend that the evidence is insufficient to prove him guilty of attempted robbery or aggravated battery. The sentence imposed by the court was within the statutory range for any of the crimes charged in the indictment.

Moreover, in considering defendant’s contention that the evidence does not sustain a conviction of attempted murder, we note that prior to the adoption of the Criminal Code of 1961 (Ill Rev Stats 1963, c 38) there was no crime entitled “attempted murder.” There was, however, the crime of “assault with intent to murder” (Ill Rev Stats 1961, c 38, § 59) which was defined as an attempted murder, as follows:

Whoever attempts to commit murder by poisoning, drowning, strangling or suffocating another, or by any means, shall be guilty of the crime of assault with intent to murder, and punished accordingly.

In Hamilton v. People, 113 Ill 34, the evidence was sufficient to convict the defendants of assault with intent to murder. In that case the defendants were discovered stealing watermelons by the farmer who owned the land and, in the course of events that ensued, they shot at the farmer with a pistol and assaulted him with a hoe. The aforesaid case was relied upon in People v. Bashic, 306 Ill 341, 137 NE 809, where in the court stated at pages 344-345 that:

The principal argument for the plaintiffs in error is, that the evidence for the People proved that if any crime was committed it was the crime of assault with intent to rob and not with intent to kill and murder, and that there being a specific intent to rob, the intent to kill required by the statute and law was lacking. Where the crime charged is an assault with intent to murder, . . . the intent must be . . . proved as charged either by the declaration of the accused or be inferred from the character, manner and circumstances of the assault ....
[A]lthough there is an intent to accomplish one crime there may be an alternative or concurrent attempt to take life.

In the instant case, according to testimony evidently believed by the trier of fact, Anthony Strong pointed a loaded gun at the operator of the liquor store, Harry Berkowsky, announced that “This is a stickup” and severely wounded Berkowsky when the latter reached for a gun while resisting the holdup attempt. Considering the character, manner and circumstances of defendant’s acts we find that the evidence is sufficient to prove him guilty of attempted murder.

II. The Remaining Four Codefendants

Dennis Bynum and William Monroe contend that they signed the confession of William Chavis only as witnesses and not as cosigners thereto. Wesley Bynum contends that he never signed the confession nor that he ever admitted his participation in the crime. According to the testimony of the police, however, Dennis Bynum and Monroe admitted their complicity in the crime and signed in the capacity of cosigners; and while Wesley Bynum did not sign because he stated that he could not read or write, he orally acknowledged the accuracy of the confession. It is an established principle that the credibility of the witnesses is for the trier of fact to determine. In the instant case the trial judge, as trier of fact, believed the testimony adduced by the prosecution and we will not substitute our judgment for his.

Moreover, according to the testimony of the police Chavis, Monroe and Dennis Bynum orally admitted their participation in the crime to the police prior to signing the written confession.

Failure to warn an accused of his right to remain silent or of his right to counsel prior to a confession does not render that confession inadmissible. People v. Kees, 32 Ill2d 299, 205 NE2d 729.

B. The defendants were charged in the indictment (in separate counts) with attempted murder, attempted robbery and aggravated battery and were found guilty “in manner and form as charged in the indictment.” Since this finding is sufficient to sustain the conviction on any count in the indictment the defendants were found guilty on each of the aforesaid counts. It is without question that the evidence supports the conviction of attempted robbery since each of the defendants admitted his participation therein. The Illinois Criminal Code (Ill Rev Stats 1963, c 38, § 5-2) provides that:

A person is legally accountable for the conduct of another when:
(c) 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. . . .

The aforesaid legal responsibility extends to any act committed by such other person in furtherance of the common design. People v. Kolep, 29 I112d 116, 193 NE2d 753. In the instant case, since each of the remaining four defendants admitted his participation in and agreement to the commission of the robbery each is legally accountable for the attempted murder of Harry Berkowsky committed by Anthony Strong during the course of the robbery.

C. We find that the trial judge was justified in imposing the respective sentences.

Holding on Appeal

The judgment of the trial court is affirmed.

Affirmed.

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

       Chavis (age 23) received a sentence of four to ten years; Monroe (age 18), one to ten years; and Dennis Bynum (age 17), two to ten years. Strong and Wesley Bynum were ages 15 and 16, respectively.

       The jacket and hat were identified as being similar to the ones worn by Strong in the robbery attempt. The shirt was never introduced into evidence.

       A gun taken from the Bynum residence in the same building was allowed into evidence and was identified as similar to that used in the attempted robbery. While this gun was also the subject of the motion to suppress, defendants do not urge in this appeal that the court erred in refusing to suppress the gun.

       A person convicted of attempt may be imprisoned for a term not in excess of the maximum period provided for the offense attempted. Ill Rev Stats, 1963, ch 38, § 8-4(c). The maximum imprisonment for robbery is 20 years. Ill Rev Stats, 1963 ch 38, § 18-1 (b).
      The maximum penalty for aggravated battery is ten years in the penitentiary.

       Miranda v. Arizona, 384 US 436, is applicable only to cases in which the trial began after the decision therein in June, 1966, (Johnson & Cassidy v. New Jersey, 384 US 719), and therefore it is inapplicable to the instant case where the trial was held in 1964.


author: MR. JUSTICE DEMPSEY

text:
    Walter Johnson, et al., Plaintiffs-Appellants, v. The Board of Education of the City of Chicago; Frank M. Whiston, et al., Members of the Board of Education of the City of Chicago, and Benjamin C. Willis, Superintendent of Schools, Defendants-Appellees.
    Gen. No. 50,963.
    First District, Third Division.
    January 5, 1967.

      Marshall Patner, of Chicago, for appellants.
    James W. Coffey, of Chicago (Frank S. Righeimer, John T. Mehigan and Michael J. Murray, of counsel), for appellees.
    John W. Hunt, of Chicago, for defendants, Warren H. Bacon, Raymond W. Pasnick and James W. Clement.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs, who are citizens, taxpayers and parents of children attending the public schools of Chicago, brought an action for declaratory judgment against the Board of Education of the City of Chicago, the individual members of the board and Benjamin C. Willis, challenging the latter’s reappointment as General Superintendent of Schools. The reappointment, approved in a regular session of the board on May 27, 1965, by a vote of seven to four, was for a four-year term commencing September 1,1965.

The plaintiffs contended that the decision of the board was void because it had been arranged in a prior executive session of the board and not in a meeting open to the public, as provided by paragraph 42, chapter 102 of the Illinois Revised Statutes of 1963; and further, that the reappointment was really for a period of 16 months — not for a term of four years as required by law (Ill Rev Stats, 1963, c 122, § 34-6) — because it was conditioned upon Willis’ promise to retire upon reaching his 65th birthday on December 23,1966.

Three of the four members of the board who had voted against the reappointment filed an answer to the plaintiffs’ complaint which agreed with the plaintiffs that the majority had circumvented the statute (chapter 122, section 34-6) by exacting from Willis an enforceable commitment limiting his appointment to the 16-month period. The three defendants adopted the position of the plaintiffs and prayed for the same relief.

The remaining defendants moved to dismiss the complaint and the plaintiffs countered with a motion for summary judgment. The defendants’ motion was granted and the plaintiffs’ denied. The plaintiffs appealed.

The principal defendants have moved to dismiss the appeal; their motion asserts that due to events subsequent to the filing of the briefs the case has become moot. In support of their motion and attached thereto is the affidavit of one of the defendants, Frank S. Whiston, President of the Board of Education, which states that Willis submitted his resignation as superintendent in May 1966, to be effective August 31, 1966, and it was accepted by the board on that date.

The plaintiffs oppose this motion and argue that the case is one of public interest and should be decided for the future guidance of board members.

The general rule is that where the issues involved in the trial court no longer exist, a court of review will dismiss the appeal. People v. Redlich, 402 Ill 270, 83 NE2d 736 (1949) ; Blue Bird Air Service, Inc. v. City of Chicago, 321 Ill App 531, 53 NE2d 471 (1944). There is, however, an exception to this rule: even though a case be moot in the normal sense, if the question presented is of substantial public interest the case will be retained and the question decided. People ex rel. Wallace v. Labrenz, 411 Ill 618,104 NE2d 769 (1952).

In determining whether or not a question is of sufficient public interest to warrant consideration, certain criteria must be considered. These are: (1) the public nature of the question; (2) the desirability of an authoritative determination for the future guidance of public officers, and (3) the likelihood of further recurrence of the question. People ex rel. Wallace v. Labrenz, supra; Daley v. License Appeal Commission, 55 Ill App2d 474, 205 NE2d 269 (1965). The fact that one party to a suit is a public entity is not sufficient, in and of itself, to justify a reviewing court in retaining a case otherwise moot. See e. g.: Daley v. License Appeal Commission, supra; People ex rel. Cairo Turf Club v. Taylor, 2 Ill2d 160, 116 NE2d 880 (1954); Goers v. Carpentier, 27 Ill App2d 355, 169 NE2d 858 (1960); Maywood Park Trotting Ass’n, Inc. v. Illinois Harness Racing Commission, 15 Ill2d 559, 155 NE2d 626 (1959). That the present case is between citizens on the one hand and the Board of Education and the individual members thereof on the other, is an important, but not necessarily a decisive, factor in adjudicating the motion to dismiss the appeal.

In determining whether a decision in the instant case is desirable for the future guidance of members of the Board of Education, consideration must be given to the two statutes involved. The first (Ill Rev Stats, 1963, c 102, para 42) is concerned with the holding of public meetings by various public authorities. The language of this statute is unequivocal and no guidelines we might lay down could make for more clarity than already exists. Furthermore, whether or not a public body acted incorrectly under this statute would necessarily be dependent upon the particular facts of each situation that might arise and, for this reason, any determination that we might make would not be of great import to future cases.

The second statute (Ill Rev Stats, 1963, c 122, § 34) applies to cities with a population of over 500,000 and therefore, at the present time, relates only to the City of Chicago. Since the entire section is so limited in its application there can be neither a widespread interest nor a pressing need for a decision interpreting subsection 34-6 in its relationship to the isolated situation that arose in the case at bar.

The final criterion (likelihood of recurrence) also leads to the conclusion that the suit is one that should be dismissed. Inasmuch as section 34 pertains only to Chicago and subsection 6 thereof provides that the General Superintendent of Schools shall be appointed for four-year terms, it is highly improbable, because of the infrequency of such appointments, that a like question will again arise.

The resignation of Superintendent Willis ended the controversy between the parties. The case is now moot and the appeal will be dismissed.

Appeal dismissed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Pablo Rodriquez, Defendant-Appellant.
    Gen. No. 50,490.
    First District, Third Division.
    January 5, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, 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 Robert D. Boyle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Pablo Rodriquez was found guilty of burglary in a non-jury trial and was sentenced to the penitentiary for a term of four to twelve years.

He contends that his conviction should be reversed because the trial court admitted into evidence items seized during an illegal search of his room, and that his confession should not have been received in evidence because it was made after the police confronted him with the illegally seized items. Subordinate contentions are that a defense witness was asked improper questions in an attempt to impeach her, and the trial court disregarded the same witness’ unimpeached testimony absolving the defendant of any connection with the stolen property.

The apartment of Estelle Andrews in Chicago was burglarized on October 3, 1963. Among the objects taken from the apartment were cuff links, a cross and a wedding ring. The ring was inscribed “Eugene to Estelle.” One week later another burglary was committed and police inquiry into it began. Ah automobile was found which was identified as the one used in the second burglary. The car was kept under surveillance, and when the defendant and a female companion entered it, he was arrested, accused of the second burglary and taken to the police station. Immediately thereafter two police officers went to his hotel room and searched it. Cuff links, a cross and a ring inscribed “Eugene to Estelle” were seized. The officers returned to the station and confronted the defendant with the articles found in his room. He first denied, then confessed taking the articles from the Andrews’ apartment.

At the beginning of the trial the defendant presented a motion to suppress evidence allegedly seized illegally. The only witness called to testify by the defendant was a police officer who said on direct examination that the search was made without a warrant. On cross-examination he testified that the defendant denied knowing anything about the second burglary, claiming he was with his wife on the day of the burglary and she could support his alibi. He gave the police the address of his hotel and his room number. Accompanied by Sonya Rosa, the girl who was with the defendant when he was arrested, the police proceeded to his room. Sonya knocked on the door, identified herself and said that the police were with her. The door was opened and the police identified themselves and entered; they told the woman who opened the door that her husband had been arrested. She replied that she was living with the defendant but was not married to him and that her name was Antonia La Boy. They noticed a wedding band on her finger and asked if she received it from the defendant. She answered that a friend of the defendant named Santiago gave it to her and she allowed the police to examine it. They saw the inscription “Eugene to Estelle” and realized that the ring was the one taken from the Andrews’ apartment. They asked Antonia if they could look through the room and she consented. The cuff links were found on top of a dresser and the cross was found in a table drawer. The officer also testified that he saw women’s clothing in the room. The motion to suppress was denied.

The defendant had the burden of proving that the search and seizure were unlawful. Ill Rev Stats, 1963, c 38, § 114-12 (b). However, the evidence presented by him on his motion to suppress confirmed the right of Antonia La Boy to permit the police to search the room. He referred to the woman in his room as his wife; he directed the police to go to his room and speak to her; the woman who answered the door said she lived there and feminine clothing was in the room. Although she said she was not married to the defendant she was wearing a wedding ring and the defendant had said they were married. These facts, instead of proving the illegality of the search, as was the defendant’s burden, were sufficient to establish the woman’s right to the use and occupation of the room and her authority to consent to the search. Under these circumstances, the search was not unreasonable and the trial court did not err in denying the motion to suppress.

During the trial in chief more evidence pertaining to the validity of the search was brought out — much of it by the State through cross-examination of Antonia La Boy, who turned out to be an eighteen-year-old girl. Her direct examination as a defense witness was mainly about her acquisition of the wedding ring from the defendant’s friend, Santiago. On cross-examination the State, over objection, was allowed to ask a wide range of questions about her background, morals and her relationship with the defendant. It was disclosed that by “living with the defendant” she meant sleeping with him at night, that she and a child she had borne by another man lived with her mother, that her clothes were kept at her mother’s home not the hotel and that, although she worked, she did not pay any portion of the rent for the hotel room.

The defendant testified in his own behalf and denied participating in the Andrews’ burglary. He said he had seen the ring on Antonia La Boy’s finger but that he had never seen the cuff links or cross. Under the cross-examination of the State the relationship between him and Antonia La Boy was again explored. He testified that he paid the hotel rent, denied that he supported her, said she was only his girl friend and that he took her out now and then, and admitted that she stayed with him every night for two months.

After the foregoing evidence the defendant rested his case; he did not renew his motion to suppress. However, his failure to do so does not foreclose a court of review from considering all the evidence presented during the trial. The general rule is that the failure of a defendant to make an appropriate motion in the trial court, thus not preserving the question for review, is deemed to be a waiver of the question. But in People v. Burson, 11 Ill2d 360, 143 NE2d 239 (1957), the Supreme Court stated that “ [T] his is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process.” In People v. Weinstein, 35 I112d 467, 220 NE2d 432 (1966), the court said: “This court . . . will consider errors not properly preserved in a criminal case . . . where their nature is such as to deprive an accused of his constitutional rights.” The desirability of full and adequate review in criminal proceedings (evinced by the practice of the Supreme Court in cases such as Burson) was recognized by the legislature in the Code of Criminal Procedure: a defect affecting a substantial right may be noticed by a court of review although it was not brought to the attention of the trial court. Ill Rev Stats, c 38, § 121-9 (a) (1963); SHA, § 121-9, Committee Comments. In the instant case the legislative and judicial interpretations of the exception to the waiver rule converge, for the substantial right which the defendant claims was violated is one protected by both the Federal and State Constitutions. Accordingly, we will weigh all the evidence relevant to a determination of the validity of the search.

Since the search was made with Antonia La Boy’s consent and without the defendant’s, its validity depends upon whether she had authority to consent to it. In evaluating her consent we are concerned with the articles found in the room not the article found on her. The ring can be divorced from the cuff links and cross. When she said she was unmarried, although she was wearing a wedding ring, the police, knowing that a wedding ring had been stolen, were understandably suspicious and it was reasonable for them to inspect it. Upon request she turned it over to them. The ring had been given to her, it was in her possession and belonged to her at the time, and it was her personal privilege to retain or to yield it. Moreover, it was in plain view and its seizure involved no search. People v. O’Connell, 30 Ill2d 603, 198 NE2d 834 (1964) ; People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964). If only the ring had been received in evidence and if only the ring had induced the confession we would not have the present problem. But the cuff links and the cross were also admitted in evidence and at the end of the trial the court indicated that the possession of these items in the room of the defendant was a factor in his finding of guilty. And the defendant was confronted with these two items before he confessed. The fruits of an illegal search are tainted with illegality (People v. Bankhead, 27 Ill2d 18, 187 NE2d 705 (1963)), and if the confession was brought about in part by the result of an unreasonable search the confession should not have been used against the defendant.

A person other than a defendant may have authority to consent to a search of premises occupied jointly with a defendant and a search pursuant to that consent is not an unreasonable search constitutionally prohibited. People v. Perroni, 14 Ill2d 578, 153 NE2d 578 (1958). A wife has authority to consent to a search of premises owned and occupied jointly by her and the defendant-husband. People v. Palmer, 31 Ill2d 58, 198 NE2d 839 (1964); People v. Shambley, 6 Ill2d 38, 122 NE2d 172 (1954). Persons other than wives have been held to have that authority in People v. Walker, 34 Ill2d 23, 213 NE2d 552 (1966); People v. Palmer, 26 Ill2d 464, 187 NE2d 236 (1963); Teasley v. U. S., 292 F2d 460 (9th Cir 1961) and Nelson v. People of the State of California, 346 F2d 73 (9th Cir 1965). An examination of these cases will be helpful in determining whether Antonia La Boy had that authority.

In the Walker case the defendant was arrested in connection with a rape and taken to the police station. Later the police went to his home, a house he shared with his mother and sister, and asked about a gun he had used. After some hesitancy the sister pointed out the location of the gun. The weapon was seized and subsequently introduced as evidence. The court stated that both the mother and sister lived in the house and that upon the record before the court they must be held to have had equal rights to the use and possession of the premises. The denial of the motion to suppress was held proper because the sister had authority to consent to the seizure.

In the Palmer case the defendant and Nathaniel Yancey committed a burglary and hid most of the loot in the living room of the defendant’s apartment. Yancey, arrested with his share, took the police to the apartment. No one responded to their knock, but later one Twillie, a tenant of the defendant who shared the apartment with him, let the police into the apartment. The stolen property was discovered in the living room. The court stated that the living room was a room of common usage and held that the motion to suppress was properly denied, for when either of two people with equal rights to the use or occupation of premises consents to a search the evidence thus disclosed can be used against either.

In Teasley v. U. S. the defendant and one Skinner were convicted of narcotics offenses. Skinner, who had a key to the defendant’s apartment, was arrested. The police accompanied him to the apartment, he opened the door, and the defendant was seen attempting to stuff something down into a couch. The police retrieved the narcotics and arrested the defendant. During the trial the defendant contended that the entry into the apartment was illegal. His testimony indicated that Skinner was his friend and spent much time in his apartment taking care of him while he was sick. Other testimony indicated that Skinner was living with him prior to the defendant’s arrest. There was no testimony that Skinner obtained the key unlawfully or that the police forced him to admit them to the apartment. The court held that the police gained entrance by the consent of one lawfully entitled to enter the apartment and to consent to the entry of others, and that their entry was not a violation of the Fourth Amendment.

In Nelson v. People of the State of California police knocked at the door of the defendant’s apartment and informed. Virginia Thomas, who answered the door, who they were and that they wanted to talk with her. She told them to come in and consented when they asked if they could search the premises. Thomas testified that the defendant had rented the apartment about two months before the arrest, that she had moved in with him at that time and had lived with him till the date of the arrest, and that they were living “sort of as husband and wife.” The defendant testified that at the time of the arrest he was living with his brother at another address, having left the apartment in question two weeks prior to the arrest, but he had not taken all his clothing with him. He testified that Thomas had shared his apartment for several months before he left and that she had keys to it. The court held that if the defendant still lived at the apartment when the search was made, he and Thomas were joint occupants, that if he did not live there Thomas was the sole occupant, and that either way the trier of fact could decide that she had authority to permit the police to enter and search.

These cases demonstrate that a person has authority to consent to a search of premises occupied jointly with the defendant if the person has an equal right to the use and possession of the premises. The existence of an equal right may be inferred when the person consenting to the search has a familial relationship with the defendant, such as wife or sister, for an equal right to use and possession of the premises is a normal incident of that relationship. In the absence of a familial relationship the existence of an equal right to use and possession may be inferred when the person consenting has a property right or other connections with the premises, or with the defendant, which commonly signify that he is entitled to bring guests into the premises.

Since Antonia La Boy was neither related to the defendant nor a lessee of the hotel room, her authority to consent to the search would depend on her connection with the room and her association with the defendant. While she was the defendant’s paramour the unrebutted evidence was that she was not a full-time resident in the defendant’s home. The fact that she spent her nights there and had done so for the two months preceding his arrest, while giving some support to the inference that she had rights in the apartment, is not in itself proof of her authority to consent to the search, for that fact likewise supports the inference that her rights were only those of a guest. Also supporting the latter inference is the fact that she did not stay in the room after the defendant’s arrest. Her testimony that her clothes were kept at her mother’s apartment further supports the inference that her stays with the defendant were temporary. Although the officer testified that he saw women’s clothing in the room, he did not say that the clothing was Antonia’s, nor was it shown to be more than a person staying overnight, or for a short time, would have brought. Furthermore, the officer’s full testimony revealed that the clothing referred to by him was not in open view but was found in a dresser drawer after he commenced his search. There was no evidence of conduct on the part of the defendant or the girl suggesting that they had equal rights in the room or joint control over it; there was no proof that she had a key to the room or that she either brought her friends into it or had the authority to invite them; there was no proof that she shared his board as well as his bed or that she resided with him in the room.

There were no conflicting facts to be resolved by the trial court and the credibility of witnesses was not in dispute. The testimony of the officer and that of the girl was not contradictory. Her testimony just threw additional light on the question of her authority to consent and her testimony was neither contrived nor volunteered; it was elicited by the prosecution. There was only one particular wherein their testimony differed and this concerned the identification of the officers before they entered the room. The testifying officer stated that Sonya Rosa knocked on the door and told Antonia that policemen were with her. Antonia testified that Sonya said, “Open the door, it is me, Sonya, and two other friends of mine. . . .” These differing versions of what was said are not material to the issue under consideration; the issue does not turn on whether the girl was deceived in permitting the officers to enter, on whether her consent to the search was intelligently made, nor on whether implied coercion influenced her consent. The issue is her right to consent, and under the total evidence of this case we must find that she did not have this right and that the ensuing search and seizure were unconstitutional.

The illegally obtained evidence and the defendant’s confession should have been suppressed and the conviction based upon them must be reversed. Fahy v. Connecticut, 375 US 85 (1963); People v. McDonald, 51 Ill App2d 316,200 NE2d 369 (1964).

Our decision on this point makes unnecessary a discussion of the defendant’s subordinate assignments of error.

Reversed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.