author: JUSTICE ROMITI

text:
    PETER FISCHER IMPORT MOTORS, INC., Plaintiff-Appellant, v. VINCENT BUCKLEY, Defendant (LaGrange Federal Savings and Loan Association, Garnishee-Appellee).
    First District (4th Division)
    No. 82—2891
    Opinion filed February 2, 1984.

      Kenneth E. North, of Solomon, Rosenfeld, Elliott & Stiefel, Ltd., of Chicago, for appellant.
    Robert W. Earhart, Jr., and Thomas B. Cassidy, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

In this appeal, plaintiff-appellant Peter Fischer Import Motors, Inc. (Fischer), requests that this court reverse the order of the trial court dismissing its order for attachment of a negotiable order of withdrawal (NOW) account at LaGrange Federal Savings and Loan Association (LaGrange), the garnishee in the attachment action and appellee in this appeal. The trial court ordered such dismissal on the grounds that sections 1 — 3(b) and 4 — 8(d) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, pars. 3003(b), 3099(d)) exempted the NOW account from attachment.

At the time of Fischer’s appeal of the trial court’s order, no judgment had been rendered on the merits of Fischer’s complaint against the holder of the NOW account, Vincent Buckley, for debts allegedly owed by him to Fischer. We therefore dismiss” Fischer’s appeal for lack of appellate jurisdiction because the trial court’s dismissal of the attachment order was not a final and appealable order.

Fischer’s contract complaint filed July 22, 1982, against Vincent Buckley alleged in pertinent part that Buckley had failed to pay Fischer for repairs to his automobile performed by Fischer to Buckley’s satisfaction in the amount of $2,953.42. The complaint further stated that Buckley had deceptively attempted to make payment for such repairs through a personal check drawn on his NOW account at La-Grange, but that Fischer had been unable to cash the check the same day Buckley had delivered it to him because a stop payment order had been placed thereon by the time Fischer presented it to LaGrange. The complaint requested that Buckley pay Fischer the $2,953.42 owed it plus interest.

Initial attempts to serve the complaint upon Buckley on July 27 and 31, 1982, were unsuccessful, since the address Buckley had given to Fischer was discovered to be an empty lot and efforts to find other addresses at which Buckley could be located were not fruitful. An alias summons was successfully served on Buckley’s father on November 4, 1982.

The record reflects that in the interim between these dates Fischer motioned the trial court on August 25 for a hearing on its “complaint for attachment.” The trial court issued its order of attachment on defendant’s NOW account at LaGrange on October 1, 1982. That same day, LaGrange filed its motion to dismiss the attachment order on the grounds that it was exempt from garnishment proceedings pursuant to section 4 — 8(d) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, par.- 3099(d)). The trial court granted this motion and dismissed the order of attachment in a written order dated October 27,1982. This appeal by Fischer followed.

Subsequently, Buckley’s attorney in the underlying action filed an appearance on his behalf on November 30, 1982. On January 6, 1983, the trial court granted Buckley leave to file an answer and counterclaim, and entered and continued Fischer’s motion of that date for a default judgment because of Buckley’s failure to answer.

There is nothing further in the record regarding either Fischer’s attachment request nor its principal money claim against Buckley. We note specifically that the record fails to contain Fischer’s affidavit for an attachment, which is required under Illinois law (Ill. Rev. Stat. 1981, ch. 110, pars. 4 — 104, 4 — 105) and which confers upon the trial court the jurisdiction to issue any order. (Pullian v. Nelson (1862), 28 Ill. 112; Ford v. Transocean Airlines, Inc. (1960), 28 Ill. App. 2d 234, 171 N.E.2d 225; Winkler v. Barthel (1880), 6 Ill. App. 111.) We also note that there is no transcript of hearings on the attachment order, if any were held. In addition, we note that although it was Fischer’s burden to prove that LaGrange as garnishee was in possession of defendant’s property (Vinson v. Roscoe (1971), 133 Ill. App. 2d 73, 272 N.E.2d 818), it was the garnishee’s burden to prove any affirmative defense thereto. Liberty Leasing Co. v. Crown Ice Machine Leasing Co. (1974), 19 Ill. App. 3d 27, 311 N.E.2d 250.

Both Fischer and LaGrange frame the issue of the present appeal as whether Illinois statutes exempt NOW accounts at a Federal savings and loan association from attachment. The central question which the parties seek to raise is whether a NOW account at a Federal savings and loan association should be considered a checking account or a savings account for purposes of attachment under Illinois law. The issue is apparently a novel one which has not been addressed in this or other jurisdictions.

Neither party, however, has addressed the threshold question of this court’s jurisdiction to entertain the present appeal. We note that it is our duty to consider this issue even where it is not raised by the parties (E. M. Melahn Construction Co. v. Village of Carpenters-ville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181), and that if there is no final and appealable order it is the duty of this court to dismiss the action sua sponte. Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 348 N.E.2d 527.

Generally, an appeal may be taken only from an order that is final. (87 Ill. 2d R. 301.) To be considered final, a trial court’s order must either terminate the litigation between all of the parties on its merits or dispose of the rights of the parties’ entire controversy. (Cohen v. Sterling Nursing Home, Inc. (1978), 57 Ill. App. 3d 162, 372 N.E.2d 934.) An order which leaves the plaintiff’s main claim still pending and undecided is not final. Trizzino v. Kline Brothers Co. (1982), 106 Ill. App. 3d 230, 435 N.E.2d 958.

Where there are multiple parties or multiple claims, Supreme Court rules permit the appeal of a final order as to one or more but fewer than all the parties or claims where the trial court’s order expressly finds that there is no just reason for delaying enforcement or appeal. (87 Ill. 2d R. 304(a).) If the trial court’s order does not include this express finding, the order is subject to revision at any time before the entry of an order which adjudicates all the claims, rights, and liabilities of the parties. 87 Ill. 2d R. 304(a).

A trial court’s order of an attachment, as well as an order quashing or denying such an order, has no effect on the proceedings regarding the plaintiff’s principal money claim against the defendant. (Bates v. Jenkins (1831), 1 Ill. (Breese) 411.) Thus, it does not terminate the litigation between the parties on its merits. Consequently, such an order is final and appealable only after the entry of a judgment on the merits of the plaintiff’s principal claim against the defendant or if the attachment order expressly finds that there is no just reason for delaying enforcement or appeal. Smith v. Hodge (1958), 13 Ill. 2d 197, 148 N.E.2d 793. See also Hemphill v. Collins (1886), 117 Ill. 396, 7 N.E. 496; Siegel v. Meyer (1943), 319 Ill. App. 102, 48 N.E.2d 595.

This result obtains because attachment is a legal process which seizes and holds the property of the defendant debtor until the rights of the parties are determined in the creditor’s principal suit, often in tort or contract, in which the writ is issued. (Marchant v. Artists Embassy, Inc. (1960), 25 Ill. App. 2d 440, 166 N.E.2d 311; Culver v. Rumsey (1880), 7 Ill. App. 422.) When a writ of attachment issues it lays hold of and appropriates the debtor’s property, keeping it in custody of the law until it is needed to satisfy the creditor’s demand. (Kennedy v. Wikoff (1886), 21 Ill, App. 277.) Attachment, whether directly against a defendant debtor or his property in the possession of a third party, is a measure instituted before judgment on the merits of the principal claim of the plaintiff creditor.

The same holds true for a “garnishment” action in which the plaintiff attempts to hold the defendant’s property in the possession of a third party pending the disposition of the plaintiff’s principal claim against the defendant. Such a proceeding is actually a prejudgment proceeding in attachment, where the defendant’s property which is attached is in the possession of a third party. The designation .of this procedure as one of “garnishment” has likely occurred because the third party, in such instances, is commonly referred to as the “garnishee.” See Ill. Rev. Stat. 1981, ch. 110, par. 4 — 126.

This should be distinguished from the usual garnishment action, which is a post-judgment procedure instituted directly against a third party in whose hands the judgment debtor’s property may be found and the creditor’s claim against his debtor has already been resolved, and judgment thereon rendered. (See Ill. Rev. Stat. 1981, ch. 110, par. 12 — 701 et seq.) Appeals in these proceedings are governed by Supreme Court Rule 304(b)(4), which permits an appeal from an order in a supplementary proceeding such as garnishment without the need for an express finding by the trial court that there is no just reason for delaying enforcement or appeal. 87 Ill. 2d R. 304(b)(4).

Because the instant case is one where there has not yet been a resolution of Fischer’s principal money claim against Buckley, the action is clearly one of attachment. In addition, even though Buckley’s property, which the plaintiff has attempted to seize, is allegedly in the possession of LaGrange, a third-party garnishee, the action is one of garnishment only in a certain sense of that term. It is essentially a proceeding in attachment.

In summary, the trial court’s order dismissing Fischer’s attachment of Buckley’s property at LaGrange Federal Savings and Loan Association did not terminate the litigation because it left pending and undecided Fischer’s principal money claim. In addition, since the order did not expressly find that there was no just reason for delaying enforcement or appeal, the order does not fall within the exception which permits the appeal of a final order which disposes of fewer than all of the parties or claims involved in the litigation. We therefore conclude that this court is without jurisdiction to review the trial court’s order dismissing Fischer’s attachment of Buckley’s NOW account at LaGrange Federal Savings and Loan Association.

For the reasons stated above, the plaintiff’s appeal of the trial court’s order dismissing its writ of attachment is dismissed.

Appeal dismissed.

LINN, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    JANET TRAUTMAN, Indiv. and as Adm’r of the Estate of John Stefanovich, Deceased, Plaintiff-Appellant, v. KNIGHTS OF COLUMBUS et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—326
    Opinion filed February 3, 1984.

      William S. Keck, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Erwin I. Katz and David S. Krischer, both of Hoffman & Davis, of Chicago, for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff sued defendants in a three-count second amended complaint for breach of an insurance contract (count I), for the independent, wilful tort of fraud (count II), and for intentional infliction of emotional distress (count III). In response to defendants’ motion to strike and dismiss counts II and III for failure to state a cause of action, the trial court dismissed count II with prejudice and allowed plaintiff 28 days within which to amend count III. Plaintiff voluntarily withdrew count III and appealed the dismissal of count II. For the reasons stated below, we affirm the judgment of the trial court.

Plaintiff’s pleadings set forth the following pertinent facts. On January 23, 1980, John Stefanovich (the insured) executed an application for a $50,000 life insurance policy with defendant Knights of Columbus (K of C), an insurance company. At the time of execution, the insured informed defendant William Witkowski (the agent), acting on behalf of K of C, that he had been ill and was under medical care for illness of the liver. Despite insured’s disclosure of his medical history, the agent assured him that the policy would be effective immediately and accepted insured’s payment on the first quarterly premium. However, the insured never received a copy of the policy. Upon inquiry as to why he had not received it, he was assured that the policy was in full force and effect and that he would be receiving a copy with the second quarterly premium notice. On April 22, 1980, the insured died. Prior to his death, no notice of rating, cancellation or further request for a physical exam was sent to either insured or to plaintiff. Approximately one week after insured’s death, plaintiff’s brother contacted the agent for information as to the procedure for plaintiff’s collection of the policy proceeds. At that time, the agent informed plaintiff’s brother that the insurance policy was not in effect.

Shortly thereafter, the agent wrote plaintiff a note, dated May 6, 1980, within which he explained that because deceased had refused to take certain medical tests, the policy had been cancelled. With the note, the agent returned the first premium payment and enclosed a form entitled “Amendment to Application to Knights of Columbus,” dated April 14, 1980, signed by insured, which stated that because insured had been unwilling to take a liver function test, he had requested cancellation of the policy and a refund of the premium.

As a result of K of C’s refusal to pay on the policy, plaintiff filed suit alleging breach of contract and fraud for which she sought $50,000 in compensatory damages and $2,000,000 in punitive damages. With respect to the cause of action for fraud, plaintiff alleged that neither insured nor anyone acting in his behalf signed the amendment. Rather, upon learning of insured’s death, defendants prepared the forged amendment “with the intent to deceive the plaintiff and to deprive the plaintiff of the proceeds of the policy of insurance applied for,” and that the amendment was “[p]repared with the intent that plaintiff should believe it was a true and correct signature and that she should rely and act thereon and be deceived and defrauded thereby into not taking any action to recover the proceeds of the policy.” Plaintiff further asserted that at all times the insured was ready, willing and able to take any tests or medical examinations.

The trial court granted defendants’ motion to strike plaintiff’s complaint on the ground that the elements necessary to allege fraud were not properly pled and allowed plaintiff 28 days within which to file an amended complaint.. Thereafter, plaintiff amended her complaint to allege breach of contract in count I and fraud in count II. In response, defendants again moved to strike and dismiss count II of the first amended complaint on the ground that plaintiff failed to allege a separate and distinct tort by which to recover punitive damages. The trial court granted defendants’ motion and allowed plaintiff 28 days within which to file a second amended complaint. Subsequently, count II of plaintiff’s second amended complaint which alleged an independent wilful tort for fraud was dismissed with prejudice for failure to properly plead the necessary elements to allege fraud. Plaintiff’s appeal followed.

Opinion

It is well-established in Illinois that for a complaint to state a cause of action for fraud, the essential elements of fraud must be pled with specificity, particularity and certainty. (In re Marriage oWanic (1983), 112 Ill. App. 3d 740, 746, 445 N.E.2d 1272.) The elements which must be alleged include: (1) a false representation of material facts as opposed to opinion; (2) made by one who knew or believed the representation to be untrue; (3) made to a party who had a right to rely on the representation and, in fact, did so; (4) made for the purpose of inducing the other party to act, or to refrain from acting; and (5) that led to injury to the person who relied upon it. Wolford v. Household Finance Corp. (1982), 105 Ill. App. 3d 1102, 1104, 435 N.E.2d 528.

With the aforesaid principles in mind, we shall examine plaintiff’s allegations of fraud as set forth in count II of the second amended complaint. First, plaintiff realleged count I in its entirety. Because count I sets forth a cause of action for breach of contract, the allegations therein are relevant to count II only for their recitation of the sequence of events which precipitated the complaint. In this regard, we note that defendants, by their motion to dismiss, have admitted all well-pled facts and all reasonable inferences which can be drawn therefrom. This, of course, precludes conclusions of law or fact unsupported by allegations of specific facts. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 571-72, 402 N.E.2d 885.) In the present case, the only well-pled facts which count II discloses are that: (1) insured agreed to take all medical tests demanded of K of C; (2) defendants attached an amendment of cancellation to the application which purports to be signed by the insured; (3) subsequent to the insured’s death, the agent informed plaintiff that the application for insurance had been declined because of insured’s refusal to take a liver function test; (4) plaintiff and insured relied on the validity of the policy; and (5) defendants denied payment of the insurance proceeds to plaintiff. The balance of count II contains a series of conclusions of law and fact which fail to augment the substantive sufficiency of the complaint and, thus are of no persuasive value regarding the issue at bar. Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 633, 407 N.E.2d 156.

Based upon the aforementioned analysis of count II, we are persuaded that the trial court properly dismissed the count for failure to allege the independent tort of fraud. Specifically, the complaint is void of any allegation of reliance by plaintiff upon the forged amendment, which, by plaintiff’s own admission, constitutes the sole act of fraud. Plaintiff’s alleged reliance on the insurance contract does not satisfy the missing element for the simple reason that the contract did not contain the misrepresentation. In order to have pled fraud properly, plaintiff would have had to allege reliance on the forged amendment. (See Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 634.) However, plaintiff’s accusations of forgery and her immediate steps to protect her rights under the contract clearly belie reliance on the amendment. In addition, we find plaintiff’s attempts to distinguish between fraud in the inducement and fraud in the performance unpersuasive. Regardless of the point in time at which the fraudulent act occurred, all of the elements of fraud must be pled. (See Wolford v. Household Finance Corp. (1982), 105 Ill. App. 3d 1102, 1104, 435 N.E.2d 528.) Illinois law does not provide for substitution of elements; it only provides for alternative causes of action, which plaintiff failed to plead.

Plaintiff further argues that her reliance on the contract’s implied covenant of good faith and fair dealing which was subsequently breached by the fraud satisfied the element of reliance. In essence, plaintiff is attempting to extricate the reliance factor from the act of fraud while simultaneously arguing it as an element of the tort of fraud. We find this to be a misapplication of the law. Moreover, pursuant to the recent first district opinion, Kinney v. St. Paul Mercury Insurance Co. (1983), 120 Ill. App. 3d 294, section 155 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1981, ch. 73, par. 767) preempts the filing of a common law action for breach of an implied covenant of good faith and fair dealing, and limits damages to that amount stated in the pertinent provisions of the Code. See Abbott Laboratories v. Granite State Insurance Co. (N.D. Ill. 1983), 573 F. Supp. 193.

Finally, our decision that plaintiff failed to allege the requisite elements for an independent tort of fraud obviates the need to discuss the issue of whether a cause of action for exemplary as well as compensatory damages is recognized in Illinois when a breach of contract amounts to an independent wilful tort.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HURSEY DAVIS, Defendant-Appellant.
    First District (4th Division)
    No. 82—730
    Opinion filed February 16, 1984.

      James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas Wood Flynn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Hursey Davis, appeals his conviction for attempted murder and theft. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(a), 16 — 1(a).) He was sentenced to an extended term of 50 years for the attempted murder, and to a five-year concurrent term for the theft. He raises two issues for review: (1) whether the “personal choice” system of selecting a venire for third district cases which resulted in an all-white venire denied him his constitutional right to a jury drawn from a fair cross-section of the community, and (2) whether he was improperly sentenced to an extended term where the conduct that formed the basis of the attempted murder was used to enhance the penalty.

We affirm as modified.

The facts of this case are unrebutted. Testimony at trial established that on February 13, 1981, at 1:30 a.m., Paul Grudek, a Des Plaines policeman, was on patrol near Elmhurst Road and Dempster in Des Plaines, Illinois. As he drove past a small shopping center, he saw a car in the parking lot. Two men were sitting in the car. Grudek reported the license plate number to his headquarters and left the area. When headquarters reported a “hit,” i.e., something was wrong with the car or the driver, Grudek returned to the lot and talked with the passenger in the car. The latter pointed to a Dunkin Donuts store and said he was waiting for a friend.

Grudek then saw a man walking toward the car. Grudek drove forward and asked the man for his driver’s license. After Grudek got out of the police car, the man quickly put down a cup he was carrying. The man reached for his back pocket, his front pocket, and then came at the officer with his right hand and said something the policeman did not understand. Grudek raised his left hand, saw a flash, felt pain in his hip, screamed, and fell into his car. Grudek raised his hands to cover his face, saw another flash, felt pain in his leg, and screamed again.

The man ran back to his car. Grudek fired four times at the driver’s side of the other car. The driver and the passenger left the car and ran eastward. At this point in his testimony, Grudek identified defendant as his assailant. Grudek ran after the suspects but stopped when his leg began to hurt. He was taken to a hospital where his wound was treated. Shortly before trial, a bullet was removed from his leg. At the time of trial, Grudek suffered no ill effects from his stomach wounds but did experience sharp pains in his leg, which also had a tendency to “fall asleep.” Grudek eventually discovered that the car defendant was driving had been stolen.

Gregory Butts testified that he knew defendant because they both worked at A. M. International in the same area. On December 12, 1980, Butts drove to work. His 1980 Camaro was stolen. Car keys were taken from a coat Butts had left unattended. It was Butts’ car that defendant drove at the time of the offense.

Bemie Wolter, an evidence technician for the Des Plaines police, investigated the shooting. He found a baseball cap near a large refuse dumpster that was behind an apartment building. After Wolter “saw shoes inside the dumpster,” the suspects were ordered to surrender. Wolter identified defendant as one of the individuals who got out of the dumpster.

Gerald Loconsole, another evidence technician, removed a revolver from behind the dumpster.

Thomas Fahey, an orthopedic surgeon, was on duty at Holy Family hospital on February 13, 1981, and treated Officer Grudek. The victim had gunshot wounds in his right knee and groin. At the time of the shooting, Officer Grudek’s wounds were not life threatening and he was administered no pain killers. In March 1981, Fahey approved Grudek’s return to full-time regular duty. On October 14, 1981, a bullet fragment was removed from Grudek’s right thigh.

After the prosecution rested, the defense called Aug Schwiesow, a Des Plaines policeman, as a witness. Schwiesow investigated the shooting and spoke with defendant. After he was advised of his Miranda rights, defendant said, “you don’t think I meant to kill the officer? *** If I intended to kill him, I would have shot him between the eyes.” This statement was made at 10:30 a.m. on February 13, 1981.

The jury found defendant guilty of attempted murder, aggravated battery, armed violence and theft. The trial court sentenced defendant for attempted murder and theft. At the sentencing hearing, the trial judge stated:

“The Defendant intended to fire a shot into the body of Grudek who by the evidence clearly indicates was completely helpless at this time, was incapable of protecting himself at this time other than raising his leg and covering his body with his legs.
At this point the act is accompanied by exceptionally brutal and heinous behavior. He fired a second shot into the wounded officer who was not posing any threat, whatsoever, to the Defendant. None.
At that time there was no question he was helpless and yet the second shot was fired. Why was that necessary except for the sole purpose of taking his life or seriously injuring him.
And that I find was exceptionally brutal, and it is, in fact, heinous indicative of wanton cruelty, and that is the finding of this Court, and I find, therefore, it’s a basis for an extended term.
And I also find that he is a threat to society, and to protect ' society, there is a basis for an extended term.”

For the attempted murder, defendant was sentenced to 30 years and to an extended term of 20 years, for a total of 50 years. He was sentenced to five years for theft, the sentence to run concurrently with the 50-year sentence. Defendant appeals.

The first issue raised by defendant is whether the “personal choice” system of selecting a venire for third district cases which resulted in an all-white venire denied defendant his constitutional right to a jury drawn from a fair cross section of the community. Defendant argues as follows: He is a black man charged with the attempted murder of a white police officer. His jury was selected from an all-white venire. When defense counsel observed that the venire was all white, he asked the trial court to inquire as to how the jurors were chosen for Des Plaines. The trial court refused. Defense counsel informed the court that in another case involving a black defendant and white victim which he tried in Des Plaines the trial judge ordered a new trial after questioning the jurors as to how they were selected for Des Plaines. In that case, the jurors had been asked if it would be convenient for them to travel to Des Plaines.

Defendant notes that according to the 1980 census, blacks comprise one-fourth of the population of Cook County, but fewer than 1% of the population of Des Plaines and the surrounding communities. Defendant alleges that giving jurors the option of going out to Des Plaines results in an all-white venire because black jurors prefer not to travel to an area where few blacks live. Defendant cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, and Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, for the proposition that all criminal defendants are entitled to a venire selected from a fair cross section of the community. When a procedure in a selection system results in the underrepresentation of a cognizable group, that system violates the accused’s constitutional right to a fair and impartial jury.

In Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, the Supreme Court declared unconstitutional a Louisiana statute that provided a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The Supreme Court held that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” (Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) The court acknowledged that the “fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.” (Taylor v. Louisiana (1975), 419 U.S. 522, 538, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701.) The court imposed “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition [citations]; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor v. Louisiana (1975), 419 U.S. 522, 538, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.

In Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, the Supreme Court explained the nature of the fair-cross-section inquiry set forth in Taylor v. Louisiana. It stated as follows:

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 586-87, 99 S. Ct. 664, 668.

In the instant case, the trial court refused to ask jurors how they were chosen for Des Plaines, thus precluding defendant from even attempting to establish a prima facie violation of the fair-cross-section requirement. However, we do not believe this omission mandates reversal. All errors, constitutional or otherwise, do not require automatic reversal and may be harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.

In the case at bar, there was overwhelming evidence of defendant’s guilt. At trial, the victim positively identified defendant. Defendant was arrested in the vicinity of the crime and within hours of its commission. Defendant himself admitted to shooting the victim. In our opinion, the failure of the trial court to conduct a hearing as to how jurors were selected for Des Plaines does not constitute reversible error.

The next issue raised by this appeal is whether defendant was improperly sentenced to an extended term. We hold that defendant was improperly sentenced.

Defendant was convicted of attempted murder. An element of that offense is a specific intent to kill. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) A defendant may be sentenced to an extended term “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) In sentencing defendant to an extended term, the trial judge found the offense brutal and heinous because defendant intended to kill. Thus, the trial court relied on conduct inherent in the offense as an aggravating factor.

We have examined recent cases in which an extended term was upheld. They are distinguishable from the instant case because there were circumstances other than intent aggravating the offense. In People v. Sias (1980), 91 Ill. App. 3d 1095, 415 N.E.2d 618, defendant waited for the victim whom he had known for two years and, after engaging him in conversation, unexpectedly shot the victim twice, once in the side of the face and once in the buttocks as he tried to escape. After the offense, defendant started a rumor as to the involvement and guilt of another person in the offense. In People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, defendant hit the victim, a 19-year-old woman, in the head or face five times, threatened repeatedly to kill her, and forced her into acts of sexual intercourse and deviate sexual conduct. In People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384, defendant promised to give the victim a horse, lured her to the site of a previously prepared grave and raped her there. As she started to leave, he strangled her, put her body in the grave and covered it with dirt. In People v. Young (1981), 96 Ill. App. 3d 426, 420 N.E.2d 1051, the defendant put a gun down the victim’s throat. Finally, in People v. Clark (1981), 102 Ill. App. 3d 414, 429 NE.2d 1255, defendant invaded the victims’ home, held a gun to the head of a one-year-old child, and threatened to kill him if the par-ents failed to cooperate. Defendant tied up the husband and forced the wife to commit a deviate sexual act while her husband and son watched. The victims were tied up while defendant ransacked their home for 40 minutes.

In the instant case, defendant shot the victim with a .22-caliber revolver in the abdomen and leg. The victim was able to fire at defendant and chased him until his leg began to hurt. The victim’s wounds were cleaned but no bullets were removed when he was initially treated at the hospital. His condition was not life threatening. The victim was able to return to full-time employment the next month.

The cases cited by the State do not support the proposition that an extended term is appropriate in the instant case. In People v. Bradford (1979), 71 Ill. App. 3d 731, 389 N.E.2d 636, although defendants argued their sentences were excessive, the appellate court upheld the sentences because defendant had long records of both felonies and misdemeanors. In People v. Williams (1980), 90 Ill. App. 3d 524, 413 N.E.2d 60, defendant argued that an extended term could not be imposed for attempted murder. In People v. Hudson (1981), 102 Ill. App. 3d 346, 430 N.E.2d 51, the appellate court upheld imposition of an extended term because defendant’s conduct was heinous and with no apparent justification where he shot three men, two of whom died.

Since we believe this is not a proper case for imposition of an extended term, we hereby vacate the 20-year extended term imposed by the trial court with the 30-year sentence for the attempted murder remaining.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified.

Affirmed as modified.

LINN, P.J., and ROMITI, J., concur.


author: JUSTICE O’CONNOR

text:
    LISA MOORE, a Minor, by and through Gloria Moore, et al., her Mother and Father and Next Friends, Plaintiff-Appellant, v. NICK’S FINER FOODS, INC., Defendant-Appellee.
    First District (5th Division)
    No. 83—0129
    Opinion filed February 10, 1984.

      Michael H. Lavin, of Chicago, for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Andrew Fylypovych, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Lisa Moore, a minor, brought suit by and through her parents on May 1, 1981, for injuries allegedly sustained on defendant’s premises on January 18, 1974. Defendant corporation (Nick’s Finer Foods, Inc.) had been dissolved by order of the Secretary of State on December 1, 1978. After several stipulations extending time, a general appearance and jury demand were filed on behalf of defendant on November 6, 1981. Counsel for defendant subsequently withdrew and new counsel filed a special..and limited appearance and a motion to quash service in May of 1982. In her answer to defendant’s motion, plaintiff averred that defendant, through an independent insurance adjuster, had acknowledged receipt of an attorney’s lien which was mailed to the defendant on January 8, 1975. Plaintiff’s case was assigned a claim number and plaintiff remained in correspondence with said adjuster up until February 1978, at which time it appears that a voluntary settlement of plaintiff’s claim was rejected by defendant’s insurer. Plaintiff also averred that although defendant Nick’s was dissolved in December of 1978, she was neither notified of the involuntary dissolution nor of any change of registered agent for defendant corporation.

On December 15, 1982, the trial court granted defendant’s motion to quash and dismissed plaintiff’s complaint with prejudice. The court’s ruling was based upon its interpretation of that portion of the Illinois Business Corporation Act which deals with survival of remedies after dissolution. The Act states that:

“The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State *** shall not take away or impair any remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution. ***” Ill. Rev. Stat. 1981, ch. 32, par. 157.94.

Plaintiff urged in the trial court, and now argues on appeal, that under the exception as to minors set forth in the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 22, now codified in Ill. Rev. Stat. 1981, ch. 110, par. 13 — 112), her suit (filed five months after the two-year period) was timely filed and should not have been dismissed. That paragraph provides that where the person entitled to bring an action is a minor or otherwise incompetent at the time of accrual, he or she may bring the action within two years after the disability is removed. The trial court rejected plaintiff’s argument in a written order, stating its belief that such an interpretation would re-create corporate existence which the statute clearly intends to dissolve.

Defendant’s initial point on appeal is that because at the time suit was filed in this case the corporate entity known as Nick’s was no longer in existence, plaintiff’s case was void ab initio and did not invoke the jurisdiction of the trial court. For the reasons that follow, we believe that, under the circumstances here, the statutory exception as to minors overrides the corporate dissolution statute and preserves the court’s jurisdiction over the cause.

Defendant’s next argument is based on the plain language of the Business Corporation Act which, it argues, bars suits against dissolved corporations after two years. Defendant also contends that to allow this minor-plaintiff to proceed would be in contravention of a clearly expressed legislative policy and would thwart the orderly process of corporate dissolution.

We agree with defendant that the general policy behind the corporate dissolution statute is to set a definite point in time at which the existence of a corporation and the transaction of its business are terminated (see, i.e., Litts v. Refrigerated Transport Co. (M.D. Pa. 1973), 375 F. Supp. 675); however we also note that the two-year limitation on corporate survival is not absolute, and may be extended under certain circumstances. (See North American Asbestos Corp. v. Superior Court (1982), 128 Cal. App. 3d 138, 179 Cal. Rptr. 889, and cases cited therein.) Additionally, courts of this State have long recognized that a minor should not be . precluded from .enforcing its rights unless clearly debarred from so doing by some statute or constitutional provision. (Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 73, 382 N.E.2d 784; Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 153 N.E. 831.) This policy has been adhered to consistently in decisions with reference to the limitations provisions contained in other statutes and their applicability to minors and incompetents. Thus, in McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476, a statute requiring written notice within six months after an injury by any person intending to sue a city was held not applicable to a minor who is incompetent to give such notice. The statute there was construed as having been passed with due regard to the established rules of law for the protection of incompetent persons. In Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, the court found the unqualified term “incompetent” to include a minor, and therefore the six-month period for filing claims under the Workers’ Compensation Act did not begin to run against the minor-employee until a guardian had been appointed for him. Later, in Haymes v. Catholic Bishop (1965), 33 Ill. 2d 425, 211 N.E.2d 690, it was held that sections 3 and 4 of the School Tort Liability Act, insofar as they barred suit against schools for personal injury or property damage where not filed within six months of the date of injury, were not applicable to minors. There the court reasoned that the time limitation was not a condition of liability, but merely a statutory limitation placed on an existing right. Most recently, in Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, it held that the two-year limitation contained in the Wrongful Death Act did not begin to run against a minor until majority.

Defendant argues that the court’s decision in Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112, holding the one-year limitation for bringing actions under the Dramshop Act applicable to minors and incompetents, is controlling here. We disagree. The holdings in Demchuk and the cases preceding it were predicated upon the well-recognized rule that a special limitation in a purely statutory cause of action, unlike a general statute of limitations, operates as a limitation of the liability itself and not the remedy alone. Thus, the court explained the special limitation in a purely statutory cause of action as “a condition attached to the right to bring the action” (92 Ill. 2d 1, 67). Unlike the situation in Demchuk, the minor-plaintiff here asserts a common-law cause of action. We believe that where, as here, there is no language in the statue involved, or in any constitutional provision, which distinctly restricts the right of a minor or incompetent to file an action against a corporation more than two years after dissolution relating to liability incurred prior to dissolution, that such an action may be brought within two years of the minor’s reaching majority.

Lastly, given the evidence in the record of the existence of an indemnification policy of insurance, we need not at this time reach defendant’s contention that allowing plaintiff to proceed would disrupt the orderly process of corporate dissolution which the statue is designed to ensure. Whether such insurance does in fact exist can be determined in further proceedings before the trial court.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded.

Reversed and remanded.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE LORENZ

text:
      In re J.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.S., Respondent-Appellant).
    First District (5th Division)
    No. 82—3100
    Opinion filed February 10, 1984.

      James J. Doherty, Public Defender, of Chicago (Kathleen M. McGinnis and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Respondent, adjudicated a delinquent minor following a hearing, was committed to the Department of Corrections, Juvenile Division. Ill. Rev. Stat. 1981, ch. 37, par. 705-2(l)(a)(5).

He appeals that finding and argues that (1) the trial court erred in denying his motion to quash his warrantless arrest and to suppress his oral and written statements because no probable cause to arrest him had been established by a tip from an anonymous informant whose reliability had not been sufficiently established, and (2) the trial court’s denial of his motion to suppress his statement was contrary to the manifest weight of the evidence which showed that he was of Hispanic origin, only 14 years old, lacking comprehension of the English language and not capable of making a voluntary, intelligent and knowing waiver of his Miranda rights.

It is undisputed that respondent was taken into custody on January 21, 1982, by police officers who acted upon information supplied by an informant that respondent was involved with three other youths in the January 11, 1982, stabbing death of a man they sought to rob and that following his arrest he was taken to police headquarters where the police read him his Miranda rights in English; that he acknowledged that he understood them, and that later, the police and the respondent were joined by an assistant State’s Attorney and a youth officer who again read him his constitutional rights in English, and that upon further questioning he responded in English stating that he understood all that was read to him and by him and willingly waived those rights by signing a waiver form.

Approximately 13 hours after his arrest, respondent signed a written statement in which he admitted his presence at the murder, but denied that it was he who had actually stabbed the victim.

He was then placed in the custody of the Cook County Juvenile Temporary Detention Center on January 22, 1982. The State’s motion to permit his prosecution under the criminal laws was denied and he was tried as a juvenile.

At the hearing on respondent’s motion to quash his arrest for lack of probable cause, Officer Mike Stepkowicz, who conducted the on-the-scene investigation.of the murder, testified that the victim, prior to his death, had told his live-in girlfriend that “kids, four or five” had stabbed him.

Gang Crimes Officer Jack Konior testified that acting upon information from a “reliable” informant, he arrested respondent on suspicion of murder; that his informant who was previously known to him and was one who had supplied him with reliable information on past occasions and whom he had never known to tell him anything that was untrue, informed him that he had heard respondent “boasting” that while accompanied by three other subjects, he had stabbed a white man in Wicker Park. Konior further testified that he received this information personally from his informant and did not pay him anything for the information. Respondent waived cross-examination of Konior.

It was stipulated that (1) the respondent was arrested without an arrest or search warrant in a snack shop at 6:20 p.m. on January 21, 1982, while doing nothing unlawful or unusual, and (2) subsequent to the arrest, oral and Written statements were elicited from respondent relative to the case.

The trial court denied the motion to quash the arrest, and ruled that, absent cross-examination by respondent on this issue, there was insufficient evidence to destroy probable cause; and that Officer Konior had properly used previous occasions where the informant had given accurate information to the police, as a basis for his conclusion that the informant’s information in the instant case was reliable.

Respondent thereafter moved to suppress his statements made prior to, at the time of, or subsequent to his arrest, contending that he did not knowingly, intelligently, or voluntarily waive his Miranda rights because his limited comprehension of the English language prevented his understanding of what was said to him. Additionally he contended that these statements were made (1) outside the presence of his parents or his attorneys, (2) were physically coerced by the police, and (3) resulted from fatigue, hunger and thirst.

At the hearing on the motion to suppress, arresting officer Detective Michael Herigodt testified that respondent was taken to Area 5 Headquarters where he was placed alone in an interview room and handcuffed to the wall. He further testified that he advised him of his constitutional rights and read the Miranda warnings to him in English; that respondent replied in English, that he understood them and indicated a willingness to speak to him about the incident. Herigodt further testified that subsequent to his interview with respondent, the youth remained alone in this room until an assistant State’s Attorney and youth officer arrived.

Assistant State’s Attorney Jeff Warnick, Youth Officer Charles Dziak and Detective Herigodt, all testified that Warnick advised the respondent of his constitutional rights, in English, at approximately 2:30 a.m. on the 22nd of January, 1982; and that when asked, respondent again answered, in English, that he understood. Warnick and Dziak further testified that after respondent read his rights aloud and in English from a waiver of rights form, he gave them an oral statement. Dziak also testified that when he arrived for the 2:30 a.m. interview, he provided the respondent with food.

Warnick also testified that he believed Youth Officer Dziak attempted to contact respondent’s parents at 1 or 2 a.m. that morning. However, Dziak admitted that he did not ask respondent if he wished a family member present with him at the interview and he did not contact respondent’s parents prior to the interview.

Warnick and Dziak testified that they were present, together with Herigodt and a court reporter, at 5:10 a.m. on January 22, 1982, when Warnick again advised the respondent of his rights and that after respondent replied, in English, that he understood, respondent gave to the court reporter a written statement. They further testified they were both satisfied that the respondent knew and understood what he was doing; that neither respondent’s written or oral statements were made as a result of any physical or mental coercion by those present, and that the respondent had not been handcuffed while making either of these statements. Warnick, Dziak and Herigodt all testified that respondent appeared to read the transcribed statement, then initialed each page before he finally put his signature to the entire statement. Warnick and Dziak also initialed the statement. The court reporter took a photograph of the respondent at the time he gave his statement, which was available to the trial court for use in its determination of respondent’s physical condition when he signed his written statement.

On respondent’s behalf, Dr. Alen Ravitz, a psychiatrist, testified that prior to the appearance of a translator on February 9, 1982, he had a clinical interview in English with the respondent, and concluded that respondent did not clearly understand his English.

Philip Mooney, a Chicago Board of Education employee, testified that on January 25, 1982, he administered a Gates-MacGinite Reading Test in English to respondent. Respondent’s scores on various sections of this test ranged from 2.4 (second grade, fourth month) to 4.2 (fourth grade, second month). Mooney admitted, however, that during the test, respondent followed directions given him in English.

Jose Valdez, a bilingual teacher at the Juvenile Detention Center School, testified that he worked with respondent in a one-to-one relationship for seven months. It was his opinion that respondent had a reading level of first-second grade, and would not be able to read and comprehend Miranda warnings given in English.

Loretta Ritter, guidance counselor at the Wicker Park School, testified that respondent was a student there prior to his arrest and was in a category B level of bilingual education. Although she had never had any personal contact with respondent, it was her opinion that Miranda warnings, given in English, could not be comprehended by someone of this level of fluency.

Respondent testified on his own behalf that he did not understand any of the English waiver questions Warnick showed him. When shown a test previously given him in English in which he matched numbers with their equivalent English words and scored 90% correct, respondent testified that he had studied before taking the test.

Finally, pertinent to his contention that he gave his statement as a result of physical coercion, fatigue, hunger and thirst, the respondent testified that subsequent to his arrest, the police, in an attempt to force him to sign his written statement, slapped him and pulled his hair. In addition, respondent further testified that he received no food, water or sleep from his arrest at 6:20 p.m. on January 21, 1982, to the time that he signed his written statement at 7:10 a.m. on January 22,1982.

The trial court denied the motion to suppress, holding that the passage of time between respondent’s arrest and his statement was not coercive, and then observed that respondent had “certain comprehension of key language” while in the courtroom. The trial court, after taking notice of a “certain amount of sophistication in the streets today,” referred to respondent’s number translation test as being persuasive towards the question of his English comprehension.

At trial, the victim’s girlfriend related the events leading to the victim’s death. Assistant State’s Attorney Warnick testified regarding the time and place of the statements, and it was stipulated between the parties that Warnick would give the same testimony that he gave at the hearing on the motion to suppress the statement regarding the circumstances of the arrest. The court thereafter admitted the respondent’s statement into evidence. On October 14, 1982, respondent was found delinquent, adjudicated a ward of the court and committed to the Illinois Department of Corrections, Juvenile Division. He appeals from that finding.

Opinion

We first consider respondent’s contention that the trial court erred when it denied his motion to quash his arrest and to suppress his statement because the arrest was made without probable cause and followed information supplied to the police by an unidentified informant who was neither a victim nor an eyewitness to the offense.

In deciding the question of probable cause the courts deal with probabilities, which are the factual and practical considerations of everyday life on which reasonable men, not legal technicians act. (Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329.) The lawfulness of an arrest without a warrant depends upon whether the officer has reasonable grounds for believing that the person to be arrested has committed the criminal offense. People v. Durr (1963), 28 Ill. 2d 308, 192 N.E.2d 379.

The law is clear in Illinois that an arresting officer may rely upon information supplied by an informer in determining whether probable cause exists “if the reliability of the informant has been previously established or independently corroborated.” People v. McCray (1965), 33 Ill. 2d 66, 70, 210 N.E.2d 161, 163, aff’d (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056.

Whether information received by an informant amounts to probable cause is to be determined on the totality of the circumstances. (Illinois v. Gates (1983), 462 U.S. 213, 231, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317, 2328.) In Gates, the United States Supreme Court abandoned the rigid two-pronged test for establishing probable cause based on an informant’s tip that it had articulated in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. The Aguilar test required satisfaction of a two-pronged analysis: first, the informant had to satisfy the “basis of knowledge” prong, which was concerned with the facts and circumstances showing that the informant knew that the person named had been or would be involved in criminal activity; the second is the “veracity prong,” which is concerned with the facts and circumstances from which it was concluded that the informant was credible or his information reliable. (378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514; People v. Winters (1983), 97 Ill. 2d 151, 160, 454 N.E.2d 299.) An exception to this analysis, as set forth in Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, allowed corroboration of facts in a tip to compensate for an inability to satisfy the “basis of knowledge” prong. ;

In choosing the totality of circumstances approach, the United States Supreme Court, in Gates, held that the elements of the Aguilar-Spinelli test-veracity, reliability and basis of knowledge— “should be [now] understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question [as to] whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” (462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2328.) The Gates court further held that “a deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” 462 U.S. 213, 76 L. Ed. 2d 527, 545, 103 S. Ct. 2317, 2329.

Using the elements of the Aguilar-Spinelli test as factors rather than the rule in the determination of the totality of the circumstances, we initially note that prior to Officer Konior’s receipt of the informant’s information, he was aware that the victim’s girlfriend had told the investigating officer at the scene that the victim had told her that “kids — four or five” had stabbed him. Konior’s testimony that the informant told him that he had personally overheard the respondent (on a street that Officer Konior knew respondent frequented) boasting that he and three others stabbed a white man during a robbery, in addition to the informant’s referral to the respondent by his first name, “J.” and by his nickname, “Bo” (known by Konior to be accurate), was evidence of the informant’s “basis of knowledge” that a crime had been committed.

The “veracity” prong was established by Konior’s testimony that he met personally with the informant, whom he had known to be reliable and truthful, and who had given him information on prior occasions that he acted upon.

We conclude that a review of the evidence in the case at bar, given the “totality of circumstances” fully supports the trial court’s finding of probable cause for respondent’s arrest. The arresting officer testified under oath, in open court, fully and in precise detail as to what the informer told him and why he had reason to believe his information was trustworthy and although he was subject to cross-examination, respondent waived the opportunity. The trial judge was obviously satisfied that Officer Konior was telling the truth. As a reviewing court, we may not disturb the conclusion reached by the trial court unless we find it to be manifestly erroneous. People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.

Our determination that the trial court’s denial of respondent’s motion to quash his arrest was proper obviates the need to discuss his correlative contention that the trial court erred in not suppressing his confession on the ground that it was a direct result of the illegal arrest.

We next consider whether the trial court’s denial of respondent’s motion to suppress his confession was contrary to the manifest weight of the evidence. Initially he contends that his lack of comprehension of the English language precluded a knowing and intelligent waiver of his Miranda rights read to him in English.

One suspected' of a crime is guaranteed under Miranda his right to assistance of counsel and a right to remain silent during in-custody police interrogation. Any statement obtained in derogation of those rights is inadmissible in a subsequent criminal prosecution. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) A suspect may waive his constitutional rights provided he does so voluntarily, knowingly and intelligently. 384 U.S. 436, 444, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.

In the present case, it is undisputed that while in custody, the respondent was advised several times of his rights as mandated by Miranda. The question presented here is whether he knowingly and intelligently waives those rights where he argues that he is of Hispanic origin, 14 years of age, and lacked the comprehension of the meaning of the warnings given to him in English.

The determination of whether there has been an intelligent waiver of rights was enunciated by the supreme court in People v. Turner (1973), 56 Ill. 2d 201, 205-06, 306 N.E.2d 27, wherein the court, quoting from Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023, stated: “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” We will not disturb the ruling of the trial court unless it is against the manifest weight of the evidence. People v. Wipfler (1977), 68 Ill. 2d 158, 171, 368 N.E.2d 870.

In the instant case, the State was required to establish by a preponderance of evidence that respondent was able to understand the Miranda warnings. (People v. Baker (1973), 9 Ill. App. 3d 654, 292 N.E.2d 760.) The State’s evidence shows that the respondent, while never requesting an interpreter, conversed entirely in English with the arresting officer, youth officer and assistant State’s Attorney and repeatedly acknowledged that he understood the Miranda warnings which were given to him. Furthermore, witnesses present when respondent’s statement was taken, testified that respondent, after first reading his transcribed statement, initialed each page of the statement and signed his name to its final page.

Respondent submits that his evidence presented at the suppression hearing, which included the testimony of a psychiatrist, two educators and a guidance counselor was more credible than the State’s evidence. However, the record shows that none of those witnesses had any contact with respondent prior to his commitment to the Juvenile Detention Center, nor did the guidance counselor ever have any personal contact with respondent.

The trial judge having observed the witnesses, their demeanor, candor and sincerity while testifying in court, is in a far better position than the reviewing court to weigh that evidence in the determination of respondent’s ability to comprehend the English language. The trial judge observed the respondent’s testimony and demeanor and concluded that based upon all of the evidence presented, respondent’s statements were not credible. We believe that he was within his province in so ruling and that the evidence was sufficient to justify the trial court’s finding of a valid, intelligent and knowing waiver of Miranda by respondent.

Respondent next argues that the youth officer’s delay in seeing the respondent and his failure to notify respondent’s parents precluded a voluntary waiver of his Miranda rights.

The voluntariness of a juvenile’s confession is to be determined by the totality of the circumstances. People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383; In re Lamb (1975), 61 Ill. 2d 383, 336 N.E.2d 753, cert. denied (1976), 425 U.S. 938, 48 L. Ed. 2d 180, 96 S. Ct. 1672.

Respondent urges us to find that his statement was involuntary because police failed to comply with section 3 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 703 — 2(1)), which requires that notice be given to a parent or guardian when a juvenile is taken into custody. The statute requires the law enforcement officer who takes a minor into custody, without a warrant, to immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care that the minor is in custody and also notify the nearest juvenile officer.

If counsel for a juvenile is not present when a confession or admission is obtained, utmost care must be taken to insure that the confession is voluntary and not coerced, suggested or the result of the juvenile’s ignorance of his rights or his adolescent fantasy, fright or despair. In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.

Respondent contends that, subsequent to his arrest at 6:30 p.m. on January 21, 1982, he had no contact with Youth Officer Dziak until approximately 2:30 a.m. on January 22, 1982, when he was interviewed by Dziak and Warnick. The record is unclear as to whether the arresting officer attempted to contact the youth division prior to 12:05 a.m. If there was no attempt made, the officer who initially questioned the respondent did not comply with section 3 — 2; however, where a juvenile has been admonished in detail with respect to his right to remain silent and to have assistance of counsel and he has understood such a warning, a police officer’s failure to comply with section 3 — 2 does not preclude admission of defendant’s statement. People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642.

We have reviewed the evidence in this case and conclude that the failure to notify respondent’s parents did not preclude admission of his statements. He was repeatedly given his Miranda warnings, and he repeatedly acknowledged he understood them and indicated he would give a statement. Photographs taken of respondent belie his claim of physical abuse and coercion.

Illinois courts have recognized that it is preferable that the parents of a juvenile be present when a juvenile waives his rights (In re Bertrand (1978), 65 Ill. App. 3d 703, 382 N.E.2d 660) but have held that the absence of the accused juvenile’s parents or guardian does not render ineffective an otherwise valid waiver of constitutional rights (In re Stiff (1975), 32 Ill. App. 3d 971, 336 N.E.2d 619), rather the fact that there has been a violation of section 3 — 2 of the Juvenile Court Act, and a failure to notify the juvenile’s parents, resulting in their absence during questioning of the juvenile, has been stated to be at most “a factor in determining whether subsequent statements were voluntarily made.” People v. Creach (1979), 69 Ill. App. 3d 874, 890, 387 N.E.2d 762, aff’d in part, rev’d in part on other grounds (1980), 79 Ill. 2d 96, 402 N.E.2d 228.

In sum, an examination of the totality of the circumstances in this case convinces us that the minor’s confession was voluntary. Any delay which occurred in contacting the youth officer was mitigated by the fact that respondent’s signed written statement, put into evidence at trial, was given only after the youth officer arrived at the station, and respondent was again informed of his rights by Assistant State’s Attorney Wamick. In addition, even if we hold that the police violated section 3 — 2 by not contacting respondent’s parents, which we do not, the law is clear that such a violation in itself would not render the statement inadmissible (People v. Zepeda (1970), 47 Ill. 2d 23, 27, 265 N.E.2d 647), as the act does not make juveniles immune from proper police investigation. 47 111. 2d 23, 28.

Finally, the respondent contends that the following preface to the trial court’s denial of his motion to suppress ignores the factors to be used in making a ruling based on the Simmons “totality of circumstances” standard:

THE COURT: I think there are two mutually exclusive elements in the defendant’s argument. He could not understand the English language, then the statement could not have been voluntarily within the meaning of Miranda even if the police coerced him with handcuffs. If he understood Miranda, he may have been coerced by police conduct. So it is one or the other, but not both.

We disagree with respondent’s final contention as we find no evidence in the record of the trial court to indicate that the trial judge ignored the “totality of circumstances” standard in Simmons, in its determination of the voluntariness of respondent’s statement.

We conclude that the trial court’s denial of respondent’s motion to suppress was not contrary to the manifest weight of the evidence.

For the foregoing reasons, the finding of delinquency and commitment to the Department of Corrections, Juvenile Division is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.