text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Elvin Appleton et al., Defendants-Appellants.
    (No. 69-78;
    Fifth District
    August 11, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, of counsel,) appellants.
    Robert H. Rice, State’s Attorney, of Belleville, (William B. Starnes, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

On September 8, 1968 Grady and Elvin Appleton were arrested in St. Clair County, Illinois and subsequently indicted on two counts of armed robbery. They were found guilty at a juiy trial and Grady Appleton was subsequently sentenced to serve a term of not less than ten nor more than twenty years, and Elvin Appleton not less than eight nor more than twenty years, in the Illinois State Penitentiary.

The evidence was that at approximately 9:30 A.M. on September 8, 1968, two women were walking on Thirteenth Street in East St. Louis on their way to a bus stop. A car, identified by one of the women as a blue car with a black vinyl top, and perhaps a 1967 Pontiac Catalina, pulled over to where they were walking. The driver of the car demanded their money. The women kept walking but stopped when a gunshot was fired. The driver of the car then came over to them with a gun in his hand and took both women’s purses containing a total of $23. During this time a second man remained seated in the car on the passenger side of the front seat. Neither of the women were ever able to get a good look at the second man but they described him as a male Negro. The driver was also described as a male Negro, clean-shaven and wearing dark pants and an orange pullover sweater. During the course of the alleged robbery a second shot was said to have been fired into the grassy area between the curb and the sidewalk. At the conclusion of the incident the two men sped off in the car. One of the women attempted to get the license number of the car but discovered there were no plates on the car. The police were called. Detective Henderson arrived at the scene, elicited the pertinent information and relayed it to headquarters. In a search of the scene he found a .45 caliber shell casing which he put in his pocket but placed no identifying mark on it.

Two police officers received the radio dispatch concerning the robbery while they were cruising in their police car. A short time later they observed a car fitting the description they had received, although it was a Buick. As they were making a U-tum to stop the Buick for investigation it sped off and the officers gave chase, using their red light and siren. In attempting to elude the police the Buick traveled at speeds up to seventy miles per hour and ran through at least five stop signs. Eventually the Buick was stopped and its two passengers ran in opposite directions. One of the officers chased the man who left the Buick on the drivers side. He caught him and upon searching him found a .22 caliber pistol. This man was identified as Grady Appleton. The other officer was unable to catch the second occupant of the car. On their way to the police station with Grady Appleton the other officer saw the man he had been chasing. He again gave chase and this time was able to apprehend the subject. When arrested, this man was wearing an orange sweater and light-colored trousers and was identified as Elvin Appleton. When he was apprehended he had a .45 caliber pistol in his hand.

At a lineup at the police station later in the day neither of the two women who were the victims of the crime were able to identify the defendants as being the two men who had robbed them. Likewise during the trial neither woman could identify the two defendants as being the men who had robbed them. Defendant Elvin Appleton testified in his own behalf and denied that he and his brother (Grady) had committed the crime. He stated that he had been drinking with some friends in the early morning hours on the day in question and one of his companions had loaned him his car to go home. This was the 1965 Buick with the blue vinyl top. The owner of the car had previously testified to his ownership and confirmed the defendant’s testimony as to his whereabouts in those early morning hours, but his testimony was unclear as to whether he had allowed Elvin to borrow his car or whether Elvin had taken it without his permission. Elvin further testified that he drove the car to Grady’s home arriving at approximately 8:00 A.M. At home were Grady, his wife, Emma, and a cousin Luella Mims. They began drinking beer but soon ran out. Because they had no money the defendants decided to pawn their guns with another brother and use the money to buy more beer. They left at approximately 10:30 A.M. in the blue Buick. It was while the defendants were driving to pawn the guns that they were seen by the cruising officers and the reason they fled was because they feared they would get into a great deal of trouble if they were stopped by the police in a car without license plates and carrying two guns. Elvin also stated that on the day of the alleged robbery he was not clean-shaven but had a mustache, which he still wore at the trial, and that he was wearing a red shirt on the day of the alleged robbery, not an orange one. The time of defendants’ departure was confirmed by the testimony of Emma Appleton and Luella Mims. However, upon cross-examination the People introduced a statement signed by Luella Mims that she had seen the police chasing the defendant at approximately 9:30 A.M. on the morning in question. In rebuttal of Elvin’s testimony, the People produced a woman who worked as a maid in a motel in East St. Louis who testified that at 9:00 A.M. on the morning in question she saw a man whom she identified as Elvin Appleton, at the motel. She saw him at the office with a .45 caliber gun in his hand.

Defendants’ first contention is that reversible error was committed when a witness called by the prosecution gave testimony that one of the defendants, Elvin Appleton, participated in a crime other than that for which he was on trial, and that the error was aggravated when the prosecution commented thereon during his closing argument. The testimony to which defendants have reference is that of the woman who worked as a maid in a motel. She was called in rebuttal at the close of defendants’ evidence and testified that she saw Elvin Appleton at 9:00 A.M. on the morning of the robbery at the office of the motel with a .45 caliber gun in his hand. Since the crime in question occurred at approximately 9:30 A.M. his testimony constituted an alibi and the motel maid was called by the People for the twofold purpose of refuting the alibi and attacking the credibility of the defendant. It is the State’s position, with which we must agree, that since the defendant Elvin Appleton, had elected to take the stand and testify in his own behalf he thereby placed his credibility in issue and subjected it to attack and to the same tests as are legally applied to any other witness. (People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455; People v. Hicks, 362 Ill. 238, 199 N.E. 368; People v. Johnson, 333 Ill. 469, 165 N.E. 235.) Accordingly, defendants are in no position to complain since it was their evidence that invited the rebuttal testimony by the motel maid to refute the evidence of alibi. That such testimony would show or infer that defendant had committed another offense would not render it inadmissible. People v. Bartz, 342 Ill. 56, 173 N.E. 779; People v. Pargone, 327 Ill. 463, 158 N.E. 716; People v. Hanley, 317 Ill. 39, 147 N.E. 400; People v. April, 97 Ill.App.2d 1, 239 N.E.2d 285.) Defendants argue that there was no need to present any rebuttal evidence to link Elvin Appleton and the .45 caliber gun which he possessed when he was arrested since he had admitted it was his gun. The fact that the witness remembered that Elvin Appleton held a gun during his appearance at the motel office would serve to show that the witness would have some reason to recall the particular incident which occurred approximately four months previous to her testimony. In any event, our reading of the transcript of the testimony of the maid discloses that her testimony did not implicate defendant Elvin Appleton in any other crime, including armed robbery, as suggested. Her testimony was that at approximately 9:00 A.M. on the morning in question she saw defendant Elvin Appleton in the motel office with a .45 caliber gun in his hand. There was no testimony that he was making any illegal or unlawful use of the gun in committing a robbery or an aggravated battery, that any money was taken or attempted to be taken, that he had illegally discharged the gun, that he was carrying a concealed weapon or that he was guilty of any other crime at the time and place in question. The actions described by the witness did not constitute any crime, only the objections and innuendoes of the defendants would make them so. We think that the People were careful in their presentation of the rebuttal testimony to prevent evidence of another crime involving the defendant Elvin Appleton from going before the jury. Defendants cite People v. Fuerback, 66 Ill.App.2d 452, 214 N.E.2d 330, but it is distinguished on its facts in that the rebuttal witness testified in great detail concerning another robbery at gunpoint, the description of the gun used and what the defendant did and said during the incident.

In the rebuttal portion of his closing argument the prosecutor, in commenting on the incident at the motel, said: “She [the maid] said under oath that Elvin Appleton was in her motel; whether another crime took place on that occasion isn’t before you; it would be improper to tell you that a crime took place there, if in fact it did; it would be improper to tell you there was a charge pending, or not pending.” But again, it was the defense who prompted and invited the reference to the incident in the motel. An attorney for defendant, in making his closing argument, said:

“Now, Mrs. McCondichie who works in a by-the-hour motel comes in and says there was a man. Isn’t this strange? There was a man in an orange sweater in there with a black — that isn’t black — but with a black .45. She knows what a .45 looks like — but a black .45. He looks like Elvin Appleton, even down to the goatee. You heard me ask — I don’t think I took advantage of her, but she remembered that. She was positive. Mrs. Wicks and Mrs. Preuss couldn’t identify anybody, but she was positive, that a man came in and displayed a .45, that is what she said. She didn’t call the police. She called the boss. I don’t know how supposedly she got to view anybody in the line-up; she said two weeks later she identified Elvin Appleton. She didn’t say that the man wanted money, that he just appeared in there with a .45. How close the people who are interested in the operation of that so-called motel are connected with anyone in East St. Louis or anybody in the City, insofar as the police are concerned or anyone concerned with seeing that the laws are complied with down there, I don’t know, but I do know that kind of testimony is unreliable in my opinion, but you have to be the judges.”

It is apparent by his remarks that the State’s Attorney was not trying to suggest to the jury that defendant, Elvin Appleton, had committed another crime; to the contrary, he was advising the jury that they should not consider it as such. The prosecutor’s comment cannot be considered anything but a fair rebuttal to the remarks made by a defendant’s attorney in his closing argument.

Defendants next contend that the court committed error in admitting in evidence the .45 caliber shell casing found at the scene of the robbery and the testimony of the ballistics expert as to its origin because it was not established that the shell casing found at the scene was the same shell casing examined or placed in evidence. In essence defendants’ objection is that the People did not meet their burden of showing a continuous chain of possession in order to establish a foundation for admission of the shell casing in evidence; that there are “breaks in the chain” of possession.

The record shows that Sgt. Henderson found a .45 caliber shell casing at the scene and placed it in his pocket. When he arrived at the police station to make his report he turned it over to the Desk Sergeant on duty, Sgt. Lemanski, who gave him a receipt for it. Sgt. Lemanski placed the casing in a brown manila envelope and stapled it shut. He then made out an evidence sheet and attached a copy to the envelope and locked the envelope in the evidence drawer which was in a desk in the Desk Sergeant’s office. The envelope containing the casing remained in the evidence drawer until the following morning, September 9. In keeping with customary practice, the key to the evidence drawer was in the possession of the Desk Sergeant and kept in an unlocked drawer of the Desk Sergeant’s desk and passed to the relieving Desk Sergeant when the shift changed. There is traffic by police officers through the room in which the key to the evidence drawer is kept by the Desk Sergeant. On the morning following the robbery the evidence officer of the East St. Louis Police Department, Sgt. Holtman, went to the Desk Sergeant’s office and took delivery of the evidence envelope from the Desk Sergeant on duty who removed it from the locked drawer. Sgt. Holtman signed the evidence book to note receipt of the shell casing and the .45 caliber pistol taken from defendant Elvin Appleton. Sgt. Holtman delivered the shell casing and pistol to Sgt. Henderson who took them to Detective Joseph Brasser of the St. Louis Police Department. Detective Brasser was assigned to the St. Louis Police laboratory firearms identification section and performed identification tests on the shell casing and pistol and testified at the trial. After completing his tests Detective Brasser returned the shell casing and pistol to Sgt. Holtman who retained them in his possession until the time of the trial. Sgt. Brasser testified that the shell casing was fired from the gun which Elvin Appleton had in his possession when he was arrested.

Defendants contend that there is no way of telling that the shell casing examined by Detective Brasser and the one admitted in evidence was the same one found at the scene of the robbery since there was no testimony offered by the People as to what happened to the shell casing from the time Sgt. Lemanski went off duty at 3:00 P.M. and Sgt. Holtman went on duty the next morning at 8:00 A.M. Sgt. Gibbs, the Desk Sergeant who was on duty during those intervening hours was never called to testify and the evidence drawer was in an area accessible to other police officers. Defendants further contend that the question of chain possession is aggravated by die fact that neither Detective Henderson, nor Sgts. Holtman and Lemanski could say of their own personal knowledge that the shell casing offered in evidence was the same one they had delivered during their investigation.

Nothing appears in the record that would suggest tampering, alteration or substitution, either intentional or accidental, with the shell casing or the envelope containing it. We think the record discloses a careful, guarded and systematic procedure for handling items of physical evidence by tire East St. Louis Police Department and that that procedure was followed with care in dealing with the shell casing in question. As stated in People v. Hines, 267 N.E.2d 696, the chain of possession was complete and the fact that certain other people had access to the exhibits at various stages of the possession would not effect the admissibility of the exhibits unless there was actual evidence of tampering or substitution. In People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837, there was a suggestion that the chain of possession was broken when there was no direct testimony from the man in the crime laboratory who actually received the sealed envelope from the arresting officer and placed it in a locked cabinet. The Supreme Court rejected the contention and approved a system of evidence preservation similar to that in this case. The procedure followed in the handling of the shell casing as an item of physical evidence to preserve its integrity as evidence finds full justification in the cases dealing with the chain of possession of evidence. The fact that Desk Sgt. Gibbs, who had access to the key to the evidence drawer, was not called to testify, or that there was “traffic” in the room where the key was kept by other police officers with some opportunity to obtain access to the key to the evidence drawer does not constitute a break in the chain of possession so as to destroy the integrity of the evidence. (People v. Belousek, 110 Ill.App.2d 442, 249 N.E.2d 693; People v. Hines, supra; People v. Cain, 35 Ill.2d 184, 220 N.E.2d 195; People v. Judkins, 10 Ill.2d 445, 140 N.E.2d 663.) Under the circumstances shown the court was not in error in admitting the shell casing into evidence nor in permitting the ballistics expert to testify.

Defendants rely upon People v. Norman, 24 Ill.2d 402, 182 N.E.2d 188, and People v. Maurice, 31 Ill.2d 456, 202 N.E.2d 480. However, an examination of those cases discloses that the procedures there involved bear no relation to that shown in this case. In Norman it was held that a powder purporting to be narcotics lay unprotected on a chemist’s desk for approximately nine days with no effective protection. In Maurice there was no link either by identification or continuity of possession between the heroin in evidence and the defendant.

Defendants’ final contention is that the final argument of the prosecutor in which he called Elvin Appleton a “stick-up artist” was incompetent and prejudicial. Defendants made no objection to the remark at the trial and no ruling on its propriety was obtained or preserved so any error stemming therefrom is deemed to be waived. People v. Donald, 29 Ill.2d 283, 194 N.E.2d 227; People v. St Clair, 27 Ill.2d 505; People v. David, 126 Ill.App.2d 114.

Inconsistencies that appeared in the evidence were duly presented to the jury for their consideration. Their verdict of guilty makes it evident that they were not persuaded by defendants’ arguments in that regard. From our examination of the record we are convinced that the evidence, when considered as a whole, shows the guilt of defendants beyond a reasonable doubt and we are not willing to set aside the jury verdict.

For the reasons stated we are of the opinion that defendants were proven guilty beyond a reasonable doubt and that no prejudicial error intervened in their trial. The verdict of the jury who saw the witnesses and heard their testimony is amply supported by the record and will not be set aside.

Judgment affirmed.

EBERSPACHER, P. J., and MORAN, J„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE TRAPP Mr. JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Curtis Dean Burress, Defendant-Appellant.
    (No. 11296,
    Fourth District
    August 3, 1971.

      Rehearing denied September 1, 1971.

    CRAVEN, J., dissenting.
    Robert D. Owen, of Owen, Roberts, Susler & Taylor, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of arson following a bench trial and was placed upon probation for a period of three years. He appeals from the judgment of conviction only.

The theory of the defendant was that psychiatric testimony raised the issue of criminal responsibility, ch. 38, § 6-2, Ill. Rev. Stat. 1961, and that the prosecution thereafter failed to prove beyond a reasonable doubt that the defendant was criminally responsible. There is no issue of defendant’s capacity to “appreciate the criminality of his conduct”. The testimony is that he was of average or above inteHigence. It is urged, however, that the only evidence in the record is that defendant lacked a substantial capacity to “conform his conduct to the requirements of the law”. The prosecution did not introduce any medical or lay opinion upon the latter issue.

Defendant urges that nothing in the record contradicts or impeaches the opinion of mental iUness expressed in the psychiatric testimony so that there was no alternative for the court but to find that there was such mental iUness as would bar a finding of criminal responsibility. Upon the same hypothesis it is urged that this court must reverse.

The State’s Attorney argues that the issue is whether, in the light of all the evidence, the facts support a finding of guilt beyond a reasonable doubt, and that the court is not bound to accept the opinion of the psychiatrist, but as the trier of the fact must determine the criminal responsibility of the defendant.

The defendant’s principal argument here is that the trial court determined that the psychiatric testimony did not overcome the presumption of sanity. There is such language in the court’s discussion of the evidence following the argument of counsel. Such colloquy, however, discloses an analysis of the testimony and the facts, and with his further remarks foHowing arguments upon a post-trial motion disclose that he was determining whether there was “such incapacity that defendant can’t conform to law”.

Hie rule is that if evidence of “insanity”, i.e., want of criminal responsibility is introduced, the presumption of sanity does not prevail, but the burden is on the State to prove such responsibility beyond a reasonable doubt. The People v. Le May, 35 Ill.2d 208; 220 N.E.2d 184; The People v. Gold, 38 Ill.2d 510; 232 N.E.2d 702. We have found no authority that such burden imposed upon the State requires explicit opinion testimony that the defendant is “sane”. It is for the trier of fact to determine from aH of the evidence whether the prosecution has satisfied the burden of proof. Such trier of fact may consider the statements of the defendant as well as the physical and other facts in evidence. The People v. Le May; The People v. Miller, 33 Ill.2d 439; 211 N.E.2d 708. He may also consider the presence or absence of a history of criminal conduct. People v. Walker, 103 Ill.App.2d 308; 243 N.E.2d 674. In People v. Count, 106 Ill.App.2d 258; 246 N.E.2d 91, it was contended that the testimony of defendant’s psychiatrist was unimpeached and uncontradicted. The court held that the credibility and weight to be given psychiatric testimony was for the trier of fact, and that such opinion testimony of irresistible impulse was contradicted by facts and evidence demonstrating that the robbery was premeditated with a plan for escape.

The facts in evidence are principally the confession of defendant that as he was traveHing home from the theatre on June 16th, on a state highway, he turned from the state highway and traveHed to a bam which was burned. It appears that such deviation in traveHing was some one and one-half miles. He puUed into the driveway, turned his car around, took a fusee apparently obtained from his place of employment, which he lighted and threw into the bam. He then returned to the highway and went on to Dalton City. Some distance away he observed the barn burning and then reported the fire. He was refused permission to ride with the fire truck, but followed it to the scene. The confession includes a statement that ten days prior while he was on his way to work in the morning, he travelled the same route turning his car around and threw a lighted fusee into the barn. On this occasion he continued to his place of work.

We have examined the testimony of the psychiatrist with care. He was examined upon the basis of being a treating physician. In April, 1968, the psychiatrist was caUed as a consultant by a medical doctor. Defendant was then found to be suffering from "symptoms of mental depression”. He was discharged after thirty days of consultation and psychotherapy. No history or tendency toward pyromania was noted or discovered.

The day following defendant’s indictment for arson he was again hospitalized, and became a patient of the psychiatrist. Under such circumstances there is ambiguity in the medical use of subjective data. As pointed out in People v. Count, 106 Ill.App.2d 258; 246 N.E.2d 91, that which the defendant told the psychiatrist may weH be self-serving and unreliable. Defendant’s medical examination was deemed essentiafly negative. No psychological tests were made as the psychiatrist felt that such data could be equaUy weH developed through interview. Defendant was found to be grossly obese, with a personality disorder and a possible dependence upon parental figures. He was aged 22 years and was said to lack the natural aggressiveness for such age, but felt a great need to make himself recognized as the center of attention. It was the opinion of the psychiatrist that the defendant set the fire as the result of an uncontrollable impulse, or what he thought was more accurately termed a neurologic compulsion. Such condition was said to have originated in what is described as the traumatic loss of his mother when defendant was aged six years. Other evidence in the record suggests that defendant was then eight or nine. So far as the record shows, defendant was thereafter raised by his father and an older sister. The then present conditions of his home life are not in the record testimony.

It is stated that there is no specific test for the condition of pyromania, and that the fact that such condition is uncontrollable is determined by the frequency and nature of the acts. It is stated that children are fascinated with setting fires, and if such persists in adolescence or as an adult without forethought or premeditation it becomes an uncontrollable impulse. Control of such impulses is said to be a cerebral function and that the degree of control depends upon “internal pressures”, but that control cannot be analyzed as it takes but a few seconds for the individual to act.

The psychiatrist concluded that defendant’s impulses were uncontrollable because his nature appears inhibited and passive, rather than aggressive with premeditation, so that when defendant acts upon hostile impulses he does so without much cerebral screening.

The record does not contain any statement of fact or history concerning the frequency or the nature of the setting of fires by defendant, either as an infant, in adolescence or adulthood. Following motions by the defendant, the trial judge stated that he could consider but one arson.

The opinion testimony does not discuss or analyze what, if any, internal pressures were believed to exist at the time of this act of the defendant. People v. Anderson, 104 Ill.App.2d 47; 242 N.E.2d 798. The weight of an expert’s opinion is measured by the reasons given for the conclusion and the factual details which he marshals in support of it. King and Pillinger, Opinion Evidence in Illinois, (1942), p. 317.

Considering the opinion in the light of the facts of record, defendant was returning from the theatre, drove a substantial distance from his normal route of travel to the scene and turned his car around. He used a fusee from a supply which he had obtained and carried aound in his car. Such practice described by the defendants as occurring on two different occasions makes it a reasonable conclusion that this was in contemplation of speedy escape from the scene. Such combination of detail suggests other than an act upon impulse within a span of moments, as described by the psychiatrist.

Defendant’s capacity to “appreciate the criminality of his conduct” is not questioned by the psychiatrist. The theory of an act of compulsion and impulse without premeditation is contradicted by the time involved in travel and the apparent planning in doing the act People v. Count, 106 Ill.App.2d 258; 246 N.E.2d 91; People v. Anderson, 104 Ill.App.2d 47; 242 N.E.2d 798.

Upon a consideration of all of the record before the court, we are satisfied that the evidence established defendant’s guilt beyond a reasonable doubt.

Judgment affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE CRAVEN

dissenting.

The issue in this appeal is not the defendant’s guilt but rather whether he is criminally responsible for his conduct. Psychiatric testimony that was uncontradicted was to the effect that the defendant’s impulses were uncontrollable, and as I view the psychiatric testimony it constituted a description of pyromania. There is nothing in the record by way of expert or lay opinion that impeaches, contradicts, challenges or in any way overcomes this psychiatric testimony.

The rule in Illinois is that a person is not criminally responsible for his conduct if at the time of the conduct and as a result of a mental disease or mental defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Sec. 6-2 of ch. 38, Ill. Rev. Stat. 1969.) While a person is presumed sane, once evidence of insanity is introduced, the ordinary presumption of sanity does not prevail and the burden is cast upon the State to prove that at the time of the commission of the offense the accused had sufficient capacity to be criminally responsible. People v. Count (1st Dist. 1969), 106 Ill.App.2d 258, 246 N.E.2d 91; People v. Haun (4th Dist. 1966), 71 Ill.App.2d 262, 217 N.E.2d 470; People v. Jackson (1st Dist. 1969), 116 Ill.App.2d 304, 253 N.E.2d 527.

The majority opinion relies upon the observations in Count. In the Count case there seems to have been a conflict in the evidence with reference to the defendant’s mental capacity. A hearing had been held to determine the defendant’s competency to stand trial. A psychiatrist testified that defendant understood the nature of the charge and was able to cooperate with counsel. This, coupled with other testimony introduced at the trial, led the court to the conclusion that there was a fact question for the jury.

In this case the psychiatric testimony was uncontradicted and unimpeached. I am unable to accept the conclusion that one who is described as not of a capacity to be held criminally responsible can be held to be so merely by a showing of detailed planning of the illegal act.

Evidence of deviousness or cunning in the planning and execution of antisocial acts is not necessarily even relevant to the issue of mental condition.

The evidence in this record casts the burden upon the People to prove that at the time of committing the act the accused was legally sane, i.e., criminally responsible for his conduct. People v. Le May (1966), 35 Ill.2d 208, 220 N.E.2d 184. This record shows a complete failure in sustaining that burden, for there is no evidence on the issue.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Jerome Harris, Defendant-Appellant.
    (No. 70-110;
    Fifth District
    August 11, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Theodore A. Gottfried and Bruce Stratton, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (Philip G. Feder, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant was found guilty of the crime of armed robbery by a jury, and after an opportunity to present evidence in mitigation and the State advising the court that there was no evidence of a previous criminal record, a sentence of seven to 20 years was imposed.

Appellant here contends that he was not proven guilty beyond a reasonable doubt. The State presented the testimony of the two victims of the crime who testified that defendant while armed with a revolver robbed them of $330, and that they had an opportunity to observe the defendant and later identified him at a police station as the individual who had robbed them. The victims also identified the defendant in the court room. One of the victims testified that defendant left the scene of the robbery in a white Cadillac and that he noted the license number, and later in the evening saw the Cadillac at defendant’s residence.

Defendant testified in his own behalf and denied that he was involved in the robbery committed. He admitted the ownership of the car and testified that he had left the car at a car wash and was, during the period of the robbery, dressed differently than described by the victims. He offered the testimony of an employee of the car wash to substantiate his contention that his car was there during the time of the robbery. He offered evidence of three other witnesses as to his activities at some distance from the scene of the robbery during the time the robbery occurred. He contends that by reason of strong evidence by reliable witnesses with regard to his presence in and around his home at the time of the robbery, and considering the failure of the State to produce any gun or clothing as described by prosecution witnesses or any of the money stolen, as a matter of law there is a doubt about his guilt which compels reversal.

It has long been held that the jury as a trier of fact has the function of determining the credibility of witnesses and resolving any conflicts or contradictions in the evidence; that it is only when the verdict is palpably contrary to the weight of the evidence and there is clearly a reasonable doubt as to guilt that a reviewing court should substitute its judgment for the trier of fact. (People v. Underhill, 38 Ill.2d 245, 230 N.E.2d 837, People v. Henderson, 33 Ill.2d 225, 210 N.E.2d 483, People v. Scott, 34 Ill.2d 41, 213 N.E.2d 521.) The jury in this case heard all the evidence and upon hearing all the evidence returned a finding of guilty.

Defendant further contends that the sentence was excessive and should be reduced. At the time of the offense defendant was 23 years of age and employed. There was no motion for probation, no presentence investigation or report, and no evidence in Aggravation and Mitigation. The State had no evidence of any prior criminal record.

Our views with reference to the purpose of sentencing have most recently been expressed in People v. Jordan, No. 70-95, opinion filed July 16, 1971 and People v. Moore, No. 70-46, opinion filed July 4, 1971 Per Curiam, and the opinions cited therein.

We therefore modify the judgment and sentence to provide that the sentence imposed on defendant be confinement in the penitentiary for a term of not less than three nor more than ten years, and as so modified the judgment is affirmed.

Judgment modified, and as modified affirmed.

MORAN and CREBS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    James E. Mitchell, vs. Henry Burnett, Defendant-Appellee.—(The Farmers Insurance Exchange, Intervenor-Appellant.)
    (No. 70-34;
    Fifth District
    August 13, 1971.

      Gosnell, Benecki, Quindry, of Lawrenceville, (Maurice E. Gosnell, of counsel,) for appellant.
    Conger & Elliott, of Carmi, (Ivan A. Elliott, Jr., of counsel,) for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal by the intervenor-appellant, Farmers Insurance Exchange, from a declaratory judgment entered against it by the Circuit Court of White County. The sole issue is whether defendant’s liability policy issued by appellant was in effect on May 7, 1965, the date of an accident involving plaintiff’s tractor and defendant’s automobile, or whether, as contended by appellant, it had been effectively cancelled for non-payment of premium prior to said date.

The facts are not in dispute. On February 8, 1965, defendant, a resident of Mesa, Arizona, contacted an agent of appellant and made application for a policy on his newly purchased automobile. The application was transferred to Mid Century Insurance Co., an affiliate of appellant, and on March 12, 1965, this company sent defendant a notice clearly entitled “Notice of Cancellation” in large red caps, informing defendant that his policy was cancelled effective at 12:00 noon on March 26, for certain reasons which later proved to be inapplicable. When appellant’s agent informed it of the mistake a policy was then issued by appellant itself effective from the original date of the application to August 8, 1965. This policy was then personally delivered to defendant by said agent. Payment of the premium was not requested at this time, nor did defendant pay it as he wanted to include it in his financing arrangement with the bank carrying his mortgage on the car. Later, though the agent tried to intercede for defendant, the bank refused to include the premium in its note and the premium was never paid.

Appellant’s Policy Service Division Manager testified by deposition that the billing on the policy does not indicate when the billing is due, that it is company practice to send a “reminder or follow-up” to the insured informing him when he has to pay. He stated further that on April 10, 1965 a notice entitled “Avoid Cancellation” was sent to defendant requesting payment of $53.60 which notice read as follows:

“We wish to remind you that your premium shown above has not been paid, and to notify you accordingly that the insurance coverage indicated above will be cancelled and all liability of this exchange will cease at 12:00 noon on the cancellation date shown (April 25, 1965). However, if we do receive full payment before 12:00 noon on said cancellation date, your policy will be continued in force without any interruption in your protection.”

This notice was sent to defendant in compliance with policy provisions, to the address shown on the policy but it was returned to the company unclaimed. No such notice was sent to defendants mortgagee. On April 22 a “Notice of Returned Mail” was sent to appellant’s agent stating, “Help us locate insured. Check your records for evidence of a new address. Telephone insured at his place of business. Telephone his mortgagee.” The agent checked only at the address of defendant where he had previously contacted defendant and was informed by a stranger that defendant had moved to Ohio which information he passed on to appellant. On May 7, the date of the accident, a further notice was put into the mail to defendant which the witness described as a “final cancellation which is a follow-up to the Avoid Cancellation notice.” This final cancellation entitled “Notice of Cancellation”, in large red caps, recited the amount of the premium, a cancellation date of April 25 at 12:00 noon, and further informed defendant that if full payment were made at any of the company’s offices within 60 days from the cancellation date coverage would be placed in force from the date payment was received.

The witness testified further concerning a later reinstatement of the policy on payment of the premium by defendant’s sister and a later cancellation on her demand for a refund, but we have not detailed this testimony as it is only the effect of the Avoid Cancellation notice that is relevant to the issue of coverage on May 7, 1965, the date of the accident.

It is conceded by both parties that the construction of the policy, entered into in Arizona, is governed by the laws of Arizona. Appellee points out, however, that there is no decision in Arizona on the particular question involved here, and argues that in the absence of pleading or proof of such a decision it will be presumed that the law in Arizona would be the same as in Illinois. We agree. As stated in 29 Am. Jur. 2d 243, Evidence, Sec. 191, unless the court’s attention, is directed to a decision of another state bearing on a question before it, the law will be presumed to be the same as that of the forum. This same rule is reiterated in In re Estate of Day, 7 Ill.2d 348 and in McCallum v. B. & O. RR. Co., 379 Ill. 60. Attempting to answer this argument appellant contends that the question is one of first impression in Arizona and in such instances Arizona tends to follow the decisions of the reviewing courts of California and that therefore precedents from the latter state are controlling here. The cases cited by appellant do not meet the issue. In Sandoval v. Chenowith, 102 Ariz. 241, 428 P.2d 98, the court followed California's interpretation of Arizona’s Financial Responsibility Law because it had previously done so. In Fertig v. State, 100 Ariz. S. Ct. 1913, 14 Ariz. 540, 133 P. 99, the court followed California's interpretation of a criminal statute because Arizona’s code was based on that of California. In the case of In re Estate of McConnell, 101 Ariz. 538, 421 P.2d 895, the same interpretation was given to the Probate Act because Arizona’s statute was identical to that of California. The fact that Arizona has seen fit to follow California in three isolated instances having no bearing or even remote relationship to the question before us does not, in our opinion, establish that Arizona would dutifully and necessarily follow California in all matters of first impression. We conclude that the rule first above cited is controlling and that the question must be governed by the existing precedents in Illinois.

It is the general rule in Illinois that where a question arises as to the legal construction to be placed upon the language of an insurance policy, the same should be strictly construed in favor of the insured. In Fisher for use of Kiniry v. Associated Underwriters, Inc., 294 Ill.App. 315, it held that this doctrine is particularly applicable in a case involving a company’s right of cancellation, as forfeitures are not favored in the law. The cancellation notice in that case read that “* * * unless the premium thereon shall be paid to us on or before 12 o’clock noon of July 17, 1933, we shall cancel the insurance under said policy upon our books, for Non-Payment of Premium, without further notice and terminate our liability thereunder from that date.” The court held that such language “sets forth that some future action by the company would be taken. It is quite evident that the company did not intend to cancel the policy if the premium was paid within the time specified, but that if it was not paid, the company would then take steps to effect a cancellation‘on the books’ * *

In Burnett v. Illinois Agricultural Mut., 318 Ill.App. 629, the cancellation notice was in the form of a letter stating, “We must, however, advise at this time that if you do not renew your affiliation or reinstate your membership in the Farm Bureau, it will become our duty to cancel the above mentioned policy. We are, therefore, notifying you that at 12:01 Central Standard Time, on May 11, 1941, this policy will be cancelled unless we are advised before that date that you have renewed the membership which entitles you to this insurance.” The court held that it showed a conciliatory attempt to secure reinstatement of the insured’s Farm Bureau membership and did not positively and unequivocally inform him that it was the company’s intention that the policy should cease to be binding on the date specified. In McNellis v. Aetna Insurance Co., 176 Ill.App. 575, it was held that a notice of cancellation which informed the insured that unless the premium be paid by a certain date, “We shall cancel the policy”, was not in itself a cancellation, but merely a statement of intent to cancel in the future.

The Avoid Cancellation notice upon which appellant bases its alleged cancellation in the case before us is as conciliatory as that in Burnett and contains the same contemplation of some future action as that in both Fisher and McNellis. In fact, its very title is equivocal, leading one to believe that it is an invitation to avoid future cancellation and not a positive cancellation in itself. The reasonableness of this belief is confirmed not only by the fact that an unequivocal final Notice of Cancellation was subsequently sent to insured, but by the fact, as stated by appellant’s witness, that it was company practice to send the avoid notice as a reminder or follow-up to the insured informing him of the premium due. It is also noted that this testimony is likewise confirmed by the language of the notice which starts out with the phrase, “We wish to remind you * *

Under these circumstances, and in recognition of the principle that the language of an insurance policy should be strictly construed in favor of the insured, it is our judgment that the Avoid Cancellation notice relied upon by appellant was ineffective as a cancellation of the policy, and that on May 7,1965, defendant was entitled to coverage under his policy. Accordingly, the judgment of the Circuit Court of White County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J. and JONES, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Thomas Charles Holmes et al., Defendants.—(Thomas Charles Holmes, Defendant-Appellant.)
    (No. 11315;
    Fourth District
    August 3, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, of counsel,) for the appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

In September, 1968, defendant pleaded guilty to robbery and upon his petition was admitted to probation for a term of three years. In April, 1970, he was charged with a violation of probation in that he committed a theft of property of value less than $150.00. Probation was revoked following a hearing upon the evidence, and defendant was sentenced to a term of five years to 20 years. His appeal urges that this court set aside the finding of violation and remand for a new hearing, or in the alternative, reduce the sentence imposed under the authority provided in Rule 615(b) (4).

Defendant urges that the trial court erred, (1) in that the judge elicited incriminating statements from the defendant in the absence of counsel, (2) that the trial judge who granted probation should not hear the evidence presented upon the issue of violation of probation, and (3) that the sentence imposed is excessive.

A bench warrant was issued upon the report of the violation of probation. At defendant’s appearance, the court asked whether defendant had or would obtain an attorney and subsequent inquiries were directed to whether defendant qualified for appointment of counsel as an indigent. Defendant stated that he was not working. It is urged that the court’s question at a time when defendant was without counsel elicited the incriminating statement that he was not employed — a condition of probation. It is, at most, argued that the judge “could” have been prejudiced at the time of hearing the aUeged violation or that he could have subconsciously considered such fact. The record is clear that the court was simply carrying out its duties in the matter of the appointment of counsel as required.

Defendant cites People v. Jackson, 23 Ill.2d 263; 178 N.E.2d 310, in support of his position. In that case at a preliminary hearing defendant was called by the State’s Attorney and in his testimony admitted to killing. Thereafter, such statement was introduced at the trial as an admission of grnlt.

A hearing upon tire revocation of probation is bounded by the violations charged and defendant’s want of employment was not an issue or relevant upon the subsequent hearing some two weeks later. People v. Hicks, 125 Ill.App.2d 48; 259 N.E.2d 846; People v. Stepnewski, 121 Ill.App.2d 249; 257 N.E.2d 570. This record shows that testimony elicited from defendant by his attorney and other testimony offered in defendant’s behalf at the hearing disclosed at least one other violation of the terms of probation. The record contains no suggestion that in revoking probation the court considered either such matter of defendant’s evidence of a violation not charged or the statement concerning his employment in determining the issue of revocation.

It is argued that the judge who grants probation should not hear evidence of aUeged violations and determine revocation. It is the theory that such a judge is so disappointed at the failure of his judgment that he cannot achieve a fair hearing. We are asked to originate a rule which would require that proceedings in revocation be heard by a judge other than the one who granted probation.

Nothing suggests such a statutory intent. Ch. 38, §117-1, et seq., Ill. Rev. Stat. 1967. The statutory language itself suggests the contrary, but it is not now necessary to determine such question. No showing of bias or prejudice in fact is made by the record, and such wiH not be inferred because the court’s finding is adverse to the defendant.

The defendant seeks to support this theory by analogy to the opinions in People v. Wilson, 37 Ill.2d 617; 230 N.E.2d 194 and People v. Washington, 38 Ill.2d 446; 232 N.E.2d 738. Each was a post-conviction proceeding wherein the issues raised concerned the actions of the trial judge in matters not of record and to which he would either be a witness or have knowledge dehors the record. In People v. Newell, 41 Ill.2d 329; 243 N.E.2d 200, it was contended that the trial judge who accepted the plea of guilty should rescue himself in the hearing upon a post-conviction proceeding concerning the validity of the plea. The Supreme Court points out that no circumstance in the record shows that the judge was either a potential witness or was biased. Such is the state of the record here. The bias asserted is essentially theoretical and hypothetical and the record shows no ruling of the court or other conduct supporting the assertion of bias or prejudice.

It is argued that the sentence imposed following revocation is excessive. It is argued that defendant was once found qualified for probation and that nothing in the record warrants the severity of the sentence, but rather that his educational background, work record and youth shows that he is capable of a successful return to society and requires a reduction of sentence. The facts argued are shown only in the probation report presented some eighteen months prior to the revocation.

We do not accept as a standard for reducing sentence either the fact or the absence of a prior order for probation.

In this case the defendant expressly waived the offer of evidence in mitigation following the order of revocation. There must be more in the record than a claim that the sentence is excessive. (People v. Alexander, 121 Ill.App.2d 347; 257 N.E.2d 497.) The burden is upon the defendant to present substantial evidence to authorize a reduction of sentence upon review. People v. Nelson, 41 Ill.2d 364; 243 N.E.2d 225; People v. Wright,—Ill.App.2d—; 267 N.E.2d 757; and People v. Ledferd, 94 Ill.App.2d 74; 236 N.E.2d 19.

The record does show that defendant violated the terms of the probation here revoked as well as probation allowed in other matters. Upon these occasions he has served short terms in jail. Such facts are some measure of the capability of his “successful return to society.” With some reason, the trial court noted that probation was not a successful method of rehabilitation.

This record does not support the argument that the judge exhibited anger and cut short defendant’s statement following the revocation of probation. Rather, it shows that the defendant made an extended reargument upon the evidence after the ruling had been made.

The minimum sentence imposed is well within the statutory terms and together with the maximum provides for appropriate supervision if defendant should be granted parole. The judgment is affirmed.

Judgment affirmed.

SMITH, P. J. and CRAVEN, J., concur.


author: Mr. JUSTICE SMITH

text:
    Grace E. Todd, Plaintiff-Appellee vs. James H. Arbuckle, Defendant-Appellant.
    (No. 11359;
    Fourth District
    August 3, 1971.
    James Evans, Thomas J. Gordon, and Frank J. Kopecky, all of Champaign, for appellant.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by the defendant from an order committing him to the county jail for 30 days for failure to make monthly payments on the dates and at the times directed by an order entered pursuant to a citation for the discovery of assets. The order finds that the failure to make the payments was willful and contumacious and that the defendant is in contempt of court. It was then ordered “that the defendant, James H. Arbuckle be, and he is hereby, committed to the Douglas County jail, Douglas County, Illinois, for a period of 30 days.”

Plaintiff obtained a judgment against the defendant for $4,640.00 on February 25, 1969. On November 18, 1969, the court entered an order for the defendant to pay $140.00 per month on this judgment beginning December 1, and the like sum on the first day of each month thereafter. On March 6, 1970, a petition for citation was filed asserting a deficiency of $280.00. On that same day, a rule was entered on the defendant to show cause. On April 15, 1970, the defendant was adjudged a bankrupt. On April 28, a citation was called for hearing, evidence was taken and the contempt order was entered. The plaintiff-appeUee has not followed the appeal or filed a brief in this court.

Inasmuch as this record shows the judgment order to be fatally defective in two respects, a recitation of facts concerning the defendant’s ability or inability to pay becomes immaterial. The thirty-day jail sentence appears to be an imposition of a sanction authorized by Supreme Court Rule 277(h) which provides that a defendant “may be committed until he has complied with the order or is discharged by due course of law.” (Ill. Rev. Stat. 1969. ch. 110A, § 277(h).) Assuming without deciding that the evidence warranted the finding of willful and contumacious refusal to obey the order of the court, we think that that order should have specified what the defendant was required to do, and provide the terms upon which the balance due should be paid so that by satisfying the order the appellant could purge himself of contempt and be discharged from jail.) See White v. Adolph, 305 Ill.App. 76, 26 N.E.2d 993.) While White was decided long before the present Supreme Court rule was adopted, it seems to us that its philosophy is correct and an order providing for a jail sentence for noncompliance with an order of court to pay a money judgment should within its four comers set out the terms upon which a contempt may be purged and the defendant released from jail. Citations to discover assets seek compliance, not punishment.

In LaRue v. LaRue, 341 Ill.App. 411, 93 N.E.2d 823, a like situation existed. In that case in a divorce proceedings, it appeared that the wife had loaned her husband $1,300.00 and as a part of the divorce decree he was ordered to repay the loan. He filed in bankruptcy on April 18. On April 29, his wife filed the petition for rule to show cause why he should not be punished for contempt of court for refusal to pay the loan. In that case the court observed that it is well settled that upon an adjudication in bankruptcy, title to the bankrupt property vests in the trustee of bankruptcy as of the date of filing the petition and the bankmptcy court has exclusive jurisdiction and possession and control of the estate of the bankrupt which cannot be affected by proceedings in the state court. Here, as there, the commitment to jail was for failure to pay a civil debt dischargeable in bankrupty. There, as here, the order committing the defendant to jail for nine months for contempt of court was reversed. In White, the failure to provide a means whereby the defendant could purge himself of contempt of court likewise brought a reversal. At the time the jail sentence was imposed, the defendant was powerless to purge himself of contempt as his assets were then in the control of the bankruptcy court. He had been adjudicated a bankrupt. The discharge-ability in bankruptcy of the underlying debt upon which the citation proceedings was instituted is not disputed. Under these circumstances, no reason appears why the holding in LaRue and White is not controlling.

Accordingly, the judgment of the trial court finding the defendant guilty of contempt and sentencing him to the county jail for a specified term is reversed.

Judgment reversed.

CRAVEN, J. and TRAPP, J. concur.


author: Mr. JUSTICE WEBBER

text:
    Illinois National Insurance Co., Plaintiff-Counterdefendant-Appellee, v. Curtis L. Trainer, Sr., et al., Defendants.—(William Robinson et al., Defendants-Counterplaintiffs-Appellants.)
    (No. 11363;
    Fourth District
    August 3, 1971.

      Bock & Stenger, of Belleville, for appellants.
    Giffin, Winning, Lindner, Newkirk, & Cohn, of Springfield, (Alfred F. Newkirk, of counsel,) for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

This appeal comes to us from a declaratory judgment entered by the circuit court of Sangamon County supporting the contention of the plaintiff-counterdefendant, Illinois National Insurance Co., and against the contentions of Curtis L. Trainer, Sr., Curtis L. Trainer, Jr., Annie Trainer, defendants, and William Robinson and Monroe Denbow, defendants-counterplaintiffs. We affirm.

For the sake of brevity the parties will be referred to in this opinion as here indicated: Illinois National Insurance Co. — “Illinois”; Curtis L. Trainer, Sr. — "Senior”; Curtis L. Trainer, Jr. — “Junior”; Annie Trainer— Annie.

At issue is an insurance policy issued by Illinois to Senior. Counter-plaintiffs Robinson and Denbow maintain that it can be construed to afford coverage to Junior who was involved in a collision with them. Illinois maintains that the policy is plain on its face, needs no construction and there is no coverage. No questions are raised on the pleadings.

All construction cases, whether of will, deed, insurance policy or other instrument, are of little precedental value and therefore we shall attempt to skeletonize the facts and we shall make no attempt to distinguish the many cases cited on both sides in their respective briefs. It is ancient legal wisdom that no construction case has a brother.

On and prior to March 23, 1962, Senior owned two automobiles, each covered by separate policies issued to him by Illinois. A 1960 Oldsmobile and its policy are not in question here. A 1958 Chevrolet and its policy and a 1958 Corvette and its relationship to the Chevrolet generate the controversy.

This policy, effective from January 31, 1962, to January 31, 1963, defined as the “named insured” Senior; also included by definition was Annie as a spouse resident in the same household; Junior was an “insured” as any person using the automobile with the permission of the named insured and also as a resident of the named insured’s household with or without permission. The Chevrolet was regularly operated by all members of the household.

The policy defined “automobile” covered to be:

(a) the 1958 Chevrolet
(b) an automobile, ownership of which is acquired by the named insured during the policy period, provided:
(1) it replaces the 1958 Chevrolet; or,
(2) any automobile owned by the named insured as of the date of acquisition, provided the named insured notified Illinois within 30 days of such acquisition.
(c) a temporary substitute automobile, defined as an automobile not owned by the named insured while temporarily used as a substitute for the 1958 Chevrolet when withdrawn from normal use because of breakdown, repair, servicing, loss or destruction.

On March 23, 1962, Annie purchased a wrecked 1958 Corvette in Missouri, received a bill of sale in her name and an assignment of Missouri title in her name, towed the wreck to her home and placed it in the garage where Junior commenced to rebuild it. The general con-census appeared to be that after Junior had restored it, it would be sold to obtain money for his college education. The purchase price was furnished by Annie from her separate earnings as a school teacher.

By June 1, 1962, the Corvette had apparently been sufficiently restored to be operable, because on that night Junior, without the knowledge of his parents, transferred the Chevrolet’s Illinois license plates to the Corvette and drove it on the highway during which period the collision occurred. Robinson and Denbow were injured and filed suit in the Circuit Court of St. Clair County; that suit is still pending and awaiting the outcome of the instant case.

After the accident, Annie reported it and applied for State of Illinois title, State of Illinois license plates and insurance for the Corvette. Illinois (the plaintiff-counterdefendant) advised that it would not insure Corvettes and the insurance was placed with another company.

Shortly prior to the accident there had been some conversation within the bosom of the family about disposing of the Chevrolet because of a malfunction in the braking system, and shortly after the accident it was placed on a sales lot for sale on a commission basis and was sold some two or three months later.

The defendants and counterplaintiffs claim that the Corvette was, within the meaning of the policy, either (a) a temporary substitute vehicle, or (b) a replacement vehicle, or (c) a newly acquired additional vehicle. The trial court found in the negative as to all these contentions and declared there was no coverage under the policy and that Illinois had no duty to defend.

Defendants and counterplaintiffs urge upon us the doctrine that the language of an insurance policy should be liberally construed in favor of the insured. However, this is nothing more than a self-fulfilling prophecy because the doctrine is a rule of construction and such rules are never used unless some ambiguity can be found. Defendants-counter-plaintiffs apply extremely circular reasoning: they would first have us use the rule to create ambiguity and next use it to resolve such purported ambiguity in their favor. We hold that there is no ambiguity and no necessity for construction and therefore the law as found in Reiner v. St. Paul Fire & Marine Insurance Company, 106 Ill.App.2d 210; 245 N.E.2d 655, at 657 applies:

“The rule of construction put forth by the plaintiff, that the language of an insurance contract should be liberally' construed in favor of the insured, applies in cases of doubt and ambiguity. However, where there is no ambiguity in the language used, as in the present case, it is the duty of the courts to construe and enforce agreements in accordance with their terms and not to make new contracts for the parties."

We turn now briefly to the contentions made by the defendant-counter-plaintiffs.

THEORY I: that the Corvette was a temporary substitute vehicle. This theory is exploded by the very terms of the policy itself which defined such a vehicle as “an automobile not owned by the named insured.” The policy further defines named insured, inter aha, as “* * * if such insured is an individual, his spouse if a resident of the same household.” It was stipulated and admitted that Annie was the spouse of Senior and resided in his household. Therefore Annie was a named insured and there can be no doubt she was the owner of the Corvette; she paid the purchase price from her separate funds; she received the bill of sale and Missouri title in her name; after the accident the Illinois title was issued in her name. To say that anyone else owned the Corvette would do violence to common sense.

THEORY II: that the Corvette was a replacement vehicle. Again, the terms of the policy itself dispose of this argument. The policy requires that a replacement vehicle be reported to the company within 30 days of acquisition. Defendants-counterplaintiffs make the contention that the Corvette was not “acquired” until some time about the middle of May, 1962, when it became operable and therefore the report made in early June afforded compliance. In pursuance of this theory the Corvette was called an “object” in the record. In our view this strange circumlocution affords no help. It is reminiscent of Lewis Carroll’s Through the Looking Glass: “When I use a word it means just what I choose it to mean; neither more nor less.”

Every tangible thing in creation is an “object” insofar as the English language is concerned and to call an item an “object” does not change its essential characteristics. The “object” purchased in Missouri and towed to Illinois by Annie was neither a surrey, a Sherman tank nor a bobsled, although it partook of certain characteristics of all three. It was a passenger automobile and no use of a collective noun, however ingenious, can change that.

The Corvette was “acquired” on March 23, 1962, as an automobile and no coverage was afforded as a replacement vehicle since Illinois did not know of its existence until more than 30 days had expired.

The trial court made a finding that the car was being operated in violation of the law, i.e., without registration of title or license. The policy here in question provides that there is, for purposes of insurance, no requirement that the car be registered or licensed or even have the status of registration by application for license theretofore made. Such a reading of the policy discloses a consistent use by Illinois of the provision that notice for purposes of coverage relates to the date of acquisition rather than as of any date the insured may seek to determine unilaterally. In this connection see Nationwide Insurance Company v. Ervin, 87 Ill.App.2d 432; 231 N.E.2d 112.

THEORY III: that the Corvette was a newly acquired additional vehicle. The same arguments as apply to Theory II apply here. The policy required notification of the Company within 30 days.

In summary, the defendants-counterplaintiffs had the burden of proof to establish coverage (Cf., Wolverine Insurance Company v. Eldridge, 326 F.2d 748; Hays v. Country Mutual Insurance Company, 28 Ill.2d 601, 192 N.E.2d 855.) Their theories are imaginative but distort and do violence to the clear language of the policy. They have failed to carry their burden of proof.

The judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.

TRAPP, P.J. and CRAVEN, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. Harold Junior Bradford, Defendant-Appellant.
    (No. 11382;
    Fourth District
    August 3, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Kenneth Gillis, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney of Decatur, (Ronald L. Carpel, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Harold Junior Bradford, entered a plea of guilty to the crime of murder, and was sentenced to an indeterminate term of 30 to 60 years upon the recommendation of the Assistant State’s Attorney.

The sole question before us is whether the minimum sentence is excessive.

The authority to entertain this appeal is contained in Supreme Court Rule 615 which provides:

“(b) Powers of the Reviewing Court. On appeal the reviewing court may:
(4) reduce the punishment imposed by the trial court;”

The imposition of sentence by the trial judge is an enormously complex one and the decisions involved have impact not only upon the defendant, but upon the legitimate interests and concern of the public. The imposition of sentence is an exercise in discretion and judgment on the part of the trial judge. (People v. Riley, 376 Ill. 364; 33 N.E.2d 872.) (People v. Spann, 20 Ill.2d 338; 169 N.E.2d 781.) The legislature has laid down, in general terms, guidelines to be followed. (Ill. Rev. Stat. 1969, ch. 38, sec. 1 — 7(e) provides that all sentences to the penitentiary must be for an indeterminate term and that “The court in imposing a sentence of imprisonment in the penitentiary shall determine the minimum and maximum limits of imprisonment.” (Emphasis supplied.) The expressed intention and concern of the legislature, with regard to sentencing is set forth in ch. 38, supra, in sec. 1 — 2(c) and (d), which provide:

“General Purposes. The provisions of this Code shall be construed in accordance with the general purposes hereof, to:
(c) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders;
(d) Prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.”

The legislature has also bestowed upon the trial judge, in addition to the prescription for indeterminate sentences, a wide range of options which he may exercise after conviction. He may admit the defendant to probation with or without a sentence to a penal institution as a condition thereof, he may elect to couple this with a fine, and may impose such other conditions as seem to him to be appropriate. (Ch. 38, supra, sec. 117.) He may under certain conditions make the sentence imposed run consecutively to, or concurrently with other sentences, (ch. 38, supra, sec. 1 — 7(m) (n)), and in a case such as this he could have imposed a sentence of death (ch. 38, supra, sec. 1 — 7(2)). If the minimum sentence imposed is less than 20 years the trial judge also effectively controls parole eligibility Ch. 38, supra, sec. 123 — 2(3).

The range of dispositional alternatives made available to the trial judge, as well as the expressed intention of the legislature, make it clear that sentencing is intended to be individualized. In commenting upon the purpose for which evidence in aggravation and mitigation is received prior to imposition of sentence the court in People v. Spann, 20 Ill.2d, 338, p. 342; 169 N.E.2d 781, said: “It should be noted, however, that the rule has as its purpose the protection of the accused and society alike and is aimed at permitting intelligent judicial discretion in the matter of imposing sentence, in derogation of the ancient belief that ‘every offense in a like legal category calls for an identical punishment.’ ” Our authority to review, and in appropriate instances to reduce, sentence is intended to secure the implementation of the legislative mandate and intent.

In this case there was no trial, and since the offense of murder is nonprobational no petition was filed. No statement was made into the record by the State’s Attorney or by defense counsel. The People waived the right to offer evidence in aggravation and the defendant waived the right to offer evidence in mitigation. Hence the trial judge, at the time of imposing sentence, had before him the plea of guilty and the recitations contained in the indictment together with the recommendation of the Assistant State’s Attorney.

Thus we are effectively precluded from the exercise of our authority and responsibility under Rule 615, supra, and this is so because there is no record before us upon which to predicate an evaluation of sentence imposed.

We recognize the right of the People and of the defendant to waive the offering of evidence in aggravation and mitigation, but may the trial judge permit himself to be thus deprived of every single item of information, which he must possess in order to discharge his sentencing responsibility, and at the same time, bar this court from the exercise of its authority and responsibility to review the sentence imposed?

In People v. Harden, 78 Ill.App.2d, 431, 450; 222 N.E.2d 693, the conviction on plea of guilty was affirmed and the cause remanded with directions to vacate the sentence and to ascertain, as a matter of record, such facts as would permit the court to determine the sentence upon matters properly before it, for the reason that, as here, “Upon the record before us in this case, the recommendation of an Assistant State’s Attorney was the sole factor before the court as it determined the quantum of sentence, and we conclude that there were no facts before the court upon which there could be an exercise of judicial discretion in the matter of sentence.”

In People v. Rummerfield, 4 Ill.2d 29; 122 N.E.2d 170, there was no hearing in aggravation or mitigation because of waiver and it was held that the court may, on its own motion, procure by other means (such as statement into the record by counsel) the necessary information upon which it exercises its discretion in the imposition of sentence.

In People v. Taylor, 33 Ill.2d 417; 211 N.E.2d 673, and again in People v. Gold, 38 Ill.2d 510; 232 N.E.2d 702, and in People v. Nelson, 41 Ill.2d, 364; 243 N.E.2d 225, the Supreme Court, in prescribing the reluctance and restraint to be exercised in appellate review of sentences stated the reasons were that ” the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” We take it that the holding in Taylor, followed in Nelson and Gold, supra, does not envisage the imposition of sentence and review in a factual vacuum. To affirm here would be to approve an abstraction, to-wit: That a sentence of 30 to 60 years for murder is appropriate. We would also, by such a ruling, imply that the particular circumstance surrounding the commission of the crime, the absence or presence of prior criminal record, the absence of information concerning the individual found to be guilty of that crime, are details which have no logical bearing on the fixing of sentence limits. This we are unwilling to do.

We therefore hold that the trial judge has a responsibility following a plea of guilty, and despite waiver by the People and defendant and absent other means of securing such information through hearing on petition for probation or statements into the record, to sua sponte require information on the record by whatever means seems appropriate, (see People v. Rummerfield, 4 Ill.2d 29; 122 N.E.2d 170) as to the details surrounding the commission of the offense, the presence or absence of prior criminal record, and the educational and family background of the defendant as minimal requirements for the exercise of his sentencing responsibility and to provide a basis for sentence review.

We do not express any opinion as to propriety of the sentence here imposed for the reasons indicated.

Cause remanded to the trial court with directions to vacate the sentence, and for further proceedings consistent with the views herein expressed.

Judgment of conviction is affirmed, sentence vacated and cause remanded for further proceedings.

TRAPP, P.J. and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, vs. John Donald Hise, Defendant-Appellant.
    (No. 11409;
    Fourth District
    August 3, 1971.
    John F. McNichols, District Defender, Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Basil Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The penalty imposed by the statute for violation of sec. 24 — 1(a)(8), supra, is a fine not to exceed $500.00 or imprisonment in a penal institution other than the penitentiary not to exceed one year or both. The significance of the charge of prior conviction and release within five years is to be found in sec. 24 — 1(b), supra, which provides:

“A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary . . ., violates any Subsection of this Section shall be imprisoned in the penitentiary from one to 10 years.”

The case was tried before a jury, and the jury was instructed that to sustain the charge of Unlawful Use of Weapons, the People were required to prove (in addition to other elements of the offense) “That the defendant was convicted of a felony under the laws of this State” and “That the defendant was released from the penitentiary within five (5) years of said offense.”

The jury returned a verdict of guilty and the trial court imposed a sentence of five to ten years.

During the course of the trial the following stipulation, made by the People and by the defendant through his attorney, was stated to the jury:

“THE COURT: While the jury was at recess, a stipulation of fact was arrived at between the People and the defendant, which is as follows: It is stipulated that the defendant, John Donald Hise, was convicted of the felony of forgery in 1962, in the Circuit Court of Macon County, and was sentenced to the Penitentiary for an indeterminate term; was the same person on parole as charged in this cause. Is that the stipulation of the People?
MR. FIGHTER: Yes, Your Honor.
THE COURT: And of the defendant?
MR. HURT: Yes, sir.”
(Emphasis supplied.)

The People also introduced into evidence the record of the prosecution in the prior forgery conviction, and it disclosed that the offense was committed on December 29, 1961, and that the information, upon which he was prosecuted, was filed February 13, 1962, and that on February 14, 1962, defendant entered a plea of guilty and was sentenced one to fourteen years in the penitentiary.

Defendant urges, in this appeal, that the prior conviction for forgery was a conviction of a misdemeanor rather than for a felony and that this will not support the enhanced penalty provision of sec. 24 — 1(b) supra. The People argue that forgery is a felony and that the sentence was properly imposed.

The sole question before us then is whether or not defendant’s conviction of forgery, on February 14, 1962, was a felony conviction. If it was the sentence imposed in this case was proper, contra, if the forgery conviction was for a misdemeanor the sentence imposed was without authority in law. We note that the issue raised here was never presented to the trial judge during the trial nor in post-trial motions, but since it affects tire validity of the sentence we review the question as presented. There is no dispute that on December 29, 1961, forgery was a felony, since the statute then provided only for imprisonment in the penitentiary. Ill. Rev. Stat. 1959, ch. 38, par. 279.

The effective date of the Criminal Code of 1961 was January 1, 1962 (Ill. Rev. Stat. 1961, ch. 38, sec. 34 — 4). Under its provisions a person convicted of forgery may be fined not to exceed $1000.00 or imprisoned in the penitentiary from one to fourteen years or both. Ill. Rev. Stat. 1961, ch. 38, sec. 17 —3(d).

Defendant’s argument is that the law at the time of sentencing controls the penalty which may be imposed, citing People v. Guagliata, 362 Ill. 427, 200 N.E. 169; People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359; People v. Wesley, 78 Ill.App.2d 350, 223 N.E.2d 428, and the provisions of Ill. Rev. Stat. 1961, ch. 131, sec. 4, and the People do not contend that this is not the principle of law applicable to this case.

Was then the crime a forgery on December 14, 1962, a felony, or misdemeanor?

Lamkin v. People, 94 Ill. 501, appears to be the source of the rule in Illinois that where the penalty for an offense provides for the alternative of fine or imprisonment in a penal institution other than the penitentiary, or imprisonment in the penitentiary (emphasis suppfied) the offense is a misdemeanor. The rule has been consistently adhered to by the Supreme Court of this State since its origin in Lamkin, supra, the most recent instance being found in People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182, and between Lamkin and Novotny, supra, the rule was reiterated in Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 167 N.E. 852; People v. Bain, 359 Ill. 455, 195 N.E. 42; People v. O’Connor, 414 Ill. 51, 110 N.E.2d 209; People v. Spector, 28 Ill.2d 554; People v. Guagliata, 362 Ill. 427, 200 N.E. 169; People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359.

In Novotny, supra, the court said:

“The record contains only one complaint, a partially printed and partially typed form, which charged defendant with aggravated battery, an offense for which the alternative penalties provided may be imprisonment in the penitentiary for 1 to 10 years or imprisonment in a penal institution other than the penitentiary for not to exceed one year. (Ill. Rev. Stat. 1967, chap. 38, par. 12 — 4(a).) Under our decisions prior to adoption of the Criminal Code of 1961 the presence of the alternative penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor. (Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 582, 16 N.E. 852.) Since no substantial difference exists between tire definition of ‘felony’ (Ill. Rev. Stat. 1961, chap. 38, par. 585) which preceded the 1961 Code and the one presently appearing therein (Ill. Rev. Stat. 1967, chap. 38, par. 2 — 7), it would seem that the decisions construing the former statutory definition remain vafid. This does not, however, alter our disposition of the case, for the reasons hereinafter indicated.”

The People cite the definitions of felony and misdemeanor (Ill. Rev. Stat. 1969, ch. 38, sec. 2—7, 2—11), and art. II, sec. 8 of the Constitution of Illinois, 1870, which provides: “No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, * * * Provided, that the grand jury may be abolished by law in aU cases,” and urge that these provisions indicate a purpose to designate crimes according to “the seriousness of the crime”. It should be noted, however, that the Constitutional provision above cited was in effect in 1880 when Larrikin, supra, was decided and that the definitions of felony and misdemeanor were the same as contained in the Criminal Code of 1961. See Ill. Rev. Stat. 1874, p. 394, 277 § 5, 278 § 6.

The People also argue that “the plain language of the legislature designating a felony would seem to fit the offense of forgery, as that offense is punishable by imprisonment in the penitentiary”. While that point seems to us to have been disposed of by the authority above cited concerning the presence of the alternative penalty, it is, basicaUy, an argument that one convicted of a misdemeanor cannot be sentenced to the penitentiary. This position is unpersuasive because of a line of authority not cited by either party to this appeal.

In Thomas v. People, 113 Ill. 531, 537, defendants had been indicted for the offense of false pretenses which provided for fine or imprisonment in the penitentiary. On conviction one defendant was fined and the other sentenced to the penitentiary. It was contended on appeal that if the conviction was not for a felony the sentence to the penitentiary was improper. Relying on Lamkin, supra, the Thomas court held the offense to be a misdemeanor but also sustained the imposition of the sentence saying, “It was certainly competent for the legislature to provide that a misdemeanor might be punished by confinement in the penitentiary.”

In People v. Bain, 359 Ill. 455, 195 N.E. 42, the court held conspiracy to be a misdemeanor because of the presence of alternative penalties but did not reserve a sentence to the penitentiary, and in People ex rel. Latimer v. Randolph, 13 Ill.2d 552, p. 557, the Supreme Court stated:

“Petitioner contends that the penitentiary is not an institution for the incarceration of misdemeanants, and since he was convicted of a misdemeanor and is now incarcerated in the penitentiary, he has been denied due process of law as provided for in the constitution. It has long been the rule in this State that the legislature may provide that a misdemeanant might be punished by confinement in the penitentiary. Thomas v. The People 113 Ill. 531.” See also People v. Fowler, 14 Ill.2d 252, p. 259.

We therefore hold that defendant was convicted, on February 14, 1962, of forgery, a misdemeanor, and that since the enhanced penalty provision contained in section 24—1(b), supra, can only be invoked upon the proof of a prior felony conviction, the sentence here was imposed without authority.

Cause remanded with directions to vacate the sentence and for further proceedings consistent with the views herein expressed.

Judgment of conviction affirmed, sentence vacated and cause remanded for further proceedings.

SMITH, P. J. and TRAPP, J., concur.


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    Marion Ray Brown, Admr., Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Association, Defendant-Appellee.
    (No. 11399;
    Fourth District
    August 3, 1971.
    Richard K. Bates, of Danville, for appellant.
    Phillips, Phebus & Tunnelson, of Urbana, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court;

The issue upon this appeal is whether an insureds cause of action against his insurer for bad faith in failing to settle within the liability policy limits can be assigned to the insured’s judgment creditor. The trial court dismissed plaintiff’s suit upon the ground that plaintiff acquired no legal right to bring this action.

Brown, as Administrator, recovered a judgment against Sam Nale, Administrator of Rose Nale, in the amount of $40,000.00. Defendant had issued an automobile liability policy for Nale in the amount of $20,000.00. After extensive discovery, Brown offered to settle with defendant for the policy limit. The offer was refused and no counter offer made. Defendant paid $20,000.00 on the judgment. Brown, as Administrator, brought a citation to discover assets against the estate of Rosemary Nale. The court, in that proceeding, found that the only assets were $5,500.00, and a potential chose in action which Sam Nale, as Administrator of Rosemary Nale, had against defendant for ‘Trad faith” in failing to settle the lawsuit within the Nale policy limits. The circuit court ordered Sam Nale, as Administrator, to pay the $5,500.00 on the judgment and to assign to plaintiff herein the “bad faith” cause of action. Thereafter, the Administrator of Rosemary Nale assigned the “bad faith” cause of action to plaintiff, reserving the right to obtain for the heirs of Rosemary Nale all sums received over $14,500.00, attorneys fees and costs.

Our courts have held that an insurance company may so conduct itself as to become liable for an entire judgment recovered against its insured, irrespective of the policy limits. Olympia Fields Club v. Bankers Indem. Ins. Co., 325 Ill.App. 649, 60 N.E.2d 896; Cernocky v. Indemnity Ins. Co. of N. America, 69 Ill.App.2d 196, 216 N.E.2d 198. We have also held that the entry of the judgment against the insured constitutes the damage and that it is not necessary that the insured allege payment of the excess judgment. Wolfberg v. Prudence Mut. Cas. Co. of Chicago, 98 Ill.App.2d 190, 240 N.E.2d 176.

The courts of Pennsylvania, Oregon, California and Kentucky have held that the cause of action is assignable: Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8; Gedion v. State Farm Mutual (D.C. Pa. 1966), 261 F.Supp. 122; Grace v. Fidelity Ins. Co. (Ore. 1968), 448 Pac.2d 554; Communale v. Traders and General Ins. Co. (1958), 50 Cal.2d 654, Pac.2d 198; Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 Pac.2d 69; State Farm Mutual v. Marcun (Ky. 1967), 420 S.W.2d 113; Terrell v. Western Casualty and Surety Co. (Ky. 1968), 427 S.W.2d 825. Connecticut by statute subrogates the injured party to all rights of the insured: Turgeon v. Shelby Mutual Plate Glass and Casualty Co. (D.C. Conn. 1953), 112 F.Supp. 355.

The situation in Texas is somewhat complicated by the fact that under Texas law the insured party must first satisfy the judgment in order to have a right of indemnity against the insurer. Seguros Tepeyac S.A. v. Brostrom (U.S.C.C.A. 5th), 347 F.2d 168. However, Texas apparently recognizes assignability in principle. In Smith v. Transit Casualty Co. (D.C. Texas 1968), 281 F.Supp. 661, the court stated that while the action sounds in tort, it also violates an implied contractual warranty to exercise care for the insured’s interest and is therefore assignable.

Most of the cases cited by the defendant to establish that certain states deny assignability, i.e., Delaware, Washington, New Jersey, Colorado, Missouri, Georgia, New Hampshire, Utah and Kentucky do not, in fact, involve an assignment but rather an attempt at direct suit without assignment. Chittick v. State Farm Mutual (D.C. Del. 1958), 170 F.Supp. 276, did not involve an assignment and a claim based upon subrogation was denied. Murray v. Mossman (Wash. 1960), 355 Pac.2d 985, did not involve an assignment and the court said, p. 988: “The appeUants are trying to enforce a chose in action for Mossman, which Mossman does not believe exists or is unwilling to enforce”. In Biasi v. Allstate Ins. Co. (N.J. 1969), 249 A.2d 18, there was no assignment, and the insured refused to join in a suit against the insurance company. In Steen v. Aetna Casualty Co. (Colo. 1965), 401 Pac.2d 254, no actual assignment was mentioned. Wessing v. American Indemnity Co. of Galveston, Texas (W.D. Mo. 1955), 127 F.Supp., involved no claim or assignment. Francis v. Newton (Georgia 1947), 43 S.E.2d 282, was a direct garnishment suit with no assignment involved. The court found there was no claim of negligence or bad faith and no evidence to warrant finding of violation of duty by the insurer. In Duncan v. Lumberman’s Mutual Cas. Co. (N.H. 1941), 23 A.2d 325, there was no specific authorization for suit by the injured party, and there was also a pending suit by the insured against the insurer. Paul v. Kirkendall (Utah 1957), 311 Pac.2d 376, held that the matter could not be adjudicated in a garnishment proceeding. The insured was in Arabia at the time of suit, and the court said, p. 378: “The insured is not here complaining of any act or omission on the part of the garnishee by which he claims to have been damaged”. Tabben v. Ohio Casualty Co. (E.D. Ky. 1966), 250 F.Supp. 853, had no allegation of assignment. We have cited above two Kentucky cases where assign-ability was recognized.

The Tennessee cases cited by defendant are based upon the view of the Tennessee courts that insured’s cause of action does not survive, and therefore is nonassignable. Carne v. Maryland Casualty Co. (Tenn. 1961), 346 S.W.2d 259; Dillingham v. Tri State Ins. Co. (Tenn. 1964), 381 S.W.2d 914. We do not agree as to non-survival of insured’s cause of action. Wolfberg v. Prudence Mut. Cas. Co. of Chicago, 98 Ill.App.2d 190, 240 N.E.2d 176, was an action by the estate of an insured. We would find no pohcy reasons which would favor permitting an insurer to escape liability because of the accident of death of the insured. We think such a holding would militate against the policy of requiring the insurer to exercise good faith in settling claims in every case where the insured died.

The New York decision cited, Browdy v. State Wide Ins. Co., 56 Mis.2d 610, 289 N.Y.S.2d 711, is based upon a theory that the injured party has no complaint because having in aU cases recovered the greater of his offer to settle, or the policy limit, he is not aggrieved by the refusal to settle. We do not consider this reasoning sound, nor considering the cost of Htigation, do we consider it true in all cases that the injured party is not damaged financially by an unreasonable refusal to settle.

Defendant cites Yelm v. Country Mut. Ins. Co., 123 Ill.App.2d 401, 259 N.E.2d 83 and Powell v. Prudence Mut. Cas. Co. (1967), 88 Ill.App.2d 343, 232 N.E.2d 115, as denying liability in direct suit. No assignment is involved in either case. The Prudence case was primarily based upon the rule that garnishment is not the proper remedy for contingent and unliquidated claims.

Two other objections to aHowance of assignabffity are advanced by the defendant. The first is that the insurance pohcy forbids assignment without the consent of the insurer. Such provision against assignment has been held not to bar the assignment of the cause of action after the loss has occurred: Ginsburg v. Bull Dog Auto Fire Ins. Ass’n., 328 Ill. 571, 160 N.E. 145. The second reason advanced is that permitting assignabffity would increase the tendency to collusion between the insured and the injured party. The potention for collusion is not increased by holding that the cause of action is assignable after judgment. Collusion in respect to liabüity is, of course, a direct violation of the non-cooperation clauses of insurance policies, and if established is a defense to the insurer’s liability.

The right of action in the insured, if any exists, arises out of the fact that by contract the insurer takes charge of the defense of the Htigation, and of possible settlement. While the action may in aspect sound in tort, it also arises out of the insurance contract. By reason of its assumption of control of the litigation, the insurance company undertakes a duty to treat the insured fairly. When the suit is in excess of the policy the insurer may, by deciding to continue litigation, expose the insured to a far greater risk than it takes. The duty to exercise good faith arises from the contractual assumption of control of the litigation.

If anything is to be determined by comparison of survival statutes, the Illinois Statute on actions which survive is very broad, Ill. Rev. Stat. 1969, ch. 3, § 339. The statute includes actions for injury to real or personal property, conversion of personal property, fraud and deceit and actions for injury to the person (except slander and libel). Contract actions survive at common law.

We find no valid reason in public policy why the cause of action should not be assignable.

We do not determine the actual existence or non-existence of a cause of action under the circumstances that may be established in this case. Neither have we examined the allegations to determine whether a proper cause of action has been stated. We hold that the cause of action, if it exists, may be brought by the assignee of the insured.

The judgment of the circuit court is reversed and the cause is remanded with directions to vacate the judgment entered, and to proceed as may be appropriate.

Reversed and remanded, with directions.

SMITH, P. J. and CRAVEN, J., concur.