author: PER CURIAM.

text:
    Clarence F. Kerr, Plaintiff-Appellee, v. The Police Board of the City of Chicago et al., Defendants-Appellants.
    (No. 55860;
    First District (3rd Division)
    June 14, 1973.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan, Edmund Hatfield,, and Paul T. Foxgrover, Assistant Corporation Counsel, of counsel,) for appellants.
    Coghlan and Joyce, of Chicago, for appellee.
   PER CURIAM.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Carter, a/k/a James Harris, Defendant-Appellant.
    (No. 57294;
    First District (3rd Division)
    June 14, 1973.
    James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, William K. Hedrick, and Ferdinand Minelli, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


author: Mr. PRESIDING JUSTICE DRUCKER.

text:
    William Kawitt, Plaintiff-Appellant, v. Beth Hamidrash Hachodesh Cemetery Association, Defendant-Appellee.
    (No. 56415;
    First District (5th Division)
    June 15, 1973.
    Alan Kawitt, of Chicago, for appellant.
    Kirkland & Ellis, of Chicago, (John M. O’Connor, Jr., and William C. Shannon, of counsel,) for appellee.
   Opinion by

Mr. PRESIDING JUSTICE DRUCKER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Curry (Impleaded), Petitioner-Appellant.
    (No. 56520;
    First District (5th Division)
    June 15, 1973.
    James J. Doherty, Public Defender, of Chicago, (Justine Knipper, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Bernard S. Armel, and Patricia Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

LORENZ, J., took no part.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles H. Gathman, Defendant-Appellant.
    (No. 72-174;
    Second District
    June 27, 1973.

      Rehearing denied August 2, 1973.

      Mathew K. Szygowski and Donald J. La Varee, both of Chicago, for appellants.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE SEIDENFELD

text:
    Charles J. Hurley, Plaintiff-Appellee, v. Frontier Ford Motors, Inc., Defendant-Appellant.
    (No. 72-117;
    Second District
    July 2, 1973.
    Rehearing denied August 7, 1973.

      Shultz, Fahy & Street, of Rockford, for appellant.
    Berry & Simmons, of Rockford, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Frontier Ford Motors, Inc., the defendant, appeals from an adverse judgment entered on a jury verdict awarding the plaintiff, Charles J. Hurley, damages of $3,600 and costs in a suit arising from the sale of a used car. Defendant claims that the court erred in denying a motion to strike portions of Count II of the third amended complaint; in admitting certain parol evidence at trial; in refusing to direct a verdict at the close of plaintiffs case; and in refusing to submit special interrogatories tendered by the defendant. Defendant further contends that the amount of the verdict is not related to the evidence bearing on damages. Defendant asks that we enter judgment in its favor or grant a new trial on Count II of the complaint and remand for a new trial on Count I of the complaint. Defendant does not request judgment be entered in its favor on Count I.

The complaint, as filed, essentially alleges that on April 26, 1969, plaintiff saw a 1964 Buick Riviera for sale at defendants premises, priced at $1,895, that defendant’s salesman and agent, Terry Day, represented that the car required repairs, consisting of installation of a manifold exhaust, muffler and tailpipe; that Day concealed from plaintiff the fact that the car had been in a wreck which had caused the frame to be twisted, the shock absorbers torn loose, the exhaust system to be broken completely and the gas tank to be punctured; that plaintiff desired to examine the car but was refused the right (emphasis added); that after some negotiation plaintiff and Day agreed that defendant would sell the Riviera in exchange for plaintiffs 1963 two-door Pontiac Catalina and $802.99 to be paid by plaintiff; that to induce the plaintiff to enter into the agreement, Day said that all of the repairs to the Buick would be made by defendant free of charge; that plaintiff entered into the agreement, paid the $802.99 and conveyed title to his car, but that when he came to pick up the Buick he was refused possession unless he would pay $110 in repairs.

The contract attached to the complaint contains in bold type on its face the provision: ALL USED CARS SOLD “AS IS” UNLESS OTHERWISE INDICATED HERE. Immediately below this disclaimer is the handwritten statement which plaintiff had initialed, “15% Discount Parts & Labor for 24 months otherwise as is”. No specific reference to any exhaust, muffler or tailpipe repairs appears. The agreement also contains the provision that any warranties are either contained on the face of the document or in a separate written instrument, if any; that the entire agreement pertaining to the purchase is contained in the document; and that no other agreement, verbal understanding or promise is to be recognized.

On defendant’s motion the court struck the allegations emphasized above. The motion stated that there was no allegation defendant knew of the information in question; and that even if the allegations were amended to include such knowledge, they would sound in fraud and be irrelevant to plaintiff’s action for breach of contract. Another reference to “fraud” was also stricken from the complaint;

Plaintiff added Count II as an amendment to the complaint. Count II, based on fraudulent concealment and fraudulent misrepresentation, was itself amended twice to read as material here:

“3. That the Buick Riviera automobile had been in a wreck which caused the frame to be twisted, the shock absorbers to be torn loose, the exhaust system to be broken completely and the gas tank to be punctured. These damages to the car were material. In order to repair them, a large expenditure of money was required. The damage to the frame could have affected the use of the automobile from that time on unless it were properly repaired.
4. The said Terry Day, the agent and servant of the defendant, owed to the plaintiff the duty of disclosing truthfully the condition of the Buick Riviera automobile. Terry Day either knew the automobile had suffered more extensive damage than he represented or had he made an examination of the automobile he would have known that it had been damaged to a greater extent than he represented.
5. The said Terry Day stated the Buick Riviera automobile only required a manifold exhaust and that the muffler and tailpipes had to be installed, without making an examination of said automobile to determine whether it had been more seriously damaged. The damages which the automobile had suffered were material to the plaintiffs use and enjoyment of it and were more extensive than represented by the said Terry Day.
6. The plaintiff desired to examine the automobile but was refused the right to examine it.
7. After some negotiation the plaintiff, relying on the representation of Terry Day, the agent and servant of the defendant, agreed the defendant would sell the 1964 Buick Riviera automobile to the plaintiff, providing the plaintiff delivered title issued by the State of Illinois covering his 1963 Pontiac two-door Catalina Hardtop automobile and would pay the sum of $802.99. As a further inducement to the plaintiff to enter into said agreement, the agent of the defendant stated that all repairs which he had outlined as necessary; namely, the manifold exhaust and the muffler and tailpipes which had to be installed, would be made free of charge to the plaintiff by the defendant corporation.” (Emphasis added.)

Defendant moved to strike the emphasized portions of the above pleading as conclusionary and insufficient to make out a cause of action for fraudulent concealment. The court denied the motion to strike, and we find no reversible error in this ruling.

It is true that the allegation as to duty in paragraph 4 is conclusionary and surplusage. (Darling v. Charleston Memorial Hospital (1964), 50 Ill.App.2d 253, at 310, aff'd 33 Ill.2d 326.) However, since there are factual allegations sufficient to give rise to the duty of disclosure, the failure to strike the allegations as to duty is harmless. Darling v. Charleston Memorial Hospital (1964), 50 Ill.App.2d 253, 310-311; Rowe v. Phillips (1919), 214 Ill.App. 582, 586-7.

As to the other portion of paragraph 4 objected to, we need not consider whether there is a cause of action in fraud for concealment or nondisclosure recklessly made, since plaintiffs case is predicated also on acts of affirmative misrepresentation as to the condition of the Buick. It is well established that if a person recklessly makes false representations of a matter about which he has no knowledge, for the fraudulent purpose of inducing another to rely upon his statements, to make a contract to his prejudice and damage, the party making the representations is legally liable. McMeen v. Whipple (1961), 23 Ill.2d 352, 355.

At trial, plaintiff’s testimony as to the transaction was essentially as pleaded. He stated that one of defendant’s salesmen informed him that the car could not be driven on the streets because of a defective muffler, which became evident when the car was started, and that there was no room to drive the automobile at Frontier Ford. Plaintiff further testified that the salesman told him the car was in good shape or good condition. A discussion then ensued about the cost of the car, particularly about who would pay for the cost of repairs to the exhaust system. Plaintiff said that the agreement to be written up was $750, plus his 1963 Pontiac in trade, and that Frontier was to pay for the cost of repairs to the exhaust system. Plaintiff then signed, and in four different places initialed, a written sales agreement concerning the Buick. Plaintiff testified that he did not read the contract.

Plaintiff further testified that after signing the agreement he gave Frontier his car and $802.99, negotiated titles, and was then given the use of a demonstrator while the Buick was being repaired; but that when he returned to pick up the Buick he was presented with a $110 bill for repairing the exhaust system, which apparently included a 15% discount. He refused to pay the bill and demanded his old car and money back but was refused.

There was also testimony by the prior owner of the Riviera that he had hit a cement curb with the car, tearing loose the exhaust system and a shock absorber, but not damaging the frame; that shortly thereafter he traded the car in at Frontier Ford. He stated he did not tell anyone at Frontier Ford that the. car had struck the curb or what happened to the car as a result.

Witnesses for the defendant testified in substance that apart from the exhaust system the car was generally in very good condition, there was no frame damage, the shock absorbers were intact although they did not function as they should, a rear truss member had about $12 damage to it, and the gas tank had a minor dent in it which did not affect its operation or capacity. On cross-examination of one of defendant’s witnesses there was testimony that there had been body work done to the car but this was not developed further.

The salesman involved, Terry Day, returned from Colorado to testify on behalf of Frontier Ford and controverted plaintiff’s version of the transaction as to who was to pay for the cost of repairing the exhaust system. He also stated that he told plaintiff only what he knew about the car from its general appearance and that plaintiff drove the car on Frontier’s property. He said that he did not know the car had previously been damaged in any way by an accident.

Defendant argues that the court erroneously denied a directed verdict on Count II at the close of the plaintifFs case. From our examination of the testimony at trial, we must agree. The evidence adduced by plaintiff was insufficient to show a material misrepresentation as to the condition of the car. The only testimony adduced as to damage to the car was by the prior owner, and other than the exhaust system he testified only a shock absorber was tom loose. There was no evidence of frame damage and the accident was very minor. There was thus no material fact as to the car’s condition either to be known and misrepresented or concealed. Plaintiff offered no evidence that the car was not in good condition when he purchased it, except for the items which were to be repaired and a shock absorber. Defendant’s evidence that the car was otherwise in good condition was uncontradicted. Under these circumstances the verdict of the jury could not be supported if based on allegations of fraudulent concealment or misrepresentation as to the condition of the car.

There is, however, another aspect of the pleadings and of the proof which requires discussion. Count II of the complaint (par. 7), in addition to the allegations of fraudulent concealment and misrepresentation of the condition of the car also alleged that defendant’s salesman agreed that Frontier Ford would pay for the repairs to the exhaust system which were disclosed as necessary. Defendant, citing the parol, evidence rale, sought to bar plaintiff from introducing evidence that defendant’s salesman, as an inducement to plaintiff to enter into the contract, had agreed that defendant would pay for these repairs. At trial, the court permitted the evidence to go in, stating that it related to the second count of the complaint. Plaintiff has argued here that this testimony was necessary to show that defendant’s salesman did not inform plaintiff about the true condition of the car. However, as defendant points out it is undisputed that the salesman did not inform plaintiff of any defects other than those items being repaired. The evidence thus would have no bearing on the issue of fraudulent concealment. However, the allegation and supporting testimony that defendant’s salesman stated defendant would bear the cost of repairs relates to a misrepresentation of a material matter which at first glance might support the jury’s verdict on a theory of fraud and thus be provable by parol evidence. Further examination of this theory of recovery is therefore necessary.

An initial question is raised whether plaintiff could be justified in relying upon the alleged misrepresentation as to the terms of the contract which he signed, additionally initialling the handwritten “as is” provision. One is ordinarily not justified in relying on a misrepresentation as to the terms of a contract he signs when he has been afforded the opportunity to read it but through his neglect fails to do so. (Broberg v. Mann (1965), 66 Ill.App.2d 134, 141; Nathan v. Leopold (1969), 108 Ill.App.2d 160, 171; Dickinson v. Dickinson (922), 305 Ill. 521, 527-528.) Because the term “as is” is easily understandable (Ill. Rev. Stat. 1971, ch. 26, par. 2 — 316(3) (a)), it may be appropriate to require very convincing proof of fraud before relief will be granted. (Garofalo Co. v. St. Mary’s Packing Co. (1950), 339 Ill.App. 412, 417; Note, 1954 Ill. L.F. 665, 675). The evidence before us does not establish that plaintiff had a right to rely upon the alleged fraudulent misrepresentations by defendant that it would pay the cost of the repairs.

In addition, a further bar to the proof of fraud as to who would bear the cost of repairs is found in the nature of the representation allegedly relied upon. A misrepresentation as to a future promise or intent, rather than a present condition or a past act, cannot sustain an action for fraud. (Grubb v. Milan (1911), 249 Ill. 456, 463; John N. Benedict Co. v. McKeage (1922), 195 N.Y.S. 228, 230.) While in many jurisdictions there has been engrafted upon this rule the exception that if one who makes the future promise has no present intention to perform, an action for fraud will lie, this position has been rejected in Illinois. Metropolitan San. Dist. v. Pontarelli & Sons, Inc. (1972), 7 Ill.App.3d 829, 841-2; Grubb v. Milan (1911), 249 Ill. 456, 463; Miller v. Sutliff (1909), 241 Ill. 521, 526 — 7.

The trial court erred in refusing to enter judgment for defendant on Count II as amended. The judgment is therefore vacated and judgment is entered here for defendant on Count II.

In accordance with defendant’s prayer the cause is remanded for a new trial on Count I.

Reversed and remanded with directions.

GUILD, P. J., and T. MORAN, J., concur.

       Count I as amended appears to have been treated both by the parties and by the court as sounding in contract rather than in fraud. In this view, the evidence of prior negotiations could not properly be introduced to alter the' terms of the contract. Ill. Rev. Stat. 1971, ch. 26, par. 2 — 202.


author: Mr. JUSTICE STOUDER Mr; JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Lee Clelland, Defendant-Appellant.
    (No. 72-98;
    Third District
    June 29, 1973.
    DIXON, J., dissenting.
    Steve Hurley, of Defender Project, of Ottawa, for appellant.
    Jay H. Janssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Richard Clelland, was charged with and found guilty by a jury of the offenses of armed robbery, robbery and theft. The Circuit Court of Tazewell County entered judgments of conviction for each of the offenses but sentenced defendant to 4 to 12 years in the penitentiary only on the armed robbery conviction.

The parties concede the three offenses each arose from the same act or conduct within the rule discussed and applied in People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, and People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679. In applying this rule the trial court sentenced defendant only on the most serious offense, armed robbery. The sole issue presented on this appeal is the narrow issue of whether the court should have entered judgments of conviction on the other two offenses even though no sentences were imposed or, according to the defendant, whether the entry of judgments of conviction on these charges was error.

Generally, the problems related to multiple offenses committed by the same defendant have involved questions of whether the offenses arose from the same act or conduct. If the multiple offenses arise from the same act or conduct it is clear that only one sentence for the most serious offense may be imposed. (People v. Whittington, 46 Ill. 2d 405, 265 N.E.2d 679). The effect or application of the rule on the other offenses has not received extensive discussion and the applicable rule has usually depended on dispositional phraseology. (See, People v. Lilly, 9 Ill.App.3d 46, 291 N.E.2d 207 (leave to appeal granted).) Where the trial court’s action regarding multiple offenses arising from the same act or conduct has been found to be erroneous, the court in recent cases has employed such dispositional language as, “* * * the judgment entered on the defendant’s conviction of attempted armed robbery * * * is reversed” (People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601), or “For the reasons given, the judgments of the Circuit Court of Lake County and Will County are affirmed, except for that portion of the judgment of the Circuit Court of Lake County convicting the defendant of aggravated battery, which portion is reversed.” (People ex rel. Walker v. Pate, 53 Ill. 2d 485, 292 N.E.2d 387. See also, People Hoffman, 9 Ill.App.3d 842, 293 N.E.2d 16, and People v. Steen, 9 Ill.App.3d 448, 292 N.E.2d 513). In People v. Perry, 47 Ill. 2d 402, 266 N.E.2d 330, only one sentence was imposed where multiple offenses were charged and the court in an appeal from a post conviction proceeding approved the conviction and sentence without indicating the effect of its approval on the lessor charges.

In People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651, followed in People v. Short, 4 Ill.App.3d 832, 281 N.E.2d 783, the court concluded that even though a single sentence had been imposed for the most serious offense, a judgment of conviction for another offense arising from the same act or conduct was improper. The court adopted and applied the rationale of People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, to the effect that an offender should not be punished twice for the same act or conduct. The court referred to the effect of convictions for other offenses on the defendant’s potential for parole. To this consequence might be added the effects on the defendant’s future prospects for employment, rehabilitation and general reputation; If in the instant case the convictions for the offenses of robbery and theft are permitted to stand, it is difficult to avoid the conclusion either legally or practically that defendant has been convicted of three felonies. While not sentenced for three felonies, a distinction is one which neither court, parole board, employer nor fellow citizen is likely to appreciate. We believe the rule of Leggett is consistent with the objective of punishing an offender only once for the same act or conduct.

In accord with the foregoing reasons, the judgment of the Circuit Court of Tazewell County is affirmed as it relates to the defendant’s conviction and sentence for armed robbery. The judgments of convictions for robbery and theft are reversed.

Judgment affirmed in part and reversed in. part.

Alloy, P. J., concurs.

Mr; JUSTICE DIXON

dissenting:

The sole issue here is whether defendant was erroneously “convicted” for multiple offenses arising out of the same transaction.

The word “conviction” in its ordinary sense has one meaning and in its technical legal sense quite another. (24 C.J.S. Criminal. Law, sec. 1556.) A judgment or sentence is indispensable to a conviction in the latter sense of the term and the mere ascertainment of guilt by verdict or plea which satisfies the ordinary definition of conviction does not suffice. Also see 18 C.J.S. Conviction, page 97.

The question arose early in Illinois in Faunce v. The People, 51 Ill. 311, where the court said, “This presents the, question, what is a conviction? Is it the verdict of guilty, or is it the sentence or judgment rendered on such a verdict? # * * It is true, that writers and judges have loosely said, that a party is convicted on the finding of a verdict against him. It is true' in a sense that he has been convicted by the jury but not until the judgment is rendered is he convicted by the law; * *

Faunce was discussed in The People v. Andrae, 295 Ill. 445. To impeach the testimony of Andrae a record of a previous conviction of Andrae for burglary was introduced. He had been given probation for that earlier offense and, of course, argued that since he was not sentenced he was not convicted. Andrae’s argument was rejected but the court did not overrule Faunce holding that in .case of probation “it is not necessary to construe the term ‘conviction’ with the strictness required at the time the decision in Faunce v. People was rendered”. The court further states, “The reason for holding that the sentence is a part of the- conviction is that a conviction is not legally established until the final judgment of the court is entered upon the plea or verdict of guilty”.

The court also stated, “When a prisoner enters his plea of guilty or where the prisoner is found guilty by the verdict of a jury it is not necessary for the court to enter a judgment finding the prisoner guilty. When the court receives and enters the plea or verdict of guilty, it follows as a legal inference that the court finds the defendant guilty. Hoch v. People, 219 Ill. 265”.

21 Am. Jur. 2d Criminal Law, sec. 618 says, “The word ‘conviction has two meanings: its ordinary pr popular meaning, which refers to a finding of guilt by plea or verdict, and its legal or technical meaning, which refers to the final judgment entered on plea or verdict of guilty. In some legal contexts, the word may appear in its popular, sense, though in others the strict sense is used and a verdict or plea of guilty is not a conviction until a judgment has been entered. * * * It has been suggested that the popular meaning is adopted only where the rights of persons other than the convict are involved, but where legal disabilities, disqualifications, and forfeitures are to follow, the strict legal meaning is to be applied, absent some indication of a contrary intent.”

The word “conviction” as defined in the Criminal Code of 1961, Chap. 38, sec. 2-5, “means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense * * # »

The word “judgment” as defined in the Code of. Criminal Procedure, of 1963, Chap. 38, sec. 102-14 means, “an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court”. Emphasis supplied.

Further, in People v. Duszkewycz, 27 Ill.2d 257, on 260 the court discussed People v. Schlenger, 13 Ill.2d 63 (which appears to have started it all) stating, “The opinion in the Schlenger case relied particularly upon decisions of the Supreme Court of Indiana, but the conclusion reached was consistent with earlier decisions of this court. (People v. Giacomino, 347 Ill. 523; People v. Bailey, 391 Ill. 149; People v. Winston, 395 Ill. 263.) ” In those cases the court adopted with approval a statement from Wharton, Criminal Pleading and Practice, (8th Ed.) Sec. 737 as follows: “When counts are joined for offenses which are different but not positively repugnant and there is a general verdict of guilty, the practice is to sentence on the count of the highest grade, the prosecution either expressly or tacitly withdrawing the other counts.”

The constitutional aspects of the problem were discussed in People v. Perry, 47 Ill.2d 402, 408, and the court stated, “We find this argument entirely without merit.”

Ordinarily, in order to constitute a conviction of crime of which evidence can be given to effect the credibility of a witness, there must be not only a verdict of guilty, but also a judgment or sentence thereon by the court. People v. Wheeler, 5 Ill.2d 478, 481.

As was pointed out in oral argument in the instant case, various panels of the Appellate Court are now citing one another to sustain or reverse. I, therefore, will cite People v. Lilly, 9 Ill.App.3d 46, 291 N.E.2d 207, as authority to sustain, (leave to appeal has been allowed) and People v. Chacon, 10 Ill.App.3d 543, 294 N.E.2d 743.

People v. Leggett, 2 Ill.App.3d 962; 275 N.E.2d 651 cites only People v. Schlenger, 13 Ill.2d 63, where there was a sentence on each count. The defendant asked only to have the second sentence set aside and the court obliged. People v. Short, 4 Ill.App.3d 832, 281 N.E.2d 783, was decided by the same panel which decided Leggett and followed Leggett as its only authority. In People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, the Supreme Court certainly did not confirm Leggett, the court said, “therefore but a single sentence should have been imposed” and the court reversed, “The judgment entered on the conviction” to-wit, the second sentence. In People ex rel. Walker v. Pate, 53 Ill.2d 485, 292 N.E.2d 387, there were concurrent sentences. In People v. Miller, 289 N.E.2d 23, 7 Ill.App.3d 878, there were concurrent sentences. People v. Harms, 8 Ill.App.3d 960, 290 N.E.2d 676, is an abstract opinion where there were apparently two sentences involving sec. 8-5 of the Criminal Code. In People v. Beall, 8 Ill.App.3d 739, 290 N.E.2d 410, there were multiple sentences. People v. Steen, 9 Ill.App.3d 488, 292 N.E.2d 513, is squarely against my position. It cites only People v. Sullivan, 46 Ill.2d 399, as authority, I wish Sullivan were authority but it is not as multiple sentences (fines) were imposed for identical conduct. People v. Hoffman, 9 Ill.App.3d 842, 293 N.E.2d 16, is against my position. The court cites only Leggett and People v. Whittington, 46 Ill.2d 405. In Whittington there were multiple sentences. In People v. Gant, 9 Ill.App.3d 774, 293 N.E.2d 20, there were concurrent sentences.

None of the cases reversing have even remotely suggested how the trial courts could or should handle the matter at the trial level. It does seem somewhat overdoing it to require an appeal (as here) where it is the only issue involved.

As to the argument that these verdicts will prejudice the defendant before the parole board and also when he applies for employment, first of all there is hardly a board member or employer so naive as to not know that one who has committed an armed robbery certainly did a robbery while armed with a dangerous weapon and also did take property. In fact the gist of robbery is an assault and a larceny and the public well knows it.

No one has pointed out just how the verdicts will prejudice the parole board.

To sum up, it is my conviction that defendant has been convicted of but one offense. Note that in its final order the trial court said, “does order sentence upon judgment of guilty heretofore entered upon the verdict of the jury finding defendant guilty of the charge of Armed Robbery * *


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Donald C. Strand, Exr. of the Estate of John C. Hoagland, Deceased, Plaintiff-Appellee, v. The United (Methodist) Church of Sheldon et al., Defendants-Appellants—(Sumner National Bank of Sheldon et al., Defendants-Appellees.)
    (No. 72-259;

       Third District
    June 29, 1973.

      Brock, Marwalder, Sutherland, Razzano & Murphy, of Watseka, for appellants.
    Robert L. Dannehl, of Watseka, and John D. Whitenack, Assistant Attorney General, of Chicago, for appellees.

       Late petition for rehearing pending at time of publication. For possible modifications on rehearing, see Table of Cases, Volume 13 Ill.App.3d.

   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment in favor of plaintiff Donald C. Strand as Executor of the Last Will and Testament of John C. Hoagland, deceased, in a declaratory judgmént action. Plaintiff brought the action in the Circuit Court of Iroquois County seeking declaratory judgment that funds in a special deposit which the decedent John C. Hoagland had made in the Sumner National Bank should revert to the decedent’s estate. The principal defendants named in the action were The United (Methodist) Church of Sheldon, its Board of Trustees, and the Attorney General of Illinois in his capacity of supervisor of charitable gifts and trusts.

The facts as set forth in the pleading and a stipulation are relatively undisputed. On February 18, 1963, John C. Hoagland executed a document which was in the following form:

“DIRECTIONS REGARDING SPECIAL DEPOSIT IN THE NAME OF BOARD OF TRUSTEES OF UNITED PRESBYTERIAN CHURCH OF SHELDON, IROQUOIS COUNTY, ILLINOIS — FOR BUILDING PURPOSES
The undersigned, John C. Hoagland, hereby establishes a special deposit in the name of the board of trustees of the United Presbyterian Church of Sheldon, Iroquois County, Illinois, which funds may be withdrawn upon the signature of the President of the Board of Trustees and the Treausrer [sic] of the United Presbyterian Church upon the following conditions:
1. This deposit is made as a memorial in memory of Martha A. Hoagland, my mother, and Rebecca McCloud, my wife Harriet’s mother, by John C. and Harriett M. Hoagland.
2. This special account may be withdrawn by the designated officers of the Board of Trustees of the United Presbyterian Church, solely for building purposes as provided herein.
3. This deposit is made and established in the sum of Twenty Thousand ($20,000.00) Dollars solely for the purpose of building an educational and Sunday School addition to the church building in Sheldon, Illinois, which additions shall be as provided herein and shall be dedicated in memory of said Martha A. Hoag-land and Rebecca McCloud.
4. The said funds shall be made available [sic] contract is let and construction has been commenced for the purpose of the addition herein specified.
Dated this 18th day of February, 1963.
/S/ John C. Hoagland (SEAL)
Said deposit is hereby accepted by the Board of Trustees of the United Presbyterian Church of Sheldon upon the terms and conditions herein defined and outlined.
Board of Trustees of United Presbyterian
Church of Sheldon, Illinois
By /S/ Carl John Julien
President of Board of Trustees
/S/ Thomas M. Rice
Treasurer”

On February 26, 1963, eight days following the execution of the document, Hoagland established a special account in the Sumner National Bank by depositing $20,000 in the name of “Board of Trustees of the United Presbyterian Church of Sheldon.” It is not shown in the record whether the bank was given a copy of the document or was aware of it. After the special deposit had been made, on December 18, 1965, Hoag-land was adjudicated an incompetent and a Conservator was appointed for him. Thereafter, on or about June 30, 1967, the United Presbyterian Church of Sheldon, pursuant to a vote of its congregation, merged with the Sheldon Methodist Church and the merged church was known, as The United (Methodist) Church of Sheldon, and occupied and utilized the church building of the former Sheldon Methodist Church. At the time of the merger, the building formerly used by United Presbyterian Church was abandoned for church purposes.

Decedent Hoagland died on October 19, 1969, six years and eight months following the making of the special deposit. At the time of his death the accumulated interest had increased the account to a sum in excess of $24,300. Prior to the date of Hoagland’s death, neither the United Presbyterian Church nor the merged The United (Methodist) Church of Sheldon, made any effort to use the deposit for the purposes set forth in the document dated February 18, 1963, nor did The United (Methodist) Church of Sheldon exert any claim to the deposit. After the death of Hoagland, both the executor of Hoagland’s estate and the merged church laid claim to the bank account. The litigation now before us ensued.

On appeal in this court, defendants make two alternative contentions. Appellants contend that Hoagland made an absolute and unconditional gift to United Presbyterian Church, thus causing the deposit to become the property of the merged church. They also contend, alternatively, that the document of February 18, 1963, which we herein refer to as the “Directions”, created a charitable trust which may be given effect as to the merged church under the doctrine of cy pres. We do not believe either contention may be sustained.

A gift is a voluntary, gratuitous transfer of property by one to another. It is axiomatic, in the law, that the burden of proof rests upon the donee to prove all facts essential to establishing a valid gift. To constitute a legally effective gift inter vivos, there must be an intent manifested by the donor to make such a gift. There must also be an absolute and irrevocable delivery of the property to the purported donee, or to such donee’s agent, with the intention of vesting the title and the immediate right of possession, absolutely and irrevocably, in the purported donee, without restrictions. The donor must relinquish all present and future power and dominance over the subject matter of the gift. There must also be evidence of acceptance by the donee. If, however, the delivery is absolute and unconditional, so that the claimed gift takes effect at once, the acceptance of the donee may be implied. (Dudley v. Uptown National Bank of Moline, 25 Ill.App.2d 514; In re Estate of Meyer, 317 Ill.App. 98; Gordon v. Gordon, 113 Ill.App.2d 191.) As stated in Pocius v. Fleck, 13 Ill.2d 420, at 428:

“The gift must be executed and completed in the lifetime of the donor, and if not so completed in his lifetime, his death revokes that part of the gift which has been performed. In re Estate of Carlin, 5 Ill.App.2d 241; In re Estate of Waggoner, 5 Ill.App.2d 130.”

While it is apparent that the money was deposited with the bank as an agent for the donor, rather than as agent for the donee (see: In re Estate of Meyers, 317 Ill.App. 96, 102; and People ex rel. Auditor of Public Accounts v. West Side Trust & Savings Bank of Chicago, 376 Ill. 339, 342-343), we need only look to Paragraph 4 of Hoagland’s “Directions” to conclude that an absolute gift inter vivos was neither intended nor accomplished when the special deposit was placed in the bank. That this was recognized by the trustees of the United Presbyterian Church when they signed the acceptance, is manifest from the fact that the acceptance was made subordinate to the “terms and conditions” outlined in the “Directions”. Under the terms of paragraph 4 it was provided that the funds in the special deposit “shall be made available” to the church when the contract is let and the construction has commenced on the church addition referred to in the preceding paragraph. With the language so clearly demonstrating the intention of the donor it cannot be said that there was a present vesting of title to the funds in the church or that it was given “* * * the immediate right of possession absolutely and irrevocably * * * without restrictions.” (Dudley v. Uptown National Bank of Moline, 25 Ill.App.2d 514, 521.) Neither the United Presbyterian Church nor the merged church took, or attempted to take, tire steps necessary for the claimed gift to take effect as an executed and completed transfer during the lifetime of the donor. On the basis of precedents referred to above, the consequence was that, at Hoagland’s death, the gift was revoked to the extent that it had not been performed and, on this ground, the trial court properly ordered the bank to deliver the special account and the interest accrued thereon to the plaintiff-executor.

We note that it is generally held that a delivery of a savings account book, with the intent to make a gift of the account, is effective to pass title to the funds (e.g. In re Estate of Whaley, 3 Ill.App.2d 333, 335), and it is contended by the Attorney General in this case that there was a completed gift here inasmuch as “the church has affirmed that it had continuous possession of the subject passbook.” We note that this representation is completely dehors the record. Matters or facts which are alluded to, or statements which are made in a brief in this court, which are entirely outside the record, cannot be considered by this reviewing court in disposition of the cause before us, unless there is a stipulation or an agreement between the parties that such facts may be considered in the cause. (Berdelle v. Carpentier, 11 Ill.2d 295; County Board of School Trustees v. Bendt, 30 Ill.App.2d 329.) As a matter of fact, even if the delivery of the account book did in fact take place, it was taken subject to the “Directions” and the provisions of paragraph 4 which we have noted.

We recognize, also, that since a special deposit is said to include one “* * * where the bank becomes a trustee for the depositor by special agreement or other circumstances sufficient to create a trust” (People ex rel. Auditor of Public Accounts v. West Side Trust & Savings Bank of Chicago, 376 Ill. 339, 342), the contentions of defendants that the “Directions” created a charitable trust is not wholly without substance. Under the facts, however, we see no purpose in further exploring such contention. When the United Presbyterian Church ceased to exist, and the building for which Hoagland intended to provide an addition was abandoned, it became impossible to carry out the purpose set forth in his “Directions”. Defendants recognize that this is so, but nevertheless assert that the trust may be given effect for the benefit of the merged church under the doctrine of cy pres. We do not believe that this contention is tenable under the facts in this case.

As noted in I.L.P. Charities, § 45, p. 68:

“The cy pres doctrine is applicable only where the donor had a general intention to devote the property to charitable purposes, and it does not apply where the gift is to a specific object or organization with no indication of a general intent to devote the property to some charitable cause, plan, or scheme.”

(See also: Bogert Trust and Trustees 2d, § 46, p. 422; Quimby v. Quimby, 175 Ill.App. 367; Chicago Daily News Fresh Air Fund v. Kerner, 305 Ill.App. 237). Thus we find that in order to justify the application of the cy pres doctrine there must be two prerequisites: first, a failure of the specific gift; and, second, a general charitable intent disclosed in the instrument creating the trust. In this case, there is no question but that the specific gift has failed, inasmuch as the United Presbyterian Church has ceased to exist and its church building was abandoned. We believe it is equally clear from a reading of the “Directions” that Hoagland made no manifestation of a general charitable intent. Rather, it is apparent that the instrument manifests an intent to benefit only the United Presbyterian Church for a specific purpose described by Hoagland as being “solely for building purposes as provided herein.” There is no expression of a general charitable intent. The trust, therefore, cannot be saved for the benefit of the merged church under the doctrine of cy pres.

For the reasons stated in this opinion, the judgment of the Circuit Court of Iroquois County is affirmed.

Affirmed.

SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON Mr. JUSTICE STOUDER

text:
    Mary Beaver, Plaintiff-Appellee, v. The Village of Bolingbrook, Defendant-Appellant.
    (No. 72-188;
    Third District
    June 29, 1973.

      Rehearing denied July 27, 1973.

    STOUDER, J., dissenting.

      Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, (R. Marlin Smith, of counsel,) for appellant.
    Murphy, Timm, Lennon & Spesia, of Joliet, and Saxon and Niznik, of Plainfield, (Ralph C. Murphy, of counsel,) for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Will County, Illinois, which held the zoning ordinance of the Village of Bolingbrook to be invalid as to certain property of the plaintiff, and which enjoined the Village from interfering with use of the property for a neighborhood shopping center and an automobile service station.

The plaintiff, Mary Beaver, the owner of 80 acres of land adjacent to the intersection of Illinois Route 53 and Briarcliff Road in Will County, had entered into an agreement with Yale Development Company for the sale to it of 10 acres of her land at the northeast corner of the intersection. The agreement was conditioned upon rezoning to permit the construction and operation of a neighborhood shopping center and an automobile service station at the intersection. Of the 10 acres subject to the agreement, 7% acres, constituting the tract of land involved in this litigation, lay within the Village of Bolingbrook. Under the zoning ordinance of the Village this tract of land had an R-2 Single-Family Residential classification, which did not permit the use of land for a shopping center or a service station.

The plaintiff and Yale Development Company requested the Village to rezone her 7%-acre tract of land so as to permit the development contemplated. Their request was denied by the Village upon the recommendation of its plan commission. Thereafter this suit was filed, to challenge the validity of the Village’s zoning ordinance as it applied to the plaintiff’s land to prohibit the intended uses. A hearing on the merits took place before the circuit court, findings were made and judgment entered for the plaintiff, and the Village has taken this appeal.

From the evidence it appears that Illinois Route 53 is a major north- and-south highway, with an average daily traffic volume of 10,285 in the vicinity of the plaintiff’s property, and Briarcliff Road is the main east- and-west thoroughfare in the Village of Bolingbrook. Land to the west and southwest of the intersection is zoned and substantially developed as residential property. Additional residential development lies a short distance northeast of the intersection. Immediately north and east of the plaintiff’s 7%-acre corner tract is the remainder of her 80 acres of land, all devoted to farming and all zoned for farming except the southerly portion lying within the Village and zoned residential. A short distance east of the intersection, on the south side of Briarcliff Road, is an elementary school.

It appears, further, that Interstate 55 lies less than a mile south of the intersection of Route 53 and Briarcliff Road, and a cluster of commercial uses is found at the intersection of Route 53 and 1-55. Other clusters of commercial uses are located on Route 53 at intersections north of Briarcliff Road. Between these intersections there are various housing developments and occasional commercial enterprises and areas zoned commercial. There is conflict in the testimony as to whether Route 53 in the Bolingbrook planning area is primarily commercial, whether it should be considered residential near Briarcliff Road, and what the trend of development is along Route 53.

There is conflict in the testimony, also, as to whether the plaintiff’s 772-acre tract at the intersection of Route 53 and Briarcliff Road is suitable for residential use; whether a detrimental effect on other property might result from allowing commercial uses to be introduced on this site; whether there might rather be an off-setting benefit to the community from the introduction of a neighborhood convenience shopping center and an automobile service station at this intersection; whether the two highways and the remainder of the plaintiff’s property would be adequate as buffers on all sides of the 772-acre tract; whether the proposed commercial development would create traffic problems; and whether any loss of property value which might ensue would be caused only to the adjacent land owned by the plaintiff herself.

It is clear that substantial detriment is caused the plaintiff by the present zoning of her property. The price she would receive from Yale Development Company, if commercial uses should become allowable, is $230,000 for 10 acres, or $172,500 for the 772-acre tract involved in this litigation. Two of her witnesses would place a valuation of $400,000 on the 772-acre tract as commercial property in the absence of a contract with Yale Development Company providing for a lower figure. The value of the 772-acre tract as presently zoned for residential use is $37,500 to $50,000 according to the plaintiff’s expert witnesses and $52,500 to $60,000 according to the witness testifying for the Village. It is thus established that the loss which present zoning restrictions would place on the plaintiff is between $112,500 and $135,000 for the 7% acres.

We have considered, in our review of the record, the various factors which have been said to merit consideration. (See La Salle Nat. Bank v. County of Cook, 12 Ill.2d 40, 46-47; Lakeland Bluff, Inc., v. County of Will, 114 Ill.App.2d 267, 275-76.) We have thereby sought to assess whether the challenged ordinance imposes a much more serious burden on the plaintiff than the public benefit seems to warrant, in which case the ordinance must be held unreasonable and void as applied to the plaintiffs property. (Tillitson v. City of Urbana, 29 Ill.2d 22, 27.) It is our conclusion that, as the Illinois Supreme Court has stated in another case involving a proposed automobile service station, “the hardship to the plaintiff is plain and uncontradicted, while the gain or hardship to nearby property owners is uncertain and minimal and presents little justification for the extreme confiscation of value worked upon the plaintiffs land by the residential classification.” (Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill.2d 116, 126.) We believe that the findings of the circuit court on the character of Route 53 and other factual matters in dispute are not contrary to the manifest weight of the evidence and so should not be disturbed. (Locker v. City of McHenry, 89 Ill.App.2d 457, 462.) We therefore concur with the decision of the circuit court that the residential classification of the plaintiff’s property is unreasonable and void and that the proposed uses of her property are reasonable and are to be allowed. Pending motions asking that we consider certain recent changes in the vicinity of the plaintiff’s property are denied, and the judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

ALLOY, P. J., concurs.

Mr. JUSTICE STOUDER

dissenting:

It is my opinion plaintiff failed to overcome the presumption of validity of the Village’s zoning ordinance. It is well settled the plaintiffs burden in overcoming this presumption is to show by clear and convincing evidence the zoning restrictions on plaintiff’s property are arbitrary and unreasonable and bear no substantial relationship to public health, safety, morals and welfare. Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.

Some of the factors to be considered in determining validity of a zoning ordinance are set forth in La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65, where it is said no one factor is controlling. This court has recently considered these factors in another zoning case, Glassey v. County of Tazewell, 11 Ill.App.3d 1087, and the reasoning employed therein seems to require a contrary result in this case.

Zoning classifications and uses of nearby property are a factor of paramount importance. (Ryan v. County of Du Page, 28 Ill.2d 196, 190 N.E.2d 737; Kellett v. County of Du Page, 89 Ill.App.2d 437, 231 N.E.2d 706.) The evidence in this case clearly indicates the property surrounding the property in question is zoned primarily for residential use except for the remainder of plaintiffs land which is zoned for farming. Residential areas, however, surround most of this piece of farmland. Each of the other three comers of the intersection where the property is located is zoned for residential use and single family dweUings are built on two of these corners. The commerciaUy zoned areas a mile to the north at Oldfield Road and a mile to the south at 1-55 are too remote to give the intersection where the property in question is located a commercial character. Between these two clusters there is only one commercial use, a building with a barber shop and beauty parlor, and several temporary model home sales offices. Even some of plaintiffs own witnesses testified the intersection does not have a commercial character.

Another factor considered of importance is the suitability of the subject property for the zoned purposes. Plaintiff in her brief suggests the heavy traffic on Route 53 makes the property unsuitable for residential purposes. Illinois courts have taken the position that location of property on a heavily travelled street does not render invalid a single family zoning classification. (Duryea v. City of Rolling Meadows, 119 Ill.App.2d 445, 256 N.E.2d 32; Kellett v. County of Du Page, 89 Ill.App.2d 437, 231 N.E.2d 706; and River Forest State Bank and Trust Company v. Village of Maywood, 23 Ill.2d 560, 179 N.E.2d 671.) In La Salle National Bank v. Village of Palatine, 92 Ill.App.2d 327, 236 N.E.2d 1, the court said even property on a highway with heavy traffic could be properly zoned residential if the surrounding neighborhood was primarily residential in character.

Since the Village of Bolingbrook, which was incorporated in 1965, adopted the zoning ordinance in question in 1968, there is no indication of any rezoning in the area surrounding plaintiff’s property. Thus, there has been no change of character in the neighborhood which would affect the suitability of the land for residential use. It was pointed out in the briefs, there are four to six new single family subdivision developments along Route 53, which indicate the residential activity in the area is increasing. The value of the 7Vz acre tract zoned for residential use is within the range of $37,000 to $60,000 according to the testimony of the various witnesses. Such a substantial value for undeveloped land is a recognition of its suitability for residential use. Also there was a Comprehensive Planning Program undertaken by the Village in 1968 which recommended commercial uses not be permitted to spread along Route 53 in order to preserve the residential character. Although the plan, was not officially adopted until after the trial in this case, the Plan Commission had recommended its adoption to the Village Board.

The subdivision regulations prohibit homes from facing on Route 53. In other words residences and residential subdivisions are to be so oriented that individual residences will not have direct access to Route 53, which orientation has the effect of promoting and enhancing the traffic flow along Route 53 unhampered by numerous access points. While plaintiff contends this is an indication the subject property is unsuitable for residential use, it would appear the reason for the regulation is to prevent traffic congestion which individual entrances onto the roadway would cause, thus insuring an even flow of traffic. There is ample evidence to infer the subject property is suited for residential purposes.

Plaintiff also suggests the Village has a need for additional commercial facilities based on a social economic report, however,- there is a failure to show why such need would require this particular property to be used for a commercial purpose rather than property already zoned and available for such purpose. Also, the report relied upon by the plaintiff was made in 1969 and since that time there have been additional shopping centers and gas stations built in the Village.

It is also particularly important to note how a, change to a commercial use would affect the surrounding area. While plaintiff claims there will be only a minimal increase in traffic, other testimony shows and it appears evident the use of the property for a shopping center and gas station would substantially increase traffic and cause congestion. The attendant noise, light and odors would have an adverse effect on the surrounding residential area and would be likely to cause a decrease in value of the residential property in the area.

Plaintiff’s evidence shows under a commercial zoning classification the property would have greater value, and hardship to plaintiff as- an individual property owner is great especially as compared to the gain to the public if zoning remains residential. The majority seems to base its decision on this factor without discussing any other factors. In the cases cited by the majority as authority for the hardship factor (Chicago Title and Trust Company v. Village of Wilmette, 27 Ill.2d 116, 188 N.E.2d 33; Tillitson v. City of Urbana, 29 Ill.2d 22, 193 N.E.2d 1), there were also other factors weighing in favor of rezoning. In Chicago Title and Trust Company v. Village of Wilmette, there were already extensive commercial uses at two corners of the same intersection and in Tillitson v. City of Urbana, the immediate area was interspersed with commercial uses, most of these having been rezoned for such purposes and also the land at the northwest cornor of the intersection immediately across from the subject property was rezoned to a business classification three years before the rezoning of the subject property was sought.

It is apparent that probably the highest and best use of the property in this case is not single family residential. The Illinois courts have frequently pointed out, property might be more valuable if a more intense use were permitted but further state this is usually true where zoning ordinances restrict private property. This fact, however, is not sufficient to invalidate an existing zoning ordinance. Kellett v. County of Du Page, 89 Ill.App.2d 437, 231 N.E.2d 706; Ryan v. County of Du Page, 28 Ill.2d 196, 190 N.E.2d 737; and River Forest State Bank and Trust Company v. Village of Maywood, 23 Ill.2d 560, 179 N.E.2d 671.

After considering the various factors relevant to determining validity of a zoning ordinance, I am of the opinion the presumption of validity has not been overcome by plaintiff. There is no clear and convincing evidence of arbitrariness or unreasonableness in the present zoning ordinance as applied to plaintiff's property. At best plaintiff's evidence only presents a conflicting opinion as to reasonableness of the zoning ordinance in which case the court is to determine whether the differences in opinion are reasonable and justifiable. (Fiore v. City of Highland Park, 76 Ill.App.2d 62, 221 N.E.2d 323.) If the conflicting opinions are reasonable and justifiable, the question should not be resolved by this court, rather the legislative judgment of the municipality must prevail. Standard State Bank v. Village of Oak Lawn, 29 Ill.2d 465, 194 N.E.2d 201; Exchange National Bank of Chicago v. Cook County, 25 Ill.2d 434, 185 N.E.2d 250; and La Salle National Bank v. City of Chicago, 6 Ill.2d 22, 126 N.E.2d 643.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Allen J. Rose, Individually and as Representative of the Class Similarly Situated, Plaintiff-Appellant, v. Sears, Roebuck and Co., Defendant-Appellee. William Manson, Individually and as Representative of the Class Similarly Situated, Plaintiff-Appellant, v. Montgomery Ward & Co., Inc., Defendant-Appellee.
    (Nos. 56775, 56776 cons.;
    First District (1st Division)
    June 11, 1973.

      B. John Mix, Jr., of Chicago, for appellants Allen J. Rose and William Manson.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago, (Burton Y. Weit-zenfeld and Peter D. Kasdin, of counsel,) for appellee Sears Roebuck & Co.
    Hopkins, Sutter, Owen, Mulroy & Davis, of Chicago, (Thomas R. Mul-roy, William P. Sutter, William I. Goldberg, and Richard Bromley, of counsel,) for appellee Montgomery Ward & Co.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

These cases originated as two class actions for injunctive relief and damages based on the defendants’ practice of including both the 4% Illinois Use Tax and the 1% Municipal Retailers’ Occupation Tax in the credit account balances to which a finance charge is applied. The trial court granted the defendants’ motions to strike and dismiss the complaints, and the plaintiffs appeal.

The defendants are retailers of consumer goods in Illinois. Their sales are made both for cash and on credit. Sales on credit are made pursuant to a written agreement between the seller and purchaser. A monthly finance charge on the purchaser’s outstanding balance is imposed on the total amount of such balance, which includes both the 4% and 1% taxes (for purposes of this opinion, hereinafter called sales taxes).

The narrow question is whether the trial court erred in holding that Illinois law permits the defendants to impose their finance charges on that part of the unpaid credit balances which consists of sales taxes.

The defendants contend that their practice is permitted under the clear language of the Retail Installment Sales Act. (Ill. Rev. Stat. 1971, ch. 121½, par. 501-33.) Specifically, the defendants direct us to the following statement:

“Notwithstanding the provisions of any other statute, a retail charge agreement may provide for, and the seller or holder may, if the agreement does so provide, charge, collect and receive, a finance charge not exceeding 180 per $10 per month, computed on all amounts unpaid thereunder from month to month, which need not be a calendar month.” Ill. Rev. Stat. 1971, ch. 121½, par. 528.

The defendants argue that the sales taxes, as part of the amount unpaid, may be subjected to a finance charge. Further, the defendants point out that the amount financed, payment of which is deferred, includes the “cash sale price” of the item sold. (Ill. Rev. Stat. 1971, ch. 121½, par. 502.10.) The cash sale price is basically the amount which would have been paid had the sale been for cash, instead of credit. As to the cash sale price, it is said:

“The cash sale price may include any taxes and the cash sale prices are accessories and their installation and for delivery, servicing, repairing, or improving the goods.” (Ill. Rev. Stat. 1971, ch. 121½, par. 502.8.)

The critical question is whether the sales taxes may be included in the cash sale price and, therefore, in the amount financed. The crux of the plaintiffs’ argument is that the defendants extend no credit for the amount of the taxes, because they are not obligated to pay the taxes to the state until payment has been received from the purchasers. (Ill. Rev. Stat. 1971, ch. 120, par. 439.9; Ill. Rev. Stat. 1971, ch. 120, par. 442; Ill. Rev. Stat. 1971, ch. 24, par. 8 — 11 — 1.) The plaintiffs contend that the sales taxes are not includable in the cash sale price for the following reasons:

1. “Cash sale price” is essentially the same as the “selling price” as defined in the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.1 — 39.22) and the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 440 — 53);
2. Language in the Retail Installment Sales Act would thereby be rendered superfluous;
3. Such a construction of the Retail Installment Sales Act would make the statute unconstitutional on its face.

Before proceeding to examine the plaintiffs’ arguments, we note that plaintiffs’ attempt to brand the finance charge here as usurious interest is irrelevant since we are dealing with finance charges, which are not subject to the general interest provisions. Ill. Rev. Stat. 1971, ch. 121½, par. 528.

In support of their first argument, the plaintiffs cite the definitions of “selling price” in the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.2) and in the Retailers’ Occupation Tax Act. (Ill. Rev. Stat. 1971, ch. 120, par. 440.) The definitions contained in these complementary statutes, which are the source of the 4% sales tax, pointedly omit the sales taxes here involved from the selling price. The plaintiffs ask us to infer that the terms “selling price” and “cash sale price” are synonymous. But the defendants respond, correctly we think, that the reason for the omission of sales taxes from “selling price” under the taxing statutes is that the “selling price” is the amount upon which the percentage tax rate is imposed. Thus, there is a reason for leaving the sales taxes out of the “selling price.” The question then is whether such a reason exists for leaving the taxes out of the “cash sale price.” The plaintiffs seem to find such a reason in the premises that the use tax comes into existence after a sale, when use of the property has passed to the purchaser. This premise ignores the fact that the Use Tax Act provides for collection of the tax at the time of the sale:

“Retailers shall collect the tax from users by adding the tax to the selling price of tangible personal property, when sold for use, * * Ill. Rev. Stat. 1971, ch. 120, par. 439.3.

This provision places cash and credit customers on an equal footing with respect to their obligation to pay the taxes. The cash customer pays the taxes, whether he leaves the store with his purchase or delays use by having it delivered. The credit customer obligates himself to pay the taxes by signing the credit slip, regardless of whether he takes immediate possession of his purchase. We find this same consistent treatment of cash and credit purchasers in the inclusion in the credit customer’s “cash sale price” of the sales taxes he has contracted to pay. There is no reason for equating “cash sale price” and “selling price” as the plaintiffs contend.

The plaintiffs’ second argument is that a section of the Retail Installment Sales Act contains language which would be rendered meaningless by our conclusion. They cite the definition of “finance charge” contained in the Retail Installment Sales Act:

“ ‘Finance charge’ means the sum of all charges payable, directly or indirectly by the buyer and imposed directly or indirectly by the seller as an incident to or as a condition of the extension of credit, whether payable by the buyer, the seller, or any other person on behalf of the buyer to the seller or a third party including any of the following types of charges:
« « «
If itemized and disclosed to the customer, any charges of the following types need not be included in the finance charge:
* # #
(c) Taxes not included in the cash price.” Ill. Rev. Stat. 1971, ch. 121½, par. 502.11.

The plaintiffs contend that if the sales taxes in issue are includable in the cash sale price, then the language which allows taxes which are not part of the cash price to be excluded from the finance charge is unnecessary and meaningless. They argue that there are no other taxes which would fit the description “[t]axes are included in the cash price” under our rationale. We disagree. The key here is the verb used in the statutes. The sales taxes may be included in the cash sale price. Or they may be excluded from the cash sale price and also excluded from the finance charge. The fact that the statutes contain alternative treatments for sales taxes does not mean that the language is superfluous.

The plaintiffs’ final argument is that interpreting the statute to allow inclusion of the sales taxes in the cash sale price would require that this court find the statute unconstitutional on its face, presumably as a use of public credit for private benefit. The plaintiffs cite the 1970 Illinois Constitution:

“Public funds, property or credit shall be used only for public purposes.” Ill. Const. art. VIII, sec. 1(a).

The plaintiffs ground their argument on the fact that the defendants impose the sales taxes at the time of sale but are not required to pay over the amount of the taxes due until payment is received from tire purchaser. Allowing a finance charge on the amount of these taxes, would, under the plaintiffs’ theory, mean extending the state’s credit for private benefit.

It is true that the defendants are not obligated to pay over the amount of the sales taxes until they are collected from the purchaser. (Ill. Rev. Stat. 1971, ch. 120, par. 439.9; Ill. Rev. Stat. 1971, ch. 120, par. 442; Ill. Rev. Stat. 1971, ch. 24, par. 8 — 11 — 1.) It is also obvious in the case of credit purchases, that the defendants do not have the sales taxes in their possession until payment by the purchasers. If the defendants have no obligation to pay over the sales taxes to the state until payment is received by them, the state has extended no credit to the defendants. With respect to the defendants’ obligation, the Use Tax Act provides:

‘Where such tangible personal property is sold under a conditional sales contract, or under any other form of sale wherein the payment of the principal sum, or a part thereof, is extended beyond the close of the period for which the return is filed, the retailer, in collecting the tax * * * may collect for each tax return period, only the tax applicable to that part of the selling price actually received during such tax return period.” Ill. Rev. Stat. 1971, ch. 120, par. 439.9.

The Retailers’ Occupation Tax Act and the Municipal Retailers’ Occupation Tax Act contain similar provisions for deferral of payment until receipt. (Ill. Rev. Stat. 1971, ch. 120, par. 442; Ill. Rev. Stat. 1971, ch. 24, par. 8 — 11 — 1.) The constitutionality of these provisions is not challenged. And the plain language contained therein imposes the obligation on the defendants to pay over the sales taxes at the time when they receive payment from the credit purchaser. There is thus no reason to find an extension of the state’s credit to the defendants in the inclusion of sales taxes in the “cash sale price” and we reject the plaintiffs’ challenge to the constitutionality of the Retail Installment Sales Act.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dezell McCray, Defendant-Appellant.
    (No. 57265;
    First District (4th Division)
    June 13, 1973.

      James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kis-sane, Patricia Bobb, and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Dezell McCray, was charged with robbery. Following a bench trial, defendant was found guilty and sentenced to four years probation, the first nine months of probation to be served in the House of Correction. On appeal defendant contends that:

(1) The single identification of the defendant was vague;
(2) The victim’s highly emotional state precluded adequate observation of the offender;
(3) One-man showup of defendant while in police custody denied him due process of law; and
(4) The trial court failed to consider his alibi.

On February 23, 1971, at 9:00 P.M., Mrs. Antoinette Brannigan drove her car into her garage. As she got out of the car she noticed a man standing near the doorway. Mrs. Brannigan testified that the man stood facing her two feet away. She further testified that the man pushed her to the ground and crouched over her for several minutes with his face directly over her face. She testified that she screamed as the assailant was choking her with one hand and trying to pull down her underclothes with the other. Suddenly the assailant got up, took Mrs. Brannigan s purse from the car and fled. The purse was later found at 1048 West Garfield Boulevard. In further testimony, Mrs. Brannigan stated that the lighting conditions in the garage were very good. Mrs. Brannigan viewed approximately ten photographs and picked out defendant’s picture. Later, Mrs. Brannigan went to the police station and positively identified the defendant as the assailant. Defendant lived at 1052 West Garfield Boulevard, which is next door to where the stolen purse was found.

Allen Smith, a defense witness, corroborated defendant’s alibi testimony that they were at the Amber Lounge when the robbery occurred. Smith also testified that defendant wore a moustache and goatee on February 23, 1971.

Defendant’s first contention on appeal was that his identification by a single witness was vague. Positive identification by a single witness who had ample opportunity for observation is sufficient to support a conviction. (People v. Clarke, 50 Ill.2d 104, 110, 277 N.E.2d 866.) The cases relied upon by the defendant (People v. Marshall, 74 Ill.App.2d 483, 221 N.E.2d 133; People v. Martin, 95 Ill.App.2d 457, 238 N.E.2d 205; People v. Fancy, 72 Ill.App.2d 419, 219 N.E.2d 662 and People v. Reed, 103 Ill.App.2d 342, 243 N.E.2d 628) differ significantly from the case at bar. In Marshall, Fincy and Reed, the witnesses did not have a chance to, or faffed to observe, the face of the perpetrator of the offense. In Martin the fighting conditions were poor at the site of the crime and the witness described one of the defendants as being about 5 feet 7 inches taU, while the defendant in question was actually 6 feet 4 inches tall.

In the case at bar, the complaining witness had an excellent opportunity to view the assailant’s face during the robbery. Mrs. Brannigan testified that the lighting conditions in the garage were very good. She stated that the two overhead garage fights were on when the robbery took place. She also testified that the robber stood facing her two feet away and that she stared at her assailant’s face for the few minutes he was on top of her.

Defendant and Smith testified that defendant had a moustache and goatee at the time the robbery occurred. Mrs. Brannigan testified that her assailant was clean shaven. This conflict in testimony over whether defendant had a moustache and goatee at the time of the robbery is a credibility question for the trier of fact. (People v. Jones, 4 Ill.App.3d 888, 891, 282 N.E.2d 273.) Furthermore, this is just one of the factors to be taken into consideration in analyzing the identification.

We find that the identification testimony of the complaining witness was clear and positive and therefore could not characterize defendant’s identification by this witness as vague or uncertain.

Defendant’s second contention on appeal was that the victim’s highly emotional state precluded adequate observation of the offender. Upon reviewing the record we find that there is no evidence to support this contention.

Defendant’s third contention on appeal was that the one-man showup of defendant while in police custody denied him due process of tire law. In People v. Sanders, 5 Ill.App.3d 89, 282 N.E.2d 742, the court held at page 93:

“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. (Stovall v. Denno, 388 U.S. 293, 302; People v. Gardner, 35 Ill.2d 564, 572, 221 N.E.2d 232, 236.) However, whether due process has been denied depends upon the totality of the circumstances. (Stovall v. Denno, 388 U.S. 293.) Stovall requires that ‘a defendant so claiming must prove that the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.’ People v. Blumenshine, 42 Ill.2d 508, 511, 250 N.E.2d 152, 154; People v. Nelson, 40 Ill.2d 146, 150, 238 N.E.2d 378, 381.
We agree that there was no need for the police in the instant case to resort to a show-up procedure when the defendant was available for a fair lineup. Also to be condemned is the conduct of the police in informing a robbery victim that they think they have the robber before the victim is given an opportunity to view the suspect.
Even if we were to determine that the pre-trial confrontation was grossly suggestive, the in-court testimony of the identifying witness would still be admissible so long as the record clearly revealed that the witness’ prior observation of defendant was sufficient to serve as an independent basis for his in-court identification. (People v. Cook, 113 Ill.App.2d 231, 252 N.E.2d 29. See also People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330; People v. Bey, 42 Ill.2d 139, 246 N.E.2d 287.) ‘If the witness had an adequate opportunity to observe, and there is little likelihood that the procedures used led to a mistaken identification, the conviction based on a subsequent in-court identification will not be set aside.’ People v. Fox, 48 Ill.2d 239, 246, 269 N.E.2d 720, 725. See also United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263.”

In the case at bar, the victim had ample opportunity to observe the defendant during the robbery. The victim and defendant were face to face for a few minutes under very good lighting conditions. Following the robbery, Mrs. Brannigan was able to pick out defendant’s picture. Based on all these circumstances, we conclude that Mrs. Brannigan’s positive in-court identification was based upon this independent origin and free from the taint of any suggestive showup.

Defendant’s fourth contention on appeal was that the trial court failed to consider his alibi. There is no obligation on a trial court to believe alibi testimony over positive identification of an accused, even though the alibi testimony may be given by a greater number of witnesses. People v. Catlett, 48 Ill.2d 56, 64, 268 N.E.2d 378.

It is the function of the trier of fact to determine the credibility of the alibi testimony. The evidence which the trial court believed proved the defendant guilty beyond a reasonable doubt.

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

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leon Peeler, Defendant-Appellant.
    (No. 58014;
    First District (4th Division)
    June 13, 1973.

      James J. Doherty, Public Defender, of Chicago, (Robert M. Motta and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Thomas A. Mauet, and John C. O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

. The defendant, Leon Peeler, brings this appeal from a judgment of the Circuit Court of Cook County finding him guilty of voluntary manslaughter and sentencing him to not less than nine nor more than fifteen years in the penitentiary. Three issues are presented to this court for review: whether the defendant was proven guilty beyond a reasonable doubt, whether the trial court erred in giving a jury instruction on voluntary manslaughter based upon intense passion and whether the trial court’s exclusion of evidence of the decedent’s reputation for carrying "a deadly weapon prejudicially limited the defense.

The facts are as follows. On January 1, 1970, Charles Robinson, the deceased, and his wife, went to an apartment hotel located at 924 West Lawrence Avenue in the City of Chicago to visit Robinson’s brother. As they entered the building they met Eugene Wells, his wife and the defendant, Leon Peeler. After a short conversation in the hallway, Mrs. Robinson left the group. As she was leaving she heard her husband ask the defendant, “why did he do him like he did last night?” or words to that effect. She returned approximately five minutes later. Her husband was not in the hallway and she went to the defendant’s apartment to look for him. When she entered she saw the defendant standing over her husband with a knife. Her husband was lying on the floor next to the bed covered with blood. The defendant raised the knife to strike Robinson again, but stopped when Mrs. Robinson screamed.

Eugene Wells testified that Robinson said to the defendant, “I don’t like the way you treated me the other night”, and a scuffle broke out between the two men. Robinson struck the defendant two or three times, knocked him down, then grabbed him and pushed him into his own apartment. Wells heard the sounds of fighting inside the apartment and heard Mrs. Robinson scream, but did not see the actual stabbing.

The defendant testified that Robinson knocked him into his apartment, demanded ten dollars and then began choking him. As they struggled, he picked up a knife from beside his sink and stabbed Robinson several times in the face and neck. He admitted stabbing Robinson, but stated that he was afraid of Robinson from past encounters and acted in self-defense.

The coroner’s physician testified that Robinson died of stab wounds and had been stabbed eight times.

We torn our attention first to whether the defendant was proven guilty beyond a reasonable doubt. The indictment charged the defendant with murder. At trial he testified that he stabbed Robinson only after he had been attacked without provocation and was being strangled and therefore that he acted in self-defense. In this court he argues that under the facts presented he was either guilty of murder or not guilty by reason of self-defense and that the jury’s “compromise” verdict finding him guilty of voluntary manslaughter indicates that it did not believe beyond a reasonable doubt that he was guilty of murder.

This argument is without merit. It is well established in Illinois that an indictment for murder involves all other grades of homicide which the evidence tends to establish and that an indictment charging murder includes a charge of manslaughter. (People v. Speed, 52 Ill.2d 141, 145; People v. Lewis, 375 Ill.330, 335.) Where the offense charged in the indictment includes within it another offense of lower degree, the defendant may be convicted of the lower offense even though the evidence fails as to the offense of higher degree. (People v. Lewis, 375 Ill. 330, 334.) Therefore the fact that the jury may not have believed the defendant guilty beyond a reasonable doubt of murder did not preclude it from finding him guilty of the lesser included offense of voluntary manslaughter.

Section 9 — 2 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2) provides that one who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles set forth in article 7 of the Code, but this belief is unreasonable. Article 7 deals with the justifiable use of force and provides in part that a person is justified in the use of force against another if he reasonably believes that such conduct is necessary to defend himself. The use of force intended to cause death or great bodily harm is limited to situations in which the.actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Ill. Rev. Stat. 1969, ch. 38, par. 7 — 1.

In the present case there is ample evidence from which the jury could have found that the defendant stabbed Robinson in the belief that such action was necessary to prevent his own death or serious injury, but that this belief was unreasonable. It was undisputed, for example, that Robinson was not armed at the time of the incident and had given the defendant no cause to believe that he was. The coroner’s pathologist testified that Robinson was five feet ten inches in height and weighed 160 pounds, indicating that he was of average build. Both witnesses testified that Robinson was lying down when they entered the room and that the defendant had the knife raised to stab him again. The bed was covered with blood. The pathologist testified that Robinson was stabbed eight times. From this it is apparent, that the defendant inflicted at least some of the wounds after he had succeeded in preventing Robinson from strangling him. This conclusion is inexorable even if the defendant’s testimony is taken as true. We are satisfied, therefore, that the defendant was proven guilty beyond a reasonable doubt and we so hold.

Next we turn to whether the court erred in giving a jury instruction on voluntary manslaughter based upon intense passion. Much of what we have said with respect to the defendant’s contention that he was not proven guilty beyond a reasonable doubt applies to this contention as well. As we stated above, an indictment for murder includes all other grades of homicide which the evidence tends to establish. The Criminal Code provides that a person who kills an individual without lawful justification commits voluntary manslaughter if, at the time of the killing, he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2.) In all criminal cases the jury should be fully instructed on any theory which they might find to be true from the evidence and where there is any evidence in the record which, if believed, would justify a finding of manslaughter such an instruction should be given. People v. Izzo, 14 Ill.2d 203; People v. Jones, 384 Ill. 407, 412.

In the present case we believe that there is sufficient evidence that the jury would have been justified in finding that the defendant acted in an intense passion brought on by provocation. It is undisputed that Robinson provoked the defendant both by his statement, “I don’t like the way you treated me last night”, and by his actions. It was also undisputed that Robinson was stabbed eight times. The testimony of the pathologist indicates that the wounds were inflicted in a frenzied, random fashiom At least some of the wounds were inflicted, after the necessity for self-defense had passed and after Robinson had ceased to resist. Therefore voluntary manslaughter was an issue in the case and it was proper for the court to have given an instruction defining it. Indeed if the court had not given such an instruction it might have committed reversible error. See People v. Canada, 26 Ill.2d 491.

The defendant calls our attention to several cases in which it was held to be reversible error to give an instruction on voluntary manslaughter when the defense to a murder charge is the justifiable use of force. These cases are distinguishable from the one presently before us in that, unlike the present case, they involved situations in which the evidence admitted of only one of two conclusions; that the defendant was guilty of murder or that he was innocent. Thus, while we recognize the rule stated in these cases, we conclude that it is not applicable here.

Finally we consider whether the court’s exclusion of evidence of Robinson’s reputation for carrying a deadly weapon prejudicially limited the defense. Although the defendant states this to be the issue, our examination of the record reveals that the court allowed the defendant to present testimony which established that Robinson was feared in the community and had a reputation for carrying a gun. It was only when' the witness attempted to testify to specific instances in which Robinson had been armed and had exhibited his violent nature that the court sustained the State’s objections. In doing this the court was entirely proper.

In a prosecution for homicide where the defendant relies upon self-defense and there is evidence which, if believed by the jury, would justify a finding that the decedent was the aggressor, evidence of his violent disposition and prior threats or conduct directed toward the defendant is admissible. The reason for this is that such evidence tends to show the circumstances confronting the defendant, the extent of his apparent danger and the motive by which he was influenced. (People v. Davis, 29 Ill.2d 127, 130.) The wisdom of such a rule is apparent; however, it is inapplicable to the present case.

In the present case the testimony concerning Robinson’s reputation in the neighborhood as a violent man was given by Eugene Wells, the defense witness. Wells testified that Robinson “was pretty well feared around the neighborhood.” The defendant’s counsel then asked, “And for what reason?” This question was objected to, and the court sustained the objection. The defendant’s counsel made several attempts to rephrase the question, but each was unsuccessful. Clearly the testimony which counsel sought to elicit did not relate to specific acts by Robinson directed against the defendant, but to the incidents which formed the basis of Wells’ opinion that Robinson was feared in the neighborhood. It is fundamental that such evidence is inadmissible. See People v. Popovich, 295 Ill. 491, 496; People v. Simpson, 76 Ill.App.2d 441, 447.

The defendant also argues that the court prejudicially limited his own testimony with respect to prior encounters with Robinson. Specifically he objects to the following exchange:

“Q. [Counsel] Had Mr. Peeler [sic: Mr. Robinson] ever done anything to you, personally, prior to that?

A. [Defendant] Well, down — he pulled—

The Court: Just a moment, counsel, that question calls for a yes or no answer, please.

Q. [Counsel] Yes or no?

A. [Defendant] Yes.”

The defendant contends that this exclusion was prejudicial in that it deprived the jury of facts necessary to reach an informed verdict. The record reveals, however, that immediately following the colloquy set forth above, the defendant’s counsel rephrased his question, and the defendant was permitted to testify freely about a prior occasion upon which Robinson allegedly drew a gun on a crowd of men which included the defendant. In view of this we are at a loss to see how the court’s action could have prejudiced the defendant, and we find his contention to be wholly destitute of merit.

For the foregoing reasons the judgment of the circuit court is affirmed.

On May 9, 1973, while this case was still pending on appeal, the defendant filed a motion in this court for modification of his sentence in accordance with the new Unified Code of Corrections, which became effective on January 1, 1973. (Ill. Rev. Stat., 1973 Supp., ch. 38, par. 1001 — 1 — 1 et seq.) The Code provides that sentences shall be under its provisions in any case not finally adjudicated on its effective date. (Ill. Rev. Stat., 1973 Supp., ch. 38, par. 1008 — 2 — 4.) The defendant has directed our attention to several recent appellate court cases in which it was held that a cause pending on appeal had not reached final adjudication within the meaning of the statute and in which the appellate court modified the sentence passed by the trial court. (People v. Mize, 9 Ill.App.3d 647, 650; People v. Lobb, 9 Ill.App.3d 650, 653; People v. Caritinos, 9 Ill.App.3d 782, 783.) After reviewing these decisions, we agree that the defendant is entitled to a modification of his sentence.

Voluntary manslaughter has been made a Class 2 felony. (Ill. Rev. Stat., 1973 Supp., ch. 38, par. 9 — 2.) For a Class 2 felony the minimum term is to be one year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum. In any event, the minimum term is to be no greater than one-third of the maximum. (Ill. Rev. Stat., 1973 Supp., ch. 38, par. 1005 — 8 — 1.) In the present case the court set the minimum term at nine years and the maximum at fifteen years, thereby setting a greater minimum than the statute allows. Therefore, the sentence is modified as follows: the minimum term shall be not less than five years and the maximum not more than, fifteen years.

With tire sentence modified the judgment of the Circuit Court of Cook County is affirmed. The cause is remanded to the circuit court with directions to issue an amended mittimus reflecting the foregoing modifications.

Affirmed as modified. Remanded with directions.

ADESKO and DIERINGER, JJ„ concur.