author: JUSTICE JIGANTI

text:
    ALTAIR CORPORATION et al., Plaintiffs-Appellants, v. CHARLES E. HARRIS et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—2935
    Opinion filed December 2, 1982.

      Donald L. Bertelle, of Collins & Amos, of Chicago, for appellants.
    Francis X. Grossi, Jr., Lee Ann Watson, and Steven M. Rasher, all of Katten, Muchin, Zavis, Pearl & Galler, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs’ complaint was dismissed by the trial court on the grounds that the Federal court had exclusive jurisdiction over this cause of action. The defendants contend that this is an action under the Securities Exchange Act of 1934 (15 U.S.C.A. sec. 78aa (1981)), which preempts State court action. The plaintiffs claim that this is an action for common law fraud cognizable in a State court.

The plaintiffs are Altair Corporation and Chatham Corporation. Chatham owns more than 50% of Altair. The defendants are Acquisitions-Mergers, Inc. (A-M), and its president, Charles E. Harris. On January 28, 1976, Altair entered into a written contract with A-M and with its president. Under the terms of this contract, A-M was to actively seek business acquisitions or mergers for Altair, and in return Altair paid A-M $1250 monthly until July 1979, when the agreement was terminated.

The details of the complaint at issue here are rather intricate involving certain relationships, including family relationships, between the shareholders of the various corporations. In legal essence however, the complaint alleges that Harris and another stockholder of AM owned more than 10% of the stock of the plaintiffs. The plaintiffs claim that they did not know that the shareholders of A-M owned more than 10% of their stock because this stock was held in a street name.

The basic controversy between the parties centers around the allegation in the complaint that the plaintiffs are required to report all dealings between themselves and any entity which is controlled by persons who own 10% of their stock to the Securities Exchange Commission (SEC) pursuant to the Securities Exchange Act of 1934. The complaint alleges that the defendants knew of the plaintiffs’ reporting requirements but kept silent as to their 10% ownership even though the defendants also knew that it was the custom of numerous persons who are shareholders in public corporations to bring suit to seek money for any inaccuracy in any SEC report. The complaint also alleges that the defendants had a duty of fair dealing and should have disclosed their ownership before entering into the contract with the plaintiffs. The plaintiffs claim they were damaged because their report to the SEC was inaccurate and when these matters were revealed to their shareholders, the plaintiff corporations became subject to very expensive litigation. The plaintiffs seek as damages the amount of money paid to A-M during the course of the contract and an additional $100,000.

Two sections of the Securities Exchange Act of 1934 relating to jurisdiction are in issue here. Section 27 (15 U.S.C.A. sec. 78aa (1981)) provides in pertinent part:

“The district courts of the United States *** shall have exclusive jurisdiction of violations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder.”

Section 28(a) (15 U.S.C.A. sec. 78bb(a) (1981)) provides:

“The rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or equity; ***.”

The defendants’ position is that a legally cognizable cause of action must consist of a right of the plaintiff, a duty of the defendant and a wrong by the defendant which invades the plaintiff’s right and breaches the defendant’s duty. The defendants contend that the plaintiffs err in characterizing the complaint as an action for common law fraud because there is in fact no common law right nor a common law duty that was breached by the defendants. The defendants assert that their alleged duty and the plaintiffs’ concomitant right, if any, arise only from the Federal securities statutes and thus the circuit court does not have subject matter jurisdiction.

The issue here must be considered in some perspective. This cause is before the court on a motion to dismiss because of the lack of subject matter jurisdiction. There was no motion to dismiss the complaint for failure to state a cause of action. Consequently, we accept the complaint as a well-pleaded complaint.

An analysis of the complaint reveals that it does not allege that Harris and A-M violated a duty imposed on them by the Federal securities laws. The complaint alleges that the defendants had knowledge that Federal securities laws required certain reports and also knew that the shareholder relationships between the plaintiffs and the defendants should have been disclosed in those reports. The essential duty which was breached arises from a common law duty of fair dealing between contracting parties. The plaintiffs cite Lockbridge v. Fos ter (1843), 5 Ill. (4 Scam.) 569, and Stanfa v. Buffo (1935), 280 Ill. App. 261, for the proposition that the parties to a contract have a duty to deal fairly with each other. Fair dealing, it is asserted, required that the defendants disclose their ownership of the plaintiffs’ stock so that the plaintiffs could disclose this ownership in their réport to the SEC and avoid expensive shareholder litigation.

We believe that the face of the complaint clearly shows that the plaintiffs are asserting the duty of fair dealing of contracting parties as a basis for their cause of action.. Such a duty, if any, arises under common law rather than under Federal statutory law.

We do not believe as the defendants contend that the language of exclusive Federal jurisdiction set out in section 27 of the Securities Exchange Act of 1934 was meant to bar a common law action for fraud. It is expressly stated in section 28(a) of the same Act that the rights and remedies provided for in the Act are in addition to all other rights and remedies that may exist at law or in equity. In construing the purpose of these sections, courts have held that it was not the intent of Congress to preempt common law rights which might have been fully adjudicated and enforced in a State court before the Act was passed. The Act confers exclusive jurisdiction on Federal courts to entertain only those actions which involve some right of recovery which goes beyond such common law rights. (McCollum v. Billings (1967), 53 Misc. 2d 661, 279 N.Y.S.2d 609; see Beury v. Beury (S.D. W. Vir. 1954), 127 F. Supp. 786; Ellis v. Carter (9th Cir. 1961), 291 F.2d 270.) Also in gauging the extent to which Congress has intended to preempt a field, courts have looked to the comprehensiveness of the Federal legislation. It has been universally held that the Federal securities laws were not meant to totally preempt the field relating to securities regulation because there is nothing in the Federal law which indicates congressional intention to limit the power of the State to fashion additional remedies and to effectuate similar purposes under Blue Sky laws. (Diamond v. Oreamuno (1969), 24 N.Y.2d 494, 301 N.Y.S.2d 78; Rousseff v. Dean Witter & Co. (N.D. Ind. 1978), 453 F. Supp. 774; Jennings v. Roberts Scott & Co. (1976), 113 Ariz. 57, 546 P.2d 343; Pan American Petroleum Corp. v. Superior Court (1961), 366 U.S. 656, 6 L. Ed. 2d 584, 81 S. Ct. 1303.) Finally, a claim for relief for common law fraud simply does not arise under a Federal statute. Byrnes v. Faulkner, Dawkins & Sullivan (S.D.N.Y. 1973), 362 F. Supp. 864; Dale Tile Manufacturing Co. v. Hyatt (1888), 125 U.S. 46, 31 L. Ed. 683, 8 S. Ct. 756.

Therefore, since this is not a case arising under Federal law, since Congress did not intend to preempt all State action in regard to securities regulation and since section 27 preserves State jurisdiction over actions arising under the common law, the circuit court does have subject matter jurisdiction over this complaint.

For the above reasons, the decision of the trial court is reversed and remanded.

Reversed and remanded.

JOHNSON, P.J., and ROMITI, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    BENNY R. FELICIANO, Plaintiff-Appellant, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellees.
    First District (2d Division)
    No. 82—190
    Opinion filed November 30, 1982.
    Rehearing denied December 14, 1982.

      Richard G. Schoenstadt and Michael A. Moses, both of Siegel, Denberg, Vanasco, Shukovsky, Moses & Schoenstadt, of Chicago, and Richard G. White, of Washington, D. C., for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Benny R. Feliciano, plaintiff, a professional jockey, filed a complaint for administrative review asking the circuit court to reverse a decision of the Illinois Racing Board (Board). The circuit court affirmed the decision of the Board, which found that plaintiff was in knowing possession of an illegal device in violation of the Illinois Horse Racing Act of 1975 (Act). (Ill. Rev. Stat. 1981, ch. 8, par. 37— 37(a)(3).) Plaintiff appeals the circuit court’s affirmation of the Board’s decision and the penalty imposed.

Plaintiff’s license was suspended for life after the Board found that plaintiff’s knowing possession of an illegal device was shown by a preponderance of the evidence. Such devices, known as buzzers or batteries, are electrical devices used to stimulate race horses. Section 37(c) of the Act empowers the Board to suspend or revoke such a violator’s license.

Agents of the Illinois Department of Law Enforcement (DLE) testified that an anonymous phone call was received by Commander Leonard Becicka on June 15, 1981, stating that plaintiff had used a “battery” in a race the previous week at Arlington Park Race Track (Arlington) in Arlington Heights, Illinois. The anonymous caller did not indicate where the battery could be found. Commander Becicka then ordered the search of plaintiff and his car during the normal training hours the next morning. Commander Becicka decided against searching the plaintiff at the start of the races on June 15 in order to avoid unnecessary speculation by, or inconvenience to, the racing public. DLE Agents Gentilcore, Billone and Kahn arrived at Arlington about 6 a.m. on June 16 to search plaintiff and his car. The agents located plaintiff’s car outside the track cafeteria and took up surveillance positions. Agent Gentilcore stated that the locking mechanism on each door of plaintiff’s car was in the locked position as he passed the car. Later evidence showed that the locking mechanism of the car was in the arm rest of each door rather than at window level. Agents Kahn and Gentilcore testified that plaintiff appeared to reach into his front pants pocket, then reach for the car door, twist his hand and enter the car. Agent Billone could only see plaintiff enter the car and drive off. The agents followed plaintiff. Agent Billone stopped plaintiff, identified himself and asked to search plaintiff and his car. Plaintiff cooperated with the agents and pulled his car to a vacant area. Plaintiff signed a consent-to-search form and unlocked the front passenger-side door for Agent Gentilcore. Three racing gloves, which plaintiff admitted owning, were found in the glove compartment. Agent Gentilcore found a “battery” in the thumb of one of the racing gloves. Plaintiff denied any knowledge of, or the ownership of, the battery. Plaintiff was placed under arrest and advised of his constitutional rights. The racing stewards were notified of plaintiff’s arrest.

During hearings held by the Board, plaintiff disagreed with the agents’ accounts of the events of June 16, 1981. Agents Gentilcore and Kahn had stated that they observed plaintiff talking to a blond woman as he left the track cafeteria. Plaintiff denied talking to anyone as he left the cafeteria. Plaintiff further denied that he reached into his pants pocket and unlocked the car, maintaining that the car was not locked. He denied consenting to a search of his car or signing a consent-to-search form. Plaintiff denied that he unlocked the passenger-side door for Agent Gentilcore, again stating that the car was unlocked. Plaintiff stated that his car was unlocked and unattended during training hours on June 15 and during the times his wife used the car for local errands. Plaintiff’s wife testified that she could not recall if the car was locked at all times while she used it.

The Board rejected plaintiff’s theory that the device was “planted” in his car by someone jealous of plaintiff and to prevent his continued racing. The Board, finding his testimony to be unbelievable, held that plaintiff had violated the Act by his knowing possession of the device. Plaintiff was suspended for life and excluded from all race tracks in Illinois.

Plaintiff filed a timely complaint for administrative review by the circuit court of Cook County (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.). The circuit court affirmed the Board’s decision as not contrary to the manifest weight of the evidence.

I

STANDARD OF PROOF

Plaintiff argues that the alleged violation of section 37(a)(3) of the Act must be shown by clear and convincing evidence and not by a mere preponderance of the evidence. Plaintiff contends that the more stringent standard of proof is required where, as here, the alleged conduct could subject the accused to both civil and criminal penalties.

In order to evaluate properly this issue, we first review some general principles applicable to this subject. The standard of proof which should be applied in a particular type of adjudication by the fact finder must take into account the private interest affected by the proceeding in relation to the governmental interest, and the permanency of the threatened loss by the governmental action. As the private interest intensifies, the standard to apply should become more stringent. In Santosky v. Kramer (1982), _U.S. _, 71 L. Ed. 2d 599, 102 S. Ct. 1388, the Supreme Court found that a clear and convincing standard was required in a proceeding to terminate parental rights since “the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight.” (_U.S._,_, 71 L. Ed. 2d 599, 609, 102 S. Ct. 1388, 1396.) The primary purpose of assigning a particular standard of proof to an adjudicatory proceeding is to minimize the risk of erroneous decisions. (Santosky v. Kramer (1982), _U.S. _,_, 71 L. Ed. 2d 599, 607, 102 S. Ct. 1388, 1395.) Depending on the interests involved in a particular case, “[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Addington v. Texas (1979), 441 U.S. 418, 427, 60 L. Ed. 2d 323, 331-32, 99 S. Ct. 1804, 1810.

Addington involved the indefinite, involuntary commitment of plaintiff to a State mental hospital. The court found that the unique nature of civil commitment proceedings, in which the certainty of psychiatric diagnosis is impossible and where the individual’s liberty interest far outweighs the interest of the State, requires a standard of proof short of proof beyond a reasonable doubt and more stringent than a mere preponderance of the evidence. The court left the determination of the precise burden to the Texas Supreme Court, noting that the equivalent of a clear and convincing standard would satisfy the due process requirements in a civil commitment proceeding. 441 U.S. 418, 433, 60 L. Ed. 2d 323, 335, 99 S. Ct. 1804,1813.

The Illinois legislature and the courts have recognized the greater individual interest involved in civil commitment proceedings requiring proof by clear and convincing evidence. (Ill. Rev. Stat. 1981, ch. 91%, par. 3 — 808; People v. Nayder (1982), 106 Ill. App. 3d 489, 495, 435 N.E.2d 1317, where the court recognized the need for a more stringent standard of proof at civil commitment proceedings to protect the individual’s liberty interest in light of the unique nature of the evidence and the uncertainty of an evidentiary determination, when balanced against the State’s interest in protecting the individual from himself and society from dangerous persons.) The standard of proof should be of a higher quality when “the possible injury to the individual [loss of liberty] is significantly greater than any possible harm to the state.” Addington v. Texas (1979), 441 U.S. 418, 427, 60 L. Ed. 2d 323, 331-32, 99 S. Ct. 1804, 1810.

An examination of the interests involved here shows that the needs of the State outweigh the interests of the plaintiff. Plaintiff is a licensed jockey. A license issued to a jockey by the Board allows the jockey to engage in his vocation within the race tracks of Illinois. The issuance of the license confers a right which does not exist without it, “ ‘and it may be to regulate and control the occupation or privilege for which the license is granted, so as to subserve the public good or prevent its being conducted in a manner injurious to the public welfare ***. ***’ ” (Cox v. National Jockey Club (1974), 25 Ill. App. 3d 160, 164, 323 N.E.2d 104, quoting 53 C.J.S. Licenses sec. 2 (1948).) Information required on applications for such a license and the procedure for the issuance of a jockey license (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 15) indicate that the primary purpose of the licensing procedure is “to regulate and control the occupation of a jockey and to insure that the occupation is not engaged in by those who would practice it in a manner injurious to horse racing and the public welfare.” (Cox v. National Jockey Club (1974), 25 Ill. App. 3d 160, 164.) The licensing procedure evidences the interest of the State to protect the public from licensees who seek to use their license for personal gain rather than for the public good.

The statutory scheme does not ignore the substantial interest a licensee has in the continued ability to pursue his livelihood. In many cases, the license represents the only livelihood of the licensee. However, the public interest in preserving the integrity and honesty of horse racing outweighs the pecuniary interest of the licensee. (Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 589, 415 N.E.2d 1290, appeal denied (1981), 85 Ill. 2d 565.) The protection of economic interests does not require a standard of proof as demanding as the protection of a more fundamental right, such as individual liberty or parental rights. Santosky v. Kramer (1982),_U.S._, 71 L. Ed. 2d 599, 102 S. Ct. 1388; Addington v. Texas (1979), 441 U.S. 418, 427, 60 L. Ed. 2d 323, 331-32, 99 S. Ct. 1804, 1810; Stanley v. Illinois (1972), 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558, 92 S. Ct. 1208, 1212-13.

Plaintiff’s argument that a more stringent standard of proof is required when both civil and criminal penalties could result from a violation of the Act is not supported by a majority of Illinois authority. In Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303, cited as supportive authority for plaintiff’s argument, the supreme court found that the order and recommendation of the administrative hearing board was contrary to the manifest weight of the evidence. In Drezner, a field investigator for the Liquor Control Commission was dismissed for bribery and solicitation. The supreme court concluded that the decision of the hearing board was contrary to the manifest weight of the evidence. Addressing itself to the standard of proof required in a civil proceeding where conduct constituting a crime is charged, the supreme court said:

“[T]he charges in cases of this kind need be proved by only a preponderance of the evidence and need not be proved beyond a reasonable doubt. Sundquist v. Hardward Mutual Fire Ins. Co., 371 Ill. 360 [where the reasonable doubt standard was abandoned].
*** While we adopt and hold that the charge [civil] need only be proved by a preponderance of the evidence *** we believe that the evidence of guilt [criminal] should be clear and convincing.” 398 Ill. 219, 227.

The Drezner opinion has been cited often as establishing a preponderance of the evidence standard in civil proceedings, even where criminal conduct is involved. (Barr Rubber Products Co. v. Sun Rub- her Co. (2d Cir. 1970), 425 F.2d 1114, 1120, cert. denied (1970), 400 U.S. 878, 27 L. Ed. 2d 115, 91 S. Ct. 118; Lazarus v. Pascucci (1979), 74 Ill. App. 3d 633, 640, 393 N.E.2d 1074; Ritenour v. Police Board (1977), 53 Ill. App. 3d 877, 880, 369 N.E.2d 135, appeal denied (1978), 67 Ill. 2d 595.) Other Illinois courts faced with cases where both civil and criminal penalties could result have treated such violations like every other fact in issue and have required only that the violation be shown by a preponderance of the evidence. In Board of Education v. Adelman (1981), 97 Ill. App. 3d 530, 532, 423 N.E.2d 254, appeal denied (1981), 85 Ill. 2d 563, the second district of our court made a thorough and well-reasoned analysis of the many cases involving the quantum of proof necessary in administrative review cases when the conduct might also constitute a criminal offense. That court concluded that as to the administrative review proceeding, proof by a preponderance of the evidence is sufficient. We agree.

The Board properly applied a preponderance of the evidence standard in this matter, finding that plaintiff had knowingly violated the Act.

II

MANIFEST WEIGHT OF THE EVIDENCE

Plaintiff next argues that regardless of which standard is appropriately applied to this case, the decision of the Board and the affirmation of that decision by the circuit court is contrary to the manifest weight of the evidence. We cannot agree.

“Under the Administrative Review Act the permissible scope of judicial inquiry concerning factual determinations by administrative agencies has been limited to ascertaining if the agency decision was contrary to the manifest weight of the evidence.” (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358, 307 N.E.2d 371.) Courts will not hesitate to grant relief from an adverse agency decision if that decision is not supported in the record by sufficient evidence. Basketfield v. Police Board (1974), 56 Ill. 2d 351, 359.

Plaintiff contends that the record is devoid of any evidence to support the Board’s decision. Plaintiff argues that there was no evidence to show that he had any knowledge of the illegal device. Plaintiff further contends that the record does not support a finding that he possessed the device, even though it was in his car.

Whether there is possession and whether there is knowledge are questions of fact to be determined by the trier of fact. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 471, 414 N.E.2d 1072, appeal denied (1981), 83 Ill. 2d 573.) The findings and conclusions of an administrative agency regarding questions of fact are to be considered prima facie true and correct. Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 1028, 382 N.E.2d 90.

Here the Board found the evidence sufficient to conclude that plaintiff knowingly possessed the illegal device in violation of the Act. The Board reached its decision based primarily upon its assessment of the credibility of the witnesses. Plaintiff continually argues that the possibility of a “set-up” refutes the evidence of his possession. However, the Board found that nothing more than speculative statements by plaintiff were offered to show a “set-up.” The possibility of access to plaintiff’s car by others, absent more supportive evidence, is not sufficient to defeat the fact of actual possession established in the record. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 472.) Although testimony of the plaintiff’s witnesses differed from the testimony of the Board’s witnesses, “[t]he assessment of the credibility of the witnesses is a matter for the trier of fact who observed their demeanor [citations], and to view such an assessment as erroneous there must be something more than the mere existence of conflicting testimony.” (Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 1028.) From our review of the record, it cannot be said that the Board’s findings are contrary to the manifest weight of the evidence. The circuit court properly affirmed the Board’s decision.

Ill

LIFE SUSPENSION

Finally, plaintiff argues that the circuit court erred and its decision should be reversed because the Board abused its discretion by imposing a life suspension of plaintiff’s license as a penalty for the violation. Again, we cannot agree.

A court of review may overturn sanctions imposed by an agency which are overly harsh in view of mitigating circumstances. (Cotovsky v. Department of Registration & Education (1982), 110 Ill. App. 3d 417, 424, 442 N.E.2d 520, 525.) The question is not whether a court of review would decide upon a more lenient sanction were it to determine initially what discipline would be appropriate. (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147.) “The question is whether, in view of the circumstances presented, this court can say that the [agency], in opting for [the particular penalty], acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the [agency].” 91 Ill. 2d 404, 411.

As stated previously in this opinion, plaintiff’s pecuniary interest, although it may amount to his entire livelihood, is created by statutory authority (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 1 et seq.), and granted through the discretion of the Board (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 15). The plaintiff is entitled to maintain his licensee status provided he continues to comply with the rules and regulations adopted by the Board pursuant to its rule-making power. Ill. Rev. Stat. 1981, ch. 8, par. 37 — 2.

The fact that plaintiff possessed property rights created by statute does not mean that those rights cannot be affected by further governmental action. Here, the State has a compelling interest in licensing those who would participate in horse racing in this State. The most compelling task facing the Board is the continued preservation of the integrity and honesty of horse racing in this State. (Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 589, 415 N.E.2d 1290.) Attempts to predetermine the outcome of a race are an ever-present and persistent part of horse racing. It is necessary that the Board and its agents be empowered with the authority to rid the profession it regulates of any undesirable elements upon proof of such unworthiness. Kurtzworth v. Rlinois Racing Board (1981), 92 Ill. App. 3d 564, 589.

Here the Board determined that plaintiff knowingly violated a rule designed to prevent dishonest racing. Plaintiff argues that the punishment imposed for this violation is justified only where there is actual possession of the illegal device or where there is flagrant and repeated use of such a device. Plaintiff relies upon Byrne v. Stern (1981), 103 Ill. App. 3d 601, 431 N.E.2d 1073, as authority for the reduction of the agency penalty imposed by a court of review. In Stern, the court found that the evidence was insufficient in light of mitigating circumstances, including the lack of actual knowledge of any wrongdoing by the licensee, to support the revocation of petitioner’s liquor license. Petitioner’s employee was found to have been soliciting an act of prostitution in the licensed premises. 103 Ill. App. 3d 601, 606-07.

Plaintiff’s reliance on Stern is misplaced. Here, the Board found that plaintiff was in knowing possession of the illegal device. There was no showing of mitigating circumstances. The life suspension imposed was not arbitrary, unreasonable or unrelated to the goals of the Board. (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 411.) The circuit court properly affirmed the Board’s determination and the penalty imposed.

For the reasons set forth herein, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

      The pertinent part of the Act provides:
      “(a) It shall be unlawful for any person:
      ***
      (3) to have in his possession within the confines of a race track, stables, sheds, buildings or grounds, or within the confines of a stable, shed, building or ground where horses are kept which are eligible to race over a race track of any racing association or licensee, any appliance other than the ordinary whip or spur which may or can be used for the purpose of stimulating or depressing a horse or affecting its speed at any time; ***.” Ill. Rev. Stat. 1981, ch. 8, par. 37 — 37(a)(3).

      For the criminal penalty, see section 37(c) of the Act (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 37(c)).

      PIaintiff accused the Board of acting as a prosecutor rather than a fact finder in this matter, by not acting further on the “set-up” theory. However, the record shows that the Board acted properly, giving plaintiff ample opportunity to present any evidence of a “set-up.” No such evidence was offered.

      Plaintiff argues that the lifetime suspension effectively precludes him from racing in every State in this country. Although plaintiff fails to offer any authority to support this statement, our research reveals that other States (e.g., Cal. Bus. & Prof. Code sec. 19460 (West 1959); Fla. Stat. Ann. sec. 550.10(4)(b) (West 1972); N.Y. Unconsol. Laws sec. 8040 — b(2) (McKinney 1979)) may, in the discretion of the licensing ■ authority, prevent a person from being licensed in their State for various undesirable activities in other jurisdictions.


text:
    JEROME MITRENGA, Plaintiff-Appellee, v. DANIEL MARTIN et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—342
    Opinion filed December 2, 1982.
    Robert E. Grundin, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, for appellants.

      Robert J. Biswurm, of Biswurm & Myers, Ltd., of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

Jerome Mitrenga, a police officer, was discharged by the Board of Fire and Police Commissioners of the village of Lincolnwood (the Board), after being charged with departmental rule violations. Following a hearing during which findings of fact were adopted by the Board, Mitrenga appealed to the circuit court pursuant to section 3— 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 104). The circuit court sustained the charges against Mitrenga and found that the Board’s findings of fact were supported by the manifest weight of the evidence. However, the court remanded the case to the Board solely on the discharge issue, ordering the Board to “consider an alternative sanction to that of discharge.” (See Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)(6).) In addition the circuit court found “no just reason to delay enforcement or appeal” of its order. (See 87 Ill. 2d R. 304(a).) Rather than considering an alternative sanction, the Board appealed the circuit court’s determination directly to this court. We believe the order is not a final order and dismiss this appeal.

In order to have a final and appealable order, the judgment must terminate the litigation between the parties on the merits so that if affirmed, the trial court need only execute judgment. (Coble v. Chicago Health Club, Inc. (1977), 53 Ill. App. 3d 1019, 369 N.E.2d 188.) A nonfinal order may not be the subject of an interlocutory appeal unless specifically authorized by supreme court rule. (Felton v. Shead (1972), 6 Ill. App. 3d 123, 285 N.E.2d 162; see also 87 Ill. 2d Rules 301, 307.) Further, the circuit court in the instant case found “no just reason to delay enforcement or appeal” of its order. It is well settled in Illinois that ¿his language alone cannot make a nonfinal order final and consequently appealable. Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 387 N.E.2d 918; Coble v. Chicago Health Club, Inc. (1977), 53 Ill. App. 3d 1019, 369 N.E.2d 188.

Were we to affirm the trial court order that the Board formulate a sanction less than discharge, the litigation between the parties would not be terminated. Rather, the Board would need to rule again on the discharge issue. Subsequently, either Mitrenga or the Board would have the option of appealing to the circuit court once more. At that point, the circuit court would have before it both the original record and the additional information that it requested in its previous order. The record would then be complete so that if the judgment were to be affirmed by the trial court or on appeal by this court, all that the trial court would need to do is execute on the judgment.

In addition, we believe that the language of section 3 — 111(a)(6) of the Code of Civil Procedure contemplates an order such as the one in the instant case to be a nonappealable interlocutory order. This portion of the statute provides:

“The Circuit Court has power *** where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111(a)(6).)

Where the circuit court has the power to remand an agency decision for further hearings or proceedings, we feel that jurisdiction must necessarily remain with the circuit court until after disposition of these further matters. Only after the circuit court has examined the results of these additional proceedings will we recognize its subsequent order as being final and appealable.

A similar situation arose in Robinson v. Cook County Police & Corrections Merit Board (1981), 93 Ill. App. 3d 1051, 418 N.E.2d 170. There, as in the present case, the trial court affirmed the Board’s misconduct determination but remanded the matter to the Board for reconsideration of the discharge issue. In Robinson, the court in fact did reconsider this issue whereas in the instant case the matter was appealed directly to this court. After the Board in the Robinson case reconsidered and affirmed its discharge decision, the plaintiff appealed directly to the appellate court rather than going back to the circuit court. The appellate court dismissed the plaintiff’s appeal because he had bypassed the crucial procedural step of allowing the circuit court to review the Board’s decision once more. Thus, the court found that the order from which the appeal was taken was not final and appealable.

Similarly, in the instant case, the discharge issue that the Board was ordered to reconsider must first be reviewed again by the circuit court before appellate jurisdiction can be conferred upon this court.

For the above reasons, we find that we are not faced with a final and appealable order, and we therefore dismiss this appeal.

Dismissed.

JOHNSON, P.J., and LINN, J., concurring.


author: JUSTICE PERLIN

text:
    NATHAN YORKE, Trustee, Plaintiff and Petitioner-Appellee, v. STINEWAY DRUG COMPANY, INC., Defendant and Respondent-Appellant.
    First District (2nd Division)
    No. 81—1793
    Opinion filed December 7, 1982.

      Arvey, Hodes, Costello & Burman, of Chicago (Gary David Friedman, Donald F. Spak, and Judy I. Byrd, of counsel), for appellant.
    Teller, Levit & Silvertrust, P.C., of Chicago (Edward S. Margolis and Leo Feldman, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

LAG Drug Company, Inc. (LAG), brought an action on September 9, 1975, against Stineway Drug Company, Inc. (Stineway), to recover the purchase price of merchandise LAG allegedly sold to Stineway. LAG was subsequently adjudicated bankrupt, and on March 3, 1978, Nathan Yorke (Yorke) was appointed trustee in bankruptcy for LAG. On June 20, 1979, the trial court granted Yorke’s motion to substitute himself for LAG and to file an amended complaint. On February .6, 1981, this case was dismissed for want of prosecution. Three and one-half months later Yorke filed a section 72 petition to vacate the dismissal order. The trial court granted Yorke’s section 72 petition on June 17, 1981. Stineway has appealed under Supreme Court Rule 304(b)(3) (73 Ill. 2d R. 304(b)(3)) and contends that: (1) the trial court did not have subject matter jurisdiction to grant Yorke’s section 72 petition; (2) Yorke’s section 72 petition was insufficient; and (3) the court erred in not conducting an evidentiary hearing on the section 72 petition. For the reasons hereinafter stated, we affirm.

LAG is a wholesaler of pharmaceuticals and other sundries to pharmacies, mass merchandisers and discount stores. Stineway operates a chain of retail stores. On September 9, 1975, LAG brought this action against Stineway to recover the purchase price of merchandise LAG allegedly sold to individual Stineway stores. Although LAG billed the individual stores for a total of $47,631.58 and demanded payment, none of these stores made any remuneration.

Stineway denied that it or its retail stores purchased the merchandise in question. Instead, it alleged that Ford Hopkins Company (Ford Hopkins), a company “affiliated” with Stineway, bought the merchandise. Stineway also alleged the following: LAG had first tried to recover the purchase price of the merchandise from Ford Hopkins through a counterclaim filed by LAG in a prior unrelated lawsuit. After the filing of LAG’s counterclaim, Ford Hopkins filed a petition under Chapter 11 of the Federal Bankruptcy Laws. LAG then filed a claim in the bankruptcy proceedings for the purchase price of the merchandise. LAG subsequently purchased Ford Hopkins in the bankruptcy proceedings, and only then did LAG prepare the invoices that were ultimately sent to Stineway.

LAG admitted being the present owner of Ford Hopkins. It denied that LAG’s prior claim against Ford Hopkins involved the same merchandise which is the subject matter of the instant lawsuit.

LAG later was also adjudicated bankrupt (date unknown) and on March 3, 1978, Nathan Yorke was appointed trustee in bankruptcy. On June 20, 1979, the trial court allowed Yorke’s motions to substitute himself for LAG as plaintiff in the instant suit, to amend the complaint and to substitute his attorneys for LAG’s attorneys. On February 5, 1981, a notice appeared in the Chicago Daily Law Bulletin (Law Bulletin) that the case of LAG v. Stineway Drug Co. was set on the trial calendar for February 6, 1981. Neither party appeared for trial and the court, apparently sua sponte, dismissed the case for want of prosecution. Notice of the dismissal order appeared in the Law Bulletin on February 9,1981.

On May 26, 1981, Yorke filed a petition pursuant to section 72 of the Illinois Civil Practice Act and moved to vacate the dismissal order entered on February 6, 1981. In his petition, Yorke alleged the following: Yorke’s attorneys, after they were substituted for LAG’s attorneys, placed the matter on their office calendar and followed the progress of the case for purposes of litigation. Although Yorke first claimed that the February 5, 1981, notice was “apparently overlooked or omitted from the Law Bulletin,” Yorke now concedes that the notice was in fact published. Yorke also claimed that his attorneys were assured by the assignment division of the circuit court that before the matter would be placed on the trial call, a notice of pretrail hearing would be sent to the attorneys; no such notice was ever received. Yorke suggested the notices may have been sent to LAG’s original attorneys who commenced the action. On May 21, 1981, while reviewing the status of all cases filed on behalf of Yorke in his capacity as trustee, Yorke’s attorneys discovered the February 6, 1981, dismissal order. Yorke, alleging that he had a valid cause of action against Stineway and that he ws diligent at all times, prayed that the February 6,1981, dismissal order be vacated and the action be set for trial.

In its response to Yorke’s petition, Stineway denied that Yorke had a valid cause of action because Stineway’s answer to Yorke’s complaint contained “numerous and substantial affirmative material and affirmative defenses.” Stineway contended that since Yorke did not deny the affirmative matters alleged by Stineway, Stineway was entitled to a judgment based on the pleadings.

On June 17, 1981, after hearing oral arguments of both parties, the trial court granted Yorke’s section 72 petition. The court cited the case of Getter v. General Motors Corp. (1980), 87 Ill. App. 3d 972, 410 N.E.2d 262, as controlling. In Getter, the appellate court affirmed the trial judge’s decision granting Geller’s section 72 petition, holding that mere inadvertence of plaintiff’s counsel should not bar relief and that the trial judge had duly considered all the circumstances in that case.

The trial judge in the instant case was the same judge who had granted Geller’s petition. He noted that Stineway’s contentions were almost identical to those of the respondent in Getter. After considering all of the circumstances surrounding Yorke’s petition, the trial judge applied the principles of the appellate decision in Getter and granted the section 72 petition, vacating the February 6, 1981, dismissal order.

On appeal, Stineway first contends that the trial judge lacked jurisdiction to grant Yorke’s section 72 petition. Section 72 of the Civil Practice Act (now codified as section 2 — 1401 of the new Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401)) provides for a procedure to vacate final orders and judgments after 30 days from their entry. Ill. Rev. Stat. 1979, ch. 110, par. 72.

Stineway cites as applicable to the instant case the recent case of Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480, wherein the Illinois Supreme Court held that an order dismissing an action for want of prosecution is not a final and appealable order under Supreme Court Rule 301 (73 Ill. 2d R. 301). The court reasoned that under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a, now codified as section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 217)), plaintiff could, within one year, refile the same complaint and relitigate the same issues to judgment. Therefore, since Flores had an absolute right to refile the action within the statutory limit, the order of dismissal in Flores could not terminate the litigation and thus was not a final and appeal-able order. 91 Ill. 2d 108, 114.

Stineway seeks to extend the rationale of Flores so as to deny a trial court’s jurisdiction in a section 72 petition to vacate an order dismissing an action for want of prosecution after 30 days but within one year from such dismissal. Stineway argues that under Flores a trial court has jurisdiction under section 72 to vacate only final orders and judgments. Since an order to dismiss an action for want of prosecution is not final for one year after entry and Yorke’s petition to vacate was brought within one year, Stineway concludes that the trial court lacked jurisdiction to grant Yorke’s petition.

We note, however, that Flores involved not a section 72 petition but a direct appeal from an order dismissing an action for want of prosecution. The majority opinion in Flores makes no reference to section 72 petitions. In the absence of a pronouncement by the Illinois Supreme Court that Flores was intended to apply to section 72 petitions, we believe that the scope of Flores should be limited to the parameters of that case.

Stineway also contends that Yorke failed to establish due diligence in alleging that his attorneys overlooked the Law Bulletin notices and did not receive any postcard notices. A section 72 petitioner must allege facts in his petition which reveal both a meritorious claim (or defense) and the exercise of due diligence in presenting such a claim (or defense). (Hall v. Hall (1973), 15 Ill. App. 3d 599, 304 N.E.2d 763.) The section 72 proceedings cannot be used to relieve a party of the consequences of his own negligence. Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.

In the instant case, the trial court relied on Getter v. General Motors Corp. (1980), 87 Ill. App. 3d 972, 410 N.E.2d 262, as controlling precedent. In Getter, the plaintiff failed to answer a trial call and his action was dismissed for want of prosecution. Both the court call and the dismissal order appeared in the Law Bulletin. A postcard notice of the dismissal order was sent to the plaintiff’s attorney but was returned undelivered. The defendant in Getter argued that the plaintiff’s inadvertance did not justify section 72 relief. While the appellate court recognized that the plaintiff had a duty to follow his case, the court held that his counsel’s inadvertence should not bar relief under section 72 because the trial court did in fact consider all of the circumstances of the case. In Getter, the plaintiff’s attorney was out of town at the time the dismissal order was entered. In addition, the attorney gave inclement weather and personal problems as reasons for his failure to appear at the hearing. The appellate court found that under the circumstances reinstatement of the case was appropriate; it was reasonable to require the defendant to go to trial, and the length of delay after dismissal was not unreasonble. The court cited Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 729-30, 398 N.E.2d 972, for the proposition that:

“Because a section 72 petition is addressed to their equitable powers, courts have not considered themselves strictly bound by precedent, and where justice and fairness may require it a judgment may be vacated even though the requirement of due diligence has not been satisfied.”

In the present case, Stineway contends that the trial court erred in relying on Getter. Stineway argues that despite Geller’s admission that he did not follow the progress of his case, the extraordinary circumstanes in Getter may have made the granting of the section 72 petition appropriate but that none of Getter’s extraordinary circumstances are present in this case. As previously noted, the trial judge who granted Yorke’s petition in the present case also granted Geller’s petition in the Getter case. The court deemed Stineway’s contentions in the instant case almost identical to those of the respondent in Geller.

A section 72 petition is addressed to the equitable powers of the court, and a reviewing court will interfere only where there has been an abuse of discretion. (Resto v. Walker (1978), 66 Ill. App. 3d 733, 739, 383 N.E.2d 1361.) Since it appears that in the case at bar the trial court did in fact consider all of the circumstances set forth in Yorke’s petition, we cannot say that the trial court abused its discretion.

Finally, Stineway contends that even if Yorke established due diligence, the trial court erred in not conducting an evidentiary hearing to determine the disputed facts surrounding Yorke’s section 72 petition. Stineway argues that since Yorke must prove the allegations contained in his petition, Yorke should be required to demonstrate that LAG has a meritorious claim notwithstanding what Stineway calls its “uncontroverted defense,” i.e., that LAG in fact sold the merchandise in question to Ford Hopkins.

When “the central facts of a section 72 petition are controverted, an evidentiary -hearing must be held.” (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 286, 433 N.E.2d 253.) However, the “central facts” of a section 72 petition are not those which would establish the underlying action but rather facts which are sufficient merely to support an order vacating the judgment. Reuben H. Donnelley Cory. v. Thomas (1979), 79 Ill. App. 3d 726, 730, 398 N.E.2d 972.

In the instant case, Yorke alleged that Stineway purchased goods from LAG but never paid for them. Although Stineway denied any financial responsibility and alleged that Ford Hopkins in fact purchased the goods, Yorke has alleged sufficient facts to indicate that Stineway may be responsible. We believe that Yorke’s allegations are sufficient to satisfy the requirements for the filing of a section 72 petition; whether Yorke ultimately recovers from Stineway is not here at issue. We conclude, therefore, that the trial court did not err in denying Stineway’s request for an evidentiary hearing.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County granting Yorke’s section 72 petition.

Affirmed.

STAMOS, P.J., and DOWNING, J., concur.

      Justice Simon dissented in an opinion joined by Justices Goldenhersh and Clark.


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD BAKER, Defendant-Appellant.
    First District (1st Division)
    No. 81—1945
    Opinion filed December 6, 1982.
    Rehearing denied January 5, 1983.

      Michael Jay Green and Daniel E Murray, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Denise O’Malley Porn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant was found guilty by a jury of robbery and was sentenced to a term of six years. On appeal, defendant raises the following issues: (1) whether the evidence established defendant’s guilt beyond a reasonable doubt; (2) whether the trial court erred in its refusal to instruct the jury on the testimony of an accomplice; (3) whether defendant was denied a fair trial by the closing argument of the State; and (4) whether defendant’s sentence was an abuse of discretion.

The State’s first witness, Glenda Hodge, testified that on December 18, 1980, at approximately 11:45 p.m., she was walking on North State Parkway in Chicago. She stated that she noticed a shadow behind her and that she turned around and saw a man who she identified in court as defendant. She testified that she observed defendant from a distance of 12 inches. Defendant “swept his arms” around the witness and threw her to the ground. She stated that defendant told her that he wanted her fur coat. While the witness was removing her coat, she looked at defendant's face. She also testified that defendant struck the back of her head. The witness observed a car driving away after defendant took her coat. She testified that Detective Carroll came to her apartment on December 27, 1980, and that he showed her seven or eight photographs of which she selected three. On December 31, she identified defendant in a lineup. She also identified a coyote coat which was taken from her on December 18. She stated that she recognized her coat by the furrier’s label and by her initials “GHT” which were monogrammed on the inside pocket.

Annette Lesniewski stated that she had been living with defendant since September 1980. On December 18, she and defendant were in defendant’s car in the near north area of Chicago. She testified that she was driving. She had previously told defendant that she had wanted a fur coat for Christmas and that, as they were driving, defendant asked whether she liked the coat which was worn by a woman who was walking. Lesniewski responded affirmatively and defendant told her to stop the car. Defendant then exited the car and approached the woman from the rear. The witness testified that defendant struck the woman, removed her coat and ran to the car. Defendant ordered the -witness to drive away from the area.

Lesniewski stated that on December 26, a police officer came to the shelter for abused women where she was residing and that she gave the officer the fur coat. She stated that she had worn the coat to the West Chicago police station on Christmas day, at which time she filed a complaint against defendant for unlawful restraint. After she was informed the coat was stolen, she told the police that she had received the coat from defendant. She testified that she did not tell anyone that the coat was stolen.

Detective Paul Carroll of the Chicago Police Department stated that on December 27, Glenda Hodge selected three photographs from a group of eight photographs. He testified that he arranged a lineup for Hodge and that, of the three men whose photographs Hodge had selected, only defendant was present in the lineup.

Following the close of the State’s case, a preliminary instruction conference was held. Defense counsel tendered Illinois Pattern Jury Instruction, Criminal, No. 3.17 (1968) (hereinafter cited as IPI Criminal) which deals with the testimony of an accomplice. The court indicated that it would reserve ruling on whether it would give this instruction to the jury.

The defense’s first witness was Officer June McDowall of the West Chicago Police Department. She corroborated Lesniewski’s testimony about the filing of a complaint against defendant. She also indicated that she had spoken with defendant concerning an impounded vehicle and that she had contacted the Chicago Police Department concerning the theft of the fur coat. The mother of defendant testified about defendant’s relationship with Lesniewski and that she had received numerous telephone calls from Lesniewski after defendant and Lesniewski stopped living with one another. Mary Kurtzrock testified that she assisted defendant in the collection of rents at the apartment building where they lived. She stated that she was at defendant’s apartment on December 19 and that Lesniewski was wearing a fur coat when Lesniewski entered the apartment. Defendant and Lesniewski argued about the fur coat for approximately 10 minutes, after which time defendant left the apartment. According to the witness, Lesniewski then began to “model” the coat.

Defendant Ronald Baker testified about his relationship with Lesniewski. He stated that on December 17, 1980, she had taken his car without his permission and that he next saw her on December 19. Lesniewski and defendant argued about the fur coat which Lesniewski was wearing when she entered defendant’s apartment. Lesniewski left after about 30 minutes. Mary Kurtzrock came to the apartment to deliver rent money which she had collected and while she was there, Lesniewski returned. Defendant and Lesniewski again argued about the coat. Defendant then left the apartment.

Defendant stated that he next saw Lesniewski on December 25 and that they had argued again. He testified that Lesniewski’s complaint to the West Chicago police resulted in his arrest. He saw Lesniewski at the police station and that she was wearing the fur coat. On December 26, after he was released from jail, he told Officer Mc-Dowall that Lesniewski’s coat was stolen and that she and a man named Brandy had taken the coat. On December 30, defendant spoke with Officer Carroll and on the following day he was arrested. He stated that he did not take the fur coat and that he was told by Lesniewski that she and Brandy had taken the coat.

The defense then rested its case. The court ruled that IPI Criminal No. 3.17 would not be given to the jury. Defendant was found guilty of robbery and was sentenced to a term of six years.

Defendant first maintains that the evidence did not establish his guilt beyond a reasonable doubt. We disagree. The testimony of a single credible eyewitness who had the opportunity to observe defendant under circumstances which would permit a positive identification is sufficient to convict, even though the eyewitness’ testimony is contradicted by the accused. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666; People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) It is for the jury to evaluate the testimony and to determine the credibility of the witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In the instant case, the evidence is not so implausible or improbable as to raise a reasonable doubt of defendant’s guilt. See People v. Sangster (1982), 91 Ill. 2d 260, 437 N.E.2d 625.

Defendant next argues that Lesniewski was an accomplice to the robbery and the trial court erred in its refusal to give to the jury IPI Criminal No. 3.17 concerning accomplice testimony. This instruction states:

“An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

In our analysis of this issue, it is necessary to first determine whether there was sufficient evidence to show that Annette Lesniewski was an accomplice. In People v. Nowak (1970), 45 Ill. 2d 158, 168, 258 N.E.2d 313, 318, the supreme court defined an accomplice as “one who could himself have been indicted for the offense either as a principal or accessory.” (See also People v. Robinson (1974), 59 Ill. 2d 184, 319 N.E.2d 772.) Lesniewski testified at trial that she had expressed a desire for a fur coat. She also stated that on the evening of the offense, she was driving defendant’s car and was indicating to defendant whether she liked a particular coat. In addition, Lesniewski and others testified that she had worn the coat subsequent to the robbery. The State, in its brief, concedes that while Lesniewski may “technically qualify as an accomplice, her involvement in the crime appears to have been only peripheral.”

In People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319, the supreme court indicated that both the State and defendant are entitled to appropriate jury instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. Based upon the foregoing, we determine that there was sufficient corroborating evidence to support defendant’s theory that Lesniewski was an accomplice to the robbery and, therefore, the tendered instructions should have been given. In People v. Riggs (1977), 48 Ill. App. 3d 702, 705, 363 N.E.2d 137, 139, the purpose of the accomplice instruction was stated as follows:

“Due to the relationship of the witness and the State, there may be a strong motivation to testify falsely for the accomplice who seeks, hopes or expects lenient treatment by the State in return for favorable testimony. [Citation.] Thus a witness, knowing that his own guilt is detected, may seek to shield himself from punishment by purchasing immunity or leniency by falsely accusing others and procuring their conviction. Even if a promise or expectation of leniency is denied, its existence is always suspected. [Citation.] Therefore a judicial instruction cautioning the jury that the testimony of an accomplice is subject to suspicion has been felt warranted. [Citation.]”

In light of the rationale behind the giving of the accomplice instruction, we cannot say that the failure to give this instruction was harmless error as the State maintains. See People v. Hall (1980), 81 Ill. App. 3d 322, 401 N.E.2d 635; People v. Barker (1979), 78 Ill. App. 3d 686, 397 N.E.2d 552; People v. Buffington (1977), 51 Ill. App. 3d 899, 366 N.E.2d 1099.

In light of this holding, we need not address the remaining two issues raised by defendant. Accordingly, the judgment of the circuit court of Cook County is reversed and remanded for a new trial.

Judgment reversed and remanded.

GOLDBERG AND O’CONNOR, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ABELARDO ROSARIO, Defendant-Appellant.
    First District (1st Division)
    No. 81—2375
    Opinion filed December 6, 1982.

      George P. Lynch, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Rhoda Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Abelardo Rosario, was found guilty of rape after a bench trial in the circuit court of Cook County. He was sentenced to a term of six years. Defendant appeals.

On appeal, defendant contends (1) that he was not proved guilty beyond a reasonable doubt; (2) that the State failed to prove venue beyond a reasonable doubt; and (3) that his right to confront witnesses was violated due to his exclusion from the courtroom on two occasions.

We reverse.

Complainant was 17 years old at the time of the incident. She testified that on January 17, 1980, at 4:30 p.m., defendant picked her up from work to drive her home. She recognized his car immediately because it had been her brother’s car, and voluntarily got into it. They drove toward complainant's home. When they were one block from her home they parked. Complainant testified that she told defendant that she did not want to have anything to do with him anymore. He responded, according to the complainant, by suggesting that they have dinner at the Ponderosa Steak House. He had left his wallet in his locker at work so they drove there to retrieve it.

The first act of sexual intercourse occurred in the parking lot of the factory where defendant worked. Complainant testified on direct examination that after defendant parked the car, he said that he was tired of her saying “No” to everything. He started grabbing her, very tightly, and attempted to undress her. They struggled for about 30 minutes, he hit her in the face and succeeded in pulling her pants down and having sexual intercourse with her. Afterwards, he left the car to go get his wallet and returned with two cans of soda pop. When asked whether she made any attempts to leave the car, she explained that it was impossible because she was ashamed of what had happened and she did not know where she was. They began driving and after about three hours they stopped for gas. Complainant made no attempts to cry out because defendant had threatened not to drive her home if she did and she did not know the route home.

After they started driving again, complainant testified that the defendant pulled over onto the shoulder and stated, “Okay, now you are mine. You can’t marry anybody else, you have to do whatever I tell you.” She stated that she had to accept the second act of intercourse or he would not take her home. She explained that the second act took place in much the same manner as the first act of intercourse. Defendant was not charged with rape for the second act of intercourse.

Complainant and defendant arrived at the complainant’s home at about 1:30 a.m. on January 18, 1980. She testified that her brother and sister-in-law with whom she lived were waiting for her. There is conflicting testimony concerning what happened after complainant arrived home. Complainant, her sister-in-law and defendant were examined and testified through an interpreter. Complainant’s brother was occasionally assisted by an interpreter. It is clear that defendant escorted complainant to the door and entered the apartment with her. The complainant’s brother and sister-in-law were waiting for her to return home. However, there were five versions of what the complainant said to her brother at the door. The complainant testified on direct examination that she said “I couldn’t resist what happened to me. I been [sic] a victim of him. Please call the police.” On cross-examination she testified that she said “I’ve been a victim, he raped me. Please call the police.” Complainant’s brother testified that the complainant said, “Brother William, please call the police, I was a victim of rape, Mr. Rosario, Raul.” When asked what words she said in Spanish, the brother responded in Spanish, which was translated as: “Raul promised me — I lost my virginity, and call the police up.” The brother further testified that the defendant said, “I raped your sister” and attempted to dissuade the brother from calling the police by offering him a stereo, money and a television. Complainant’s sister-in-law testified that she heard the complainant say, “I have been a victim of rape, of Raul, he lost my virginity.”

On cross-examination, complainant testified that the defendant had lived above her brother’s apartment where she lived. She denied ever dating defendant, but after being shown photographs of them kissing in public, remembered meeting him at a club and going to a Greek restaurant and the Ponderosa Steak House with him. She admitted that he had been her boyfriend and that he often drove her home from work. She also admitted kissing him.

Complainant further testified that she did not bite, scratch or kick defendant. When asked on cross-examination if the defendant hit her, she said she was not sure.

Testifying on his own behalf, defendant stated that on January 17, 1980, he picked complainant up from work, as he often did. He drove her within a block of her house. This was routine because the complainant’s brother did not approve of their dating. Defendant admitted that complainant said she could not see him anymore, but contended that this was due to complainant’s fear of her brother’s retaliation. Defendant testified that the complainant did not resist his advances; she responded affectionately. According to defendant, complainant stressed that she could not be late or her brother would beat her. He assured her that he would talk to her brother and that they would be able to remain boyfriend and girlfriend.

Defendant further testified that at about 11:30 p.m. they stopped at Sambo’s to get something to eat. Defendant left the car running so that the heat would remain on and went into the restaurant, purchased hamburgers and soda pop, and returned to the car where complainant was waiting. Defendant also testified that they stopped at a rest area. After they returned home, defendant walked complainant to her door and walked into the apartment with her. Her brother was furious that she was late and began slapping her. She then exclaimed that it was not her fault because she had been violated.

Complainant’s slacks were admitted into evidence. The belt straps and the corner of the pocket were torn. There was testimony that complainant’s face was red and swollen, her cuticle was scratched and there was a mark on her arm.

The principal issue on appeal is whether the admitted act of sexual intercourse was proved beyond a reasonable doubt to be forcible and against the will of the complainant.

The Supreme Court of Illinois has held that in order to prove the charge of forcible rape there must be evidence to show that the act of intercourse was committed by force and against the will of the female. While useless acts of resistance are not necessary, if the complainant has use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. (People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865; People v. DeFrates (1965), 33 Ill. 2d 190, 210 N.E.2d 467; People v. Faulisi (1962), 25 Ill. 2d 457, 185 N.E.2d 211.) The degree of force exerted by the defendant and the amount of resistance on the part of the complainant are matters that turn on the facts of a particular case. Resistance is not necessary under circumstances where it would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon. Likewise, where the complainant is paralyzed with fear or overcome by superior strength of her attacker, proof of physical force becomes unnecessary. People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865.

Here, as in People v. Faulisi (1962), 25 Ill. 2d 457, the evidence is undisputed that defendant had no weapon. In Faulisi, the complainant testified that defendant said he would not harm her if she went along with him, but made no other threats of physical violence. In the instant case, defendant made no threats of physical violence whatsoever. Complainant’s testimony indicates that she submitted to two acts of intercourse, made no outcries, and did not attempt to escape despite the fact that she was left alone in the car in areas where there were other people around. Her rationale for her behavior was that she did not know where she was and could not communicate.

The first time, defendant left her for a period of five minutes in the parking lot after the first act of intercourse. The factory was open, defendant encountered his boss in the parking lot and got his permission to get his wallet. Complainant’s explanation as to why she did not seek help was that she did not know anybody and did not know how to say “help” in English, even though she indicated that she studied English for four years and spoke in English, at times, during the trial. When defendant stopped for gas the attendant came up to the window twice. Complainant stated that she made no outcry because defendant promised to take her home if she remained quiet. On cross-examination, she reiterated that she did not scream or attempt to leave the car at the gas station because she believed she might be in Indiana. Her submission to the second act of intercourse was coerced by further promises to take her home if she accepted.

The instant case is also analogous to People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865, wherein the Illinois Supreme Court reversed a rape conviction. In both cases, the complainants never mentioned that they cried out or protested or made any efforts to attract attention of others to their alleged predicaments either in the parking lot or throughout the long rides and stops on the streets of Chicago.

We believe that complainant had sufficient control over her faculties and physical powers to seek assistance, yet failed to do so. The failure to exercise an opportunity to escape or summon assistance was a significant factor in reversing the convictions in People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865, People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612, and People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651. We find this factor to be equally significant in the instant case. Voluntary submission by a female who has the power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of forcible rape. People v. DeFrates (1965), 33 Ill. 2d 190, 210 N.E.2d 467, citing People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612.

We are not unmindful that the complainant made an immediate complaint of rape to her brother. However, here, as in DeFrates, the events which preceded the complaint cause it to lose much of its weight. Defendant’s actions, escorting complainant to her door and walking into the apartment with her, are hardly those of a man who had just raped a woman. The immediate complaint may be accounted for by the complainant’s need to explain her late return. In this regard, the complainant’s brother testified that complainant never went out with friends, had never had a boyfriend and stayed in every night after work and over the weekends. Obviously complainant had kept information regarding her social life from her brother.

A defendant should not be deprived of his liberty without clear and convincing evidence of his guilt. After a careful review of the entire record which is required of a reviewing court, we are constrained to say that the testimony of the complainant is not sufficiently convincing to lead us to an abiding conviction of the defendant’s guilt. Because of our decision of the foregoing issue, it is unnecessary to address the remaining issues raised by defendant.

For the above reasons, we reverse the judgment of the circuit court of Cook County.

Judgment reversed.

CAMPBELL, P.J., and O’CONNOR, J., concur.