author: Mr. JUSTICE JONES Mr. JUSTICE GEORGE J. MORAN

text:
    Herman Dauksch, Plaintiff and Counterdefendant-Appellant, v. Clay M. Chamness, Defendant and Counterplaintiff-Appellee.
    (No. 72-217;
    Fifth District
    May 9, 1973.

      G. MORAN, J., specially concurring.
    Wolff, Jones & Lawder, of Murphysboro, for appellant.
    Feirich, Feirich & Green, Ltd., of Carbondale, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff commenced an action for damages caused by the alleged negligence of the defendant in driving his automobile. The defendant counterclaimed for damages caused by the alleged negligence of the plaintiff. The jury rendered a verdict against the plaintiff on his complaint and for the defendant on his counterclaim. The court entered judgment on the verdict from which this appeal is taken. No questions are raised on the pleadings.

The plaintiff was driving his automobile on Route 127 south of Murphysboro. At this point the highway is a two-lane blacktop with a marked center line. Defendant was driving his pickup truck along an intersecting gravel farm road. A stop sign controlled access from the farm road to Route 127. As the plaintiff’s automobile approached the intersection the pickup truck drove from the farm road onto the highway and turned north toward Murphysboro. Both drivers attempted to avoid a collision but failed in their efforts. Personal injury and property damage were sustained by both parties.

There were no passengers in either vehicle and the only witnesses to testify at the trial were the plaintiff, the defendant and an Illinois State Trooper who arrived at the scene of the accident approximately 30 minutes after its occurrence to make an investigation. Plaintiff testified that he first saw defendant’s pickup truck when he was approximately 300 feet north of the intersection when it was approximately one-third of the way out on the highway. It hesitated for a second and came on out on the highway. In attempting to avoid an accident he applied his brakes causing his wheels to slide. The truck was making a left turn to come north on the highway but was still in the southbound lane. The collision occurred when plaintiff’s car was just a little bit over the center line and the truck was coming up the southbound lane. Approximately the rear two-thirds of the truck was in the southbound lane and in the process of turning left at the time of impact. Defendant testified that he was driving his pickup truck on a gravel road which intersected with Route 127 from the west. As he approached Route 127 he came to a stop about even with the stop sign. He looked to the north and saw no traffic coming but could not see beyond the crest of the hill. He proceeded onto the highway and headed northeast and first saw the southbound car as it crested the hill at a time when his pickup truck was at the center of Route 127. The southbound car continued its path, crossed the center line and struck his pickup truck. At the time of the impact his truck was entirely in the northbound lane.

The trooper testified that he had 16 years experience and had investigated “quite a few” accidents. After arriving at the scene he found the automobile and pickup truck but the pickup truck had been moved from the place it came to rest following the collision. He described his observation of the damage of the vehicles, oil and water on the highway and skid marks left by the automobile. Upon cross-examination he was asked whether, based upon his experience and the numerous accidents he had investigated, and the physical facts he had described, he was able to determine in which lane of traffic the point of impact had occurred. Over the plaintiff’s objection that the question called for a conclusion that the witness had not shown qualification to give, the trooper testified that the impact had occurred in the northbound lane of traffic.

The issue on appeal is whether it was proper to permit the State Trooper to give his opinion as to the point of impact of the automobiles based upon his observation of the physical facts and circumstances of the collision where there was testimony from eyewitnesses to the collision.

The first Illinois case to permit an investigating officer with experience in accident investigation to express an opinion as to the point of collision of automobiles is Thomas v. Cagwin, 43 Ill.App.2d 336, 193 N.E.2d 233, Second District, 1963. In permitting such testimony the court stated: “Although this type of evidence should be admitted with caution, we believe that its admissibility rests within the sound discretion of the trial judge * *

In Diefenbach v. Pickett, June 1969, 111 Ill.App.2d 80, 248 N.E.2d 840, this court followed Thomas v. Cagwin holding that it was proper to permit an Illinois State Policeman, who had considerable experience in investigating automobile collisions to state his opinion as to the point of collision although there was also eyewitness testimony in the case. Citing the Thomas case the court stated that admissibility under the circumstances presented rested within the sound discretion of the trial judge.

In his brief the counterclaimant strenuously argues that the decision in this case is controlled by Thomas v. Cagwin and Diefenbach v. Pickett and the rule announced in those cases, i.e., the admission of expert accident reconstruction testimony and opinion is a matter lying within the sound discretion of the trial judge. He emphasizes the Diefenbach case since it is the only pronouncement of this court bearing upon the question. However, the rule has undergone considerable modification since Thomas v. Cagwin. We have examined numerous cases, some of which we will review to illustrate the development, changes and applications that have occurred since the embryonic pronouncement of Thomas v. Cagwin.

In 1965 the Supreme Court decided the case of Miller v. Pillsbury Co., 33 Ill.2d 514, 211 N.E.2d 733. There were no eyewitnesses to the accident involved and the question was which driver was over the center line. Testimony of an accident reconstruction expert was received in evidence. The Supreme Court held that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror. They stated that such evidence does not usurp the province of the jury since the jury does not have to accept the witness’ opinion. Although there was some reference to the fact that there was no eyewitness testimony the basis of the opinion was not made to rest upon its absence.

In Deaver v. Hickox, March 1967, 81 Ill.App.2d 79, 224 N.E.2d 468, Fourth District, the sole basis of the appeal was the action of the trial court in admitting over objection the expression of an opinion by a State Trooper as to the speed of the vehicles prior to the collision. The court found the testimony error because the evidence demonstrated an insufficient basis from which the opinion could be stated. It appeared that the officer was basing his opinion as to speed upon the damage resulting to the vehicles.

Abrahamson v. Levinson, April 1969, 112 Ill.App.2d 42, 250 N.E.2d 796, First District, affirmed the refusal of a trial court to permit an expert to reconstruct an accident. The objection to the expert’s testimony was made and sustained on the grounds that since there were eyewitnesses the expert’s evidence was inadmissible. The trial court had based its ruling upon Miller v. Pillsbury Co., supra and Ficht v. Niedert Motor Service, Inc., 34 Ill.App.2d 360, 181 N.E.2d 386. The Appellate Court stated that the test of admissibility or inadmissibility rests not on whether there is eyewitness testimony, but whether or not it is necessary to rely on knowledge and the application of principles of physics, engineering or other sciences which are beyond the normal ken of the average juror and further by whether or not there is sufficient undisputed physical evidence to provide the basic data needed for the application of principles of physics, engineering or other sciences. The court also listed four factors that must be demonstrated to the trial judge before expert reconstruction testimony and opinion can be received.

In September 1970 the Supreme Court had another occasion to consider the matter of expert reconstruction testimony and opinion in the case of Plank v. Holman, 46 Ill.2d 465, 264 N.E.2d 12. It was found that under the circumstances present the plaintiff could have been considered to be an eyewitness although she did not see the entirety of the events leading to the collision. The court reiterated its statement in Miller v. Pillsbury Co. that “We are of the opinion that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror.” In clarification of the “availability of an eyewitness” aspect of the rule the court went on to say that “* ” * reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available. Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror.” It was noted that it could not be determined whether reconstruction testimony would be necessary until after the plaintiff eyewitness had testified.

In McGrath v. Rohde, 53 Ill.2d 56, 289 N,E,2d 619 the Supreme Court reiterated the rule of Plank v. Holman and held reconstruction testimony to be unnecessary since the questions confronting the jury did not require a scientific knowledge beyond their ken.

In Siltman v. Reeves, June 1971, 131 Ill.App.2d 960, 269 N.E.2d 728, the Fourth District Appellate Court in reliance upon Abrahamson v. Levinson rejected the use of an opinion of a reconstruction expert if the determinative facts are otherwise established by credible physical or eyewitness evidence. The court also cited Plank v. Holman and Miller v. Pillsbury Co.

The Second District Appellate Court, from whence Thomas v. Cagwin emanated, has recently decided two cases in which the facts are closely related to those of the case now under consideration. (Geisberger v. Quincy, February 1972, 3 Ill.App.3d 437, 278 N.E.2d 404; Payne v. Noles, May 1972, 5 Ill.App.3d 433, 283 N.E.2d 329.) In Geisberger the plaintiff claimed that the trial court erred in admitting opinion testimony of a police officer amounting to a reconstruction of the accident. Plaintiff and defendant were the only eyewitnesses and they gave contradictory descriptions of the impact. A police officer was permitted to testify that he determined the point of impact from the location of the debris in the street. The plaintiff claimed it was error to allow an expert witness to reconstruct the accident when it was a matter of common observation by eyewitnesses. The court noted that two appellate decisions hold it is within the discretion of the trial court to allow a qualified investigating officer to express an opinion as to the place of impact, citing Thomas v. Cagwin and Diefenbach v. Pickett. In reversing the case for a new trial the court stated that the officer’s opinion as to the place of impact should be excluded because his testimony as to factual findings as well as any other factual observations better serve the purpose of arriving at at a just verdict than would his expression of opinion. The court observed that the officer’s testimony in question would not meet the standard of Miller v. Pillsbury Co. and Plank v. Holman. In Payne a crucial question was upon which side of the center line did a motor cycle and an automobile collide. The vehicle operators placed the point of impact in their respective lanes of traffic. The plaintiff automobile driver called as an expert witness a physicist who did not testify to the point of impact but testified to the location of the center of gravity and its effect on the motor cycle immediately prior to the collision. The court noted that they arrived at their result not because the availability of eyewitnesses precluded the use of expert testimony, but because such testimony is to be rejected unless it is necessary to aid the jury in arriving at a correct and just result, that while there may often be understandable correlations between the necessity for expert opinion and the absence or unavailability of eyewitnesses the test of admissibility should not be obscured. The court quoted from Plank v. Holman and concluded that expert reconstruction testimony has no place if the determinative facts are otherwise established by credible physical or eyewitness testimony and can be used to impeach otherwise credible eyewitness testimony.

Whatever discretion is now left in the trial judge, as that expression is used in Diefenbach v. Pickett, must be exercised within the bounds prescribed in Plank v. Holman. The trial judge must, for instance, determine whether expert reconstruction testimony or opinion is necessary, that in order to arrive at a just verdict the jury must be assisted by testimony regarding knowledge of physics or the sciences beyond their ordinary ken, that the proffered witness is sufficiently possessed of the requisite qualifications as an expert and that there are sufficient physical data upon which he may base his conclusions and opinions.

Counterclaimant-appellee advocates that a distinction be made between an expert witness possessed of academic and scientific knowledge who reconstructs the accident from the available physical facts and data, and an experienced investigating police officer who, upon the basis of observed physical facts such as damage to and location of vehicles, skid marks, debris, etc., merely states an opinion as to the point of impact. He contends that even though the testimony of the reconstruction expert using a scientific approach may be prohibited by some cases, the testimony of the experienced investigating police officer as to the point of impact is not based on “scientific knowledge” and is therefore permissible. While there may in fact be some difference in the qualifications and the basis for the testimony of the two types of witnesses their category as expert witnesses is the same and any difference between them would be one of degree only. The effect of their testimony on the jury is similar and there is insufficient basis for any distinction between them. Whatever the type or basis of the expert reconstruction testimony or opinion, the test of admissibility is that of necessity. Plank v. Holman; Merchants Nat. Bank of Aurora v. Elgin J. & E. Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809.

Upon consideration of the foregoing cases and the rules expressed therein we conclude that the trial court erred in permitting the trooper to give his opinion as to the point of impact of the colliding vehicles in question. He was, of course, competent and qualified to testify to the physical facts he discovered when he arrived at the scene, such as the location of and damage to the vehicles, the location and length of the skid marks, the debris on the highway, the description of the physical surrounding in which the accident occurred, and similar matters. However, in view of the testimony of the parties and the physical circumstances surrounding the incident the jury, as the trier of fact, could form its own conclusion as to the point of impact without the opinion of the trooper. Moreover, it is readily apparent that the troopers opinion was not based upon any special knowledge and application of principles of physics, engineering or other sciences beyond the ken of the average juror.

Having concluded that the admission of the opinion testimony of the trooper was error we must question whether it is sufficient in scope to require a reversal of the judgment. Defendant testified that the truck was all in the northbound lane and therefore the point of impact was in the northbound lane. Defendant’s version of the location of the point of impact is supported by plaintiffs testimony that his brakes threw him just a little bit over the center line, as the skid marks indicated. The plaintiff testified that the damage to the track was to the left front fender and that the rear two-thirds of the truck was in the southbound lane thus placing the front end of the truck in the northbound lane. From the evidence presented, without the opinion of the trooper, the only reasonable conclusion is that the point of impact was in the northbound lane. The trooper’s opinion stated only the obvious and was merely cumulative. Here his official position could give no particular credence to his opinion since the facts that had been presented were conclusive of the question and we consider the overruling of the objection to the opinion evidence as harmless error.

Our examination of the evidence leads us to the conclusion that the verdict was not against the manifest weight of the evidence and the judgment will accordingly be affirmed.

Affirmed.

EBERSPACHER, P. J., concurs.

Mr. JUSTICE GEORGE J. MORAN

specially concurring:

I agree that the judgment of the trial court should be affirmed, but I do not agree that it was error to permit the state trooper to give his opinion as to the point of impact. Thomas v. Cagwin, 43 Ill.App.2d 336; Diefenbach v. Pickett, 111 Ill.App.2d 80; Stanley v. Board of Education of City of Chicago, 9 Ill.App.3d 963, 293 N.E.2d 417.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Overturf, Defendant-Appellant.
    (No. 11866;
    Fourth District
    May 16, 1973.
    Kenneth L. Gillis, Defender Project, of Chicago, (Brian David, Senior Law Student, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Wayne Golomb, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was admitted to bail in connection with a burglary charge pending against him in the circuit court of Sangamon County. He left the state and failed to appear in connection with that proceeding. About six months later, the defendant surrendered and the instant offense of violation of bail bond was filed. The defendant entered a plea of guilty. His petition for probation was denied and a sentence of not less than 1 nor more than 3 years was imposed. The sentence as imposed was made to be concurrent with a sentence of not less than 1 nor more than 10 years in the Illinois State Penitentiary in the burglary case. That case is on appeal in this court as our general number 11861.

In this appeal, the defendant urges only that the trial court abused its discretion in the denial of the petition for probation. We do not agree and affirm the judgment and the sentence.

The defendant has a prior record of felony convictions. He was convicted of the mentioned burglary offense in 1971. The sentence there imposed and this sentence are, as we indicated, concurrent. There is nothing in this record, nor in the record of the defendant, that suggests that this court could or should find an abuse of discretion of the trial court in the imposition of sentence. The sentence here imposed is the statutory minimum and a review of this sentence in view of the burglary sentence and conviction is somehow lacking in reality. A sentence for burglary and a concurrent probation would indeed appear to be anomalous. The judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.

SIMKINS and SMITH, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
      In re Estate of Maro Zagoras, Incompetent—(The Department of Mental Health, Claimant, Appellant, v. Hercules Paul Zagoras, Conservator of the Estate of Maro Zagoras, Respondent-Appellee.)
    (No. 72-29;
    Second District
    May 15, 1973.

      William J. Scott, Attorney General, of Chicago, and Jack Hoogasian, State’s Attorney, of Waukegan, (A. Zola Groves, Assistant Attorney General, of counsel,) for appellant.
    Hercules Paul Zagoras, pro se.

   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Tire Department of Mental Health of the State of Illinois appeals from an order which disallowed the portion of the Department’s claim against the Estate of Maro Zagoras, Incompetent, which the trial court found to have been previously canceled by the Department.

On April 26, 1971, the Department filed a claim for $21,123 against the Incompetent’s Estate for the net cost of the ward’s care from 1952 to 1971 in Elgin State Hospital after deducting payments made by responsible relatives under section 12 — 12 of the Mental Health Code. (Ill. Rev. Stat. 1971, ch. 91½, par. 12 — 12.) The conservator objected, principally alleging that $10,541 of the claim had been canceled by the Department on August 7, 1967. The trial court offset the cancellation credit against the total claimed and allowed the net claim of $10,582.

The incompetent was adjudged insane and committed to the Elgin State Hospital on January 7, 1935, and has since been continuously hospitalized. In 1967 the Department made a determination of the charges due for care and treatment, and on August 7, 1967, sent, the conservator an official notice of determination which included the following:

“6. Charges cancelled for a credit of $10,541 EXPLANATION OF ACTION: On the basis of evidence furnished that there are no assets in the conservator account, and that the patient has only an inchoate right of dower, charges to conservator account have been cancelled, and the continuing monthly charge stopped. * # «»

On September 21,1970, the ward’s dower rights became choate, following which the Department sent a new notice of determination to the conservator and filed the April 26, 1971, claim for $21,123. Of the nineteen years of charges for which the $21,123 claim was filed, fifteen were included in tire August 7,1967 determination.

The Department argues that the cancellation of charges due to the State was not authorized, even if nothing was collectible from the ward’s estate at the time of cancellation; that neither the executive, legislative or judicial departments of the State can compromise or cancel any legally owing indebtedness to the State; and therefore that all unpaid charges remain legally due. Respondent argues essentially that the State is barred as to any matters which could have been raised in the 1967 proceedings; and further, that pursuant to section 12 — 12 of the Mental Health Code (Ill. Rev. Stat. 1971, ch. 91½, par. 12—12), the Department is given authority to cancel charges, subject only to the administrative review of its decision.

As pertinent here, section 12 — 12 states:

“Any person who has been issued a Notice of Determination of sums due as treatment charges may petition the Department for a review of that determination. The petition must be in writing and filed with the Department within 90 days from the date of the Notice of Determination. The Department shall provide for a hearing to be held on the charges for the period covered by the petition. The Department may after such hearing, cancel, modify or increase such former determination to an amount not to exceed the maximum provided for such person by this Section.
# # #
In case any patient, the estate of any patient, or the responsible relatives of such patient are unable to pay the treatment charges for the patient provided for by this Act, then the cost of treatment of such patient shall be borne by the State, 6 *

Section 12 — 12 does not authorize the cancellation of the patient’s liability for treatment charges owing the State when the patient and his responsible relatives are unable to pay. The liability of the patient exists at all times. (Dept. of Public Welfare v. A’Hern (1958), 14 Ill.2d 575, 579. See also In re Estate of Grimsley (1972), 7 Ill.App.3d 563, 566.) The quoted language of the section has been held not to limit the State’s right and duty to claim and collect maintenance costs should any hable person or estate acquire the ability to pay in whole or in part. Dept. of Public Welfare v. Bohleber (1961), 21 Ill.2d 587, 592, 593; Dept. of Public Welfare v. A’Hern (1958), 14 Ill.2d 575, 580-581. See also Knackstedt v. Dept. of Mental Health (1966), 69 Ill.App.2d 98, 102—103.

The August 7, 1967 determination in so far as it purported to cancel the liability of the patient’s estate for unpaid treatment charges, was made without lawful authority and in contravention of section 12— 12 of the Mental Health Code. Under these circumstances the Department was not bound nor was the patient’s estate released from liability by the purported cancellation. Knackstedt v. Dept. of Mental Health (1966), 69 Ill.App.2d 98, 101-103.

To adopt the construction of section 12 — 12 urged by the respondent would raise serious constitutional doubts as to the statute’s validity since it would, in effect, allow the extinguishment of a debt owing the State in contravention of section 23, article IV of the 1870 constitution (then in effect). (Massell v. Daley (1950), 404 Ill. 479, 484; In re Estate of Moyer (1971), 131 Ill.App.2d 915, 916; Madison v. Reuben (1973), 10 Ill.App.3d 16, 293 N.E.2d 700. ( A reasonable interpretation of the provision that a charge may be modified after a hearing is that it was intended to permit the correction of errors in calculating the charge, and not to authorize cancellation of debts due to the State; and a contrary interpretation which would affect the constitutionality of the Act should be rejected. Rough v. Hoehler (1952), 413 Ill. 409, 420; Continental Nat. Bank v. Toll Hwy. Com. (1969), 42 Ill.2d 385, 390.

The order of the Circuit Court reducing the Department’s claim to. $10,582 is reversed, and the cause is remanded with directions to the trial court to adjudicate the . Department’s lien in the amount of $21,123.

Reversed and remanded with directions.

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

      The State has attached as Appendix I of its brief and argument here a prehearing report of the “hearing referee” purporting to relate a March 8, 1967, telephone conversation with the attorney for the conservator in which it was agreed that the billing against the estate would be canceled in the absence of assets but that it was understood that in the event of the death of the spouse of the incompetent when dower bonds would become negotiable assets of the patient, a claim would be filed in the estate against any assets therein at that time. While the estate at no time moved to strike this from the brief, we give it no consideration inasmuch as it was not a part of the record before the trial court.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Hayes, Defendant-Appellant.
    (No. 72-53;
    Second District
    May 18, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found defendant guilty of burglary and he was sentenced for a period of 4 to 20 years. This appeal was transferred to us by.the Supreme Court.

Defendant claims the State failed to prove beyond a reasonable doubt that he entered the premises with intent to commit a theft and that error occurred in the giving and refusal of instructions. While this appeal was pending, a motion was made to reduce his sentence under the new Unified Code of Corrections; this was taken with the case.

A silent alarm of a factory was activated at the Lake Bluff police station on the evening of August 18, 1971. Within two minutes, two policement arrived; one went to the east side of the building, the other to the west side. On the east side, a pile of boxes was observed stacked below a broken washroom window; defendant’s head was extended through the the window, into the building. Upon the officer identifying himself, defendant withdrew his head from the window, then turned back to the window and said something which was inaudible to the officer. Shining his flashlight through the window, the officer observed another person exit the washroom and close the door behind him. Defendant was placed under arrest, then searched; no merchandise or tools were found on his person. During a search of the premises, conducted by a canine officer and his dog, a second person, Roy Nogle, was discovered hiding in the bucket of a front end loader.

The burglarized factory assembled heavy construction equipment, a process which required portable pneumatic and mechanics’ tools. Some of the tools were supplied by the company, others by the employees; some were locked away, others were not. The record discloses that none of the tools were missing or marshalled in any area for removal.

Defendant contends that under these facts, the necessary intent to commit theft, required for a conviction of burglary, was not proved beyond a reasonable doubt. Defendant does not question the State’s proof as to the unauthorized breaking and entering of the building, but argues that to establish intent of theft there must be some other evidence such as the defendant’s resisting arrest, fleeing or acting furtively, evidence that the building was ransacked, or that the personal property within the building was scattered about or gathered in an area to facilitate removal. While the cases cited by defendant seem to support his argument, we hold that such factors are consistent with and buttress the conclusion of larcenous intent but are not necessarily essential to sustain a conviction.

In People v. Johnson, 28 Ill.2d 441 (1963), police were called when witnesses observed the defendant gain entrance to a building after breaking the glass of a door. When police arrived, the defendant jumped from the doorway, swinging a lug wrench. The owner of the building testified that, aside from the broken glass, he found nothing unusual about the premises and was “almost sure there was no merchandise missing.” The defendant, as in the case at bar, did not testify. The court stated, at page 443:

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.”

The Court, in affirming the conviction, held that “there were no contradictory circumstances to rebut the inference of an intent to commit larceny.” (28 Ill.2d at 444.) See also, People v. Thompson, 48 Ill.2d 41, 47 (1971), where the court found there were no circumstances established which were inconsistent with the inference that he entered with intent to commit theft.

To adopt defendant’s argument it would be necessary not only to disregard the expression, “in the absence of inconsistent circumstances” found in the Johnson case, but to extend the rule to include the requirement that the State must prove, by additional evidence, factors which would be consistent with the intent already inferred from the breaking and entering. In declining to do so, we hold that, here, no inconsistent circumstances rebut the inference of intent and find that defendant’s guilt was proven beyond a reasonable doubt.

Over objection, the court gave the State’s instruction defining circumstantial evidence, omitting the second paragraph. (I.P.I. — Criminal, 3.02.) Defendant tendered the same instruction including the second paragraph but it was refused. It is argued that the gravamen of the offense of burglary is the intent with which the building is entered and since the evidence of intent to commit theft was totally circumstantial, defendant’s instruction should have been the one given.

The Committee Note to this instruction reads, “The second paragraph should be given only when the proof of guilty is entirely circumstantial.” Under defendant’s interpretation of the comment, unless each element of an offense be proved by some direct evidence, the second paragraph would be applicable. We do not subscribe to such a narrow interpretation. It is only where the evidence of the necessary elements to a crime are totally circumstantial that the second paragraph should be given. Defendant herein was identified at trial by the police officer who had apprehended defendant at the scene of the crime, part of his body within the premises. This was direct evidence that an unlawful entry had been made and it was thus proper for the court to refuse defendant’s tendered instruction. See, People v. Springs, 2 Ill.App.3d 817, 820 (1972), and People v. Beck, 133 Ill.App.2d 356, 273 N.E.2d 169, 171 (1971).

Subsequent to oral argument, defendant filed a motion for summary modification of sentence based solely upon the Unified Code of Corrections, effective January 1, 1973. Ill. Rev. Stat., 1972 Supp., ch. 38, secs. 1001 — 1 et seq. Burglary is a Class 2 felony, Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 19 — 1(b). The minimum sentence under this class is 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 term, which shall not be greater than one-third of the maximum term,” section 1005 — 8—1(c)(3). The maximum term for Class 2 felonies is twenty years, section 1005 — 8—1(b)(3). Both defendant’s minimum and maximum sentences are in accordance with the Code and therefore the motion is denied.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.

       Nogle pled guilty to the same burglary and was sentenced to a term of 4 to 30 years. This court modified the sentence to a term of 4 to 20 years in People v. Nogle, 11 Ill.App.3d 74 (1972).


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Brown, Defendant-Appellant.
    (Nos. 11916-11979 cons.;
    Fourth District
    May 16, 1973.

      Larry P. Cramer, of Urbana, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana, (Roy E. Clark, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On February 9, 1970, the defendant-appellant Lawrence Brown entered a plea of guilty to the crime of robbery in the Circuit Court of Champaign County in Cause 69-X-1951. This case is designated on appeal as our general number 11916. On February 27, 1970, he was admitted to probation for a period of three years.

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On September 28, 1971, in the same court, in Cause 71-X-1470 (which is designated on appeal as our general number 11979), the defendant was indicted for the offense of unlawful use of weapons in violation of chapter 38, section 24 — 1(a)(7), Ill. Rev. Stat. 1969. On October 27, 1971, following a hearing, the trial judge denied the defendant’s motion to suppress evidence (the firearm in question seized at the time of defendant’s arrest). On December 1, 1971, defendant entered a plea of guilty to the charge with the understanding that the State’s Attorney would recommend a sentence of 2 to 5 years in the penitentiary. Prior to accepting the plea, pursuant to the provisions of Supreme Court Rule 402, the trial judge advised the defendant that “* * # you understand that you are offering to enter a plea of guilty to the charge that on the 12th day of August, 1971, * * * you committed the offense of unlawful possession of firearms in that you did knowingly possess * * * a .410 gauge shotgun with a barrel less than 18 inches in length * * * and that you had this unlawful possession on the 12th day of August, 1971. Do you understand that chargeF’ To which defendant responded in the affirmative. The judge also asked the defendant “And are you pleading guilty to this charge because you are in fact guilty of it?” Defendant responded “Yes Sir.” The judge then inquired about the factual basis for the plea and was advised by the State’s Attorney as follows: “Your Honor, if we had to prove this case the State would show that on the date in the indictment the defendant, Mr. Brown, was found in a house, I believe the address was 212 Maple Street, in Champaign. The police entered the house upon request of a Mrs. Frazier, and upon entering the house they found the defendant in one bedroom, and when he entered — when he exited the bedroom upon the police requests, they found in the bed he had just gotten out of a sawed-off .410 gauge shotgun, with a barrel less than eighteen inches in length.”

The court then inquired of defendant’s counsel whether he had anything to add to the State’s Attorney’s statement and received a negative response. Tire record establishes a careful thorough admonishment, by the trial judge, in compliance with Rule 402. He found that the plea was voluntary, that there had been no threats or misrepresentations and no recommendation or promise other than the recommendation of the State’s Attorney as to sentence and found that there was a factual basis for the plea, all of which is amply supported by the record. At the conclusion of the admonishment and after making the above findings the court again inquired of the defendant as to whether or not he still wanted to plead guilty and the defendant responded that he did. Whereupon the court accepted the plea and entered judgment thereon. The defendant then moved to postpone sentencing to the second week in January; the State’s Attorney interposed on objection and the cause was then continued to Wednesday, January 12, 1972, for hearing in aggravation and mitigation and imposition of sentence. Defendant had been represented since the inception of these proceedings by counsel of his own choice, and this representation commenced prior to the prehminary hearing being held.

On December 29, 1971, the defendant through his attorney filed a motion for leave to withdraw his plea of guilty stating that he “* * * does not believe that he is in fact guilty of the charge and that he and his attorney are in disagreement about the handling of the case. # On the same day defendant’s counsel filed a petition for leave to withdraw as counsel for the defendant. The motion recited that the plea of guilty had been entered as a result of plea bargaining, that within two or three days thereafter the defendant phoned counsel and “* * * indicated that he was dissatisfied with the plea and that he disagreed with the undersigned’s handling of the case * * and had requested that a motion be filed to withdraw the plea at which time counsel indicated to the defendant that he did not wish to participate in the motion to withdraw the plea and requested the defendant to obtain other counsel. On January 5, 1972, the court allowed the motion of counsel to withdraw and another attorney, of defendant’s own selection, then entered his appearance.

On January 12, 1972, the court heard defendant’s motion to withdraw his plea of guilty. The defendant testified in his own behalf and was the only witness called in the hearing on the motion and stated tire following in response to his attorney’s questions:

“Q. And do you feel you are innocent in this case after having discussed the law with me?
A. I am innocent.
# # #
Q. But as a matter of fact after discussing the law in regard to this case, and this charge, you feel you are not guilty, is that true?
A. That’s right.”
The court then inquired:
“THE COURT: Mr. Brown, was anything misrepresented to you by Mr. Harper, or by the State’s Attorney, or by the Court at the time you pleaded guilty?”

and the defendant responded in the negative. The defendant agreed that the recommendation of the State’s Attorney was the one which his original attorney had communicated to him. Defendant’s attorney then stated to the court that he was contending that the defendant was under a misapprehension “* * s I think as to the law, Judge.” He stated to the court that although the defendant had the weapon in question in bed with him that he wasn’t guilty if he did not know that the gun was in his possession. The defendant then testified that he did not know that the gun was in the bed the night he was arrested. The defendant also testified that the gun in question did not belong to him. The court then denied the motion for leave to withdraw the plea; the hearing in aggravation and mitigation was held and defendant was sentenced to an indeterminate term of 2 to 5 years in the penitentiary and this appeal ensued.

As a result of defendant’s conviction of the crime of unlawful use of weapons his probation on the robbery conviction was revoked on February 4, 1972, and the defendant was sentenced on the robbery charge to an indeterminate term of 2 to 5 years, the sentence to run concurrently with the sentence imposed on the unlawful-weapons charge.

The sole question presented by the appeal was whether the trial court committed reversible error in refusing to permit defendant to withdraw his plea of guilty. The appeal from the robbery conviction depends upon the resolution of this sole issue since defendant urges that if there was error in refusing to permit him to withdraw his plea of guilty then the robbery sentence cannot stand since his probation should not have been revoked. The cases were consolidated, for purposes of opinion, in this court.

It appears from the record that the home of one Mary Atherson is located on Maple Street in the City of Champaign. Atherson’s mother, Roberta Frazier, went to the house for personal reasons and discovered that a window had been broken and was open. She went upstairs and found the defendant in one of the bedrooms and another male person (not the defendant) in one of the other bedrooms and this latter individual had by his side what she described as a long barreled rifle. Two officers went to the scene, found a broken window, entered through the window, went upstairs and arrested the two male subjects, one of which was the defendant. The trial court found that the defendant “* * * was gotten out of a bed on which there was a bedsheet and lined up against the wall with apparently nothing on but a T shirt: # # *” the officers “* * * then pulled up the sheet and recovered the gun that is the subject of a motion to suppress.” He also found that the officers had already found a gun in the other room in plain view that they had a right to protect themselves and look under the sheet of the bed in which defendant was sleeping when arrested and that “at the time the gun was recovered it was in the immediate area of said defendant and could have been recovered by him by taking a step or two if the op- j portunity presented itself.”

The defendant also made some complaint to the effect that he was coerced by his original attorney into entering the plea although he had, in response to numerous questions addressed to him by the court at the time the plea was entered said that he had been subjected to no mistreatment or threats or promises of any kind made to induce him to enter the plea. On appeal he states that “the gist of this appeal deals I with defendant’s lack of a mental state required.” The essence of de- ! fendant’s position seems to be that he now says that a gun was in the same bed in which he had been sleeping, but that he was unaware of that fact at the time. Defendant goes on to argue that a guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts,” citing McCarthy v. United States, 394 U.S. 459, 466.

The trial court in denying the motion to withdraw the plea found that there was no misapprehension of the facts, that there was no misrepresentation by defendant’s counsel or by the State’s Attorney at the time the defendant entered his plea, that in the court’s opinion, the defendant had no defense worthy of consideration by the court.

Both the defendant and the People rely on the case of People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233. Walston is clearly distinguishable from the present case. There the defendant moved to withdraw his plea of guilty in a written motion which asserted that he was innocent and had pleaded guilty to a crime which he did not commit, and that he had done so because he believed he would be placed on probation. The trial judge refused to hear the testimony of the public defender in support of the motion. The court reversed saying that “The difficulty lies in the fact that, while not articulated in the trial court motions, defendant’s plea of guilty could have resulted from some misunderstanding by counsel or defendant. A showing of such misunderstanding or misrepresentation is normally the obligation of the defendant seeking to withdraw a guilty plea before a trial court will be said to have abused its discretion in refusing to permit such withdrawal, but in the circumstances of this case we believe the trial court’s refusal to hear Singer’s testimony constituted error, for that testimony presumably would have eliminated the prevailing uncertainty.” The court remanded the cause for an evidentiary hearing to determine whether the defendant had entered his plea of guilty because of any misunderstanding by defendant or misrepresentation by counsel. In Walston, the court held that permission to withdraw a plea of guilty and enter a plea of not guilty is a matter which is within the discretion of the trial court which is to be exercised in the favor of innocence but also stated “We do not believe that a statement of innocence, accompanied by a motion to withdraw a plea of guilty by a defendant theretofore adequately informed of the nature of the charge to which he was admitting guilt and adequately admonished as to the possible consequences of such plea, is sufficient of itself to require allowance of such motion.”

On a motion to withdraw a plea of guilty, the defendant has the burden to establish in some manner a misunderstanding or misrepresentation or that the ends of justice require that the plea of guilty be withdrawn. (People v. Olden, 130 Ill.App.2d 773, 266 N.E.2d 404.) Here the defendant concedes that he was fully and completely admonished under the requirements of Rule 402 and, as we have observed, the record amply demonstrates that fact. He also concedes that no misrepresentations were made to him by his original attorney, by the State’s Attorney or by anyone else in authority. The defendant was 20 years of age at the crime this plea was taken and before being expelled had completed two years of high school. There is nothing in the record to indicate, nor does defendant here contend, that he was incapable of comprehending the meaning of plain words. We also observe that defendant at no time testified during the hearing on the motion to suppress, that he did not understand the import of the words when the court explained to him that he was charged with the offense of unlawful possession of firearms “in that you did knowingly possess * * * a .410 gauge shotgun with a barrel less than 18 inches in length * * * and that you had this unlawful possession on the 12th day of August, 1971.” In fact, the defendant in response to that statement of the trial judge’s said that he did understand the charge. He had been similarly advised during arraignment. Under the circumstances disclosed by this record, we find no abuse of discretion on the part of the trial judge in denying defendant’s motion to withdraw his plea of guilty.

The sentences in cases pending on appeal are subject to the provisions of the Code of Corrections which became effective January 1, 1973. (People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731; People v. Lobb, 9 Ill.App.3d 650, 273 N.E.2d 206.) Ill. Rev. Stat., 1972 Supp., ch. 38, par. 18—1(b), defines defendant’s robbery conviction as a Class 2 felony and par. 24 — 1(a)(7) defines defendant’s conviction for unlawful use of weapons as a Class 4 felony. Section 5 — 8—1(b)(3) of the Unified Code of Corrections (111. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1(b) (3)) provides that the maximum term for a Class 2 felony shall be any term in excess of one year not exceeding 20 years. Subparagraph (c)(3) provides that the minimum term imposed for a Class 2 felony shall not be greater than one third of the maximum term fixed by the court. Since the defendant was sentenced 2 to 5 years on the robbery conviction the minimum term exceeds one third of the maximum term the minimum term is modified to one year and eight months.

As to defendant’s sentence of 2 to 5 years on the conviction for unlawful use of weapons, section 5 — 8—1(b)(5) of the Code (par. 1005— 8 — 1(b)(5)) provides that the maximum term for a Class 4 felony shall be any term in excess of one year not exceeding three years and sub-paragraph (c)(5) of that section provides that the minimum term shall be one year in all cases. Therefore defendant’s minimum sentence for unlawful use of weapons is reduced to one year and the maximum sentence is reduced to three years.

Defendant’s sentence for robbery in case 69 — X—1951, our general number 11916, as modified, is affirmed.

Defendant’s conviction in case 71 — X—1470, our general number 11979, with sentence as modified, is affirmed. The causes are remanded to the circuit court with directions to issue an amended mittimus in each case to reflect the modification of sentences.

Judgments affirmed, sentences modified, causes remanded with directions.

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


text:
    Nancy Josephine Akers et al., Petitioners-Appellants, v. Cynthia Christina Christen, a Minor, et al., Defendants-Appellees.
    (No. 12130;
    Fourth District
    May 16, 1973.

      Richard Shaikewitz of Wiseman, Shaikewitz, and McGivern, of Alton, for appellants.
    A. Alan Hart, of Alton, for appellees.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Jersey County vacating and setting aside a decree of adoption. We affirm.

On February 11, 1971, the plaintiffs filed a petition for the adoption of Cynthia Christina Christen. Cynthia, now age 5, had resided with the plaintiffs since September 1970. Upon the filing of the petition for adoption, service was had upon the child on February 12, 1971, and upon the defendants, her parents, on February 16, 1971. The petition alleged that Cynthia was the niece of the plaintiffs and that the defendants were unfit parents, had criminal records, and had given the child to the plaintiffs. It was also asserted that the defendants had not contributed to her support.

On March 11, 1971 “on the court’s own motion”, the petition was con-tinned for thirty days by an order of a judge of the circuit court of Jersey County. According to the mother, she appeared before a judge of the court on that date and requested the continuance in order to employ counsel.

On April 1, 1971, the petition was heard. The court found the defendants in default and the petition was treated as confessed. An answer was on file by the guardian ad litem appointed to represent the child sought to be adopted. Evidence was heard and a decree was entered on April 1, 1971. At the time of that proceeding, the record does not indicate that any mention was made of the March 11, 1971 order for a continuance. The decree of adoption on April 1 was entered by a different judge.

On March 7, 1972, some 11 months after the decree, the defendant-mother filed a motion to vacate the decree. In that motion the foregoing was set forth as well as other information as to her then current status and as to denial of certain of the matters set forth in the petition for adoption. This motion to vacate was denied on June 22, 1972. At the time of that proceeding, however, the court granted the defendant-mother leave to file additional pleadings.

Thereafter, on August 3, 1972, the defendant filed pleadings which the trial court correctly treated as a petition to set aside the decree pursuant to section 72 of the Civil Practice Act (111. Rev. Stat. 1971, ch. 110, par. 72). This pleading again set forth the chronology of events and other factual matters in defense of the allegations set forth in the petition. This petition was allowed and the decree of adoption was vacated.

Section 72 of the Civil Practice Act provides a method for obtaining relief from final orders, judgments or decrees. That section of the Practice Act, like the balance of the Act, is applicable to adoption proceedings by a reason of express statutory language (Ill. Rev. Stat. 1971, ch. 4, par. 9.1—20). While adoption proceedings should be “final” and the status determined in an adoption proceeding should not be disrupted by subsequent or collateral litigation as the appellees suggest, such does not prevent a section 72 proceeding. It is the purpose of a proceeding under section 72 of the Practice Act to bring before the court facts not appearing of record which, if known to the court at the time the decree or judgment was entered, would have prevented its rendition. Danforth v. Checker Taxi Co., 114 Ill.App.2d 471, 253 N.E.2d 114.

Since the 1952 case of Ellman v. DeRuiter, 412 Ill. 285, 106 N.E.2d 350, the use of motions or petitions under section 72 of the Practice Act has been expanded so that equitable principles could be applied in granting relief. Indeed, section 72 proceedings can be said to be addressed to the equitable powers of the court when the exercise of such power is needed to prevent an injustice.

The language in the adoption statute (Ill. Rev. Stat. ch. 4, par. 9.1—20) limiting appeals and providing that no appeal may be taken more than 30 days after the decree, order or judgment, cannot be construed as inconsistent with the opportunity for relief under section 72.

In this case, the continuance was "of record” in the sense of a docket entry. It was not known to the court, nor made known to the court at the time of the adoption hearing. We cannot conceive of any court that would default a party and take a petition as confessed against him in an adoption proceeding before the expiration of a continuance granted by the court, if the court has knowledge of such continuance. Clearly, then, had the fact of the continuance been known to the court, the decree would not have been entered on April 1, 1971.

The essence of due process is notice and opportunity to be heard. In this case, the defendant-mother was denied the opportunity to be heard and to defend her parental right. (See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.) The order vacating the decree of adoption entered by the circuit court of Jersey County should be, and is, hereby affirmed. This cause is remanded to that court for further proceedings.

Affirmed and remanded.

SMITH and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald W. Harl, Defendant-Appellant.
    (No. 11748;
    Fourth District
    June 20, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Jon C. Baxter, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a sentence of one to four years in the penitentiary for aggravated assault. An information was filed against him with one count of aggravated assault, one count of criminal destruction of property, and one count of unlawful use of weapons. Shortly thereafter, an indictment was returned against him for aggravated assault. On arraignment he pleaded not guilty. Subsequently he had a change of heart resulting from plea negotiations with the State in which the State’s Attorney had agreed to concur in the recommendation of the probation officer, if probation was recommended. If probation was not recommended, the State’s Attorney had agreed to recommend a sentence of one to four years in the penitentiary. Probation was denied and the sentence of one to four years in the penitentiary was imposed. The other charges were dismissed.

At the time of this sentence, the penalty for aggravated assault under the provisions of Ill. Rev. Stat. 1971, ch. 38, par. 12—2(b), was that the defendant “shall be fined not less than $25 nor more than $1,000 or imprisoned in a penal institution other than the penitentiary not less than 4 days nor more than one year, or both, or in the penitentiary from one to 5 years”. The record shows that upon inquiry, the State’s Attorney, defense counsel and the court did not advise the defendant of the minimum sentence which could be imposed as required by Supreme Court Rule 402. In substance that rale among other things requires that the court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: “The minimum and the maximum sentence prescribed by law * * (Emphasis supplied.) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a) (2).) This language requires neither interpretation nor explanation. Without such information, the defendant bargains without knowledge of all his bargaining tools. On the record before us there is no showing that the defendant’s agreement to a one to four years in the penitentiary was made with knowledge that he also had available some non-penitentiary minimum sentences. No mention of them was made. The advice given to him by all parties was not only inadequate, it was totally a distorted picture. The plea and the sentence must be and they are hereby vacated.

The defendant was sentenced to the penitentiary on September 21, 1971. We granted leave to appeal and this appeal was pending in our court at the time the new Code of Criminal Corrections became effective on January 1, 1973. Accordingly, the defendant’s case had not reached a “final adjudication”. The Code itself as well as decisions of this court and the Supreme Court for the purpose of sentencing have held that a case pending on appeal has not been finally adjudicated and the punishment provided under the new Code applies. (See People v. Bailey, 1 Ill.App.3d 38, 272 N.E.2d 259; People v. Isom, 4 Ill.App.3d 407, 280 N.E.2d 485; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731.) Under the Criminal Code, aggravated assault is classified as a Class A misdemeanor. The maximum penalty is one year in an institution other than the penitentiary or a $1000 fine, or both. It is clear that this defendant has served well over the maximum that can now properly be imposed against him. Accordingly, the plea and the sentence of the defendant are hereby vacated and the defendant ordered forthwith discharged upon the issuance of this court’s mandate as provided by law. Mandate ordered to issue forthwith.

Defendant discharged.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    Cecil R. Ozier et al., Plaintiffs-Appellants and Counterdefendants Cross-Appellees, v. Central Illinois Public Service Company, Defendant-Appellee and Counterplaintiff Cross-Appellant—(Harold W. Scott, Counterdefendant Cross-Appellee.)
    (No. 11656;
    Fourth District
    May 16, 1973.

      Rehearing denied June 21, 1973.

    Summers, Watson & Kimpel, of Champaign, (Philip C. Zimmerly, of counsel,) for appellants.
    Hatch, Corazza, Baker and Jensen, of Champaign, (Harold A. Baker and Timothy O. Madigan, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs appeal from a judgment in favor of defendant upon a complaint claiming $600,000 to be due upon a contract to acquire certain oil, gas and gas storage rights owned or to be acquired by plaintiffs. It is admitted that plaintiffs performed certain contractual obligations to acquire leases and show merchantable title to such, but defendant alleges a right to terminate the contract by reason of inability to establish an adequate gas storage reservoir. The defendant cross-appeals from the order of the trial court dismissing for want of equity its counter-claim for rescission of the contract by reason of alleged misrepresentation and mutual mistake.

The contract, dated May 2, 1986, with two amendments, dated November 17, 1967 and May 31, 1968, involve some 36 pages of legal cap with elaborate provisions conditioning each undertaking, and repeated cross-references to such conditions. Notwithstanding such length, the parties disagree as to the fundamental terms of the contract and whether the parties contemplated the requirement of approval by the Illinois Commerce Commission for purposes of gas storage and any condemnation incident to such use.

While the agreement provided for the exchange of shares of stock in defendant company for all of the shares of stock in the Fishhook Gas Corporation owned by plaintiffs, the actual subject matter was the sale and purchase of 27 leases upon identified parcels of land containing approximately 4400 acres, and known as the “Fishhook Gas Field”. In Sections 3 and 4 of the agreement, plaintiffs agreed to obtain, at their own expense, appropriately executed documents entitled “Easement to Conduct Exploratory Operations, Options for Gas Storage Grant, Oil and Gas Lease” within 18 months, together with abstract showing merchantable title in the grantors and to furnish such for examination by defendant. Such instruments, called leases, differed in content from the standard or usual oil and gas lease then held by plaintiffs. It was further agreed that such easements and options were to cover oil, gas rights in 85 percent of the acreage and gas storage rights in 90 per cent of such.

Section 5 provided for escrow of all stock in “Fishhook” together with the sum of $100,000 deposited by defendant. While the contract speaks in dollar sums, it is specified that defendant was to transfer its stock as valued in dollars.

Section 6 provided that within sixty days of compliance with Sections 3, 4 and 5 of the agreement, defendant should direct the escrow agent to pay the sum of $100,000 to plaintiffs, and that at the same time defendant should tender or pay the sum of $500,000. This Section also provided that upon tender of $500,000, defendant would have the right to withdraw all gas and hydrocarbons in the Fishhook Field without payment of compensation whether or not defendant exercises its rights under Section 7 of the contract. The latter Section of the contract gives defendant the right, following the plaintiffs’ performance of Sections 3, 4 and 5 at its option either, to pay an additional $400,000 or to reassign all oil, gas and gas storage rights acquired from plaintiffs.

Section 17 is, in part:

“It is understood that the acquisition by Central of the stock of Fishhook, the liquidation of Fishhook and the acquisition of its assets and rights by Central and other transactions contemplated by this agreement are or may be subject to the approval of such regulatory authority or authorities as may have jurisdiction with respect thereto. Central agrees, at its expense, to endeavor to obtain all requisite approvals or authorizations of such transactions by such regulatory authorities as counsel may advise; * # * all orders of regulatory authorities obtained pursuant hereto shall be such as to enable Central legally to carry out the transactions herein contemplated, including the liquidation of Fishhook and the acquisition of its assets by Central and such orders shall not be subject to any condition or conditions compliance with which would be unduly burdensome or materially disadvantageous to Central; and in the event such orders or any of them are not obtained or, if obtained, are subject to any such condition or conditions, Central may terminate this agreement without liability to the stockholders; * * *”

A document dated May 31, 1968, designated Amendment No. 2 to the agreement, refers to Section 17 of the contract and states that responsive to the requirement that Central endeavor to obtain all requisite approvals of regulatory bodies as counsel may advise, Central has employed James A. Lewis Engineering, Inc., a Texas corporation, to supplement the existing geologic map and to obtain additional evidence to present to the Illinois Commerce Commission to enable it to grant a Certificate of Convenience and Necessity, an order authorizing condemnation if necessary and an approval of the storage area known as “said Field” in the agreement. The document provides for drilling designated wells to the St. Peter stratum. By such document Central paid the consideration of $2071.20 to plaintiffs’ agent for renewal payments on the leases affected.

The evidence established the execution of the contract, the acquisition of the leases and performance of other undertakings of the contract in Sections 3, 4 and 5, which plaintiffs were required to perform, the fact that plaintiffs did not receive any part of the $600,000 provided in Section 6 of the contract, the fact that defendant did not exercise the option under Section 7 of the contract and the fact that in July of 1968 defendant advised plaintiffs that defendant would not complete the contract. On October 4, 1968, defendant wrote plaintiffs that:

“[Sjince it would be impossible in the circumstances for it to obtain the requisite approval of the Illinois Commerce Commission to enable the Company to legally carry out tire transactions contemplated by the Exchange Agreement, as amended, the Company regards the said agreement as terminated and hereby formally terminates it, as well as the Escrow Agreement, in accordance with the respective terms of the said documents.”

The agreement does not specify to what depth or in what strata the gas storage is contemplated. The trial court prepared a memorandum filed with the record which finds that the agreement contemplated the use of the St. Peter formation for storage of gas; that to obtain approval to condemn defendant would be required to present a verified petition to the Illinois Commerce Commission to obtain a Certificate of Convenience and Necessity; that tire evidence predominates that a satisfactory storage area does not exist in the St. Peter formation and that it is doubtful that defendant could, in good faith, file a petition to obtain authority to condemn and that they should not be required to do a useless thing. (See Nelson v. American Business Bureau, 241 Ill.App. 432.) The court further found in essence that the contract was for the sale of interests in a gas storage area; that upon the payment of $600,000 under Section 6 it was expected that defendant would pump gas from the Silurian level into the St. Peter formation to test the capacity of the latter to store gas, and that if gas was properly contained in the St. Peter formation, defendant would then pay an additional $400,000 in exercise of its option. The court further found the substantial payment of $600,000 was essentially computed upon the gas situated in the Silurian strata which it was contemplated would be injected into the St. Peter formation as a test of its capacity before defendant made an election under Section 7. The court further found that defendant’s notice of termination was timely under the terms of Section 17 of the agreement.

Plaintiffs’ contention here is essentially that the agreement is divisible and that upon the tender of the leases by plaintiffs, defendant was required to pay the sum of $600,000 for the gas known to exist at the Silurian level.

Such, however, was not the initial cause of action pleaded by plaintiffs. In the only complaint appearing in the record, i.e., an amended complaint filed April 2, 1969, plaintiffs alleged in Section 6 that defendant had a duty to obtain authority for the conduct of gas storage, and it breached such duty in failing to proceed to obtain such authority. After extensive motion practice directed against defendant’s counter-claim, plaintiffs, in March, 1971, moved to strike such allegation as surplusage. It does not appear in the record whether such motion was ruled upon.

Dr. Harold Scott, a professor of geology, was initially associated with plaintiffs and at the time of negotiations held or controlled fifty per cent of the stock in Fishhook. The testimony discloses that Dr. Scott, with the plaintiffs, actively organized the Fishhook area as a unit obtaining leases for 8000 acres with a view to providing gas storage in the Silurian strata. The testimony of Dr. Scott shows that he made an initial call upon officers of defendant to inquire as to their interest in acquiring gas storage. The evidence shows that Scott terminated such negotiations when it was ascertained that defendant was only interested in approximately 4000 acres. Thereafter, Scott, in 1964, renewed discussions concerning the sale of interests in 4400 acres for gas storage. Scott’s testimony shows that at such time, officials of defendant indicated that they wanted 30 feet of closure in the St. Peter strata. At the time of such discussions it appears that the available geological data showed that the St. Peter formation was a major structure, but that there were no contours projected to show either the capacity enclosed by the structure, or its extent.

As internal evidence of the nature of the negotiations, the record discloses that defendant annually requires 12 to 15 billion cubic feet of gas to supply its customers. The sum of $600,000 contemplates the use of some 3 biUion cubic feet of gas from the area of 4400 acres. The fact that defendant would not negotiate to buy the available gas from 8000 acres at the Silurian level tends to support a conclusion that the purchase of gas was not the principal purpose of the defendant.

Defendant’s evidence included the testimony of four witnesses qualified by academic training and experience in the geologic and engineering questions involved, and who had examined the data and formed opinions as to the suitability of the St. Peter formation for gas and storage. Carroway, who had an academic degree in petroleum engineering and was the manager of Lewis Engineering, Inc., which specialized in oil, gas and gas storage work, testified that his firm was engaged to prepare data for the Illinois Commerce Commission concerning gas storage in the Fishhook Field. He requested the deepening of a number of wells in the area to the St. Peter formation, and testified that such drilling disclosed that the St. Peter formation did not lend itself to confining the gas in a sufficient closure without escape or migration, and that it was not suitable for storage. Wilson, a geologist who heads the gas and oil department of the Kentucky Geological Survey, was requested to advise concerning the possibility that the St. Peter formation paralleled the Silurian structure. He examined the available data and expressed the opinion that there was not sufficient closure available to create a mechanically feasible gas storage area. Williams, a consulting geologist who has supplied consulting service in the Illinois basin for some twenty years, expressed the opinion that he could not find a thirty foot closure in the St. Peter formation in the Fishhook lease block. Buschbach is a geologist employed by the Illinois State Geological Survey. He holds academic degrees on the subject from the University of Illinois, and has been involved in the structural interpretation of many deep storage gas projects in Illinois. He testified that to obtain a thirty foot closure it would be necessary to go beyond the lease block area. Rector was an employee of the defendant during the period of negotiations. He has a degree in mechanical engineering and has specialized in petroleum engineering. He had reviewed the data available from the deepening of the wells and stated an opinion that there was no appreciable structural closure which would keep the gas injected into the St. Peter formation within the lease block.

Dr. Scott, who had acted with plaintiffs in seeking the contract with defendant, testified at the trial to an opinion that the closure in the St. Peter formation could be obtained by acquiring the necessary interests in some 560 acres located outside of the contract area.

Plaintiffs contend that the language of the contract was not ambiguous and that the court erred in admitting evidence to establish the construction of the contract. Defendant cites Herlihy Mid-Continent Co. v. Sanitary Dist., 390 Ill. 160, 60 N.E.2d 882; Martindell v. Lake Shore Nat. Bank, 15 Ill.2d 272, 154 N.E.2d 683 and Western Ill. Oil Co. v. Thompson, 26 Ill.2d 287, 186 N.E.2d 285. In Herlihy, the plaintiffs sought damages for delay in construction when the contract clearly stated that plaintiff could not receive any damages for delays caused by the defendant. Martindell holds that extrinsic evidence may be used to show the meaning of words susceptible of more than one meaning. In Western Illinois Oil Co. the parties sought to explain certain language:

“Paragraph 5 of said Lease and Agreement shall be deleted and the following shall be inserted therein as a new Paragraph 5.”

The court there stated that the meaning of the language was plain. We have already noted that the plaintiffs stated their original cause of action in terms of a contractual duty to proceed with the steps necessary to procure regulatory authority.

The trial court relied upon authorities including Schneider v. Neubeit, 308 Ill. 40, 139 N.E. 84; Hanson v. P. A. Peterson Home Ass’n, 35 Ill.App.2d 134, 182 N.E.2d 237, and Cleary, Handbook of Illinois Evidence (2d ed. 1963), § 16 and § 17, p. 269, to determine that the evidence of practical construction given to a writing by the parties is admissible to resolve uncertainties of meaning. Upon the evidence the court found that obtaining authority from the Illinois Commerce Commission for gas storage was within the meaning of the contract. We conclude that the court did not err.

Plaintiffs urge that defendant did not give notice in apt time. The trial court found that the plaintiffs had not requested defendant to file a petition before the Commission, and thus the steps initiating the time period for notice by defendants did not occur. The record is clear that shortly after the test drilling was completed, defendants gave verbal notice in July and written notice in October of 1968.

It is unnecessary to consider the evidence or merits of the issues presented upon defendant’s cross-appeal, inasmuch as such cross-appeal was conditioned upon a reversal of the judgment upon plaintiffs’ complaint.

A motion by defendant to strike portions of the record of the abstract and plaintiffs’ objections thereto was taken with the case. In view of the disposition of the issues, the motion is denied.

The judgments below are affirmed.

Affirmed.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Alton Evening Telegraph, Plaintiff-Appellant, v. Paul Doak, d/b/a Doak Dodge, Defendant-Appellee.
    (No. 72-239;
    Fifth District
    May 16, 1973.
    Cohn, Carr, Korein, Kunin & Brennan, of East St. Louis, (Joel A. Kunin, of counsel,) for appellant.
    John A. Farrell, of Alton, for the appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The plaintiff appeals from an order entered in the Circuit Court of Madison County on June 15, 1972, which granted the defendant’s motion to vacate a default judgment which had been rendered on February 17, 1972.

The only question on appeal is whether the trial court erred in granting the motion on the ground that the plaintiff named in the default judgment lacked the legal capacity to sue.

In In re Annexation of Certain Territory, 37 Ill.App.2d 255 at 263, the court stated:

“The Civil Practice Act requires that a party shall set forth in the body of his pleading the names of all parties for whom relief is thereby sought. Ill. Rev. Stat., ch. 110, §21(4) (1961). There must be a party possessed of legal entity as a natural, artificial or quasi-artificial person. See Vukovich v. Custer, 347 Ill.App. 547.”

The present judgment was rendered in the name of the “Alton Evening Telegraph”, which is not the name of a natural or artificial person having the capacity to sue. There are no facts, properly before this court, that identify an entity capable of suing. The legal entity, Alton Telegraph Printing Co., cannot properly be made a party to the suit merely because its name appeal's in an exhibit attached to the complaint. (Fetherston v. National Republic Bancorp, 280 Ill.App. 151.) A lawyer should know his client when he files his suit. (In re Annexation of Certain Territory, 37 Ill.App.2d 255.) A suit brought in a name which is not that of a natural person, a corporation or of a partnership is a mere nullity; and, in such a case, it has been held that the whole action fails. 67 CJS, par. 4; 59 Am.Jur.2d, par. 21; Godair v. Case, 220 Ill.App. 348.

Affirmed.

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


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Archie Burnett, Defendant-Appellant.
    (No. 72-296;
    Fifth District
    May 17, 1973.
    Robert E. Farrell, Defender Project, of Mt. Vernon, (Michael A. Schmitt, Senior Law Student, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel,) for the People.
   PER CURIAM:

Defendant, Archie Burnett, appeals from the dismissal of his post-conviction petition without an evidentiary hearing. In 1965 defendant pleaded guilty to the crime of escape and received a sentence of from eight to ten years in the Illinois State Penitentiary.

On this appeal defendant contends that the indictment failed to charge an offense and that he was denied adequate assistance of counsel in presenting his post-conviction petition.

The indictment in this case referred to Ill. Rev. Stat., ch. 38, sec. 31—6, when it should properly have read sec. 31—6a. Leave was granted the States Attorney to amend to add sub-section “a” before the plea was entered.

Defendant has cited People v. Ball, 126 Ill.App.2d 9, 261 N.E.2d 417, as authority that the indictment as originally drawn failed to state an offense. However, the Ball case in the supplemental opinion on rehearing points out that if the words of the indictment properly charge an offense that is sufficient. Since in this case the elements of the offense are set out in the words of the indictment, the failure to designate the proper sub-section is not a matter of constitutional dimension which could be raised on post-conviction proceedings. People v. Bridges, 67 Ill.App.2d 236, 214 N.E.2d 539.

In regard to the inadequate representation by counsel, defendant’s other contention that he should have been advised as to his right to appeal was decided against him in People v. Burnett, 45 Ill.2d 521, 262 N.E.2d 477. There is nothing in the record to indicate that defendant’s constitutional rights have been violated. It is not error for counsel to fail to amend a petition when there is no basis for an amendment. People v. Stovall, 47 Ill.2d 42, 264 N.E.2d 174.

Judgment affirmed.


author: Mr. PRESIDING JUSTICE GUILD

text:
    Myrna Muriel Finn, Petitioner-Appellant and Counterdefendant, v. Lawrence Martin Finn, Respondent-Appellee and Counterplaintiff.
    (No. 72-7;
    Second District
    April 2, 1973.

      Rehearing denied June 26,1973.

      Boodell, Sears, Sugme & Crowley, of Chicago, (Thomas J. Boodell, Jr., and Wilham Thomas Braithwaite, of counsel,) for appellant.
    Flack, Chisholm & Krneta, of Lake Zurich, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Myma Muriel Finn, for purposes herein referred to as plaintiff, and Lawrence Martin Finn, hereinafter referred to as defendant, were married in December, 1956. They resided in Pennsylvania where two children were born, Norman Jeffrey Finn on November 20, 1957, and Natalie Ruth Finn on October 25,1958. In 1969 the defendant left his employment in the east and moved to California. Two months later his wife joined him with the children and very shortly thereafter the defendant advised his wife that he wanted a divorce. A decree of divorce was entered in California on August 26, 1970 after they had complied with the residence requirement of the State of California. The plaintiff requested custody of both children and the decree awarded custody to her allowing the defendant to have the children six weeks during the summer. It was stipulated by the parties in tire California divorce decree that the defendant would pay the plaintiff $1.00 a month for a period of two years for her support and $108.33 thereafter. It was also stipulated that the wife was to have custody of the two children subject to the aforementioned six weeks vacation with the husband and that the wife could reside outside of the State of California. About a week after the decree became final the defendant remarried and three or four months later, moved to Lake Zurich, Illinois, where he purchased a home and adopted the two children of his new wife. The following summer, the defendant went to California and under the provisions of the decree brought the children with him to Illinois for the six weeks vacation period authorized by the decree. The children shortly thereafter wrote their mother in California and advised her that they preferred to reside with their father and his new wife and children in Lake Zurich, Illinois. In August, 1971, the mother petitioned the Circuit Court of Lake County to register the foreign judgment of divorce in Illinois and the same was filed in Lake County, Illinois. The mother came to Illinois and a hearing was had on the custody of the children in the Lake County Circuit court under the provisions of the divorce decree entered in California. The Lake County trial court specifically found that both of the parties were proper persons to have the custody of the children. However, based solely on the preference of the children, the Lake County court modified the California decree by changing custody to the defendant father. The plaintiff mother appeals from that judgment.

The primary question presented to this court is whether the order of the trial court in Illinois in changing custody from the mother as ordered in the trial court of California, to the father, is against the manifest weight of the evidence. The mother contended that the father purposely embarked upon a scheme to deprive her of the custody of her children by planting in their tender minds the ideal of living with him and his new wife. The case of Stickler v. Stickler (1965), 57 Ill.App.2d 286, 206 N.E.2d 720, is strikingly similar to the situation before us. In Stickler the father obtained custody of the children by agreement of the parties and the preference of the children. The mother sought to modify the decree by changing the custody of the daughter, aged sixteen, from the father to her. She had previously expressed a desire to reside with the father but then changed her preference to that of the mother. The trial court found both parties were fit and proper persons for the custody of the minor daughter and changed the custody to the mother. The Appellate Court in reviewing the change of custody order stated at page 289:

“We believe that the instant case presents the first occasion in Illinois that the courts have been called upon to decide whether a change in the child’s preference is, in itself, a sufficient change in circumstances to warrant modification of the custody award. We are aware of the difficulty a trial judge has in making child custody decisions and we are hesitant to disagree with him in these matters. Nevertheless, we are of the opinion that the welfare of a child will not be served best if a change in custody is granted solely upon the child’s own change in preference.”

and further went on to say on page 291:

“Under all these circumstances it is our conclusion that the mere change in a child’s preference as to the parent with whom she would like to live is not a sufficient change in circumstances to warrant transfer of the child’s custody. The trial court’s order will, therefore, be reversed.”

The defendant father herein has cited the case of Hirth v. Hirth (1965), 59 Ill.App.2d 240, 207 N.E.2d 114, as authority for the preference of the children as being controUing in a custody hearing. In Hirth the children were awarded to the mother; both parties remarried; the mother was divorced from her second husband, was unable to care for the children; and pursuant to stipulation of the parties she relinquished temporary custody to the defendant under the agreement that he would return them upon the completion of the school year. The defendant-father complied and returned the children to the plaintiff and then filed a petition for change of custody. The trial court found that both of the parties were proper persons to have custody of the children. The older of the two children expressed a preference to live with her mother. The Appellate Court held that placing upon the plaintiff the burden of sustaining the custody provisions of a divorce decree was improper, and where the defendant was seeking to modify the custody provisions of the divorce decree, the burden was upon him to show why such change should be made. The court held that the father had failed to establish that the plaintiff was less fit to have custody of the children or that their welfare-required the change of such custody to him, and further held that the order of the trial court changing the custody to the father was against the manifest weight of the evidence. We find that to be the situation in the instant case before us.

In Arden v. Arden (1960), 25 Ill.App.2d 181, 166 N.E.2d 111, custody of the minor child was awarded to the plaintiff and upon a post decretal petition of the father, the custody of the child was changed to that of the defendant father. The court stated at page 186:

“In all matters concerning the custody of the child, the paramount issue and the guiding star for the court is the welfare of the child. The fact of changed conditions, is not sufficient. Before a court has the authority to modify a decree as to custody, those changed conditions must be such that affect the welfare of the child.”

The court went on to state at page 190:

“And since the decree of divorce is res adjudicata as to the fitness of the plaintiff at the time of the decree, there must be convincing proof that the fitness of the plaintiff to have the custody of the child has so materially changed, as to affect the welfare of the child. We do not find such proof in the record.”

And that is the situation in the case before us. While Arden dealt with a child of younger years and while the question of preference of the child was not presented, the principles enunciated therein are controlling nonetheless.

The same is true in the case of Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300. In Nye the custody of the minor child was awarded to the mother. Subsequently, in a petition for change of custody the trial court found that the mother was unfit to have custody of the child. The Appellate Court reversed, and the Supreme Court in affirming the opinion of the Appellate Court which had held that the change in custody was improper, stated at page 416:

“In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order. [Citation.] New conditions must have arisen to warrant the court changing its prior custody determination, [citation] where the court was not imposed on by perjury or collusion of the parties.”

In Eggemeyer v. Eggemeyer (1967), 86 Ill.App.2d 224, 231, 229 N.E.2d 144, 148, the court stated in referring to a decree of divorce and citing from Szczawinski v. Szczawinski (1962), 37 Ill.App.2d 350, 353, 185 N.E.2d 375, said:

“‘It is true that the trial court is clothed with a large discretion J in child custody matters and a reviewing court is reluctant to interfere with the trial court in its exercise of such latitude of choice. However, in post decree proceedings for the modification of child custody provisions of the divorce decree, the discretion of the trial court is a judicial discretion limited to the pleadings and proof pertaining to a change in circumstances which affect the welfare of the child, sufficient to warrant the modification of the decree.’ ”

Returning to question preference as in custody questions, we find the case of Swanson v. Swanson (1971), 1 Ill.App.3d 753, 274 N.E.2d 465. In Swanson, custody of the minor daughter of the parties was awarded under the decree to the mother in 1964. In 1970 the defendant father filed a petition seeking modification of the decree and asked that the custody of the daughter be awarded to him. The trial court awarded custody of the daughter to the defendant father. The trial court further found that the evidence indicated that both i parents were fit and proper custodians. After stating the general rule is that the welfare of the child is the cardinal consideration in determining custodial arrangements for the child and the corollary rule thereto is once custody was decreed it would not be modified unless there were changed circumstances affecting the welfare of the child which required a modification of the custodial arrangement. The court then considered the daughter’s stated preference to discontinue living with her mother and step-father and her desire to live with her father and stepmother, and further found that the only basis for modifying the custodial arrangement was the daughter’s preference. The court stated at page 755:

“Although the preferences of a minor child are important factors to be considered in custodial arrangements the court is not bound to follow such wishes. [Citation.] As indicated in Elble v. Elble, 100 Ill.App.2d 221, 241 N.E.2d, 328, the wishes and preferences of the child standing alone do not warrant changing custodial provisions previously established. In Stickler v. Stickler, supra, a case in which the facts are strikingly similar to those in the case at bar, the court discusses the subject of a child’s preferenees at length and concludes that such preference is insufficient to warrant a transfer of custody.”

and concluded at page 756:

“It is our conclusion that the desires and preferences of a child for change in custodial arrangements is only appropriate when based on reasons related to a child’s best welfare. Where such reasons are absent as we believe they are in the instant case, the child’s preference is not an appropriate basis for modifying the custodial provisions in a decree.”

Like the trial court herein we find no evidence whatsoever in the record that the plaintiff mother herein is an unfit person to have custody of the two minor children. We further fail to find any change of circumstances that would warrant the change in custody from the mother to the father. The father was the instigator of the divorce of the parties. The fact that he is now remarried and is able to furnish a home and material possessions to a better degree than the divorced wife who is not remarried, does not constitute a changed circumstance within the meaning of the terms in Illinois.

The defendant has cited Carlson v. Carlson (1967), 80 Ill.App.2d 251, 225 N.E.2d 130, and Corcoran v. Corcoran (1967), 79 Ill.App.2d 328, 224 N.E.2d 611, as authority for a change in custody. We find those cases are both distinguishable in that the deciding factor therein was the mental illness of one of the parents.

Likewise, the case of Breedlove v. Breedlove (1972), 5 Ill.App.3d 774, 283 N.E.2d 919, cited by the defendant father is not controlling as in that case we found that in fact there were changed circumstances with regard to the custody of the mother which do not appear in the case now before us.

The remaining question before us pertains to the awarding of attorney fees and court costs for the hearing in the Illinois court. In Johnston v. Johnston (1971), 130 Ill.App.2d 1042, 1046, 266 N.E.2d 685, it was held at page 688:

* * * “It has long been the rule in this jurisdiction that the allowance of attorney’s fees in a divorce proceeding rests in the sound discretion of the trial court and that a reviewing court will not interfere with the exercise of that discretion unless it is clearly abused.”

Here, the court inquired deeply into the evidence and arguments of counsel and it would appear that the court felt that this was not a case where the wife should automatically be awarded attorney’s fees and it is totally within the discretion of the trial judge after reviewing all evidence to so rule. This court will not substitute its judgment for that of the trial court in this regard in the absence of obvious injustice or error.

For the foregoing reasons the order of the Circuit Court of Lake County, modifying the California divorce decree and awarding custody of the minor children to the defendant father, is reversed. The order denying attorney fees to the plaintiff mother is affirmed.

Reversed in part; affirmed in part.

ABRAHAMSON and SEIDENFELD, JJ., concur.