text:
    Bowler’s, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Illinois Liquor Control Commission, Defendant-Appellant, Seymour Simon, Cook County Local Liquor Control Commissioner, Defendant.
    Gen. No. 52,301.
    First District, Second Division.
    June 18, 1968.

      William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and Robert F. Nix, Assistant Attorneys General, of counsel), for appellant.
    William M. Freeman, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Plaintiff, Bowler’s, Incorporated, brought this action in the Circuit Court of Cook County for administrative review of a decision by the defendant, Illinois Liquor Control Commission, denying plaintiff's application for a retail liquor license to be utilized upon certain leased premises located at R.R. #1, Thornton-Lansing Road, South Holland, Illinois. The action taken by the defendant-Commission sustained the findings and conclusions of the Cook County Local Liquor Control Commissioner in a prior administrative proceeding.

The defendant-Commission prosecutes this appeal from the entry of a subsequent order by the Circuit Court on April 11, 1967, which reversed the Commission’s decision to refuse plaintiff’s application, and directed the issuance of the license. The issue on appeal, as per the findings of the trial court, is whether the decision of the defendant-Commission was unsupported by competent evidence and contrary to the manifest weight of the evidence. It would appear that the sole question heretofore contested concerns the propriety of the County Commissioner’s finding that the instant application was filed in bad faith, in that plaintiff was not a bona fide applicant, but rather acting in the stead of a person/s otherwise ineligible to hold such a license.

Reflecting briefly, the plaintiff-applicant had been incorporated on October 18, 1965, under the laws of the State of Illinois for the stated purpose of carrying on the sale of liquor and food at retail, and by its articles naming Joyce Abel (the then reigning United States Women’s Professional Bowling Champion), Mary Bosnak and Elaine Fein as the sole directors, officers and subscribers to its outstanding shares of stock. Pursuant thereto, a one-year leasing agreement at a weekly premium of $150 was executed by one Rose Fein (the mother of Elaine Fein) the owner of the aforedescribed premises on October 26, 1965, to plaintiff for the use of that premise as a dramshop. It would appear that this same location had theretofore been utilized for like purposes by one Sue Bernard whose liquor license had expired and would not be renewed by the county. Plaintiff thereafter made application for a liquor license to operate at that address under the name of the “Bowlers Tap” which application was denied by the County Commissioner on December 6,1965, occasioning the instant litigation.

The facts as they were presented to the court below consisted entirely of the pleadings, certain documentary exhibits and the Report of Proceedings from the de novo administrative hearing before the defendant-Commission. We are hence limited accordingly.

The evidence adduced at the defendant-Commission hearing, on behalf of the plaintiff consisted of the testimony of Joyce Abel, Mary Bosnak and Elaine Fein, the sole and equally participating shareholders, directors and officers of Bowler’s, Inc. Each of the three witnesses testified in detail concerning her eligibility for a retail liquor license under the mandatory provisions of the governing statute. Ill Rev Stats (1965) c 43, par 120. More particularly, in response to the findings of the County Commissioner, the witnesses attested that no persons other than they possessed any interest, financial or otherwise, in the ownership or operation of their corporation. This testimony was at no point contradicted by the evidence offered on behalf of the conclusions of the County Commissioner. There is similarly no dispute but that plaintiff’s application was in all respects proper in form and that the requisite licensing fees had been satisfied.

The defendant-Commission takes the position on appeal that inasmuch as its findings and conclusions on questions of fact must be held prima facie true and correct, it was error for the lower court to upset those determinations by resort to substituting its judgment, as to matters affecting the credibility of witnesses, for that of the defendant-Commission. This is an objection directed specifically by the defendant to the testimony of Elaine Fein. While the defendant’s theory accurately states the controlling principles of administrative review, it necessarily presumes as existent an essential element which is fatally absent from its case, that being sufficient competent evidence to defeat plaintiff’s claim.

The question of credibility to which the defendant alludes involves certain inconsistencies which arose in the testimony of Elaine Fein of such alleged “obvious” proportions as would have justifiably impugned the status of her fitness and moral character as a prospective licensee. This, defendant submits, was a question reserved for it alone to resolve. It appears in this regard that the witness on direct examination represented that she had never before held or applied for a liquor license, nor ever joined in the ownership of any liquor enterprise, notwithstanding the admitted fact that her parents had operated such businesses in the past. This she averred was her first experience in the trade, agreeing that she had testified in similar respects at the hearing before the County Commissioner.

Following preliminary questioning on cross-examination as to whether she was born in East Chicago, Indiana, the witness stated unresponsively, “Oh, he’s referring to Indiana. Yes, I was part owner of the Calhof [lounge].” Questioned in regard to similar businesses in the State of Illinois, Miss Fein reasserted her previous denial of such ventures. At this juncture, County Commissioner Exhibit No. 1 was produced, which was an application for a retail liquor license for the “Eight Ball Lounge” in Homewood, Illinois, dated April of 1941, and subscribed to as a coapplicant by the witness. On redirect examination, Miss Fein admitted to the authenticity of the exhibit, explaining that she had simply forgotten about it. The witness further stated that she had theretofore had no independent recollection of the incident, nor could she even now recall the duration of her participation in that business.

As plaintiff, we think, aptly contends, the assailed portions of the Fein testimony do not address themselves to the substantive issue of the cause before us, that being whether or not Bowler’s, Inc., and its constituent shareholders were and are the only bona fide parties in interest within the purview of the previously noted eligibility statute. That, in essence, is the only legitimate issue advanced for determination. The only “evidence” submitted by the County Commissioner to demonstrate a failure to qualify under that statute was by extrinsic reference by the Commissioner during opening argument before the defendant-Commission to matters within the knowledge of that County Commissioner. By unsworn allegations and without the aid of corroboration, it was stated that the applicant-corporation was merely acting as a straw man in the place of one Marlin Fein (the brother of Elaine Fein) who twice had had liquor licenses revoked by the county. Marlin Fein was not called to testify nor has any report from the proceedings before the County Commissioner been incorporated in this record to verify such an account. Clearly, such nonevidentiary assertions can hold no sway in this court.

The only question which thus remains involves the inconsistencies in Elaine Fein’s testimony, numerous attendant elements of which strongly favor an innocent construction. A time span of 25 years had intervened to possibly cloud the witness’ memory of her prior application. She had, in fact, volunteered information of a corresponding nature relative to her ownership of a liquor establishment in Indiana. Moreover, there appears a conspicuous absence of some particular motive to falsify in this regard, as no irregularities have been so much as suggested relative to her earlier liquor ventures. Certainly, testimony by her as to possession of prior liquor licenses without suspension or revocation would redound to the witness’ advantage.

To even assume for the moment that Miss Fein’s testimony was properly discredited before the defendant-Commission for the purposes it suggests, the record from its hearing nonetheless remains totally devoid of any evidence, save the barren unsupported testimonial assertions of the County Commissioner, that the applicant-corporation was other than qualified as a licensee. Furthermore, defendant’s authority of Maggio v. State of Illinois Liquor Control Commission, 89 Ill App2d 401, 233 NE2d 59 (1967), in its discussion of the personal integrity and morality of a proposed licensee, imports no conclusion that an isolated and inconsequential instance of impeachment is substantive grounds for the denial of her application.

The County Commissioner at the hearing before the defendant-Commission and now the defendant-Commission itself evidently failed to recognize that the hearing on administrative review before the Commission, was an entirely new trial, adversary in nature which was neither dependent upon nor limited by, any prior administrative record. Regardless of the reasons prompting the decision of the County Commissioner, the defendant-Commission was bound to independently predicate its judgment only upon the facts as established by the competent evidence presented to it. Daley v. License Appeal Commission, 63 Ill App2d 43, 211 NE2d 573 (1965).

Accordingly, the trial judge was correct in holding that defendant’s decision to deny the license was contrary to the manifest weight of the evidence and, indeed, substantially unsupported by any competent evidence. Childers v. Illinois Liquor Control Commission, 67 Ill App2d 107, 213 NE2d 595 (1966). Having satisfied all the statutory requirements, plaintiff is entitled to have the license issued. Walgreen Co. v. Lenane, 363 Ill 628, 2 NE2d 894 (1936).

For the above reasons, the order of the Circuit Court is affirmed.

Order affirmed.

BURKE, P. J. and McNAMARA, J., concur.


source: Caselaw Access Project

author:
      MR. PRESIDING JUSTICE McCORMICK
      ENGLISH, J.,

license: Public Domain

text:
    Jacob Berg and Evelyn Zwick, Individually and as Representatives of All Licensed Motorists Residing in the City of Chicago, a Class, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Joseph J. McDonough, Clerk of the Circuit Court of Cook County, and Hon. William G. Clark, Attorney General, State of Illinois, Defendants-Appellees. Consolidated With Jacob Berg, George Wojcik, Raymond Wickert, Daniel Anschel and Nathan Fishman, Individually and as Representatives of All Licensed Operators of Motor Vehicles Residing in Cook County, Illinois, a Class, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, and Joseph J. McDonough, Clerk of the Circuit Court of Cook County, and as Successor in Office of the Clerk of the Municipal Court of Chicago, Defendants-Appellees.
    Gen. No. 50,804.
    First District, Fourth Division.
    June 19, 1968.
    Rehearing denied July 17,1968.

      L. Louis Karton and Harold Z. Kaplan, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Sydney R. Drebin and Marvin E. Aspen, Assistant Corporation Counsel), of counsel and Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Ronald Butler, Assistant State’s Attorney, of counsel), for appellees.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an order entered by the Circuit Court of Cook County on June 25, 1965, dismissing plaintiffs’ class actions. Defendants have filed a cross-appeal from an order overruling their motion to dismiss the individual complaints. Two separate actions were brought by plaintiffs in their own behalf and on behalf of others similarly situated. The suits were consolidated over plaintiffs’ objections. We will consider the suits separately.

The complaint in the first action was filed by Jacob Berg and Evelyn Zwick, residents of Chicago, citizens of Illinois, and motorists licensed by the State of Illinois, on behalf of themselves and as representatives on behalf of all other persons similarly situated, as a class, and claims against the City of Chicago, a municipal corporation, and Joseph J. McDonough, Clerk of the Circuit Court of Cook County, Illinois, and alleges that the City of Chicago enacted chapter 27 of its ordinances which consist of 437 traffic regulations, which result in more than one million prosecutions, excluding parking violations, in each year since 1961; the vast majority are against resident motorists of Chicago.

The complaint further alleges that the appendix attached to the complaint shows the ordinances, their statutory counterparts, and the conflicting statutory enactments, and that all the ordinances there set forth are null and void by reason of no power vested in the City of Chicago to enact them; that the effect of ordinance enforcement in the City of Chicago invokes prosecution under civil rules of procedure in violation of the uniformity requirements of section 122 of the UART.

It is further alleged that the plaintiffs, Berg and Zwick, have been arrested by the police of the defendant City at least four times in the last sixteen months, charged with violating 27-255 and 27-202 of the traffic regulations, and that they have a direct and immediate interest in the outcome of this controversy for themselves and as representatives of the class. Plaintiffs Berg and Zwick appeared in the Municipal Court branch of the Circuit Court on May 13, 1964, and filed counterclaims raising the issue that the City was without power to enact the ordinances. The City had the counterclaims dismissed, and in the complaint the statement is made that the City did, in order to frustrate a legal determination of the issues raised, move for a nonsuit in both cases.

While it is not crystal clear whether or not the two original suits have been dismissed, there is no further reference made as to any suit against Berg. It does appear, however, that a suit (W2 243-958) brought against Evelyn Zwick, in her maiden name, charging her with violating one of the ordinances involved, was dismissed for want of prosecution on December 20, 1965. The defendant was present in court.

The complaint prays that

a) An interim declaratory order be entered on the Clerk of the Circuit Court and the City of Chicago that all fines collected by them (re the Traffic Regulations scheduled in the appendix) are declared to be paid under protest and subject to repayment to the payors upon final disposition of this cause, if plaintiffs shall prevail;

e) The court declare null and void all the Traffic Regulations set forth in the appendix attached.

On September 4, 1964, after consolidation of the cases, the defendants filed a motion to dismiss the suits on the ground that the court has no jurisdiction to review or collaterally attack the judgment of the Municipal Court of Chicago; that a class action under such facts and circumstances as are presented here does not lie, and equity will not act where the remedy at law is adequate and such action will restrain the enforcement of the ordinances in question. The plaintiffs moved to vacate the order of consolidation. On May 11, 1965, the court entered an order denying plaintiffs’ motion and also denying defendants’ motion to dismiss the complaints; the defendants were ordered to file an answer to the complaints within 30 days. The defendants thereupon filed a motion to vacate the order denying the motion to dismiss the complaints and moved the court to reconsider and to allow said motion. Suggestions in support of the motion were filed and an answer was filed thereto. On June 25, 1965, an order was entered which stated in part:

“It is hereby ordered that the order of the Court of May 11, 1965, denying the motion of defendants to dismiss the complaints in the consolidated causes herein and requiring defendants to answer within 30 days is vacated and held for naught.
“It is further ordered that the motion of defendants to dismiss the complaints as to the class action in the consolidated causes herein is allowed.
“It is further ordered that the class action of the plaintiffs be dismissed and judgment is hereby entered for the defendants in regard to these class actions with their costs wrongfully sustained.
“It is further ordered that the motion of defendants to dismiss the complaints as regarding the individual plaintiffs, in their individual capacity is denied and that defendants answer individual plaintiffs’ complaint within 30 days.
“It is further ordered that, plaintiffs electing to stand upon their complaints, the Court finds that there is no just reason for delaying an appeal as regards the decision herein and the appeal bond of the plaintiffs is set at the sum of $500.00.”

The plaintiffs took the instant appeal from this order. The defendants took a cross-appeal from the order of the court refusing to dismiss the individual complaints.

As we have said, we will now consider the first action. In their reply brief filed in this court the plaintiffs say, concerning the first action:

“The ordinance case, when filed, simply challenged the validity of multiple traffic ordinances. In order to preserve the rights of plaintiffs and the class to a refund of fine monies paid thereafter (as a result of conviction of ordinances held later to be invalid), an interim protective order was sought, but was denied.
". . . If the ordinances are invalid, plaintiffs’ asserted right to refunds attached to the judgments as they were rendered. The judgments entered were conditional on the validity of the ordinances.”

It is necessary to interpret the statute authorizing declaratory judgments (Ill Rev Stats 1961, c 110, § 57.1 (D, (2)).

(1) No action or proceeding in any court of record is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, .... The court shall refuse to enter a declaratory judgment, decree or order, if it appears that the judgment, decree or order, would not terminate the controversy or some part thereof, giving rise to the proceeding. (Emphasis added.)

(2) Subject to rules, declarations of rights, as herein provided for, may be obtained by means of a pleading seeking that relief alone, or as incident to or part of a complaint, counterclaim or other pleading seeking other relief as well, .... (Emphasis added.)

In 22 Am Jur2d, Declaratory Judgments, § 27, it is stated:

In order for a controversy as to a statute or ordinance to justify declaratory relief, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of the statute or ordinance.

In a declaratory judgment proceeding challenging the constitutionality of a statute, the plaintiff must have an interest in the statute, special or peculiar to him, and not merely an interest in common with the public generally.

In 22 Am Jur2d, Declaratory Judgments, § 24, it is stated:

A declaratory judgment is not available to restrain the enforcement of a criminal prosecution where the facts are in dispute, or open to different interpretations. A declaratory judgment proceeding is particularly inappropriate where a criminal action involving the identical question is already pending.

Declaratory judgments were unknown at common law and were created by statute. The statute is to be liberally construed but its provisions are to be strictly complied with. In order for this court to obtain jurisdiction to enter a declaratory judgment on the rights in question, it is incumbent upon the plaintiffs to demonstrate that such a judgment would be based upon an actual justiciable controversy. If the plaintiffs will suffer an infringement of their rights and be adversely affected thereby only in the event that some future possibility in fact occurs or does not occur, then the right in question is speculative and a declaratory judgment cannot be entered. Plaintiffs are not entitled to declaratory relief in the absence of a justiciable controversy unless they can show not only that the ordinance is invalid, but also that they have sustained or are immediately in danger of sustaining some immediate injury as a result of its enforcement.

In the Annotations, 174 ALR, page 554 it is stated:

The fact that a statute or ordinance may be applicable to rights or interests of a person at some future time does not give such person sufficient standing to challenge the validity of the statute or ordinance in a declaratory judgment action.

The same rule is laid down in Saline Branch Drain. Dist. v. Urbana-Champaign Sanitary Dist., 399 Ill 189, 77 NE2d 158; and in Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill2d 419, at 421, 129 NE2d 1, the court said:

“The section of the Practice Act authorizing the use of declaratory judgment procedures provides, in part, as follows: ‘. . . the court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, . . . .’ We have repeatedly held that such provision does not authorize the court to grant declarations of rights involving mere abstract propositions of law without regard to the interest of the parties, and that before a declaration of rights may be made there must be an actual controversy. . . .”

In Exchange Nat. Bank of Chicago v. County of Cook, supra, the court quotes with approval from Aetna Life Ins. Co. v. Haworth, 300 US 227:

“The word ‘actual’ is one of emphasis rather than of definition. ... A ‘controversy’ in this sense must be one that is appropriate for judicial determination. ... A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. . . .”

In State Farm Hut. Automobile Ins. Co. v. Morris, 29 Ill App2d 451, 173 NE2d 590, the court held that the existence of another adequate remedy is a bar to declaratory action and the complaint or petition therefor should under those circumstances be dismissed. The court further pointed out that the declaratory judgment procedure is not intended to permit litigation of moot or hypothetical cases, or to enable parties to secure advisory opinions or legal advice from the court with respect to anticipated future difficulties. The court said at page 460:

“There is little danger of such a result for the court is vested by the statute with discretion to decline to award declaratory relief in any case. In appropriate cases the desirability of avoiding piecemeal litigation will serve as a proper and sound basis upon which to exercise that discretion. The granting or denying of declaratory relief even when the controversy or some part thereof will be settled thereby is discretionary with the court. It is provided in the second sentence of subsection (1) that the court ‘may, in cases of actual controversy, make binding declarations of rights.’ The statute, by its terms, is permissive: Kitt v. Chicago (1953) 415 Ill 246, 112 NE2d 607. The granting of declaratory relief is clearly within the discretion of the trial court, and dismissal of the action on the defendant’s motion is an appropriate judicial method of declining to grant declaratory relief and is within the Court’s discretion to do: Wolf v. Solem (1960) 26 Ill App2d 262, 167 NE2d 820. Even though the statute be broad enough to authorize the entry of a declaratory judgment, the Courts have a discretion as to whether they will enter a declaratory judgment: Goodyear Tire & Rubber Co., Inc. v. Tierney (1952) 411 Ill 421,104 NE2d 222. The discretion is not one to entertain the action but to enter or decline to enter the judgment or decree. See: Historical and Practice Notes, Ch 110 SmithHurd Ill Ann Stats, par 57.1.” (Emphasis added.)

Also see Atkinson v. Board of Education of Chicago, 44 Ill App2d 92, 194 NE2d 8; People ex rel. County of St. Clair v. Reinhardt, 51 Ill App2d 110, 201 NE2d 4; and Spalding v. City of Granite City, 415 Ill 274, 113 NE2d 567, in which latter case it is held that only in cases of actual controversy the court may proceed under the declaratory judgment statute.

Without determining whether or not the existence of complaints in the instant case against Berg or Zwick in another division of the Circuit Court would be sufficient to authorize the entry of a declaratory judgment of this character, we must pass upon the effect of a dismissal of the complaint against Zwick which appears to be the only one alive when the court entered its order. That complaint was dismissed after the decision of the trial court and while the case was pending in this court. It has been repeatedly held that a moot case cannot in any way support the entry of a declaratory judgment with regard to future rights.

In LaSalle Nat. Bank v. City of Chicago, 3 Ill2d 375, 378,121 NE2d 486, the court said:

“Plaintiffs have moved to dismiss the appeal on the ground that the case is now moot. A supporting affidavit states that on February 9, 1954, after the entry of the judgment below, the city of Chicago issued its license to Kenmore, Inc., to operate a nursing home at the location in question. A photostatic copy of the license is attached to the motion. The interveners have filed counter-suggestions to the motion to dismiss, arguing that the case has not become moot, and that even if it has, the appeal should not be dismissed.

“A case is moot when it does not involve any actual controversy. (Chicago City Bank and Trust Co. v. Board of Education, 386 Ill 508.) Where the issues involved in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, to establish a precedent, or to determine the right to, or the liability for, costs, or, in effect, to render a judgment to guide potential future litigation. (Siefferman v. Johnson, 406 Ill 392; Central States Import and Export Corp. v. Illinois Liquor Control Com. 405 Ill 58; Railway Express Agency, Inc. v. Commerce Com. 374 Ill 151; Chaitlen v. Kaspar American State Bank, 372 Ill 83; People ex rel. Lawrence v. Village of Oak Park, 356 Ill 154; People ex rel. Chancellor v. Sweitzer, 329 Ill 380; Wick v. Chicago Telephone Co. 277 Ill 338.) Since the existence of a real controversy is an essential requisite to appellate jurisdiction, the general rule is that where a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, it will dismiss the appeal or writ of error even though such facts do not appear in the record. (Siefferman v. Johnson, 406 Ill 392; Tuttle v. Gunderson, 341 Ill 36; Chaitlen v. Kaspar American State Bank, 372 Ill 83; Kimball v. Kimball, 174 US 158.) From the necessity of the situation courts allow facts which affect their right and duty to proceed in the exercise of their appellate jurisdiction, but which do not appear in the record before it, to be proved by extrinsic evidence.” (Emphasis added.)

Under the rules of law which we have heretofore discussed, the plaintiffs as representatives of the class now have no standing in court on their complaint in the first case, since there was no justiciable controversy between the parties. Whatever controversy there was was eliminated when the suit against Zwick was dismissed. In the present status of the case it is incumbent upon the court to dismiss the suit as to the class.

The second case, brought on behalf of individuals and as representatives of the class which had already paid fines for traffic violations during the last five years, specifically raises the question as to whether either the individuals or the class can recover these fines. In 70 C JS, Payment, § 156, it is stated:

“a. In General. Except where it is provided otherwise by statute, it is generally held that, where one under a mistake of law, or in ignorance of law, but with full knowledge of all the facts, and in the absence of fraud or improper conduct on the part of the payee, voluntarily and without compulsion pays money on a demand not legally enforceable against him, he cannot recover it back.
U
“c. . . . Money paid under an unconstitutional or invalid statute or ordinance, without any circumstances of compulsion is paid under a mistake of law, and so cannot be recovered except in so far as recovery is permitted under the rule adopted in most states that payments made by public officers under mistake of law are recoverable.”

In 17 McQuillin, Municipal Corporations, § 49.62, the rule is also laid down that recovery cannot be had for payment to a municipality when it is voluntarily made. In 40 Am Jur, Payment, § 170, it is also held that where a judgment is reversed, it is then a nullity, and the matter stands as if no judgment had ever been rendered, and consequently, the money not having been paid under mistake of law by the person, it may be recovered; and in § 220 it is stated:

But, in accordance with the established rule already discussed, it appears to be well settled that money voluntarily paid as a fine, with knowledge of the facts, cannot be recovered, and the rule that money paid under a mistake of law, with full knowledge of the facts, is not recoverable unless the payment was induced by the fraud or imposition or the undue advantage of the one receiving it, or was made under duress, has been applied. It has been held that the payment is voluntary, and therefore irrecoverable, where, at the time of payment of a fine imposed, the accused has an option to pay the fine or to appeal, and he chooses to do the former, even though he subsequently appeals, and the conviction, upon review, is set aside. (Anno: 26 ALR 1529) Likewise, it seems that a convicted person may, in proper circumstances, be estopped from recovering an illegal fine or penalty. Carver v. United States, 111 US 609, 28 L Ed 540, 4 S Ct 561.

In Prilliman v. City of Canon City, 146 Colo 159, 360 P2d 812, a suit was brought by a motorist to recover from the city a fine he had paid for driving while intoxicated in violation of a city ordinance, which ordinance was subsequently held to be void. The defendant had entered a plea of guilty and paid the fine. The court said: “A voluntary payment of a fine assessed pursuant to an unlawful or void ordinance cannot be recovered, either from the municipality or from the officer of such municipality to whom it was paid.” The general rule as set forth in 70 CJS, Payment, § 156 (c) was cited. Also see Rice v. Tuscaloosa County, 240 Ala 4,198 So 245; and City of Miami v. Keton (Fla), 115 So2d 547 (1959).

There is no case directly in point on this subject in Illinois; however, in Mills v. Cook County Forest Preserve Dist., 345 Ill 503, 178 NE 126, the court held at page 512:

“It is well established that money unlawfully demanded under claim of authority and not under any mistake of fact may not be recovered unless paid under such pressure as to interfere with the free enjoyment of rights of person or property, and such compulsion must furnish the motive for the payment sought to be avoided. Proof that one party is under no legal obligation to pay the money and that the other has no right to receive it is of no consequence unless the payment was compulsory, in the sense of depriving the one making it of the exercise of his free will. (Illinois Glass Co. v. Chicago Telephone Co., 234 Ill 535.) ”

In Mills v. Cook County Forest Preserve Dist., supra, the court held that it was a mistake of law and the money could not be recovered. See also International Milling Co. v. Illinois Doughnut & Cake Co., 320 Ill App 332, 50 NE2d 851, which is in accord with the general rule.

In 26 ALR Annotations, page 1523 (Ferguson v. Butler County, 297 Mo 20, 247 SW 795, a Missouri case decided in 1923), at page 1529 it is stated:

2. As affected by option to appeal.

It has been held that the payment is voluntary, and therefore irrecoverable, where, at the time of payment of a fine imposed, the accused has an option to pay the fine or to appeal, and he chooses to do the former, even though he subsequently appeals, and the conviction, upon review, is set aside. D’AIoia v. Summit (1916) 89 NJL 154, 97 Atl 722, affirmed in (1916) 89 NJL 711, 99 Atl 189. At the time of the payment of the fines in this case, the defendants were under arrest, upon complaint for violation of a city ordinance, having been sentenced to pay fines or serve time in jail. No protest was made against payment of the fines. The court said that the legal idea of duress consists in forcing a person to act against his will, and does not exist where the person upon whom it is charged it has been exercised has an option or choice as to whether he will do the thing or perform the act said to have been done under duress; that in this case there were two forms of appeal available to the defendants as alternatives to paying the fines, and that it seemed to be the rule that if defendants have an alternative to making the payments, they must be regarded as having been voluntary, and therefore not recoverable.

The proposition that if one upon whom a fine is imposed by a court having no jurisdiction to try the offense or impose the fine has an alternative to pay the fine or to appeal, and payment is not essential to avoid threatened imprisonment, a payment with knowledge of the facts will be deemed voluntary, and the money cannot be recovered, is supported also by Harrington v. New York (1903) 40 Misc 165, 81 NY Supp 667.

Harrington was a case (Annotations: 26 ALE 1527)

. . . where a fine was imposed by a city magistrate who was without jurisdiction to try the offense or to impose the fine, and the accused acquiesced therein and paid the fine without appealing, as he might have done, and without, so far as appears, protesting against payment. In this case it was not alleged that the accused was under arrest, or that there was any direction for his imprisonment in case the fine was not paid, and it was not alleged that any attempt was made to enforce payment. The court said that even were the accused actually under unlawful arrest at the time the payment was made, it would be necessary to allege that the payment was procured by reason of such detention. And the mere allegation that payment was made because of a fine imposed was held not to aver duress in fact.

In the case before us there is no allegation that any appeals were taken from the judgments complained of. Consequently, we must hold that the fines were paid under a mistake of law and not under duress. The plaintiffs as representatives of the class have no standing in court in the second case.

The question of the consolidation of the suits will not be discussed, as under this decision it has become a moot matter.

The order of the trial court dismissing the suits as class suits is affirmed.

The order of the chancellor denying defendants’ motion to dismiss the complaints as to the individual plaintiffs is not a final judgment. It is therefore not appealable, and the order’s inclusion of the language from section 50(2) of the Civil Practice Act does not make it so. Ill Rev Stats 1965, c 110, § 50 (2) (now Supreme Court Rule 304); Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32; Davis v. Childers, 33 Ill2d 297, 211 NE2d 264. The cross-appeal of defendants is dismissed.

Affirmed in part, dismissed in part.

DRUCKER, J., concurs.

ENGLISH, J.,

specially concurring:

I should like to make clear the nature of the two suits which were consolidated by the trial court:

The first complaint asked for a declaratory judgment that Chicago’s traffic ordinances were invalid because in conflict with the limitations on its authority in this field, as set forth in the pertinent statute. Ill Rev Stats (1963), c 95%, §§ 122 and 123. This complaint sought only prospective relief— namely, the sequestration and refund of fines thereafter paid for violation of these ordinances during pendency of the litigation.

The second complaint concerned traffic fines paid prior to January 1, 1964, on traffic ticket complaints which were issued in the name of the People of the State of Illinois rather than in the name of the City of Chicago, in violation of both the constitution (art VI, § 33) and the Municipal Code of 1961 (c 24, § 1-2-7). It was alleged that all judgments based thereon were void, and plaintiffs sought refund of all such fines paid during the prior five-year period.

In each complaint plaintiffs sued on behalf of themselves individually and as representatives of a class consisting of all persons licensed by the State of Illinois to operate motor vehicles, being residents of Chicago in the first suit and of Cook County in the second.

By the order appealed from, the chancellor made his decision clear that each complaint stated a cause of action as to the plaintiffs in their individual capacities. And he made it equally clear that he intended to dismiss the parts of the complaints in which plaintiffs alleged that they were suing on behalf of a class.

Consistent with this decision of the chancellor, plaintiffs in this court raise only one basic point — that the court erred in dismissing the class actions. (They also contend that the cases should not have been consolidated. With this I agree, but under the circumstances the point is of no consequence.) Therefore, except in a minor and incidental way, the only point on which we have been briefed by plaintiffs is on the question of class actions. Defendants devote a few pages in responding to this point, but the major part of the brief deals with their proposition that the relief sought by plaintiffs constitutes an unauthorized collateral attack on valid, existing judgments. Here, the parties are squarely at issue since plaintiffs claim that the judgments in question are open to such attack because of their being completely void under this court’s decision in City of Chicago v. Berg, 48 Ill App2d 251,199 NE2d 49.

Now, it is apparent that this last-mentioned point of contention can have nothing to do with the first suit which only questions the validity of the traffic ordinances, and does not purport to attack judgments, void or otherwise. So the one arena in which the parties have drawn a general battle line is precisely the area in which the trial court made its decision. But our majority opinion does not cover that issue and makes no decision on the propriety of class actions under the circumstances set forth in the two complaints. Instead, it sustains the chancellor’s dismissal of the first complaint as having been justified by this court’s interpretation of the declaratory judgment statute, and it affirms as to the second complaint on the theory of irrecoverability of voluntary fine payments, absent any allegations of duress.

In my view, we should not base our decision on either of the points which form the basis for the majority opinion, partly because we have not been briefed on them and therefore might be missing something which the able counsel on both sides of this case might call to our attention, but more importantly because they are not issues which were raised in the trial court. I am mindful of the broad rule that while an appellant is limited on review by his assignment of errors at trial, an appellee is free to support the judgment by arguments which the record may indicate were not in the mind of the trial judge at the time or were not accepted by him as grounds for the judgment. I believe, however, that this rule must be precisely held within the bounds of the issues raised by the pleadings, or, as stated by the Supreme Court, “an appellee may sustain the lower court decree by any argument based upon issues appearing in the record.” (Emphasis supplied.) In re Estate of Leichtenberg, 7 Ill2d 545, 549, 131 NE2d 487. See also Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105,110,185 NE2d 97.

Section 45 of the Practice Act requires that alleged defects in a complaint be pointed out specifically, and that was done by defendants in this case. Ill Rev Stats (1965), c 110, §45(1). They did not, however, raise in this manner the points on which the majority opinion is grounded. Nor, as I have mentioned, did they argue these points in this court. It follows, therefore, that defendants, even though appellees, would not be entitled to have the judgment reviewed on those grounds. Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc., 68 Ill App2d 297, 216 NE2d 282; Lango v. Division Paint & Garden Supply Co., 75 Ill App2d 384, 221 NE2d 47. And it then follows, I should think, that we ought not to base our decision thereon.

I would uphold the chancellor’s decision that neither complaint presents a proper class action under the circumstances. Also, as to the first suit I would hold that the City’s traffic ordinances are not in conflict with the statute, and as to the second suit I would hold that the rule of the Berg case, supra, should not be applied to the extent of making all the unappealed, satisfied traffic judgments subject to collateral attack. Thus, I concur in the majority’s decision to affirm the trial court in its dismissal of both complaints in so far as they allege class actions.

I also concur in the decision to dismiss defendants’ cross-appeal.

       The opinion also states that it is based upon the lack of an allegation that the fine judgments had been appealed. This seems unrealistic, since if all had been appealed and reversed the suit would not have been brought, and if all had been appealed and affirmed there would be no basis for plaintiffs’ contention that the judgments are void. Plaintiffs do, of course, rely on the fact that one of the judgments was appealed and held to be void in the Berg case, supra.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jacob Bergbreiter, Defendant-Appellant.
    Gen. No. 51,865.
    First District, Fourth Division.
    June 19, 1968.
    Rehearing denied July 10,1968.

      Heinze & Pritikin, of Chicago (Robert W. Heinze, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.

      Ill Rev Stats 1963, c 38, § 33-1 (a). A person commits bribery when: (a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept;
      Penalty. A person convicted of bribery shall be fined from $1,000 to $5,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to five years, or both fined and imprisoned.

       See Callaghan's Illinois Digest, same topic and section number»

   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment of the Circuit Court of Cook County. The defendant, Jacob Bergbreiter, was indicted in October 1965, together with one Joseph Aiuppa, for the offense of bribery. After a trial without a jury the defendant was found guilty and sentenced to a term of not less than one year nor more than two years in the State penitentiary. Aiuppa was found not guilty. In this court the defendant urges that the indictment failed to charge an offense and that the evidence against him is insufficient as a matter of law. The indictment was in two counts; Count II read as follows:

The Grand Jurors chosen, selected, and sworn in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths aforesaid present that commencing on or about July 2nd, 1965, A.D., and continuing till on or about August 19, 1965, A.D., at and within said County, Joseph Aiuppa, otherwise called Joseph O’Brien, and Jacob Bergbreiter committed the offense of bribery, in that they, with the intent to influence the performance of an act related to the employment and function of a public officer, promised and tendered to the said officer property which the said officer was not authorized by law to accept, to wit: the said Joseph Aiuppa and the said Jacob Bergbreiter did, commencing on or about July 2, 1965, A.D., and continuing till on or about August 19, 1965, A.D., enter into certain conversations with one Donald Shaw, a Cook County Sheriff’s Police Department patrolman, a public officer, said conversation constituting a promise and a tender by the said Joseph Aiuppa and the said Jacob Bergbreiter to the said Donald Shaw of a sum of money, which money the said Donald Shaw was not authorized by law to accept, with the intent on the part of the said Joseph Aiuppa and the said Jacob Bergbreiter to influence the performance of an act related to the employment and function of the said Donald Shaw, said act being Donald Shaw’s testimony in a case then pending in the Circuit Court of Cook County, Criminal Division, entitled People of the State of Illinois v. John Carr, Indictment Number 65-590, in which case the said Donald Shaw was the arresting police officer and a witness for the prosecution, in violation of Chapter 38, Section 33-1 (a), of the Illinois Revised Statutes, 1963, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois.

The defendant here argues that the indictment was not sufficient in that while it stated the offense in terms of the statute it did not include a statement that the act was done corruptly. In support of that argument the defendant relies on the previous statute relating to bribery (Ill Rev Stats 1959, c 38, § 78-81), which provided: “Whoever corruptly, directly or indirectly gives any money or other bribe, . . . with intent to influence his act. . . .” The defendant contends that without the word “corruptly” appearing in the indictment, it is not sufficient, and cites People v. Billingsley, 67 Ill App2d 292, 213 NE2d 765. In that case a jury found the defendant guilty of deceptive practices under section 17-1 (d) of the Criminal Code (Ill Rev Stats 1963, c 38, § 17-1 (d)), which Code provides:

A person commits a deceptive practice when: With intent to obtain control over property or to pay for property, labor or services of another, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository.

The defendant in Billingsley argued that the indictment was defective since in order for a criminal offense to occur, a person must issue a check to another with an intent to defraud and the complaint should make such allegation. The court pointed out that the statute does not contain any such provision, but that nevertheless the complaint, which followed the language of the statute, was fatally defective, since by the statute’s generality it may embrace acts which the statute does not intend to punish; namely, where the intent of the issuer of the check was to have the drawee hold the check until he could deposit the necessary funds in the bank. Without agreeing or disagreeing with the Billingsley court as to the case before it, we do not consider that decision to be persuasive here.

In the case before us the very wording of both the statute and the indictment carry with them an inherent charge that the act was done corruptly. In People v. Harris, 66 Ill App2d 46, 213 NE2d 588, the court held a bribery indictment to be sufficient on a charge that while the defendant was duly selected and serving as a juror he solicited money for his personal advantage, money which he was not authorized to accept, and that the solicitation was pursuant to an understanding that he would influence performance of the jury of which he was a member, to the advantage of one Magdalene Hilderbrand, from whom the payment was solicited; and that all this was in violation of chapter 38, section 33-1 of Illinois Revised Statutes. It would appear from the Harris opinion that the acts were not alleged to have been done “corruptly,” although it does not appear that this point was expressly raised.

The argument of defendant that the Committee Comments to the new bribery statute, saying it is a reorganization and restatement of the old law, would require the insertion of the word “corruptly.” In the case before us, even if it were considered necessary to charge that the defendant acted corruptly, a reasonable interpretation of the statement in the indictment is that the acts charged were necessarily done with a corrupt intent. In People v. Woodruff, 9 Ill2d 429, 137 NE2d 809, it was held at page 440: “Niceties and strictness of pleadings are supported only where a defendant would be otherwise surprised on the trial or be unable to meet the charge or prepare his defense.” See also People v. Patrick, 38 Ill2d 255, 258, 230 NE2d 843, cited with approval in People v. Mills, 40 Ill2d 4, 237 NE2d 697.

The indictment in the case before us was sufficient.

The defendant also argues that the evidence was not sufficient to support his conviction. The case grew out of the arrest of John Carr by Officer Donald Shaw, of the Cook County Sheriff’s Police, on February 20, 1965, at which time Carr offered Officer Shaw $500 to take care of his case. On July 2, 1965, the defendant went to Officer Shaw’s home where he was seen and recognized by Mrs. Shaw. When learning that Shaw was not at home the defendant left and returned later in the afternoon, at which time he had a conversation with Shaw.

Officer Shaw testified that the defendant said he was “just there to see if I would go along with them. And if I so agreed, he would set up a meeting that evening with a person named Joey Aiuppa or Joey O’Brien. He stated he did not know what consideration they would give me. He was just told to tell me they would give it to me in one lump or send it monthly.”

According to his testimony Shaw called his superior, Sergeant O’Mara, that same evening, then later went to the home of Chief Bielek and dictated a report of the transaction which was taken in longhand by the chief. On July 3, 1965, with a transmitter hidden on his person, Shaw went to the offices of the Home Realty Company at 9:00 p. m., where he met the defendant and Aiuppa. Detective Handley and Detective Jacobson of the Chicago Police Department Criminal Intelligence Unit were in the area to receive whatever was transmitted. Later the defendant, Aiuppa, and Shaw went to a restaurant where they talked and were seen by Mrs. Barbara Willard. Shaw testified that in that conversation Aiuppa asked if he had any objections to helping Carr get “off the hook.” Shaw said he didn’t see how he could help Carr since he had testified before a grand jury hearing and could not go into court and change that statement without perjuring himself. Aiuppa said he did not want Shaw to commit perjury; that he would get the advice of an attorney and would give Shaw a “little statement to slip into his testimony” that would give them a loophole and Carr could be acquitted. Shaw later reported this conversation to Sergeant O’Mara, as both Shaw and O’Mara testified.

About 11:00 p. m., the defendant went to Shaw’s home and gave him $500 as a down payment on the $2,000 suggested bribe. Shaw then met Sergeant O’Mara, showed him the money, then took it to Chief Bielek’s home where they marked the bills, recorded the serial numbers, and placed the money in a sealed envelope which was properly preserved until the trial. Shaw’s testimony with regard to this was corroborated by Officer O’Mara.

On July 18, 1965, Shaw and the defendant again met near Shaw’s home at about 9:30 p. m., which meeting was corroborated by Mrs. Shaw and another witness. At that time defendant told Shaw that Aiuppa had received word from other officers that he, Aiuppa, had corrupted an unknown sheriff’s policeman. Shaw later wrote a longhand report of his conversation with the defendant.

On July 19, 1965, Sergeant O’Mara gave Shaw $500 (not the same money that had been marked) so that he could show the defendant the money in case he asked to see it. At noon the defendant came to Shaw’s home and asked if he still had the $500, whereupon Shaw showed him the substituted money. All this time Detective Handley was hiding in the “crawl space” in Shaw’s home, trying to overhear the conversation, but was able to pick up only a few words. At 7:00 that evening the defendant came back to Shaw’s home and said that Aiuppa was afraid the $500 would turn up at the Carr trial and that Aiuppa had told him “to tell me to do my best in court to help John Carr, and that I would be able to prove myself that way.” Shaw testified that the defendant also told him he could have the remaining $1500 any time he wanted it; that it was “like money in the bank.” During the latter conversation in Shaw’s home Detective Handley was hiding in the bathroom and could hear the defendant and Shaw talking, and so testified, confirming Shaw’s testimony in substance.

Shaw testified that he and the defendant spoke at a cocktail lounge on August 9, 1965, at which time the defendant stated that a story had got back to Aiuppa that a watch had been set up the day defendant was at Shaw’s home, and that he had consulted with Aiuppa’s attorney. Shaw also testified he had met the defendant two years before July 1965, and that he had never had any financial transactions with him, nor had he borrowed any money from him.

On cross-examination Shaw testified that when Chief Bielek asked him if he had had any financial dealings with the defendant he had answered:

“I told him I had, through the Savings and Loan, with regard to a house-moving project, a partnership in a sewer and water line into my homes with other persons in the area and that Mr. Visdal, who I believe at that time was associated with Vi-Fi Realty Company had tried to tie into my sewer line and they were stopped, and that Mr. William Heise of the Savings and Loan was asking a thousand dollars per home from Mr. Visdal and there were five homes. I understood that Mr. Bergbreiter was an associate of the Vi-Fi Realty Company office. I don’t know in what capacity.”

Shaw denied having any other financial dealings with the defendant.

Other witnesses testified that they had seen Shaw and the defendant talking together.

The defendant testified that he worked as a real estate broker and that when some homes were sold by the State, Shaw had asked him not to bid on three of them. The defendant agreed and purchased a fourth home; later he gave Shaw $20 to watch the vacant homes. Shortly before Christmas of 1964 he loaned Shaw $250; later Shaw asked to borrow $500, which the defendant loaned him on July 2, 1965. He denied that he gave Shaw money to influence his testimony in the Carr case, and denied being with Aiuppa.

The evidence of Officer Shaw with reference to his transactions with the defendant is corroborated by Mrs. Shaw, Detective Handley, Sergeant O’Mara, Mr. John Moodie, and Mr. Mack Bailey. It has been repeatedly held that reviewing courts will not substitute their judgment for that of the trier of fact in merely weighing the credibility of witnesses when the testimony is conflicting and it is also held that a trial court decision will not be reversed on appeal unless the evidence is “so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant’s guilt.” People v. Woodruff, 9 Ill2d 429,137 NE2d 809.

A reading of the record before us indicates that the evidence is amply sufficient to support defendant’s conviction.

The defendant argues that if the court sustained Aiuppa’s motion for judgment of acquittal, it also should sustain the motion of the defendant. This does not follow. In this appeal we are not concerned with the propriety of the court’s action regarding Aiuppa.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois ex rel. Mary B. Blackmon, Plaintiff-Appellee, v. Larry E. Brent, Defendant-Appellant.
    Gen. Nos. 51,429, 51,430.
    First District, Third Division.
    June 20, 1968.

      Lucas T. Clarkston, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Rudolph L. Janega, and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The complaining witness instituted two paternity actions against the defendant charging him with being the father of two of her children. The cases were tried together, the defendant was found to be the father of the children and he was ordered to pay $10 a week for the support of each child.

The causes have been consolidated on the defendant’s appeal and he raises three contentions: the complaints were jurisdictionally defective, the evidence was insufficient to support the guilty findings, and incompetent evidence was introduced which prejudiced him.

The complaining witness testified that she and the defendant, who was her insurance agent when she first met him, engaged in sexual intercourse from March of 1962 through June 1962, and that on February 11, 1963, she gave birth to a male child. In the months of July, August and September 1963, she again had intercourse with the defendant and the following May a female child was born to her. She said that during the enumerated months she had intercourse with no one but the defendant and, although he never admitted being the father of the children, he gave her money for their care. She said she had dismissed an earlier paternity proceeding against him when he agreed to provide for the children.

The defendant denied being the father of the children. He admitted that he gave the complaining witness money but said it was to cover the cost of repairing her car which he had damaged and because she had done favors for him. He did not explain what these favors consisted of nor did he deny having sexual relations with her.

The defendant first contends that the trial court was without jurisdiction to try the cases because the complaints were not sworn to. Section 54 of the Paternity Act (Ill Rev Stats 1963, c 106%, § 51 et seq.) provides that:

“. . . Such action may be instituted only on the filing of a complaint in writing by the mother of a child born out of wedlock . . . accusing, under oath or affirmation, a person with being the father of such child . .

Each complaint contains the signature of the complaining witness which is preceded by a statement that she, being sworn under oath, read the complaint and that it is true and accurate. The space provided for the signature of a person authorized to administer oaths is blank on both complaints. However, the record discloses that the complaining witness and the defendant were present in open court on September 2, 1964. Two orders entered on that date, which are similar in content, recite that the complaining witness,

“. . . presents to the Court the complaint herein under oath . . . and the Court having examined under oath the person presenting the same ... it is ordered that leave be granted to file said complaint instanter.”

A paternity action is solely statutory and the procedure outlined in the statute must be complied with. The orders of September 2, 1964, indicate that the requirements of the statute were followed. The orders, which are part of a properly authenticated record that imports verity (City of Chicago v. 3 Oaks Wrecking and Lumber Co., 65 Ill App2d 328, 213 NE2d 48 (1965)), indicate that the complaining witness accused the defendant of being the father of the two children and that she did so in a written complaint and under oath. This is all that is contemplated by the statute.

The defendant’s next contention is that there was insufficient evidence that the children were either born alive or, if so born, that they were still living at the time of trial.

The Paternity Act is not punitive; its purpose is to provide for the support, maintenance and education of illegitimate children so that the latter will not become wards of the State. Therefore, if an illegitimate child is born dead, no liability attaches to its father. Likewise, if a child should die after birth the father’s liability ceases at the time of its death.

There was ample evidence not only that the children were born alive, but that they were living at the time of trial. The complaining witness’ testimony that the children were born was uncontradicted and the record is replete with testimony which can be interpreted in no other way than that they were alive at the time she was testifying. Moreover, when a child has been born alive it is presumed that the child continues to live until the contrary is shown. Mann v. People, 35 Ill 467 (1864).

Prior to trial the parties, assisted by counsel, entered into a written stipulation that they would submit to a polygraph test and that the results would be admissible into evidence. The complaining witness took the test but the defendant did not. At the trial, the result of her test was admitted into evidence over the defendant’s objection that it was a carbon copy and not the original. The trial court was then informed that the original report had been sent to a judge of the court and had become lost. In admitting the exhibit the trial court took judicial notice that the original had been lost.

On appeal the defendant attacks the admissibility of the test but does not do so on the ground urged in the trial court nor on the basis that such tests are inadmissible per se. He attacks it on the ground that the person who administered the test was not called upon to testify and that a proper foundation was not established for the introduction of the evidence. A party objecting to the introduction of evidence must specify the particular ground for the objection in all instances where the objection, if pointed out, might be corrected by the adverse party. People v. Merrill, 76 Ill App2d 82, 221 NE2d 145 (1966). An objection to evidence on a specific ground constitutes a waiver of the right to object to the evidence on other grounds E. A. Meyer Const. Co. v. Drobnick, 49 Ill App2d 51, 199 NE2d 447 (1964). Since the defendant’s objection was neither addressed to the qualifications of the testor nor to the lack of a correct foundation being established for the exhibit, he is precluded from raising these objections for the first time on appeal.

The judgments are affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    Hi-Hat Lounge, Inc., Plaintiff-Appellant, v. The State of Illinois Liquor Control Commission, an Administrative Agency, and Howard Cartwright, Defendants-Appellees.
    Gen. No. 52,121.
    First District, Third Division.
    June 20, 1968.

      M. J. Berkos, of Chicago, for appellant.
    William J. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and A. Zola Groves, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from the order of the Circuit Court of Cook County, sustaining the action of the Illinois Liquor Control Commission in revoking the State Retail Liquor License issued to the plaintiff for violations of the Liquor Control Act and Revised Rule 3 of the Rules and Regulations adopted by the Commission. The charge against the plaintiff by the Commission was that the plaintiff on the 23rd day of September, 1966, and on the 24th day of September, 1966, permitted solicitation for prostitution on the licensed premises, in violation of the provisions of the Liquor Control Act of the State of Illinois (Ill Rev Stats 1965, c 43), and the Revised Rule 3 heretofore mentioned. Said rule provides in part:

“1. That no person holding a license issued by this Commission shall permit in the conduct of the licensed business or upon the licensed premises:

“(c) Suffer or permit a violation of any law of the State of Illinois or of any rule of this Commission” ;

The plaintiff contends that the finding of the Commission was contrary to the manifest weight of the evidence. The facts are these:

On the 24th day of September, 1966, at about 12:00 o’clock midnight, Officer William Smith of the Cook County Sheriff’s Police entered the premises of the Hi-Hat Lounge, located at 2246 South Cicero Avenue, Cicero, Illinois, with Officer James Larkin of the Cook County Sheriff’s Police. They sat down at the bar and ordered two drinks. After having had two or three drinks apiece, a Miss Grace Brown approached Officer Smith who ordered a drink for her from Mr. Poulos, who was one of the bartenders behind the bar. Smith testified that Miss Brown told him to just tell the dark-haired bartender that the drink was for her and that he would know what to make. Smith testified that he told the bartender. The bartender then took a bottle of seltzer, filled a glass half full of seltzer water and filled the other half of the glass with tap water. Smith gave one drink to Miss Brown and he purchased a bottle of beer for Mrs. Rosemary Williamson. He testified that Miss Brown then asked him if he cared to have a “good time.” He asked her what she meant by a “good time” and she said, “You know what I mean.” He also testified that she said “half and half.” He then asked her what she meant by “half and half” to which she answered, “Half suck and half —.” Smith then asked her if she could get a girl for his friend, to which she answered, “Yes” and she called Rosemary Williamson to the bar who said she would go with them. Smith further testified that while this conversation was being carried on between him and Miss Brown the bartender was behind the bar about 2 feet from Smith. They then left the bar and sat at a table about six or seven feet from the bar. The testimony also showed, according to Smith, that the bartender Poulos was taking the money while Smith was talking to the girl, and that Poulos went to the cash register and returned with the change. The entire conversation took about sixty seconds. There were approximately twenty people seated on stools at the bar and these people were talking. There were two bartenders serving drinks to the customers at the bar. Smith testified that the bartender did not lean over the bar and listen to what he and the girl were saying at the time. The testimony also showed that there was a jukebox in the lounge but Smith could not recall whether the jukebox was playing music during that time. The only conversation Smith had with the bartender was the ordering of drinks, and he did not ask the bartender about the girls.

Smith testified that his tone of voice while talking to the girl was the same as when he ordered the drinks. Smith also testified that the bartender Poulos went up and down serving drinks to various customers during the 45 minutes while he was there.

Officer James Larkin testified he overheard the conversation that took place between Officer Smith and the girl. Thereafter the two officers, who were dressed in plain clothes, and Miss Brown and Mrs. Williamson left the bar. There was testimony that they went to a hotel a block away, and that the girls were arrested for prostitution by the two officers in separate hotel rooms. They then came back to the Hi-Hat Lounge and arrested Poulos, the bartender.

After the testimony of the two officers the Chairman of the Illinois Liquor Control Commission asked Larkin whether anyone had approached him in reference to this matter outside of counsel for the Commission. He also asked Larkin if anybody had asked him to soften his testimony and say that the licensee or his agent did not have any knowledge of what went on between the women and the officers. Larkin’s answer was no. The Commission Chairman then asked him if, when he made an investigation like this, one of his superiors had not advised him that these conversations had to be known or heard by the bartender, the licensee or their agents. His answer to that inquiry was “Yes, Sir.” He answered the next question by stating, “I don’t understand, Sir.” The Chairman then said, “Well, if you don’t understand let’s have the other man. Maybe he understands.” The Chairman then said to Officer Smith, “You mean you went in there and made an investigation, with your experience, with the instructions (that had been given to him by his superiors) and that you didn’t know that you have to have these conversations so that the licensee can hear them?” After further questioning by the Chairman of the Commission Smith was excused and Tom Poulos, the bartender, testified to the following:

He was the manager of the Hi-Hat Lounge. He did not remember the two officers, nor did he have any conversation with them. He did not see any girls approach them or talk to them. He was asked if he served them any drinks that night and he said maybe he had but that he did not remember. He testified that he saw the officers in the bar after they came back with the girls and arrested him. The officers told him that he was under arrest and he asked them what for.

Tom Poulos was employed by his father-in-law, Steve Juris, who owned the property. He further testified that he had seen Mrs. Williamson in the lounge a couple of times before; that he did not recall having seen her that night as he was very busy serving drinks. He testified that the “place was packed” and he was working the bar back and forth; that the bar had from 30 to 35 stools and he was working all over the bar. He was also asked if he had mixed a drink of seltzer and plain water to which he answered that he never did that.

Steve Juris, a witness, testified that he runs the Hi-Hat Lounge; that he is the owner of the building and he has been there for sixteen years; that during that period of time there have never been any arrests or violations in the premises, nor has he ever been cited before the Commission or any other Commission covering liquor law violations.

The application for a retailer’s license showed on its back the following question: “Give date you began liquor business at this location,” and the answer appearing on the back of the application was January 11, 1962. The witness, however, testified that that was wrong; that he opened the tavern on January 13, 1951. This discrepancy was explained by the fact that the corporation was organized in 1961 or 1962, and the tavern was operated by the corporation since that time. Mr. Juris had operated the tavern since 1951 excepting for a few years that he was away and the license was issued in the name of his nephew.

The sole question to be determined in this case is whether the decision of the defendant was contrary to the manifest weight of the evidence. There can be no doubt that in order to justify the revocation of a license, where the licensee is charged with permitting solicitation for prostitution on the licensed premises, such solicitation must be shown to have taken place with the permission and knowledge of the licensee. The State argues that the bartender was standing at the bar when Miss Brown said to Officer Smith that the dark-haired bartender would know what to make for her, and he proceeded to pour a half a glass of seltzer water and fill it up with plain tap water. Even if this conversation was overheard by the bartender, and there was no evidence that it was, it would not sustain a charge of permissive solicitation for prostitution on the premises of the licensee. There is no evidence in the record that indicates that Poulos, the bartender, overheard any conversation between Officer Smith and either of the girls. The testimony of Officer Smith to the effect that he was talking to the girl in the same tone of voice he employed in ordering drinks from the bartender might have indicated that the bartender could have heard him if he were facing the bartender and the bartender was paying any attention to the conversation. However, that testimony did not indicate the tone of voice used by the girl with whom Smith was talking, and there is nothing to indicate that her conversation could have been heard by the bartender in a busy bar with approximately 20 people sitting on stools talking. Furthermore, it does not seem plausible to this court that the girl would talk in a voice loud enough for the bartender to hear her, because others seated at the bar could also hear their conversation under those circumstances. The Chairman of the Illinois Liquor Control Commission realized this at the close of the Commission’s case and asked the two officers if they had ever been told that it was necessary to show that the licensee or his agents overheard the conversation relating to solicitation, yet for some reason, not apparent to this court, the Commission proceeded to revoke plaintiff’s license.

The defendant cites Show of Shows, Inc. v. Illinois Liquor Control Commission, 86 Ill App2d 109, 230 NE2d 268, wherein the charge against the licensee was that girls solicited drinks on the licensed premises of the plaintiff. The testimony there was that the bartender was opposite the officer at the bar when the solicitation took place. In that case there was conflicting evidence, which, of course, was a matter for the Commission to decide. A further distinguishing factor from the case at bar is that the girls were employees of the licensee and the Commission under the testimony could readily have reached the conclusion from the evidence that the girls were working together with the licensee through the bartender. Here there is no apparent conflict in the evidence. There just is no evidence that -the bartender heard the solicitation by the girl.

The Commission also cites Cermak Club, Inc. v. Illinois Liquor Control Commission, 30 Ill2d 90, 195 NE2d 178, in support of its contention that the evidence in this case was sufficient to authorize the revocation of the license. However, in Cermak Club, Inc., supra, the court said at page 91:

“The licensees do not question the sufficiency of the evidence heard by the Commission to support its findings, nor do they question that those findings establish violations of law which justify revocation. They were charged before the Commission with violation of Rule 3 of the Commission, and both in the trial court and in this court they have challenged the constitutionality of that Rule.”

The evidence in that case was not set out in the opinion, nor was its sufficiency passed upon by the court. The only similarity between that case and the instant case is that the licensee was charged with having permitted solicitation for prostitution on the licensed premises.

Other cases cited by defendant have been examined by us and are no more persuasive than the Cermak Club, Inc. case, supra.

We conclude, therefore, that since the evidence did not show either knowledge or permission by the licensee of the acts complained of, the decision of the Circuit Court of Cook County must be reversed.

Reversed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James B. Hyman, Defendant-Appellant.
    Gen. No. 50,949.
    First District, First Division.
    June 24, 1968.
    Rehearing denied July 26,1968.

      Hugh M. Matchett, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the unlawful possession of a narcotic drug. He waived his right to trial by jury, was found guilty in a bench trial and sentenced to the Illinois State Penitentiary for a term of not less than two, nor more than four years. Defendant now prosecutes this appeal raising five issues:

1. The denial by the trial court of his two motions to suppress the admission into evidence of a bag containing nine packets of heroin deprived him of his State and Federal constitutional rights against unreasonable search and seizure and arrest;

2. The failure of the trial court to advise him when he took the stand in his own defense that any admission he might make could be used against him deprived him of his State and Federal constitutional rights;

3. Taking the stand in his own defense at the request of his attorney did not waive his constitutional rights not to testify against himself;

4. The failure of his court appointed counsel to advise him of his right not to testify against himself was a violation of his constitutional rights to be competently represented by counsel; and

5. His testimony on the stand that the heroin was in his possession was insufficient either standing alone or in conjunction with other legal evidence to sustain the conviction.

Prior to, and at the trial, defendant moved to suppress nine tinfoil packages of heroin which were seized at the time he was arrested. At the hearing on his motion, the two arresting police officers testified that a reliable informer met them at about one o’clock in the morning on February 27, 1964, and informed them that a man named “Hymie” was selling narcotics at the New Orleans Hotel. The informer requested the officers to meet him at 1:30 a. m., and he would tell them the room number. The police officers met the informer at the appointed time and he gave them the room number as 21-1. This informer had been used five times in the past and his information had led to three convictions, the other two cases still pending.

The officers went to the hotel and walked into the lobby. The hotel clerk, by pushing a buzzer, let them into the common hallway whereupon the officers went to the second floor. The door leading to the common corridor on the second floor was locked and the hotel clerk, by use of a key, opened the door permitting them to enter the second floor. The officers went to room 21-1 and looked through a half-inch crack in the door. In the room they saw a man with his sleeve rolled up and a hypodermic needle in his hand. The officers pushed the door open. The defendant, James Hyman, was standing near the bed. One of the officers saw Hyman throw a bag behind the bed. Upon being retrieved, it contained the nine tinfoil packages. The defendant was then placed under arrest.

At the trial, the officers again testified to substantially the same facts that they testified to on the motion to suppress. In addition, they testified that the nine packages were delivered to the crime laboratory for testing. By stipulation the contents of the packages were proven to be heroin. The officers further testified that the lock on the hotel room door was broken and that they entered the room simply by pushing the door open.

The manager of the New Orleans Hotel and the desk clerk both testified on behalf of the defense. They corroborated the officers’ testimony that they led the officers up to the second floor and unlocked the door leading to the second floor corridor. There were three apartments located off the corridor on the second floor.

Defendant’s former girl friend also testified in his behalf. She was living with Hyman at the time of the arrest and was in the apartment that evening. She testified that the door had a lock on it and that the officers kicked the door open. She denied that Hyman threw anything on the floor when the officers came in.

The defendant testified on his own behalf. He informed the court of his prior felony convictions, including sale of narcotics. He then testified that on the evening in question the officers kicked open his door and came into his room in the New Orleans Hotel. Defendant claimed that the officers found the narcotics under the mattress and that these narcotics were for his own personal use. He had been a dope addict, on and off, since 1939. He permitted narcotics users to come to his room to take dope, in exchange for which they would give him narcotics for his own use. The defendant denied that he was engaged in selling any narcotics or that he threw anything on the floor as the officers came into the room.

Defendant’s first point is that the search of his apartment and seizure of narcotics violated his constitutional rights. The arresting officers received information from a reliable informer that narcotics were being sold in a particular room of the New Orleans Hotel. The reliability of the informant was sufficiently established by their testimony. McCray v. Illinois, 386 US 300 (1967); People v. Nettles, 34 Ill2d 52, 213 NE2d 536 (1966) ; People v. Mack, 12 Illd 151, 145 NE2d 609 (1957).

By looking through a crack in the door, the officers observed a person preparing to inject narcotics into his arm. Armed with the informant’s information and their own observation, the officers were permitted to enter defendant’s room. People v. Hayes, 81 Ill App2d 400, 226 NE2d 517 (1967). Under these circumstances their search of the room was lawful and the motion to suppress was properly denied.

Defendant argues that the officers had no right to be in the common corridor serving the three or four apartments on the second floor of the hotel. Relying on People v. Bankhead, 27 Ill2d 18, 187 NE2d 705 (1963), he argues that the hotel clerk had no right to permit the officers to enter the second floor area. In Bankhead, the Supreme Court dealt with a situation where police officers had no reasonable basis upon which to justify a search without a warrant. Consequently, the act of the hotel clerk permitting the officers to enter the room of the defendant was held not to constitute a waiver by the defendant of his constitutional right against an unreasonable search. The decision in Bankhead was based on Johnson v. United States, 333 US 10 (1948). There also, the United States Supreme Court stated that the situation would not justify a search without first obtaining a warrant.

In the instant case, the police officers had sufficient information prior to their arrival at the hotel upon which to make an arrest and conduct a search. People v. Tillman, 1 Ill2d 525, 116 NE2d 344 (1953). Thus, neither Bankhead nor Johnson are applicable to the instant situation, and the admission of the police officers to the common corridor on the second floor did not waive any constitutional rights of the defendant.

The testimony of the police officers as to their observations and the lawful seizure of nine packages of heroin appears to us to be sufficient evidence beyond a reasonable doubt upon which to sustain the conviction of the defendant. This is true even if we believe defendant’s theory that the narcotics were found under the mattress. Thus, the fact that a defendant took the stand on his own behalf and admitted that the narcotics belonged to him would not change the determination of guilt.

Trial counsel’s decision to have defendant take the witness stand was essentially a matter of judgment and trial tactics. Defendant’s court appointed counsel on this appeal hints at the fact that this decision rendered the defense incompetent. The record sufficiently demonstrates that trial counsel was well acquainted with trial procedure in criminal matters and exercised his best judgment in placing the defendant on the stand. It has been noted that in his testimony, defendant admitted to a prior conviction for sale of narcotics. As a subsequent offender he was subject to imprisonment for any term for five years to life. Defense counsel argued that the case against the defendant was weak and the court should take into consideration that, despite the defendant’s long arrest record, he took the stand in his own defense. The judge then sentenced the defendant to two to four years in the State penitentiary.

Consistent with our view that the evidence, excluding defendant’s testimony, was sufficient to sustain the conviction, we believe beyond a reasonable doubt that defendant was not prejudiced by taking the stand in his own defense. It is therefore unnecessary for us to consider the issues raised by defendant’s appointed appellate counsel with regard to a failure of the record to disclose that the trial judge and trial counsel advised him of his right not to testify against himself. Chapman v. California, 386 US 18, 24 (1967); People v. Smith, 38 Ill2d 13, 230 NE2d 188 (1967).

The judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leroy Yarbrough, Defendant-Appellant.
    Gen. No. 51,425.
    First District, First Division.
    June 24, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of the offense of armed robbery and was sentenced to the penitentiary for a term of 3 to 8 years. On appeal defendant contends that (1) he was denied effective assistance of counsel, and (2) he was denied a hearing on the voluntariness of a confession.

Defendant’s trial was on March 28, 1966. Almando Zizzo testified that shortly after midnight on Wednesday, November 3, 1965, while walking in the vicinity of Warren Boulevard and Kedzie Avenue, he was pulled into a gangway by a man. There was a lighted porch light nearby, and Zizzo was face to face with his assailant. He observed that his assailant had a scar on the left side of his face and was wearing a short leather jacket, dark trousers and a red plaid-like sweatshirt. The assailant held a sharp instrument at Zizzo’s neck, punched him, took his watch, lighter, wallet, jacket and eighty cents, and ran toward an alley. Three minutes later, Zizzo noticed a squad car and told the police officers about the robbery and described his assailant. At about 1:30 a. m., Zizzo was called to the Fillmore police station. He identified defendant, Leroy Yarbrough, in a lineup of six men. He also identified a wallet, lighter and watch which had been taken from him by the assailant.

Police Officer John Duffy testified that he was working with his partner, Edward Nowdomski, on the morning of November 3, 1965. He saw defendant on the northeast corner of Sacramento and Madison between 12:30 and 1:00 a. m. Defendant fitted the description of a man wanted for a robbery which had occurred a few minutes earlier. The defendant was arrested and searched and a black leather wallet and cigarette lighter were found. At the Fillmore police station defendant was searched again, and a watch and knife were found. Later, the wallet, lighter and watch were identified by Zizzo as his. Officer Duffy also testified that at the lineup defendant was identified by Zizzo as the robber, and at that time and in the presence of Officer Cuddy, the defendant said, “I did it, what are you going to do about it?”

The defendant testified and denied the robbery. He also denied that the police took from his person the exhibits identified by Zizzo. Defendant related in detail his whereabouts and activities on the evening of November 2. He had walked with his nephew, Darcy Childs, to Kedzie and Lake, where the nephew caught a bus at about 12:30. Defendant was wearing a short leather jacket, a red sweater and gray trousers. He was arrested on Kedzie between Lake and Fulton. He had been drinking all that day and evening, but he was positive as to where he was about midnight.

Darcy Childs and Letha Friensen testified for the defense as to where the defendant was between the hours of 11:00 and 1:00 on the evening in question.

In rebuttal, Officer Edward Nowdomski corroborated the testimony of Officer Duffy as to the arrest and the items found in defendant’s possession. Officer Louis Cuddy testified that at the lineup, when defendant Yarbrough was confronted and pointed out by Zizzo, he said, “Yes, I did do it. So what? What do you want to do about it?” Officers Nowdomski and Cuddy both testified that defendant was not beaten. Officer Nowdomski testified that defendant had been drinking and was not coherent.

Considered first is defendant’s contention that he was denied effective assistance of counsel. Defendant was arraigned on November 24, 1965. On that date the Public Defender was appointed to represent him and a plea of not guilty was entered.

On December 22, 1965, defendant filed a motion to suppress “a knife.” This motion was heard on January 7, 1966, and after a hearing it was denied. Three police officers testified. Officer Duffy, an arresting officer, testified that defendant was arrested at the northeast corner of Sacramento and Madison at about 12:45 a. m., November 3, 1965. Defendant was wearing “a three-quarter length black leather jacket, a red T-shirt, polo shirt, and brown pants.” He had a scar on his cheek and a mustache and fitted the description of a wanted robbery suspect. Defendant was searched, and the officer found in defendant’s possession “a black leather wallet” and “a brown leather wallet” and “a knife.”

The record shows that during the hearing of the motion the State’s Attorney turned over to counsel for defendant Officer Duffy’s report of the arrest, a copy of the testimony before the Grand Jury, a copy of a police report entitled “Case Report,” bearing Officer Smith’s name, and a document labeled “Supplementary Report,” also bearing Officer Smith’s name.

The Public Defender continued to represent defendant up to the day of his trial. When the case was called for trial on March 28, 1966, Bernard Koenig, an attorney, stated to the court that he had been retained by the family to represent defendant. He was given leave to file his appearance, and leave was given to the Public Defender to withdraw on behalf of the defendant. Mr. Koenig stated they were ready for trial. After some discussion with defendant, he informed the court that defendant wanted to waive a jury and have his matter tried by the court. The court then proceeded to inform defendant that he had a right to a jury trial if he desired, and a jury waiver was signed by defendant. Mr. Koenig remarked that he had examined the file and saw no disposition of the motion to suppress, and the Assistant State’s Attorney stated that the record showed the motion was heard and denied on January 7. The trial was then recessed until 1:00 o’clock. Defendant was given leave to make a statement to the court. He stated Mr. Koenig was hired by his girl friend and sister, and he wanted “a Bar Association lawyer.” A discussion then ensued, participated in by the court, Mr. Koenig and defendant. Defendant was informed that he was the one to make the decisions as to his choice of counsel and to waive his right to a trial by jury. Defendant finally stated he had “laid here in jail four months,” and he was satisfied to proceed with Mr. Koenig as his counsel, and he was ready for a trial by the court.

Defendant asserts that he was denied effective assistance of counsel because Mr. Koenig utterly failed to acquaint himself with the case and proceeded to trial totally unprepared. To demonstrate that Mr. Koenig was unprepared and unfamiliar with the law, defendant urges the following: (1) Koenig did not know that the motion to suppress had been denied. (2) He made no request for the Grand Jury minutes during the trial. (3) Officer Duffy’s testimony at the trial bore little resemblance to his evidence at the hearing of the motion to suppress, and Koenig was unaware of a number of contradictory statements which could have impeached the officer’s testimony, and Duffy’s “ ‘identification’ would have deserved little credence if defense counsel had brought out the glaring inconsistencies.” (4) Koenig permitted testimony by the State of an oral confession, without objection, and which should have been excluded because the State failed to furnish a list of witnesses. Defendant, to further show the inept way in which Koenig handled the confession issue, notes the following from the record: “[Defendant] A. No, they beat me trying to make me sign a confession. Mr. Nellis: Object and move to strike. The Court: Sustained. Mr. Nellis: I withdraw the objection, Judge. Mr. Koenig: I object as not being responsive.”

Although the record shows that defendant finally consented to proceed to trial with Mr. Koenig as counsel of his own choice, it is quite obvious that defendant was reluctant to do so. Therefore, we have decided that his contention that he was denied effective assistance of counsel should be determined with the application of the principles used when court-appointed counsel has been charged with such incompetence as to deny a defendant due process of law. To warrant a reversal because of the incompetence of court-appointed counsel, it must clearly appear not only that the counsel performed his trial duties in an incompetent manner, but also that defendant was prejudiced thereby. (People v. Bernatowicz, 35 Ill2d 192, 196, 220 NE2d 745 (1966).) Unless defendant is prejudiced and thereby deprived of a fair trial, a new trial does not necessarily follow from the attorney’s incompetence or his neglect. A defendant is entitled to a fair trial, but not a perfect one. People v. Morris, 3 Ill2d 437, 447, 448, 121 NE2d 810 (1954).

We have examined the record carefully in the light of defendant’s charges. Some of these charges are dehors the record, and others go to matters pertaining to the exercise of judgment and discretion, and “it is well settled that review of appointed counsel’s competence does not extend to those areas involving the exercise of judgment, discretion or trial tactics . . . and this is true even though appellate counsel or the reviewing court might have acted in a different manner.” People v. Wesley, 30 Ill2d 131, 136, 195 NE2d 708 (1964).

Although the record indicates that Koenig was unaware that the motion to suppress had been disposed of and adversely to defendant, we find no prejudice to defendant here. The trial record does not mention Grand Jury minutes, and there is nothing from which it can be inferred that Koenig did not examine the Grand Jury minutes which had, on December 1, been included in a subpoena duces tecum directed to the State’s Attorney. Officer Duffy’s trial testimony and his testimony at the motion to suppress showed a number of inconsistencies regarding defendant’s arrest and as to when he found the knife on defendant. However, the items identified by Zizzo as belonging to him were found on the defendant immediately after the arrest, and the possible impeachment of Duffy in this area would not have disturbed or lessened the value of Zizzo’s identification. At the time of the robbery, Zizzo had ample opportunity to observe his assailant, and defendant fitted the description given to the police by Zizzo. Defendant was arrested shortly after the robbery and then positively identified by Zizzo at the police station, all of which occurred within the space of several hours.

Defendant has not shown that his counsel was incompetent or failed to adequately conduct his defense. Koenig questioned extensively two witnesses who supported the defendant’s alibi. He cross-examined at length the State’s principal witnesses, and his closing argument indicates an understanding of the case and competence. We do not believe that it can be said that defendant’s trial was a farce and “a mockery of justice.” Defendant’s guilt was clear and convincing, and the trial court could not have reasonably found him not guilty.

We consider next defendant’s contention that he was denied a hearing on the voluntariness of his confession, which consisted of the testimony of two police officers that when he was identified by Zizzo, he said, “I did it, what are you going to do about it?” Defendant argues that he had a right to a hearing on the voluntariness of the confession even though he denied making it, and the failure of his counsel to make an objection did not waive defendant’s right to a hearing to determine whether the confession was voluntary.

The statement made by defendant during his direct examination at his trial was, “No, they beat me trying to make me sign a confession.” This record contains a transcript of the testimony of the hearing of defendant’s motion to suppress, at which time defendant was represented by the Public Defender. We think it a fair inference that if defendant had been beaten by the police for any reason at all, it would have been developed at that hearing. Although the record shows no hearing as to whether defendant’s alleged confession was voluntary, if error was committed in this area, we hold that it was harmless error because of the positive identification of defendant by Zizzo.

This was a bench trial and the evidence was not complex. The purpose of review in a criminal case is not to determine whether the record is perfect, but rather to determine whether the defendant has had a fair trial under the law, and whether his conviction is based upon evidence establishing his guilt beyond all reasonable doubt. People v. Ward, 32 Ill2d 253, 259, 204 NE2d 741 (1965).

We think this record meets that test and defendant had a fair trial, free from prejudicial error, and his conviction should be affirmed.

The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BUBMAN, P. J. and ADESKO, J., concur.