author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lee Roy McCoy, Defendant-Appellant.
    Gen. No. 50,305.
    First District, Third Division.
    February 16, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was convicted of murder in a jury trial and sentenced to a term of twenty to thirty years.

The defendant contends that he was prejudiced and denied a fair trial because the jury heard that defend* ant’s wife was pregnant when she was killed; because the jury was given conflicting instructions on the proof of the defense of accidental killing, and because defendant was represented by incompetent counsel. (Counsel for defendant on appeal did not represent defendant in the trial court.)

The killing occurred during a family argument. Defendant had been steadily employed by the same company since he had been eighteen years old and had no previous criminal record. At the time of the trial defendant was twenty-nine years of age. Two eyewitnesses to the killing were the deceased wife’s sister and brother. At a gathering of the deceased wife’s family and defendant’s family for Sunday dinner at defendant’s apartment, a quarrel ensued between the defendant and his wife. The defendant slapped his wife. She then went to the telephone to call the police. Her brother and sister testified that defendant took a revolver and fired at her over the shoulder of the wife’s mother, who at the time was struggling to restrain him. On direct examination of the deceased wife’s sister, when asked what was deceased wife’s condition at the County Morgue relative to her health, she answered that the victim was pregnant. Defendant’s trial counsel objected and moved the answer be stricken. The answer was stricken by the court. Defendant testified that his son by a previous marriage was lying unconscious on the bed in the bedroom and when he asked his wife for money, so that he could take his son to a doctor or hospital, she replied she had no money, and that it was not necessary to get aid for the boy. An argument followed and the wife grabbed defendant by the arm. She then reached for a revolver which was on the shelf in the bedroom closet. The defendant took the revolver so she could not get it. She then left the bedroom. When the defendant stepped out of the bedroom door, his mother and mother-in-law grabbed his arm and the revolver discharged. The defendant further swore that he did not aim the revolver at the wife.

Defense counsel introduced into evidence defendant’s signed statement in which he stated that he got the gun and did not in that statement say that he had taken it from his wife. He did not, in the statement, say his wife at any time tried to get the gun. Defense counsel also introduced into evidence and read to the jury the investigating officer’s notes which contained the following: “Witnesses said they tried to stop Lee Roy from shooting but he reached over their heads and fired the gun, bullets hitting Beatrice near the neck.”

During a discussion on the instructions defense counsel submitted a voluntary manslaughter instruction, the wording of which was based upon the obsolete Criminal Code. The prosecutor called this to the attention of the court and defense counsel abandoned that theory and merely stated that he did not wish to submit a voluntary manslaughter charge. The defense presented to the jury was accidental shooting.

Defense counsel tendered two conflicting instructions upon accidental shooting, both of which were given to the jury. One of these instructions informed the jury that accidental shooting was not a defense which had to be proved by defendant but that proof of such an accident need “be only sufficient to raise in the minds of the jury a reasonable doubt as to the guilt of the defendant” in order for the defendant to be discharged. The other instruction explicitly told the jury that the defense of accidental shooting had to be proved “beyond a reasonable doubt.”

The first contention is that defendant was denied a fair trial because the jury heard that the defendant’s wife was pregnant when she was killed. In the case of People v. Crocker, 25 Ill2d 52, 183 NE2d 161, the court ruled that testimony of pregnancy in a rape case was irrelevant to the issues and highly prejudicial. On page 55 the court said, concerning the evidence of pregnancy:

“This evidence had no relevance to the issues in the case and was of a highly prejudicial nature. While the trial judge sustained the defendant’s objection, the evidence was already before the jury and its prejudicial effect could not be removed by a mere sustaining of an objection. . . . We are of the opinion that the trial judge erred in denying defendant’s motion for a mistrial.”

In the instant case the defendant did not move for a mistrial but his objection to the statement was sustained and the court struck the answer. There can be no question but that this testimony was prejudicial to the defendant. The State argues that since the defendant did not seek a mistrial he cannot raise that point here. The State also argues that since the objection to the statement was sustained and the answer was stricken, it could not have prejudiced the defendant. In People v. Bernette, 30 Ill2d 359, 197 NE2d 436, the court held that in a murder case the rule has developed that where testimony respecting the fact that the deceased has left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. The questions in this connection, and the answers thereto, put to Elizabeth Chapman, the sister of the deceased, by the prosecutor, were as follows:

“Q. When is the next time you saw your sister, Beatrice McCoy?
“A. At the County Morgue.
“Q. What was her condition at that time relative to her health?
“A. She was pregnant.”

The fact is that Beatrice McCoy was dead when she was at the County Morgue. A dead person does not possess health. The damaging evidence here was elicited due to a faulty question put to the witness. We cannot say that this question was put to the witness by design to bring out the fact of pregnancy of the deceased, but the witness apparently thought that was its purpose. In this case while the objection was sustained and the answer stricken, the jury was not at that time instructed to ignore the answer. Defense counsel should have not only objected to the answer and moved to strike it, but also should have promptly moved for a mistrial. Defendant’s appointed counsel on appeal points to this failure as illustrative of defendant’s trial counsel’s incompetency.

The next contention is that defendant was prejudiced because the jury was given conflicting instructions on the proof of the defense of accidental killing. Both of these instructions were given by the defense. One of these instructions informed the jury that the evidence of accidental killing only need be sufficient “to raise in the minds of the jury a reasonable doubt as to the guilt of the defendant” in order for defendant to be found innocent. This was a proper instruction for accidental killing; however, the other instruction informed the jury that the defense of accidental shooting had to be proved beyond a reasonable doubt. That instruction read as follows:

“If you are satisfied beyond a reasonable doubt from the evidence in this case that the deceased came to her death by a gun accidentally fired by the defendant then you should find the defendant not guilty of murder.”

The court reversed a murder conviction in People v. Arcabascio, 395 Ill 487, 70 NE2d 608, because the instruction on the defense told the jury that it was defendant’s duty to “establish” any defense to the charge of murder. In Appleton v. People, 171 Ill 473, 49 NE 708, a murder conviction was reversed because the jury was told that “it is incumbent on the defendant satisfactorily to ‘establish’ the defense.” While one instruction properly stated the law the other was clearly erroneous. In People v. Willy, 301 Ill 307, 133 NE 859, the court held that all the instructions taken as a series should not be conflicting. The State argues that the defendant may not challenge on appeal the propriety of an instruction given at his behest by counsel of his own choosing. That is undoubtedly the law. This error taken together with the later charge of incompetency of defendant’s counsel must be given serious consideration.

We now come to the charge that defendant was denied a fair trial because he was represented by incompetent counsel. The defendant points out numerous occurrences during the trial which he contends demonstrate the incompetence of his counsel during the trial. We will discuss only those which we consider to be of importance to a decision of this case. Defense counsel introduced into evidence defendant’s signed statement in which he said that his wife did not grab for the revolver. He also introduced into evidence and read to the jury the investigating officer’s notes, which, again, emphasized the fact that the defendant reached over the heads of several people to fire the weapon at his wife. The defendant while on the stand testified that his wife grabbed for the revolver and denied that he reached over the heads of several people to fire the weapon at his wife. Defense counsel, further, then insisted that both of these statements, namely, defendant’s signed statement and the investigating officer’s notes, be given to the jury. Neither the officer’s notes nor the written statement of the defendant could, in the least, have been helpful to the defendant, and, in fact, were contradictory to the defendant’s testimony from the stand.

The defendant also urges that his counsel’s failure to move for a mistrial when a witness testified about the deceased being pregnant displayed incompetence. Also, defense counsel’s offering and giving to the jury two conflicting instructions upon accidental shooting were prejudicial. Although one of these instructions stated the law the other instruction was clearly prejudicial to the defendant, in that it placed the burden on the defendant of proving beyond a reasonable doubt that the shooting was accidental.

Defense counsel was chosen by defendant. The general rule adopted by our courts is that where a defendant is represented by counsel of his own choosing, his conviction will not be reversed for incompetency of counsel unless it can be said from the record that the representation was of such low caliber as to amount to no representation at all, or that it was such as to reduce the trial to a farce. People v. Strader, 23 Ill2d 11, 13, 23, 177 NE2d 126. This language is found in United States v. Ragen, 166 F2d 976, and was quoted with approval by the court in People v. Reeves, 412 Ill 555, 562, 563, 107 NE2d 861. In People v. Thornton, 26 Ill2d 218, 223,186 NE2d 239, the court said:

“Defendant also urges the inadequacy of counsel as a ground for reversal of his conviction. Defendant was represented by counsel of his own choosing at the trial and by the public defender on his post-trial motions. We have examined the entire record and find no inadequacy in the representation afforded defendant.”

While we do not believe that the representation given the defendant in this case reduced the trial to a farce, we do believe that the caliber of representation afforded the defendant in this case was such as would deprive the defendant of any chance of being found not guilty.

We therefore conclude that the defendant did not receive adequate representation in the trial of this case, which resulted in substantial prejudice to him. The judgment must be reversed and the cause remanded.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Defendant in Error, v. Walter Lee Butler, Defendant-Plaintiff in Error.
    Gen. No. 51,135.
    First District, First Division.
    February 20, 1967.
    David F. Holland, of Chicago, for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert J. Beranek, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Walter Lee Butler, was convicted on the charge of rape after a bench trial and was sentenced to a term of five to ten years in the Illinois State Penitentiary. This appeal of his conviction was first taken to the Supreme Court and that Court transferred the appeal to this Court. On appeal the defendant contends that the State’s evidence failed to establish beyond all reasonable doubt that the act of sexual intercourse was forcible and against the will of the complaining witness.

The prosecutrix, Eleanor Britt, was 57 and testified that about 6:00 p. m. on May 22, 1962, she walked alone to the apartment of Orlando Burks, an old friend. She said she noticed the defendant walking behind her and after she rang the bell, the defendant walked into the apartment as if he were with her. After a visiting neighbor of Burks left, the defendant locked the door and put a chair against it. He then beat Burks, striking him with his fists, a clock and other objects, and after striking the prosecutrix with his fists he tore off her clothes and had intercourse with her. She said he then let Burks out of the apartment and again had intercourse with her. When she heard the police she screamed and the defendant struck her again, splitting her lip.

On cross-examination she said Horace Montgomery was the janitor of a building in which she had resided, and that he had employed the defendant to decorate her apartment. She denied meeting the defendant in a tavern about 6:00 p. m. on her way to Burks. She said she didn’t remember him when he walked into the apartment behind her and had said nothing to him. She said they had not had anything to drink at the apartment and after he beat both of them, he stripped her, undressed himself and during the intercourse she made no outcry or resistance because, “If I’d scream, the man would have broken my neck.”

Orlando Burks testified that when he opened the door he saw Eleanor Britt and the defendant so he invited them in. He said he didn’t know the defendant and didn’t remember seeing him before. After his neighbor left he said the defendant struck him several times with his fists and several objects causing him to bleed from his face and mouth. He said the defendant threatened to kill both of them, proceeded to rip Eleanor’s clothes off and had intercourse with her. He said he left the apartment and notified the police and when they arrived at his apartment he heard Eleanor scream.

On cross-examination he said that when he asked the defendant why he was beating him he replied that he was paid to do it. He testified he tried to make an outcry, but the defendant choked him and said he was going to kill him. He also said Eleanor had never mentioned the defendant’s name before and the defendant didn’t tell him he was invited to the apartment by Eleanor.

Officer James May testified that when he saw Burks he was bleeding profusely from the face and was in a dazed condition. He first took Burks to a hospital, and when they later arrived at the apartment he heard a woman holler “Help, let me out,” and a man say, “If you don’t shut up, I’ll break your damn neck.” He said the bed sheet had bloodstains on it and a smashed clock was lying on the floor. He said Mrs. Britt told him that, “He raped me, and beat Burks,” and that she was nude and had blood running out of her mouth and her face was swollen. On cross-examination he testified that he saw no bottles of liquor, but noticed the presence of alcohol on defendant’s breath and he appeared to have been drinking.

Horace Montgomery testifying on behalf of the defendant said he was the janitor of the building where Mrs. Britt had been a tenant, and that the defendant had worked for him as a painter. He said Mrs. Britt was told to leave her apartment because she was behind in her rent and had too much male company. He testified further that Mrs. Britt’s reputation for morality and chastity was no good.

On cross-examination he said that he was a good friend of the defendant and would like to help him. He said he had seen Mrs. Britt and the defendant together on several occasions. On redirect he testified that Mrs. Britt would come to his apartment and they would drink and go to bed together. At that time he was a married man. He didn’t know whether the defendant and Mrs. Britt were keeping company.

The defendant testified that he was twenty-five years of age and on the day in question he met Eleanor about 6:00 p. m. in a tavern and after drinking she asked him to go home with her. He said that when they entered the apartment one person left and then he and Burks got into a fight and Eleanor told him to let Burks out so he did. He said he was kind of drunk and took off his clothes and went to bed, but didn’t remember whether they had intercourse. He said he was still sleeping when the police officers knocked on the door and when questioned by them he had told them he assaulted Burks, but did not rape her. He told them he had intercourse with Mrs. Britt before and that he didn’t know Burks lived in the apartment when they entered. On cross-examination he said that it was the first time he saw Burks, and he remembered hitting him with his fists, but didn’t know why.

Officer May testifying on redirect said that the defendant told him he met Burks and Mrs. Britt in a tavern, that they were drinking and that afterwards the three went to Burks’ apartment where they had an argument over a bottle of liquor. He further testified that he did not find a bottle in the apartment. On cross-examination he said that the defendant never told him that he had known Mrs. Britt before or that she invited him to the apartment.

The defendant contends that the State failed to establish beyond reasonable doubt that the act of intercourse was forcible and against the will of the complainant. Although there is no definite standard fixing the degree of force required, it is the general rule that there must be satisfactory evidence that there was such actual force or threat of force that the victim’s will to resist was overcome. People v. Elder, 25 Ill2d 612, 186 NE2d 27. Resistance is not necessary where it would be futile and would endanger the life of the woman, or when she is overcome by superior strength or paralyzed by fear. People v. Smith, 32 Ill2d 88, 203 NE2d 879. We have carefully examined the evidence and are satisfied that there was sufficient evidence, if believed, to show that the act of intercourse was forcible and took place after the complaining witness was beaten and in fear of her life. Burks, the owner of the apartment, who admittedly didn’t know the defendant, was severely beaten and brought the police to his apartment and they heard the complaining victim yell for help and accuse the defendant of raping her.

In support of his contention defendant cites People v. Rossililli, 24 Ill2d 341, 181 NE2d 114; People v. Faulisi, 25 Ill2d 457, 185 NE2d 211; People v. Qualls, 21 Ill2d 252, 171 NE2d 612; People v. DeFrates, 33 Ill2d 190, 210 NE2d 467, amongst others, which are distinguishable from the instant case. In each of those cases the testimony of the prosecutrix was weakened by, or uncorroborated by the other facts and circumstances in evidence. In the instant case the prosecutrix’s testimony was corroborated by Burks’ testimony to the beatings and the threat upon their lives; by the officer’s testimony of the blood stains, smashed clock and that her mouth was bloody and her face swollen, and by the scream and her prompt complaint of rape to the officer.

The matter of the credibility of the witnesses and the weight to be given their testimony is generally an issue for the determination of the trial court who has the opportunity of seeing and observing the manner and demeanor of the witnesses. People v. Henson, 29 Ill 2d 210, 193 NE2d 777. A reviewing court will not disturb the judgment of the trial court where there is ample evidence for his decision which we find to be the case here.

The judgment of the Criminal Division of the Circuit Court will therefore be affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


text:
    Arthur Melvin Greenberg, a Minor, by His Mother and Next Friend, Betty Greenberg, Plaintiff-Appellee, v. George Karris, Administrator of the Estate of Leo Karris, Deceased, Defendant-Appellant.
    Gen. No. 51,180.
    First District, First Division.
    February 20, 1967.

      Erwin Cohn, of Chicago, for appellant.

      Drake Leoris, of Chicago (George E. Downs, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action for personal injuries brought by plaintiff who was a passenger in an automobile against the Administrator of the Estate of Leo Karris, the deceased having been the driver. The trial was conducted without a jury and judgment was entered for the plaintiff in the sum of $7,500 based on wilful and wanton misconduct by the deceased and the defendant appeals.

The accident occurred at 4300 South Pulaski Road about 4:00 a. m. on March 10, 1961. Officer Frederick Lafferty, a member of the Accident Investigation Unit for 19 years, testified that the involved vehicle was a Ford Thunderbird sedan which he concluded was operating northbound in a 35 m.p.h. zone on Pulaski Road between lane two and lane three which was closest to the center line. In these northbound lanes he observed skid marks for 18 feet which then became skurrf marks which are marks a vehicle makes when its brakes are locked or almost locked. These skurrf marks traversed the entire three southbound lanes of Pulaski then went over a curb and into a parking area. The vehicle’s right rear fender struck a telephone pole and made a complete 180-degree turn before coming to a rest. He said he noticed an odor of alcohol in the car which primarily emanated from the deceased.

Plaintiff who was eighteen years of age at the time of the occurrence had attained his majority at the time of the trial. He testified that the first thing he remembered, after the accident, was lying on the ground, with a policeman standing over him.

The defendant contends that the court improperly restricted the cross-examination of the witnesses regarding any drinking by the plaintiff, and that plaintiff was guilty of contributory, wilful and wanton misconduct as a matter of law. It is further contended that there is no evidence in the record to establish wilful and wanton misconduct on the part of the defendant; that the court erred in permitting a witness, Leonard Legner, to testify; that the finding by the court was against the manifest weight of the evidence and that there should have been a judgment for defendant; and that the amount of the judgment was excessive.

To recover for personal injury sustained when a person is traveling in a vehicle of another, as a guest, it is incumbent upon the plaintiff to prove the host guilty of wilful and wanton misconduct. Ill Rev Stats 1961, c 95%, § 9-201. The plaintiff concedes that evidence of skidding on a highway and striking an inanimate object will not alone sustain a finding of wilful and wanton misconduct without any other testimony. However, plaintiff says that a combination of the evidence establishes that the defendant having consumed six or seven scotches within an hour and a half of the accident, coupled with the skid and skurrf marks crossing three lanes of traffic, going over a curb and striking a pole with such force that plaintiff was thrown out of the car and the driver through the windshield, infers that the speed was in excess of the 35 m.p.h. limit, showing that the driver lost control of his vehicle and was guilty of wilful and wanton misconduct.

The sole evidence that the driver of the vehicle had consumed six or seven alcoholic drinks before the occurrence was shown by the testimony of Leonard Legner, called as plaintiff’s witness. He said that when he went to the Eden Roc Bar, after 1:00 a. m., he found the deceased who was his supervisor at Boston Pizza and the plaintiff who was his fellow employee seated together at the bar, and he thought Karris, the deceased, had a scotch in his hand at the time. He testified that in an hour’s time he and the deceased had six or seven drinks, each buying several rounds.

The defendant contends that, “where the plaintiff specifically negates, at his discovery deposition, the presence of any additional persons, under circumstances which he would be expected to know all persons present, the plaintiff is precluded at trial from calling a witness allegedly present and not named.” Counsel for plaintiff argues that Legner’s name was not submitted in answer to the interrogatory because his client was not aware that the facts of the occurrence also meant the facts prior to the occurrence, and further, that the first time they discovered this witness was when he questioned his client the night prior to the trial. When objection to the witness was. made and overruled, a five-minute recess was taken to allow defendant’s counsel to talk to the witness.

In his pretrial discovery deposition the plaintiff testified that he knew no one at the Eden Roc premises before the occurrence other than the deceased. Officer Lafferty testified that he detected an alcoholic odor in the car and on the driver, but in his police report he marked “unknown” regarding the sobriety condition of the driver.

The defendant had an absolute right to rely upon plaintiff’s sworn deposition testimony that he knew no one at the Eden Roc Bar, but instead of this being an admitted fact at the trial, Legner, a fellow employee of plaintiff, both working for the driver of the vehicle, was offered as a witness to the complete surprise of defendant. There were no eyewitnesses to the accident and it is undisputed that Legner’s name was not given in answer to an interrogatory seeking the names and addresses of occurrence witnesses nor at the time of the deposition.

Plaintiff contends that it was within the discretion of the trial judge whether under these circumstances Leg-ner could testify citing Rosales v. Marquez, 55 Ill App 2d 203, 204 NE2d 829 and Quatrano v. Marrocco, 61 Ill App2d 1, 208 NE2d 632. This is not a situation where as in Rosales the plaintiff flagrantly failed to answer interrogatories and the ruling by the trial judge that the witness was not permitted to testify was affirmed as being discretionary, nor is it like Quatrano where the witnesses offered were only cumulative or were no surprise to defendant and were permitted to testify.

Plaintiff’s counsel argues in explanation that plaintiff in the instant case was approximately 20 years of age at the time of his deposition and was confused. He insists it was an innocent misstatement. He says the court took this into consideration and the further fact that this witness was only discovered the day before the trial as being essential to plaintiff’s case, and also, that the defense counsel was offered the opportunity to question the witness before he took the stand. We believe this argument to be too strained to be reasonable.

In our opinion, the trial judge should have excluded this witness from testifying or should have declared a mistrial. Talking to a witness for the first time during the trial was not the cure for plaintiff’s misstatement. Rosales v. Marquez, 55 Ill App2d 203, 204 NE2d 829, The defendant should at least have been offered the opportunity to take the deposition of this witness, under oath, at a future time, which may have provided him with a provable record for impeachment purposes or information leading to other witnesses, and for such other investigation that defendant might require. We believe, that under the circumstances of this case, it was prejudicial error for the trial judge to permit the witness, Leonard Legner, to testify until the defense had a reasonable opportunity to make a pretrial investigation.

The defendant also contends that the trial court erred in refusing to permit Leonard Legner to be cross-examined concerning the drinking of the minor at the Eden Roc. The testimony concerned occurred when Mr. Legner was asked, on cross-examination, whether plaintiff had anything in his hand at the Eden Roc Bar when he came there. An objection to the question was made and sustained on the ground that it was improper cross-examination. Legner was subsequently called as a defense witness and when he was asked what the plaintiff had in his hand when he came to the bar, he answered, “It was liquor. It must have been liquor,” and upon objection the answer was stricken. He later said he didn’t know what type of drink, but he knew the bartender served the plaintiff alcohol. He also said six or seven rounds of drinks were consumed and something had been ordered for the plaintiff.

The general and long accepted rule of law is that contributory negligence of the plaintiff is a defense for a defendant charged with negligence. The corollary of this rule is that contributory wilful and wanton misconduct of the plaintiff is a defense for a defendant charged with wilful and wanton misconduct. Zank v. Chicago, R. I. & P. R. Co., 17 Ill2d 473, 161 NE2d 848.

We believe that it was error for the trial judge to restrict cross-examination of Legner in regard to the drinking of the plaintiff. Considerable latitude should be granted by the trial court in controlling cross-examination where, as here, the testimony sought is reasonably related to a possible relevant defense of the defendant. Banks v. Bowman Dairy Co., 65 Ill App2d 113, 212 NE2d 4.

Since there must be another trial of this cause, we shall not discuss the other contentions, and nothing in this opinion should be considered as a reflection on the merits of the case.

The judgment of the Circuit Court is therefore reversed and the cause remanded for new trial.

Reversed and remanded.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    Charles L. Picco, Plaintiff-Appellee, v. Seymour Simon, Cook County Liquor Commissioner, Howard S. Cartwright, Chairman, Illinois Liquor Control Commission Defendants, and Johnson & Johnson, Defendant-Appellant.
    Gen. No. 51,269.
    First District, First Division.
    February 20, 1967.
    Leibman, Williams, Bennett, Baird and Minow, of Chicago (George J. McLaughlin and William P. Colson, of counsel), for appellant.
    Harold Bell, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action. The trial court reversed the decision of the defendant liquor control authorities and ordered the issuance of a liquor license, which the agencies had refused to issue because the application did not include “frontage consents.” Defendant Johnson & Johnson, owner of property adjoining that sought to be licensed, appeals from the order of the trial court.

The sole issue is the present validity of a resolution of the Board of Commissioners of Cook County, adopted May 14, 1934, in the use of their authority to regulate the sale at retail of alcoholic liquor in Cook County and territory outside the cities, villages and incorporated towns therein. The resolution included the following:

“IT IS FURTHER RESOLVED AND ORDERED, that no license permitting the sale of alcoholic liquors shall be issued by the Local Liquor Commissioner unless the owner or owners of at least two-thirds of the frontage foot (along the street or road and streets and roads adjacent to such place of business for which a license is sought for a distance of two hundred feet in each direction from such proposed place of business) shall file with the Local Liquor Commissioner his or their written consent to such place for the sale of alcoholic liquors . . . .”

The Cook County Liquor Control Commissioner denied the application of Picco to retail alcoholic liquor in an unincorporated area of Cook County, on the ground that it did not contain frontage consents, as required by the foregoing resolution, and the Illinois Liquor Control Commission affirmed the denial. Plaintiff filed the instant complaint in the Circuit Court of Cook County and alleged that the only property owner from whom a frontage consent could be obtained was defendant Johnson & Johnson, a manufacturing corporation, which refused to give its consent. Plaintiff further alleged that the frontage consent resolution of May 14, 1934, was rendered inoperative by section 110 of chapter 43 (Ill Rev Stats, as amended June 18, 1957). After a hearing, the trial court reversed the decision of the two agencies and ordered the “Cook County Liquor Control Commissioner” to issue a local liquor license to plaintiff.

Plaintiff contends that in 1941 section 110 of the Liquor Control Act (ch 43) was amended and thereby “enumerated specifically certain reasons for which a liquor license may be denied and that frontage consents were not included in said list,” and “therefore that part of the 1934 ordinance passed by the Cook County Board requiring frontage consents was superseded by the amendment . . . and thereby became inoperative.” Plaintiff cites Emm v. Sopher, 23 Ill2d 376, 178 NE2d 289 (1961), where the Supreme Court said (p 379):

“This amendment rendered inoperative local prohibitions against the sale of liquor in grocery, meat, and drug stores.”

Plaintiff further contends that the intention of the legislature is clearly stated in the wording of the Act, and the “proviso” at the end of the Act, which states, “provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act,” should be strictly construed. Citations include Doubler v. Doubler, 412 Ill 597, 107 NE2d 789 (1952), where it is said (p 600):

“Provisos in a statute, being designed to qualify or limit what is affirmed in the body of an act, should be strictly construed.”

In sum, plaintiff asserts, “The local authorities were granted the powers by the State both to license and to regulate the operation under local licenses, but were prohibited by the State from denying an applicant for a license except for specifically enumerated reasons. The State did not include frontage consents requirements as one of the reasons for denying a license.”

Defendant agrees with plaintiff that the proviso at the end of section 110 must be strictly construed but argues that it cannot be construed so as to conflict with the power granted to local authorities in the body of the section, where the following clause is to be found: “and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require.” We note that in Doubler v. Doubler, 412 Ill 597, 107 NE2d 789 (1952), it is said (p 600):

“It is also a fundamental rule of statutory construction that each word, clause, and sentence in a statute must, if possible, be given some meaning.”

Defendant asserts that the legislature intended that local authorities continue to have powers to impose restrictions and conditions of a nondiscriminatory nature, directed toward the maintenance of community standards or other considerations which the local authority might deem important to its own area.

Frontage consent requirements have long been upheld in Illinois. Our Supreme Court has said in so holding: “In matters of purely local concern the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority.” (Martens v. People, 186 Ill 314, 57 NE 871 (1900); Harrison v. People, 195 Ill 466, 63 NE 191 (1902).) We believe that this principle still applies and is consonant with the authority in section 110 to “establish such further regulations and restrictions ... as the public good and convenience may require.” The proviso cannot be said to render these words meaningless. To adopt such a construction would not promote the ends of justice in a matter of purely local concern.

A frontage consent requirement does not prohibit any person or class from obtaining a license, and it is uniform in its operation. We are not persuaded that the legislature, by amending section 110 of the Liquor Control Act, intended to prohibit local authorities from establishing a frontage consent restriction which the “public good and convenience may require.”

For the reasons given, the judgment of the Circuit Court reversing the decisions of the Cook County Liquor Control Commissioner and the Illinois Liquor Control Commission and ordering the issuance of a liquor license is reversed.

Reversed.

BURMAN and ADESKO, JJ., concur.


text:
    Grace Michna, Plaintiff, Counter-Defendant, Appellee, v. Mildred May, et al., Defendants, Counter-Plaintiffs, Appellants, and Western National Bank of Cicero, as Trustee Under Trust 1413, Defendant-Appellant.
    Gen. No. 51,427.
    First District, First Division.
    February 20, 1967.

      Judson L. Parker, Holland F. FlaHavhan and Stanley Werdell, of Chicago, for all appellants.

      L. Louis Karton and Marovitz, Powell & Pizer, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Grace Michna, widow of Edward N. Michna, filed a complaint against Mildred May and Martha Durrie, the deceased husband’s sisters, to set aside a land trust alleged to be in fraud of her marital rights. The defendants filed a counterclaim for an accounting of the rents by plaintiff. The matter was referred to a Master in Chancery who found in favor of the plaintiff on all issues. Objections and exceptions were filed to the Master’s Report and overruled, and a decree was entered setting aside the conveyance as being null and void, declaring the plaintiff to be the owner of the property and denying the counterclaim. A direct appeal was taken to the Supreme Court in which the defendants asserted that their constitutional rights to due process of law and to the equal protection of the law had been violated and the appeal was transferred to this court.

Our first consideration is the procedural course of the hearing conducted by the Master. The defendants’ initial contention is that the Master was not impartial and his conduct of the proceedings was manifestly unfair.

The record shows that on June 8, 1962, the proceedings commenced before the Master. On June 11, 1962, a second hearing took place, proofs were closed and the Master prepared his Report in favor of the plaintiff. The Report was not filed as new counsel for the defendants requested leave to reopen proofs on February 4, 1963, which was granted by Judge Lupe. Hearings were resumed before the Master on January 29, 1964, on February 3rd and 4th, March 4th, 5th, 6th, 19th, 20th, and on April 8th.

At the April 20th, 1964, hearing the Master told the defendants that on May 1, 1964, he was moving into a new suite in the same building and that plaintiff’s counsel, Mr. Barton, was also a tenant in the same suite. He informed the parties that his sublease was with a firm of attorneys who also subleased space to Barton and that other than being in the same suite of offices he and Barton did not share any services and did not have any mutual interests. When the hearings resumed on May 8th, defendants’ counsel stated that in view of the fact that the Master shared space in the same suite with plaintiff’s counsel his clients do not believe they would receive a fair trial and objected to the Master continuing to preside. The hearings were discontinued, the respective counsel and the Master appeared before Judge Lupe who heard and overruled the objections and ordered the Master to continue. Evidence was heard by the Master on June 9th and June 22nd, and proofs were closed. The Master found the issues in favor of plaintiff. Objections to the Master’s Report stood as exceptions and were overruled by the Chancellor who approved the Master’s Report and entered a decree accordingly.

The defendants contend that the Master was not impartial and that his conduct of the hearings was manifestly unfair during the entire proceedings and his findings were biased and prejudiced, and that when he moved into the same suite of offices occupied by plaintiff’s counsel he was disqualified from proceeding further as a Master. The record shows that the Master rendered his first Report in favor of the plaintiff in late 1962. After the proofs were reopened at the defendants’ request extensive hearings were again held for many months before the Master moved to the new office space.

The Chancellor heard the objections to the Master and ordered him to proceed with the hearings, commenting that “merely because a Master moves into a suite where one of the lawyers rents space will not change him.” The Chancellor at the same time also heard exceptions to various rulings made by the Master which were certified to him and sustained the Master. Whether the Master should have been removed was a matter within the sound discretion of the Chancellor. We cannot say on the basis of the record that he abused his discretion. Nor does the record show any bias or prejudice by the Master in his conduct of the hearings.

The major contention of the defendants is that the deceased had an absolute right to convey his real estate on the eve of his marriage to a trustee for life, with remainder over to his sisters, as long as he did not deprive his intended wife of any of her marital rights or breach a valid and enforceable contract.

The uncontradicted evidence establishes that the plaintiff and Edward N. Michna were married on January 23, 1956, and resided together on the premises in question until he died. A land trust agreement, number 1413, was entered into on January 10, 1956, by Edward Michna with the Western National Bank, whereby the trustee held title to the involved real estate for the benefit of Edward Michna, for life, with the remainder over to his sisters, Mildred May and Martha Durrie, equally. Edward N. Michna died on May 6, 1961, leaving a will dated May 6, 1956, naming the plaintiff as his sole beneficiary and executor.

Grace Michna, the plaintiff, testified that she and Edward Michna went steady for about one year before their marriage. She also testified over objections that when he proposed marriage and gave her a ring on December 19, 1955, he told her that he had a . business and owned property and he would make her the sole beneficiary of everything he owned under his will; that she relied on his promises, accepted his proposal and ring and then they went to the Empire Room to celebrate the occasion; and that on January 23, 1956, they were married. She also stated that the involved premises consisted of two offices in front, one of which was used by the deceased, the deceased’s machine shop in the back and the apartment above in which they resided together until her husband passed away. She testified further that she first learned of the trust shortly after her husband’s funeral from Frank Kryda, his attorney.

Mrs. Florence Mandarino, plaintiff’s sister, testified that shortly after her sister’s engagement in December, she and her sister visited Edward Michna in his apartment in the involved premises. She said he showed her the machine shop and told her what he did for a living. The witness was permitted over objection to testify thát the deceased told her he was well fixed and would make a will giving all his property, including the real estate in question, to her sister.

Joseph Boucek and Frank J. Kryda also testified on behalf of the plaintiff. Mr. Boucek, the bank’s trust officer, testified that neither the plaintiff nor the defendants were present when the trust agreement was executed. Mr. Kryda, the attorney for the deceased, testified that he prepared the will and the trust agreement. Over objection, he testified that the deceased did not discuss with him whether or not the plaintiff knew of the trust. When later called as a witness for the defendants he said, when he discussed the will with the deceased, he thought they discussed the trust, but didn’t remember specifically what was said. He thought that when they discussed the trust the deceased told him he was contemplating marriage with the plaintiff.

The defendant, Mildred May, testified that when her family, her sister’s family and plaintiff were present in her brother’s apartment at Thanksgiving dinner and at Christmas in 1955, nothing was said about an engagement nor did plaintiff wear an engagement ring. She said she first knew they were getting married when her brother told her to come over and celebrate on the day of the event.

Martha Durrie, the other defendant, testified that she first met the plaintiff in November of 1954. In October, 1955, her brother told her he was planning to keep the real estate for himself and he wanted complete control of it. She also said that at Thanksgiving and Christmas of 1955 they were all together and nothing was said about an engagement.. She testified further that on January 10th or 11th of 1956, she and the plaintiff were in her brother’s apartment and he told them that he had entered into a trust agreement at the bank that day, putting the property in trust and named her and- her sister as beneficiaries after his death; that “Grace said it didn’t make any difference to her whatever he did was alright with her. There were no objections at all.” She also said that while her brother and Grace were driving her home that evening he told her they were planning on getting married, but didn’t set the date.

On cross-examination she was asked about her testimony at a deposition hearing held several years earlier when she testified as follows :

That on January 10th he said he put everything in trust and nothing further. He did not say anything about making her or her sister the beneficiaries. Grace was never present when he said he disposed of his property; that he didn’t say how he disposed of his property or to whom he had left it in trust.

When asked if these answers were true she replied that they are incorrect, and that she didn’t remember making them. On further cross-examination she said she never told her sister about the trust.

It is contended by defendants that the Master erred in allowing the plaintiff, her sister and Kryda to testify over objections to conversations with the deceased outside the presence of defendants and that said conversations comprise the totality of plaintiff’s case. In support they cite section 2 of the Evidence Act, Ill Rev Stats 1963, c 51, § 2, which provides as follows:

No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any habitual drunkard, or person who is mentally ill or mentally deficient, or as the executor, administrator, heir, legatee or devisee of any deceased person or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely: ....

In the instant case the Bank was sued only as a trustee under a land trust and not in its capacity as trustee of any habitual drunkard, or mentally ill person, or as an executor or heir or any other prohibited category. We are of the opinion that the Evidence Act does not apply to the parties here because the nature of their respective claims does not bring them within that section of the act. Lasky v. Smith, 407 Ill 97, 94 NE2d 898.

The Master stated in his report and we agree that:

The sole and primary question before the Court is whether the transfer of the property hereinabove described to the Western National Bank of Chicago, as Trustee, under Trust No. 1413, dated January 10, 1956, was a fraud upon the marital rights of the plaintiff.

The Master found from the evidence that the deceased entered into the trust agreement thirteen days before the marriage on January 23, 1956, that it was actually on the eve of marriage and he recommended that it be set aside and the plaintiff be declared to be the owner of the involved property.

In Moore v. Moore, 15 Ill2d 289, 241, 154 NE2d 256, the Supreme Court, in reversing a dismissal of a complaint seeking to set aside a deed executed ten months before the marriage to the deceased’s son and two daughters, on the charge that it was fraudulent and void as to marital rights stated:

It is the settled law in this State that a voluntary conveyance by either party to a marriage contract of his or her real property, without the knowledge of the other and on the eve of marriage, is a fraud upon the marital rights of the other party, and such conveyance may be set aside as fraudulent and void as against the party whose marital rights are precluded thereby. Bozarth v. Bozarth, 399 Ill 259; Dunbar v. Dunbar, 254 Ill 281; Daniher v. Daniher, 201 Ill 489.

In Lill v. Lill, 18 Ill2d 393, 398, 164 NE2d 12, the court said:

While there can be no arbitrary demarcation as to time between fraudulent and valid transfer, the time at which a man transfers his property before marriage is material in determining whether the conveyance can be deemed a fraud on the future wife’s marital rights.

We are of the opinion that the instant case is governed by the Moore and Lili cases and that the Master correctly concluded from the evidence that the conveyance was a fraud upon the marital rights of plaintiff.

We must consider, however, the defendants’ further contention that the plaintiff failed to prove by clear and convincing evidence that she had no knowledge of the trust prior to her husband’s death. The plaintiff testified that she resided in the premises from the time of her marriage until her husband’s death and did not know of any trust created by her husband for said property until after his funeral. The deceased’s attorney testified that when the trust was prepared by him at the deceased’s request no mention was made that plaintiff had knowledge of the trust and he thought the deceased told him he was contemplating marrying the plaintiff at the time. Joseph Boucek, the vice president of the Bank, testified that the deceased came alone when the trust was executed, and he Boucek had not informed the plaintiff of the trust. The only witness to testify that plaintiff had such knowledge and expressed no objections to it was the defendant, Martha Durrie, which testimony was in conflict with her deposition testimony. Her sister, defendant Mildred May, who often saw her brother, admitted she didn’t know of any trust agreement until some time after the funeral. It was established that the voluntary trust was created in contemplation of marriage which took place about thirteen days thereafter without the knowledge of plaintiff which is prima facie a fraud upon plaintiff’s marital rights and the burden was upon the defendants to establish its validity. Lill v. Lill, 18 Ill2d 393, 164 NE2d 12. The Master properly found that the defendants failed to produce evidence to support this burden.

The defendants also argue in their reply brief that:

It is one thing for the defendants to admit the marriage and the conveyance on the eve of the marriage and quite another thing to admit the charges of fraud and conspiracy which the defendants have not done. Plaintiff admits that in addition to the transfer and the marriage, it was her duty to prove her non-consent. There is no credible evidence of her non-consent. She was totally impeached as a credible witness and there is no corroboration as to that element from unimpeached, credible witness. Consequently, by her own admission she has not established her case.

Whether testimony is credible or contradictory or whether it is impeached are generally matters for the trier of fact and its findings will not be disturbed unless they are manifestly against the weight of the evidence. Eleopoulos v. City of Chicago, 3 Ill2d 247, 120 NE2d 555. The Master heard the evidence, saw and listened to the witnesses and made his recommendations to the Chancellor who approved the Master’s Report and in a decree found in favor of plaintiff. In such case it is the province of the Master in the first instance to determine the facts and, while his findings of fact do not carry the same weight as a jury, nor a Chancellor where the witnesses have testified before him, his findings are entitled to due weight on review of the cause and a reviewing court is not justified in disturbing them unless they are manifestly against the weight of the evidence. Stowell v. Satorius, 413 Ill 482, 109 NE2d 734. We find that the decree is supported by the evidence and see no basis to find it was against the manifest weight.

Various other grounds are urged for reversal, but we do not consider it necessary to pass upon them as the grounds already considered are decisive of the case. A reviewing court will not consider questions or contentions which are not essential to the determination or final disposition of the case before it, or of which will serve no beneficial purpose to the litigants. ILP, Appeal and Error, § 631.

For the reasons stated the decree of the Circuit Court is accordingly affirmed.

Decree affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Carmichael, Defendant-Appellant.
    Gen. No. 50,331.
    First District, Third Division.
    February 23, 1967.
    Rehearing denied April 13, 1967.
    R. Eugene Pincham, Charles B. Evins and Earl E. Strayhorn, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a non jury trial the defendant was convicted on two counts — the unlawful possession of a narcotic drug and the unlawful sale thereof. He was sentenced to the penitentiary for terms of 5 to 10 years and 10 to 12 years for the respective offenses. He contends that a police informer supplied the narcotics which provided the basis for the charges against him and that this constituted entrapment. A summary of the testimony follows.

Police Officer Mitchell Ware of the Illinois Narcotics Division testified that Charles Brooks, who at the time was under arrest for a narcotics violation, told him that he (Brooks) could purchase narcotics from defendant. On September 9, 1963, Brooks who was in Rockford, Illinois, telephoned defendant in Chicago and arranged to come to his apartment the following day to buy some marijuana. On September 10, 1963, Officers Joseph Mandell and Mike Iasparro of the Winnebago County Sheriff’s Police drove Brooks from Rockford to police headquarters in Chicago, where he was searched by Ware and given $55 in marked money. Brooks was then driven by the police officers to defendant’s apartment and went into the building while the police waited in the car. Ware stated that a few minutes later Brooks returned to the car with a bag containing narcotics which he said he received from the defendant in exchange for $46 of the marked currency. Ware and the other policemen then entered defendant’s apartment from the front and rear doors and discovered two quantities of marijuana in the apartment and $15 of the marked money on defendant’s person. On cross-examination Ware testified that the $15 represented all the marked money that was recovered.

Ware further testified that on November 26, 1963, subsequent to defendant’s arrest, he had occasion to speak with defendant in the corridor of the Criminal Courts Building, where defendant related that on the night of the arrest Brooks brought the narcotics to defendant’s apartment in the heel of his shoe. Ware said that defendant also admitted that he and Brooks “used to smoke pot together.”

On cross-examination, Ware testified that Brooks was given $15 in expense money for cooperating with the police; that he would be further reimbursed for any loss of income because of time spent testifying for the State, and that he was told that his working with the police would be brought to the attention of the State’s Attorney of Boone County, Illinois, where he faced trial for a narcotics violation.

Charles Brooks testified on behalf of the State, corroborating the testimony of Officer Ware with respect to arranging a controlled purchase of narcotics from defendant. He described the purchase as follows:

“Well, he said he had a package I had called for. I gave him the money and he gave me the package.”

He testified that he paid defendant $46 for the narcotics; that he left the apartment and returned to the car where the police officers were waiting and gave Ware the drugs he had purchased and the remainder of the marked money, which amounted to $9.

On cross-examination Brooks said that he was arrested on July 27, 1963, for unlawful possession of narcotics; that the case was disposed of prior to the defendant’s trial; that he was also arrested on October 31, 1964, for the same offense and that cause was still pending (at the time of defendant’s trial); that he had been, but was not presently, a user of narcotics. He testified with respect to the earlier arrest that he had not been promised any consideration for working with the police, but later said that the police told him it would be to his advantage to cooperate. Brooks stated that he had known defendant for three years; that he had been to defendant’s apartment two or three times with his young daughter and that he did not recall whether he had been there during the ten-day period prior to defendant’s arrest.

Defendant testified in his own behalf that he had known the police informer Brooks for eight or nine years prior to the arrest; that Brooks came to his apartment on Sunday, September 1, 1963 at about 9:00 a. m.; that he had his baby daughter with him; that Brooks told him he had been in trouble with the police recently with respect to the possession of marijuana; that he wanted defendant to keep a package for him at his apartment and that he would telephone defendant when he was ready to pick it up. Defendant further testified that Brooks did not tell him what was in the package; that he did not look inside it but placed it in a trunk in a closet. Defendant further testified that Brooks came to the apartment for the package on September 10, 1963, at about 8:30 p. m.; that he took it into the bathroom and when he came out, the package was smaller than it had been and that he had two more packages, one of which he said he was taking downstairs to friends, and another which with $15 he left on the table. Defendant stated “The $15 was supposedly for me keeping this package for him.”

As to his conversation with Officer Ware, defendant testified that he did not sell narcotics to Brooks; that Brooks brought the narcotics to his apartment; and that this was his (defendant’s) first involvement in a narcotics violation. The State presented no evidence in rebuttal, and defendant’s explanation as to how the narcotics came to be in his apartment stands undenied.

One Murphy Fabian testified on behalf of defendant that he ran a dry cleaning plant; that he had known defendant for twelve years; that defendant had worked for him for eight years. He stated that defendant’s reputation in the community for truthfulness and as a law-abiding citizen was very good.

It is defendant’s contention that his testimony establishes entrapment; that the burden is on the State to rebut such evidence and that the State has failed to sustain that burden. This court had the question before it in a recent case, People v. Jones, 73 Ill App2d 55, 219 NE2d 12. There we held that a conviction for the sale of narcotics must be reversed where the State failed to controvert defendant’s testimony that the police supplied the narcotics which appeared to be the subject of an illegal sale. In our decision in the Jones case we relied on People v. Strong, 21 Ill2d 320, 172 NE2d 765, in which case the Illinois Supreme Court, faced with the same contention, held that a conviction for the sale of narcotics could not be sustained where “the undisputed testimony of defendant strongly tends to prove that defendant was supplied with the narcotics by . . . the government employee.” (P 325.)

The State attempts to distinguish the foregoing decisions on the ground that in those cases the informer was not called as a witness, whereas in the instant case Charles Brooks, the police informer, testified for the State. Although the courts in People v. Strong, supra, and People v. Jones, supra, considered significant the failure of the police informer to testify, we conclude that the presence of the police informer on the witness stand is not in itself controlling on the issue of entrapment. Equally important is the weight to be given an informer’s testimony, particularly when it fails to controvert the defendant’s testimony on vital aspects of the case.

The State urges that it was defendant’s duty to cross-examine the informer Brooks with respect to the claim of entrapment, reasoning that when Brooks testified, the prosecution could not anticipate the defendant’s case. We do not agree. The State had ample opportunity to refute defendant’s contention that Brooks supplied the narcotics by recalling him to the witness stand in rebuttal. The judgment must be reversed.

Judgment reversed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    La Salle National Bank, as Trustee Under Trust No. 24200 Dated March 1, 1960, Plaintiff-Appellee, v. Little Bill “33” Flavors Stores, Inc., Defendant-Appellant.
    Gen. No. M-51,385.
    First District, Third Division.
    February 23, 1967.
    Rehearing denied March 23, 1967.
    Robert D. Banzuly, of Chicago, for appellant.
    Carey, Filter, Murray & White, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Little Bill “33” Flavors Stores, leased a store from the plaintiff, La Salle National Bank, for a term of five years. After the expiration of two years there was an arrearage in rent and the defendant was served with a landlord’s five-day notice. The notice recited that if the rent then due was not paid before five days the lease would be terminated. A year later the plaintiff filed a complaint which alleged that the defendant had defaulted on the lease, owed 13 months’ rent, and prayed for judgment in the amount of $3,610.50. A copy of the lease was attached to the complaint.

The defendant moved for summary judgment on the ground that the plaintiff could not recover under the lease because it had elected to proceed according to the five-day notice, that no rent had been paid as required by the notice and that the lease, therefore, had terminated pursuant to the notice. The defendant has appealed from the order denying the motion.

An order denying a motion for summary judgment has been held to be neither final nor appealable. Home Indemnity Co. v. Reynolds & Co., 38 Ill App2d 358, 187 NE2d 274 (1962); Kern v. Chicago & E. I. Ry. Co., 31 Ill App2d 300, 175 NE2d 408 (1961). In the Home Indemnity case this court held that even if a motion for summary judgment is improperly denied the error is not reviewable or reversible for the result becomes merged in the subsequent trial.

The defendant contends, however, that the only issue before the trial court in the present case was one of law, that the denial of the motion was not merged into a subsequent judgment and that the appeal should be allowed.

Our statute on summary judgments provides in pertinent part: “The judgment or decree sought shall be rendered forthwith if the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” Ill Rev Stats, 1963, c 110, § 57 (3). Although the pleadings contained in the excerpts from the record filed in this appeal disclose that no triable issue of fact existed at the time the motion for summary judgment was made and that the issue raised by the motion was exclusively one of law and one, therefore, which was a proper subject for summary judgment, the denial of the motion was not a final order. The order did not terminate the litigation; the case remains in the trial court awaiting a judgment which will dispose of the rights of the parties with finality.

The jurisdiction of the Appellate Court is limited to reviewing appeals from final judgments and from certain interlocutory orders specified by the rules of the Supreme Court. Article VI, § 7, Constitution of Illinois; Supreme Court Rule 31, Ill Rev Stats 1965, c 110, § 101.31; Supreme Court Rules 307 and 308, effective January 1, 1967; Dross v. Farrell-Birmingham Co., Inc., 51 Ill App 2d 192, 200 NE2d 912 (1964). An order denying a judgment is interlocutory and is not an order from which an appeal is permitted by the rules cited.

The appeal is dismissed.

Dismissed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Wright, Defendant-Appellant.
    Gen. No. 50,455.
    First District, Third Division.
    February 23, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer, Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald Eisen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from the convictions of the crimes of armed robbery and of battery. The defendant was found guilty after a trial by jury and sentenced to the Illinois State Penitentiary for concurrent terms of 15 to 35 years and 5 to 10 years.

The defendant contends that the court erred in not permitting his defense counsel to examine grand jury testimony of the complaining witness, after she had testified on direct examination; that the court improperly instructed the jury; that the defendant’s record of prior convictions was improperly read to the jury since the defendant admitted to such convictions during the course of his testimony, and that the prosecutor’s statement to the jury immediately prior to the reading of the record of defendant’s convictions contained an erroneous statement of law and invaded the province of the court.

The State’s evidence indicated that on the evening of September 18, 1964, while walking in the street, Mrs. Camadeca was assaulted by the defendant, who struck her with a metal object, causing damage to her eye which required several stitches. The defendant took approximately $2 from the woman. The screams of Mrs. Cama-deca were heard by several neighbors and pedestrians in the area, none of whom saw the assault. The defendant, a colored man, was seen in the area five minutes after the screams were heard, was chased and caught by the civilian pedestrians. During the chase the defendant was seen to drop several items which could not be identified by the pursuers. A purse and a gun were later found by investigating police officers over the route of the chase. A cosmetic case and a wallet were found in the defendant’s coat pocket by the police. These were identified by the complaining witness as belonging to her. The raincoat worn by the defendant was also identified by Mrs. Camadeca as the coat worn by the defendant at the time of the assault.

Mrs. Camadeca testified that she was treated for shock at the hospital; that the police came to the hospital and told her they had the man and she was taken from the hospital immediately by the police and identified the only man in the lineup who was wearing a raincoat.

The defendant, during direct examination, testified that he had been in the penitentiary from 1960 to 1964. When asked what crime he had been sent up for he answered, “Armed Robbery.” He was then asked how many charges of armed robbery, to which he answered, “Two, Two or Three.” He further testified that he was, at the time of trial, on parole.

The defendant testified that he had fallen asleep on a bus, and that when he awakened he alighted from the bus in a strange neighborhood, and was walking in the street; that he was chased by strangers and caught, and that none of the identified materials were found in his pocket or were ever in his possession. On cross-examination by the State the defendant admitted that he had been convicted on two or three charges of armed robbery. The State, in rebuttal, introduced into evidence and read to the jury, three certified copies of court records of the defendant’s three prior convictions for armed robbery.

The defense first contends that it was error for the court to deny defendant the right to examine grand jury testimony during cross-examination of the complaining witness.

In People v. Johnson, 31 Ill2d 602, 203 NE2d 399, the court pointed out that the policy of grand jury secrecy is intended to prevent the accused from escaping before he is indicted and from tampering with witnesses ; to protect an accused person who is not indicted against unwarranted exposure; to encourage uninhibited deliberations by the grand jurors, and to encourage witnesses to testify before the grand jury without fear of public disclosure. The court in that case held, on page 606: The court in the Johnson case, supra, adopted the reasoning in Bressler v. People, 117 Ill 422, 8 NE 62: “When the indictment is returned, and the defendant arrested and placed upon trial, neither the statutory nor common law reasons for secrecy can apply. There can be no reason, then, why evidence given before a grand jury should not be made known and proved, if the ends of justice require it.” The court in Johnson, supra, reversed the conviction and remanded the cause, because the prosecutrix’s testimony before the grand jury was not turned over to the defense.

“None of those reasons is applicable in the present case, where the accused seeks only the transcript of the testimony of a witness who has testified at the trial. Plainly the disclosure of grand jury minutes after an indictment is returned and the case proceeds to trial will involve no danger of flight by the accused and no risk of damage to his reputation. Nor is it to be expected that he will tamper with a witness who has already testified against him. There will be no impediment to future grand jury deliberations since such deliberations will remain secret. Finally, it is in no sense unfair to a witness who testifies at the trial to reveal his previous testimony.”

The State argued that at the time the defendant requested the transcript of the testimony before the grand jury of the complaining witness, at the close of her direct evidence, he did not pursue his request and therefore he waived his right to the production. After the defense attorney had brought out from the complaining witness that she had testified before the grand jury in the case, the defendant’s attorney said:

“Mr. Hartman: Your Honor, I would like to ask for a copy of the officer’s report respecting her, any statement she made to the officers. Also, I would like to ask for a copy of the Grand Jury minutes pertaining to her testimony before the Grand Jury.
“The Court: Both motions denied.
“Mr. Divito: I would like to state this for the record; the jury minutes are not typed up. However, I am willing to show Mr. Hartman remarks she made to other people down ¿t the Grand Jury, which were typed up. If you want I will show it to you and you can read it. We have it available if you want to look at it.”

The prosecutor then furnished counsel with a two-page typewritten police report signed by two police officers. Obviously, the prosecutor, after having objected to the request of the defense for the production of the grand jury minutes and other statements and after the court had sustained his objection, realized that both he and the court were in error, as he immediately produced the typewritten police report but said that the testimony of the complaining witness before the grand jury had not been typed. This was inexcusable for the reason that the opinion in Johnson, supra, had been rendered by the Supreme Court more than a month prior to the commencement of the trial in this case. Counsel for defense cannot be said to have waived his right after the court had sustained the State’s objection to the production of the grand jury minutes. The defense had moved for the grand jury minutes at the proper time, and the court erroneously denied defendant’s motion. Furthermore, in People v. Almanza, 76 Ill App2d 395, 222 NE2d 74, this court held that although People v. Johnson, supra, had been decided after the trial of Almanza, the Supreme Court considered that its ruling was within the scope of the rulings pronounced in People v. Wolff, 19 Ill2d 318, 167 NE2d 197, and People v. Moses, 11 Ill2d 84, 142 NE2d 1, and that the holding in Johnson was but a clarification of existing law.

The State had attached to its brief an appendix which purports to be a transcript of the testimony of Nancy Camadeca taken before the grand jury of Cook County. The appendix bears no authentication nor certification by anyone. The grand jury minutes are not a part of the record in this case, nor have they been abstracted. In People v. Dorsey, 66 Ill App2d 441, 214 NE2d 503, this court held that it cannot consider anything that is not a part of the trial record. This rule has been followed in numerous cases and it would serve no useful purpose to list them. Since the appendix to the State’s brief is not a part of the record in this case this court will not consider it.

The defendant next urges that the court erred in giving State’s Instruction No. 9. The defendant in his reply brief sets forth numerous instructions, both those offered by the State and by the defense, which had been refused. Again we find no certification or authentication of these instructions, and they do not appear in the record or in the abstract. The defendant has failed to bring to this court all of the instructions, both given and refused. In People v. Robinson, 27 Ill2d 289, 189 NE2d 243, the court said on page 292: “We have consistently held where the abstract of record includes only the instruction complained of without regard to the other instructions, both given and refused, that since this court is not bound to search the record itself to supply abstract deficiencies, error cannot be predicated upon the giving, refusal, or modification of that instruction. (People v. Todaro, 14 Ill2d 594; People v. Allen, 17 Ill2d 55.) We will not inquire whether the trial court erred in this respect. People v. Bybee, 9 Ill2d 214, 221, and cases there cited.” Since all of the instructions, both given and refused, are not before us we will give no consideration to this point.

The defendant next contends that the reading of the defendant’s record of prior convictions with statements by the prosecutor that such might be considered by the jury, denied the defendant his right to a fair trial. On direct examination the defendant testified that he had been in the penitentiary for a period of four years but did not indicate the nature of the offense. The defense cites the case of Bezark v. Kostner Manor, Inc., 29 Ill App 2d 106, 172 NE2d 424, in support of the proposition that only where the defendant fails to state or has denied the prior conviction may independent proof of such conviction be properly introduced into evidence. In that case the defendant contended that the court erred in permitting the State’s Attorney to cross-examine him in regard to his conviction of a prior offense and in admitting the transcript of such conviction into evidence. In People v. Neukom, 16 Ill2d 340, 158 NE2d 53, the defendant contended that the court erred in permitting the State’s Attorney to cross-examine him in regard to his conviction of a prior offense and in admitting the transcript of such conviction into evidence. The court in the Neukom case, supra, on page 348 said the following: “People v. Baker, 8 Ill2d 522, indicated that cross-examination only of a defendant as a witness, to establish a prior conviction, would be erroneous. However, the authenticated copy of the record was admitted in this case, thereby curing any such objection.”

In People v. Smith, 63 Ill App2d 369, 211 NE2d 456, the court pointed out that our Supreme Court formerly held that the effect of the defendant disclosing from his own lips the fact of his prior convictions was so damaging that the only manner in which a prior conviction could properly be established was by the record or an authenticated copy of the conviction. The court then went on and explained that our Supreme Court had modified this view and has held that the cross-examination of a defendant as to a prior conviction is not reversible error if the record is also admitted as proof of the conviction. See People v. Squires, 27 Ill2d 518, 521, 190 NE2d 361 (1963); People v. Neukom, 16 Ill2d 340, 348, 158 NE2d 53 (1959).

We do not consider the introduction of the record of convictions, after the testimony by the defendant of his prior convictions, constitutes error, reversible or otherwise.

The defendant finally contends that error was committed by the prosecutor when, immediately prior to his reading of the defendant’s record of convictions, he stated to the jury, “These exhibits, (Exhibits. 4, 5, and 6, certified records of defendant’s convictions) have been admitted into evidence, ladies and gentlemen, and you can consider them as evidence when you go back to the jury room to deliberate.” This statement, of course, was improper in that the prosecutor advised the jury that the convictions could be considered as evidence. He did not limit his statement by adding that those records of convictions could only be used as evidence affecting his credibility. The State contends for some reason that the prosecutor’s statement was not improper but adds that any confusion was cured by subsequent statements and instructions. The statement as such was certainly improper, not only as to the incorrect law it attempted to impose upon the jury, but because the prosecutor invaded the province of the court which alone may instruct the jury as to the law. During the course of the closing argument the prosecutor did argue that the copies of the convictions were introduced to affect the credibility of the story that the defendant told. The court by a subsequent instruction correctly instructed the jury that the copies of the convictions could only be used as evidence to affect the credibility of the defendant, witness. We cannot, of course, say that it was because of this erroneous statement by the prosecutor that the defendant was convicted, but this error, taken together with the court’s error in sustaining an objection to the production of the grand jury minutes of the complaining witness, require us to reverse and remand this case for a new trial.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Odell Taylor, Defendant-Appellant.
    Gen. No. 51,327.
    First District, Second Division.
    February 27, 1967.
    Richard H. Lucy, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


text:
    People of the State of Illinois, Appellee, v. Joe Ray, Appellant.
    Gen. No. 50,816.
    First District, First Division.
    February 27, 1967.

      Stuart A. Trais, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Joe Ray, and codefendant, George Brewer, were jointly indicted and tried for the crime of burglary. George Brewer pleaded guilty and Joe Ray pleaded not guilty and waived a jury trial. Ray was found guilty and sentenced to serve two to four years in the penitentiary. This appeal is brought by defendant, Joe Ray, contending that he never had exclusive possession of the stolen property and, in fact, had no possession at all, which he says creates a reasonable doubt as to his guilt and further, that the State failed to prove beyond a reasonable doubt that he committed the crime either by actually breaking or entering or by acting as an accomplice.

On the evening of January 8, 1965, a locked warehouse of Colby and Sons, 212 North Sangamon Street, was broken into and several cartons of articles, including an adding machine and a typewriter, were stolen.

At 9:00 p. m. that same evening Officer Norman Angelo and his partner, while on routine patrol, stopped an automobile for failure to stop at a stop sign at Lake and Sangamon Streets. He said that Joe Ray, the driver, did not have a driver’s license and would not explain where he was coming from or was going. When the driver stepped out of the car he noticed large boxes on the rear seat, a typewriter underneath and an adding machine on the floor of the front seat. The other occupant, codefendant Brewer, was asked to step out, ran and was apprehended. At the police station they observed the name of John Colby, 212 North Sangamon, on the boxes. He said that when they stopped the car it was a block and a half from the Colby warehouse and when they questioned the defendant about the merchandise he answered he was just in the car and didn’t know where it came from or how it got in the car. He also testified, on cross-examination, that when he opened the trunk of the car with the car’s keys he found another box and two framed pictures.

Brooks Davis, Colby’s sales manager, identified the recovered cartons and their contents, and the typewriter, adding machine and paintings as property of Colby’s.

Gladys Ray, the defendant’s wife, testified that her husband was a mechanic and drove his car part time for Bob’s Livery Service. She said that on the evening in question she borrowed his car to take their child to the hospital and returned the car to him at Bob’s Livery Stable on Paulina Street about 9:00 p. m.

Dorothy Gaddis testified for the defendant that she was a telephone operator for the livery service and was working on the evening in question. Her job was to take calls for trips and dispatch the drivers who used their own cars. She said she got a call about 10:30 or 11:00 p. m. from a person who gave his name as George who requested that she send a cab to Lake and Sangamon which was the last call she gave to the defendant.

Ozzie Edwards testified that he worked part time for Bob’s Livery Service and he saw the defendant on the day in question at Bob’s between 9:30 and 10:00. A call came in at that time and Dorothy gave it to the defendant. James Miller, defendant’s father, testified that he went to the Cab Stand at 9:00 to meet his son who was going to drive him to Kankakee. George Brewer, codefendant, invoked the privilege against self-incrimination when called as a witness for Ray.

The defendant, Joe Ray, testified that he was a part-time driver for Bob’s Livery Service at 14 South Paulina and that he reported for work about 5:00 p. m. on January 8th. He said his wife borrowed his car to take their baby to the hospital and returned it about 9:00 p. m. He said Dorothy Gaddis told him to go to Sangamon and Lake and pick up a man with a brown jacket. He said when he arrived there a man in a brown jacket instructed him to drive his car near an alley of a building where the man loaded boxes into his car. He then was stopped by the police who told him he didn’t stop at a stop sign and had no taillights and he couldn’t produce a driver’s license because he didn’t have one. When the officer asked him what was on the back seat he told him he didn’t know and to “ask the gentleman, it belongs to him.” He also said he never saw Brewer before.

On cross-examination he testified that he saw Brewer put boxes on the back seat, but didn’t see him put a typewriter there or see him put an adding machine in the front seat because he was listening to his radio all the time. He said the man asked him to put some articles in the trunk and he opened it and put them there.

The defendant contends that in order to sustain a conviction for burglary upon the possession of stolen property it must be shown that there was possession, that it was recent, exclusive, unexplained, and that there were no other facts which created a reasonable doubt as to the defendant’s guilt. He argues that the burden is on the prosecution in a criminal case to establish beyond a reasonable doubt not only a defendant’s guilt, but also the essential elements of the crime, citing People v. Sanford, 24 Ill2d 365, 181 NE2d 118.

Stated another way, the defendant concedes that it is a well settled rule that the recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt, which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the jury, or the trial court if a jury is waived, a reasonable doubt as to his guilt. People v. Franceschini, 20 Ill2d 126, 169 NE2d 244; People v. Woods, 26 Ill2d 557, 188 NE2d 1.

The defendant maintains that he never had exclusive possession and, in fact, had no possession at all. He also insists that his explanation and defense to the burglary charge was sufficient to negate any presumption of guilt, citing People v. Barnes, 311 Ill 559, 143 NE 445 and People v. Urban, 381 Ill 64, 44 NE2d 885.

In Barnes the defendant was a passenger in a stolen car and the driver admitted stealing the car and assumed full responsibility for the theft. The defendant testified that after their car broke down her friend returned with the car in question and when she asked him where he got it was told it was none of her business. The Court concluded that the evidence only showed that the driver stole the car and that it was in his exclusive possession from that time until he was arrested and that it was not shown by any affirmative act of the defendant that she actually advised, encouraged, aided or abetted the perpetration of the crime. The Court went on to say that mere presence of a person is not sufficient to constitute him a principal, or mere association with a stolen article is not necessarily possession of it, unless there is something in his conduct showing a design to encourage, incite or in some manner aid, abet or assist the actual perpetrator of the crime.

In Urban the Court held that the instruction given to the jury that exclusive possession if unexplained is sufficient to raise an inference of guilt was improperly given. There the defendant was arrested when he unlocked a garage which he rented with other persons and in which items from a burglary and burglarious tools were located. Other persons had keys to the garage and the Court concluded that the evidence did not show that Urban at any time had exclusive possession of the tools and other implements found in the garage.

In People v. Dougard, 16 Ill2d 603, 158 NE2d 596, also cited by the defendant, the codefendant was found by the police behind the burglarized premises with a stolen box of tools. The police found Dougard who had driven with the codefendant to that area about 150 to 175 feet away from the premises relieving himself in an alley. Dougard denied he burglarized the premises and said he was drunk and while he was relieving himself he didn’t know or notice where the codefendant went. The codefendant who pleaded guilty testified that he never said anything to Dougard about entering the premises nor did they have an understanding prior to this time to attempt any burglary. He said he saw an open window, climbed in, threw the box out and climbed out. The Court held that the judgment of conviction rested upon circumstantial evidence that raised little more than a suspicion against Dougard and left a grave and serious doubt.

In the case before us the situation is entirely different. Here the defendant Ray was arrested driving his automobile within two blocks of the recently burglarized premises and the stolen items were found in his car and the trunk. When the police questioned him concerning the merchandise he answered that he had no knowledge either, “where it came from or how it got in the car.” Officer Angelo also said that when both defendants were questioned in the squad car, after being arrested, as to what they were doing in the car, neither one would answer. The trial judge was confronted with this evidence and the defense that a burglar called a cab and the defendant responded; and near an alley after 9:00 p. m. the burglar put the items in the front and back seats and the trunk of the car, which was opened by the defendant, and then they sat together in the front seats. A trial judge is not required to believe an unreasonable story of the defendant and it is apparent that this unbelievable story was not convincing to the court. The credibility and weight to be given such testimony is for the trial judge who saw and heard the witnesses. People v. Merritt, 29 Ill2d 423, 194 NE2d 292.

We conclude that the evidence and surrounding circumstances establishes such unexplained, exclusive possession of recently stolen property as would justify the conviction. People v. Reynolds, 27 II12d 523, 190 NE2d 301. In Reynolds a stolen car filled with stolen merchandise was stopped for a traffic violation. Reynolds, a passenger, denied the burglary, and testified that he had been drinking and accompanied the driver who also testified that Reynolds did not know the automobile and items in it were stolen. In affirming the burglary conviction, the Court held that although Reynolds was not driving the automobile he was in joint possession of stolen property with the codefendant, and that recent, exclusive, and unexplained possession of stolen property, either singly or jointly with others, may raise an inference of guilt.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elza Bryant, Defendant-Appellant.
    Gen. No. 51,230.
    First District, Third Division.
    February 23, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.


author: MORAN, P. J.

text:
    Ben Carnahan, Plaintiff, v. John McKinley, Defendant. John McKinley, Counter Plaintiff-Appellant, v. Ben Carnahan, Counter Defendant-Appellee.
    Gen. No. 66-74.
    Fifth District.
    February 28, 1967.

      Twente & Jelliffe, of Harrisburg, for counterplaintiff-appellant.
    Fowler & Novick, of Marion, for counterdefendant-appellee.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Saline County, Illinois, dismissing the defendant’s counterclaim on the ground that it was barred by the statute of limitations.

On September 5, 1963, the plaintiff, Ben Carnahan, filed his complaint against the defendant, John McKinley, for damages arising out of an automobile accident which occurred on October 7, 1962. On April 1, 1965, after having withdrawn a motion attacking the complaint, the defendant filed an answer and counterclaim against the plaintiff which sought damages for injury to the defendant’s automobile (Count I) and damages for personal injuries (Count II). The trial court granted the plaintiff’s motion to dismiss Count II, holding that the counterclaim for personal injuries was barred by the statute of limitations. It further ordered that there was no just reason to delay appeal from the judgment and that the judgment was a final order.

The sole issue before this court is whether the defendant’s counterclaim for personal injuries was barred by Ill Rev Stats, c 83, § 15, providing that “actions for damages for an injury to the person . . . shall be commenced within two years next after the cause of action accrued.” The defendant argues that the counterclaim should not be barred because Ill Rev Stats, c 83, § 18, excepts certain actions from the general limitation statute and that his counterclaim falls within the exception. Section 18 provides that:

A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, and not otherwise; . . .

The plaintiff, on the other hand, contends that this section, “properly interpreted,” does not remove the bar of the two-year statute of limitations from the defendant’s counterclaim. He argues that the intention of the legislature in enacting this section is to be ascertained as of 1872, when the section was enacted, and that, at that time, a defendant sued in tort could not, by counterclaim, setoff, or otherwise, assert an affirmative claim for his damages sustained in the same occurrence which was the subject matter of the action and that we should construe the section to have the same meaning now that it had at the time it was enacted.

The meaning of a section must be determined by a reading of the entire statute. City of East St. Louis v. Touchette, 14 Ill2d 243, 150 NE2d 178. Ill Rev Stats, c 83, was enacted in 1872 and was subdivided into two categories — real and personal actions. Sections 13-24 purport to deal with personal actions. Section 13 provides that “the following actions can only be corn-within the periods hereinafter prescribed, except when a different limitation is prescribed by statute.” Sections 14-17 list different types of personal actions and their corresponding limitations, one of which is an action for damages for an injury to the person (section 15). Following these five sections is section 18, dealing with “setoffs and counterclaims.” From a review of the entire statute, we find that the language of section 18 is clear and unambiguous and applies to all the types of personal actions enumerated in other sections.

Where the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation, and the court has no right to look for or impose another meaning. In the case of such unambiguity, it is the established policy of the courts to regard the statute as meaning what it says, and to avoid giving it any other construction than that which its words demand. The plain and obvious meaning of the language used is not only the safest guide to follow in construing it, but it has been presumed conclusively that the clear and explicit terms of a statute expresses the legislative intention, so that such plain and obvious provisions must control. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity. Sup v. Cervenka, 331 Ill 459, 163 NE 396; In re Estate of Kent, 4 Ill2d 81, 122 NE2d 229; Salmons v. Dutz, 16 Ill App2d 356, 148 NE2d 17; 50 Am Jur, Statutes, § 225.

Chapter 83, section 18, clearly authorized the pleading of a counterclaim, otherwise barred by the statute of limitations, to any action, the cause of which was owned by the plaintiff before such counterclaim was barred. Since the counterclaim of the defendant meets these requirements, it is not barred by the statute of limitations and should not have been dismissed.

For the foregoing reasons, the judgment of the lower court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.