author: MR. JUSTICE SCHWARTZ

text:
    Ralph Noe, Plaintiff-Appellant, v. Chicago Great Western Railway Company, a Corporation, Defendant-Appellee.
    Gen. No. 49,214.
    First District, Third Division.
    December 9, 1965.
    Supplemental Opinion April 28, 1966.

      James A. Dooley and Clare J. Murphy, of Chicago, for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago (Edward J. Wendrow and R. Lawrence Storms, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant in a case involving injuries to person and property sustained in a grade crossing collision in Iowa on September 21, 1953, between a crane driven by the plaintiff and a train operated by the defendant. The claim is based on two counts — common-law negligence, on which the jury found for the defendant, and a violation of the Federal Safety Appliance Act, on which the trial court directed a verdict for the defendant at the close of plaintiff’s evidence. The principal issue on appeal is whether the court properly excluded expert testimony as to the efficiency of the train’s brakes. As the plaintiff also charges that the verdict is against the manifest weight of the evidence, an adequate statement of facts must be presented.

Plaintiff was an operator of heavy equipment and had been working with a crane at the Dubuque Sand and Gravel Pit. The crane weighed 25 to 30 tons and from the front of it there extended a 42-foot boom. It was self-propelled by a caterpillar-type system with a maximum speed of two miles per hour. Plaintiff planned to move the crane from the gravel pit to another job site and had engaged a truck designed to carry heavy equipment. The pit was separated from a nearby highway by the defendant’s railway track, and a private road connected the pit with the highway. Owing to the steepness of the grade and the low clearance of the truck, it was decided to drive the crane under its own power across the grade crossing to the highway. A provision of the Motor Vehicle Act of the State of Iowa required that vehicles of this character having a normal speed of six or less miles per hour may not be operated across a railroad grade crossing without notice first being given to a superintendent of the railroad in time for the railroad “to provide proper protection at such crossing.” No effort was made by plaintiff to give notice to any agent of the railroad, although there was a local train dispatcher in a nearby office. The Act also required a person operating such a vehicle to stop between 10 and 50 feet from the nearest rail and look and listen for an approaching train. Iowa Code Ann § 321.344.

At 5:00 a. m. on the morning of the accident, the plaintiff met the driver of the truck, John Reisdorf, at a restaurant about two miles from the gravel pit, stayed there 20 or 25 minutes, and then went to a point near the highway side of the track, where Reisdorf remained in his truck while the plaintiff went to the pit.

On the vehicle was a cab painted “highway yellow” which had a seat for the operator in the front on the right side. The cab had ample windows in front and on both sides and in addition there was a door on the left side which was open that morning. The boom, which was painted black, had been lowered to a point 10 to 15 feet off the ground, as was customary during travel in order to give better vision and balance. Right behind the operator in the cab was the motor, which made so much noise that the operator could not hear the sound of a train in motion, although the plaintiff testified that on other occasions he had been able to hear train whistles. There were no lights anywhere on the crane.

The plaintiff testified that he stopped the crane at a point on the private roadway with the cab 50 feet from the crossing, looked both ways, saw nothing approaching and started across at the full speed of two miles an hour. At that speed it took about 17 or 18 seconds to traverse the 50 feet to the crossing. Plaintiff testified that he did not look to the left again, and did not know whether the train whistled or rang its bell. He said that all but eight inches of the rear end of the crane had cleared the track when the train coming from the left side hit the crane.

Reisdorf, the driver of the truck, testified that he remained in his parked truck on the highway side of the tracks with his view of the tracks largely obstructed by a billboard and that he first became aware of the train when it hit the crane. Plaintiff had not asked him to observe the tracks or flag down trains.

Crew members of defendant’s train testified that the train’s brakes had been satisfactorily tested minutes before the accident, the whistle had been blown at a whistling post 2,000 feet from the crossing, the fixed and the oscillating headlights were on, illuminating the track for 1,000 feet, and the automatic bell ringer was on. A quarter mile or better from the crossing, proceeding 35 to 40 miles an hour, the engineer saw something on the track, quickly made out that it was a boom, set the brake in emergency, and continuously sounded the whistle. At impact the train had slowed to five miles an hour.

The engineer testified that when he asked if plaintiff had not seen the train’s headlights, plaintiff replied that he “didn’t look” and that he had never seen a train along there at that time of the morning. The conductor testified that in response to another question by the engineer, plaintiff said he had not heard the whistle because the machine made so much racket that he could not hear anything. Another employee of the defendant who happened along after the collision testified that plaintiff asked “how come they run a train at that time of day?”

Plaintiff undertook to establish negligence by showing a violation of the Federal Safety Appliance Act, a penal statute, violation of which is under Iowa law negligence per se. Meier v. Chicago, R. I. & P. Railway (Iowa), 275 NW 139, 142 (1937). The violation alleged was that the railroad had failed to equip its cars and engine with good and adequate brakes. Plaintiff offered the evidence of an expert witness that if the brakes had been operating efficiently and properly, the train would have stopped short of the crossing. This was proper evidence. Myers v. Reading Co., 331 US 477 (1947).

The witness, Clifford Moore, a retired railway engineer, offered his opinion, based upon assumed facts in a hypothetical question, that efficient brakes would have halted the train within 600 to 700 feet. The defendant’s engineer had testified that the brakes had been applied about a quarter mile from the crossing. Nevertheless the trial court held that Moore was not qualified to testify as to defective brakes and sustained general objections to his testimony.

Moore testified that he had long years of railroad experience, having worked for the Nickel Plate Road and predecessor lines since 1922, first as a fireman and from 1941 to 1956 as an engineer. In Williams v. Mason City & Ft. D. Railway (Iowa), 214 NW 692 (1927) a farmer who was a former brakeman and conductor was allowed to testify under similar facts. Defendant cites Thompson v. Chicago & E. I. Ry. Co., 32 Ill App2d 397, 178 NE2d 151, a personal injury action under several federal acts, including the Safety Appliance Act. The plaintiff, a locomotive engineer with work experience similar to Moore’s, was not permitted to answer two questions, to wit: “Now, what, if anything happens to the piston in an air cylinder when air is applied into that cylinder?” and “What is the relationship between amount of piston travel and amount of pressure that is applied on a brake shoe to a wheel?” The court, in sustaining the ruling of the trial court, said (p 403): “There is nothing in the record which suggests that plaintiff was competent to testify as to the technical aspects of the operation of air brakes. He recognized his lack of knowledge on the subject.” The hypothetical question here in question did not explicitly call for such technical knowledge and there is nothing in the record on which it can be said that Moore “recognized his lack of knowledge of the subject.” He was a qualified expert, and the court erred in holding otherwise.

Defendant contends that the hypothetical question put to Moore lacked many essential elements and on that ground objection was properly sustained. The question follows:

“Assume a train of a double unit diesel, traveling at 35 to 40 miles an hour, a mixed train that had been brake tested a mile or so before normal application, and assume the train had four freight cars and four passenger cars, and that an emergency application was made a quarter of a mile from a crossing and the train hit a crane at four to five miles an hour and proceeded to 50 to 100 feet beyond the crossing, how far in your opinion — as to the condition of the brakes of the train ... do you have an opinion as to whether or not those brakes functioned properly?”

Putting a skeletal question of this character to an expert witness is certainly not good practice, but only a general objection was made to it. The long established rule is that objections to hypothetical questions must specifically point out the elements the objector thinks should have been excluded or included. Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582; Chicago Union Traction Co. v. Roberts, 229 Ill 481, 82 NE 401. The ruling of the court excluding Moore’s testimony provided the basis for directing the verdict on the second or safety appliance count and was erroneous.

Moore’s testimony that properly working brakes would have stopped the train in time was also material to a determination of liability on the first count under the Iowa doctrine of last clear chance. This doctrine presupposes proof of plaintiff’s contributory negligence and permits recovery notwithstanding where the defendant (1) has actual knowledge of plaintiff’s situation; (2) realizes or should realize that he is in peril; and (3) having the ability to avoid injury to the plaintiff thereafter fails to do so. Tilghman v. Chicago & N. W. Ry. Co. (Iowa), 115 NW2d 165, 168 (1962); Vreugdenhil v. Kunkel (Iowa), 127 NW2d 630, 633-34 (1964). The doctrine is vital to plaintiff’s case because there was overwhelming evidence of plaintiff’s contributory negligence.

Plaintiff contends that the jury’s verdict was against the manifest weight of the evidence on the issues of defendant’s negligence and plaintiff’s contributory negligence, arguing particularly that the grade crossing statute before referred to does not apply to private crossings such as the one here involved. He urges that the Motor Vehicle Act, which contains the provision in question, should be construed in pari materia with the Railroads Act, which uses the term “grade crossing” when referring to public as opposed to farm crossings. Iowa Code Ann §§478.12, 478.21, 478.28. This, he argues, is sound doctrine because railroads know that heavy, slow-moving vehicles are the ordinary traffic at private crossings and therefore notice of such traffic is unneeded. But whether a roadway over a crossing has been dedicated to the public has no relation to what moves over it. The object of the statute is to protect all who use the crossing — the railroad, its passengers and personnel, as well as the operator of the vehicle — from the disastrous consequences which can occur when a high speed train hits a huge and cumbersome vehicle like the one in question. It is our conclusion that the statute applies to both public and private grade crossings.

The defendant argues that plaintiff cannot invoke the last clear chance doctrine because his amended complaint made inconsistent charges that the defendant both failed to keep a proper lookout and knew of plaintiff’s peril. He relies on the Iowa case of Reynolds v. Aller (Iowa), 284 NW 825, 828 (1939). However, this issue of pleading is a procedural question governed by the law of Illinois. See Mithen v. Jeffery, 259 Ill 372, 376, 102 NE 778. Section 43(2) of the Illinois Civil Practice Act provides that:

“When a party is in doubt as to which of two or more statements of fact is true, he may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses, whether legal or equitable. A bad alternative does not affect a good one.” (Ill Rev Stats 1963, c 110, §43(2).)

Moreover, since the defendant made no motion to strike and submitted instructions on the last clear chance issue, this contention must be considered as waived. Despite the very strong evidence of contributory negligence a new trial is necessary.

The judgment is reversed and the cause is remanded with directions to grant the motion for a new trial and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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

Supplemental Opinion on Rehearing.

Following our allowance of the petition for rehearing, we thoroughly reviewed the case and we are of the opinion that our original conclusion was correct. Defendant has urged us to consider that the testimony of the expert witness, Moore, as to the distance within which trains could be stopped if equipped with proper brakes, which we found was erroneously excluded, was some time later admitted into evidence, and for that reason we should reverse ourselves and affirm the judgment. We have examined the record and it now appears that this evidence in question was indeed admitted. We agree with defendant that plaintiff’s brief and abstract were misleading on this point, but confusion enveloped the issue on the trial, as evidenced by an assertion made by defendant’s counsel during closing arguments, that the evidence in question had not in fact been admitted. In this state of the record, the jury must likewise have been confused as to what it could properly consider. Moreover, as we hold in our opinion, it was error for the court to direct a verdict on the count charging a violation of the Safety Appliance Act.

The judgment stands reversed and the cause remanded, with directions to grant the motion for a new trial, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bobby Lee Beckham, Defendant-Appellant. People of the State of Illinois, Plaintiff-Appellee, v. Bobby Lee Beckham, Defendant-Appellant.
    Gen. Nos. 49,782, 50,543.
    First District, Third Division.
    April 28, 1966.

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

delivered the opinion of the court.

This is an appeal from two judgments of guilty, one by the court in a trial without a jury and one on a finding of guilty after a jury trial. The parties hereto have in their briefs included both cases under the mistaken assumption that these cases had been consolidated in this court. We find no record in this court of a consolidation of these cases, nor would a consolidation order have been proper in these cases. We will consider each of these cases in this opinion.

The defendant contends that the State failed to prove the defendant guilty beyond a reasonable doubt as to either of the indictments.

The facts adduced at the trial will be set out separately as to each indictment.

Indictment No. 63-2848

This case was tried before the court on December 2, 1963, a jury having been waived. The evidence showed that at 10:15 a. m. on October 11, 1963, Michael Latizio was making deliveries at 1601 South Kedzie, Chicago. As he was returning to his truck he saw a group of men on the street harassing another delivery man. Michael Latizio entered his truck and someone entered and grabbed him from behind. It is argued by the defense in this case that he was not able to identify the defendant except from having seen him with other men on the street, and that he saw these men for only five seconds. The record does not bear out this statement by the defense. The record indicates that as Latizio was returning to his truck he saw the defendant with several other persons harassing another truck driver and at that time he observed them for only five or six seconds. However, Latizio testified as follows: “I recognized his voice, sir. He was drinking. You couldn’t miss him. I couldn’t miss him out of a hundred people.” Latizio also testified, when asked whether he had seen the defendant’s face clearly, that “When I walked by, I did” and that “I knew his face.” He was asked if he had seen the defendant again after seeing him with a group of four or five men in the street, and his answer was, “I saw him when he held me up” and “I could see him from a side view.” Again the witness testified, “I identified him because I saw him when I walked across the street. Then I saw him at a side view, when he held me up.” The testimony of the complaining witness was unshaken on cross-examination.

In defendant’s statement of facts in his brief he states that Latizio did not know if the assailant wore glasses. The record shows that Latizio testified that the defendant did not have glasses. The evidence showed that the man who robbed Latizio put a knife to his neck and demanded his money. The robber thereafter fled with $21.34.

Police Officer John Cioe arrested the defendant on October 11, 1963, and found a knife in his pocket. The arrest took place at 1533 South Sawyer. The police officer had been alerted to look for a man with bushy hair, which the defendant had. The officer testified that he arrested the defendant at 11:15 a. m. on October 11, 1963, and that he had in his possession $30.33 and a knife.

The defendant testified that he was employed as a janitor at 3140 West 15th Street, and that during the early morning hours of October 11, he was playing craps. He had won some money and had left the game about 8:30 a. m. to do his janitorial work. He then went to Dobie’s Den, a tavern. When he left there he walked around the neighborhood as he did every day. The defendant denied that he robbed Michael Latizio. The defendant in the statement of facts in his brief failed to note that he testified that he was arrested about 11:00 or 11:15 a. m. on October 11,1963.

Indictment No. 63-2849

This case was tried before a jury on January 28, 1964.

On October 11, 1963, Grace Austin opened up a fish store located at 3206 West 16th at about 9:00 or 9:30 in the morning. At 9:40 a. m. a person entered the store and asked for some salmon. After about a minute, the person who entered jumped over the counter with his hand in his pocket and said it was a stickup. He took her money with one hand while the other remained in his pocket. Grace Austin, the complaining witness, did not see a weapon, and the assailant fled taking $50. Grace Austin positively identified the defendant as the person who entered her store and had asked for two pounds of jacks. While she was weighing the fish the defendant leaped over the counter and announced that it was a stickup. During the greater portion of this period, which lasted four or five minutes, the victim was facing the defendant in a well-lighted store at distances ranging from four to nine feet.

Police Officer Cioe, who had testified in the first indictment against the same defendant, No. 63-2848, that he had arrested the defendant at 11:15 a. m., testified in this second case involving indictment No. 63-2849, that he arrested the defendant at 10:00 a. m. (Obviously an error, because both the defendant and the police officer were in accord as to the time of arrest in the first trial.) The defendant denied being the assailant in this trial as well.

The argument of the defendant in many instances is not based upon facts appearing in the record, and this court will ignore that part of the argument. The defendant also has failed to make mention in his brief that in this second trial the defendant testified on cross-examination that he left Dobby’s Den, a tavern, about 10:45 a. m. on October 11, 1963, the date of the robberies. (Dobby’s Den is spelled in this manner in the record in the trial of the defendant on indictment No. 63-2849, and is spelled Dobie’s Den in the record of the trial of the defendant on indictment No. 63-2848. Both of these spellings apply to the tavern located at 1436 South Kedzie, Chicago, Illinois.)

The defendant, hoping to point out discrepancies between the testimony in the two cases, which would cast a doubt as to the defendant being the assailant, moved to consolidate the two cases for the purpose of appeal, but the court record here does not show that the motion was allowed. The defendant argues that the complaining witness in the first indictment did not have an ample opportunity to observe his assailant, and that he observed him in a group of men for only five seconds. Hence, Michael Latizio’s identification was based upon a five second view of a group of men standing on the street. This can be argued only because the defendant has failed to set forth facts appearing in the record. The facts demonstrate that Latizio saw the defendant for five or six seconds in a group of four or five men who were harassing another delivery man and recognized him because of his bushy hair. He also testified that he saw him from a side view while he was being held up. The identificaton by Latizio was positive, and on cross-examination he testified that he recognized him not only from his face but from his voice. He also stated that the defendant had been drinking and that he couldn’t miss him out of one hundred people. Therefore, the argument by the defendant that Latizio’s identification is based upon a five second view of a group of men standing on the street is wholly unwarranted.

The defendant also raises the point that since there was $50 taken from Grace Austin and $21.34 taken from Latizio, that the defendant could not have been the assailant in both cases, because when he was arrested he had in his possession only $30.33. This argument is not persuasive in view of the fact of the positive identification by both prosecuting witnesses, and the fact that there was a lapse of time between the robberies and the arrest. In the trial of the second indictment, Grace Austin testified that the defendant had entered her store at 9:40 a. m. on October 11, 1963, and that the assailant was in police custody in her store thirty-five minutes later, the gist of the defendant’s argument being that had he been in the custody of the police at about 10:00 o’clock on October 11 he could not have been guilty of robbing Latizio at 10:15 a. m. on the same day. If those were the facts, the argument would be sound; however, the defendant, himself admitted in the trial of the case by the court on indictment No. 63-2848 that he was arrested by the police officer about 11:00 or 11:15 a. m. on October 11, 1963. In the second trial before a jury on indictment No. 63-2849 he testified that he left Bobby’s Ben, a tavern, at 10:45 a. m. on October 11, 1963, the date of the robberies, and after walking around the neighborhood a while was arrested. Since there was only one arrest of the defendant, and since it was after he contends he left Bobby’s Ben, his testimony tends to support the testimony of Officer Cioe in the first trial to the effect that the defendant was arrested at 11:15 a. m. It also tends to support the defendant’s own testimony in the first trial that he was arrested at about 11:00 or 11:15 a. m. on October 11, 1963. The argument of the defendant based upon what was obviously an error by the police officer in the second trial to the effect that the arrest had been made at 10:00 a. m. on October 11, 1963, and by the complaining witness that the defendant was in police custody about thirty-five minutes after the burglary at 9:40, cannot be taken advantage of in this proceeding due to defendant’s own testimony that he had been arrested at 11:00 or 11:15 a. m. on that date in the first trial, and that he left Bobby’s Ben at 10:45 a. m. in the second trial after which he was arrested.

In People v. Clay, 27 Ill2d 27, 187 NE2d 719 (cert denied 374 US 844), at page 32 the court said, in commenting on variances in the testimony of a police officer on different occasions:

“Minor discrepancies in testimony taken at two different times is not unusual. (People v. Thomas, 20 Ill2d 603.) The discrepancies shown by this record do not destroy the credibility of officer Harvey but go only to the weight to be given his testimony.”

It might be added at this point that Officer Cioe was not cross-examined by the defendant as to any discrepancy in the time of arrest. There is no question but what the testimony as to the time of arrest was admissible, and the question of credibility of the witnesses and the weight to be given their testimony are for the jury to decide, or for the trial court where a jury has been waived. People v. Johnson, 47 Ill App2d 441, 198 NE2d 173; People v. Clark, 30 Ill2d 216, 195 NE2d 631; People v. Miller, 30 Ill2d 110, 195 NE2d 694; People v. McCain, 29 Ill2d 132, 193 NE2d 784.

The testimony of one witness alone, if positive and credible, is sufficient to support a conviction. People v. Miller, 30 Ill2d 110, 195 NE2d 694.

Furthermore, the record should also show that the questions urged in the reviewing court were presented properly to the trial court and rulings obtained thereon. ILP Criminal Law, Sec 882.

No point was raised by the defendant in the trial court about the time of arrest in either case, and the defendant here seeks to take evidence from one record in an effort to create a doubt as to his guilt of another crime for which he was tried separately. This he cannot do by the simple process of seeking a consolidation of two cases tried separately.

In each of the cases involved herein there was positive identification by credible witnesses. The defendant was in the area at the time of the robberies. The defendant attempted to explain his presence in the area, but his explanation does not now impress this court, and apparently, did not impress the trial judge in the first case or the jury in the second case.

The requirement that the defendant’s guilt be proved beyond a reasonable doubt does not mean that the trial judge or the jury, as the case may be, must disregard the inferences that naturally flow from evidence. The trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Owens, 23 Ill2d 534, 179 NE2d 630.

We conclude that since there was positive identification of the defendant in each of the trials, and that the time of arrest having been accurately proven by the defendant himself, the minor error in the testimony of the police officer and the complaining witness in the second trial as to the exact time of arrest does not create in the minds of this court, where the point has been urged for the first time, a reasonable doubt as to the guilt of the defendant. The judgments, therefore, must be affirmed.

Judgments affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Harry Clark, Plaintiff-Appellee, v. State of Illinois, Department of Labor, Robert R. Donnelly, Director of Labor, Board of Review of the Department of Labor, Marvin A. Mindes, Chairman, Irving M. Friedman, Member, Albert M. Quarles, Member, Harry Semrow, Postmaster of the City of Chicago, United States Post Office, Defendants-Appellants.
    Gen. No. 50,399.
    First District, Third Division.
    April 28, 1966.

      William G. Clark, Attorney General of the State of Blinois (Richard A. Michael, A. Zola Groves, John J. O’Toole and Edward A. Berman, Assistant Attorneys General, of counsel), for appellants.
    Bernard J. Kayne and Robert S. Brody, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff was a mail handler employed in the federal post office at Chicago, Blinois. By virtue of federal and state legislation, he was entitled to coverage under the terms of the Blinois Unemployment Compensation Act (Social Security Act, Title XV, sec 1502, 42 USC § 1362; B1 Rev Stats ch 48, § 332 (1963)). While so employed, he was indicted on charges of possessing and selling narcotics based on an incident that took place outside the hours and place of his employment. He pleaded guilty to the charge of possession and was placed on probation. Following his indictment, he was suspended and later resigned from his position and applied for unemployment benefits. His application was denied by an official of the Department of Labor on the ground that he had been discharged for a “felony in connection with his work” and he was precluded by statute from receiving benefits based on that employment. (Ill Rev Stats ch 48, § 432C (1963).) When he sought review in the appropriate administrative channels, his appeal was denied because it had not been filed within a certain statutory period. The Board of Review, created by statute as the highest appeals tribunal in the Department, affirmed, and an appeal was taken to the Circuit Court of Cook County pursuant to the provisions of the Administrative Review Act. That court reversed and remanded the case to the Board of Review, with directions that the Board consider the case on its merits, notwithstanding the fact that the appeal to the Board was not within the time limit. The Board on rehearing found that the applicant’s discharge was for a “felony connected with his work.” The case then went back to the Circuit Court, which reversed the Board and ordered that compensation in the sum of $1,071 be paid to plaintiff. From that final order an appeal has been taken to this court.

With respect to plaintiff’s failure to file his administrative appeal in time, it is pertinent to consider the various steps provided by law to protect the plaintiff against an ill-advised decision, before an issue such as the one here involved reaches the courts. The initial determination is made by a deputy in the Department of Labor, who bases his decision on the claimant’s application and on statements filed by the employer. The deputy’s decision is termed a “finding” if it involves the applicant’s first claim for benefits filed in a single year. It is termed a “determination” if it deals with subsequent eligibility, which is determined on a continuing week-by-week basis. (The decision in the instant case is a “finding.”) If no appeal has been taken, the deputy may reconsider his “finding” at any time within thirteen weeks after the close of the benefit year. Ill Rev Stats ch 48, §§ 450-453 (1963). Appeals from the deputy’s decision are taken to a referee. These must be filed within seven days if notice of the decision was delivered in person, and within nine days of the decision if mailed. If the appeal is not timely filed, “such ‘finding’ or ‘determination’ shall be final as to all parties given notice thereof.” The referee must afford reasonable opportunity for fair hearing, which is the first actual hearing available to a party adversely affected by the deputy’s decision. His decision shall be final unless a further appeal to the Board of Review is filed within ten days. Ill Rev Stats ch 48, §§ 470-472 (1963). The Board of Review bases its decision on a hearing held in accordance with its regulations, at which additional evidence may be taken. Ill Rev Stats ch 48, §§ 473, 474 (1963). A review of the decision of the Board of Review may be had pursuant to the Administrative Review Act.

In the instant case, an agent of the post office officially notified the Department of Labor that the reason for plaintiff’s separation from work was “conduct unbecoming a postal employee tending to bring the Postal Service into disrepute.” This finding of cause was binding on the Department under the federal statute. 42 USC § 1367 (a) (4). Without a hearing a deputy of the Division of Unemployment Compensation found that plaintiff was ineligible for benefits, and a notice of the finding dated February 1, 1963, was mailed to him. Prominent on the face of the notice was the admonition: “APPEAL RIGHTS: IF YOU DISAGREE WITH THIS DETERMINATION, you may file an appeal, in person or by mail. Your request must be RECEIVED in this office . . . within nine (9) days from the date of this notice. DO NOT WAIT FOR YOUR REGULAR REPORT DAY.”

Plaintiff received the notice within three days and sent it to the probation officer who had been assigned to him following his sentence for violation of the narcotics law. The probation officer did not personally receive it until February 14th, because of his absence from the city and hospitalization due to illness. On February 20, 1963, nineteen days after the date of the notice, plaintiff, accompanied by his probation officer, filed an appeal in person. A date was set for a hearing before a referee, but the notice of hearing warned that unless the dates on record could be shown to be wrong, the deputy’s determination would be final. At the hearing the plaintiff, appearing without counsel, explained that because of the unfavorable determination he had been evicted from his apartment for unpaid rent and his wife had left him, taking their two children. He had sent the notice to his probation officer because, he said, his emotions were in turmoil and the officer had previously asked to be consulted. He also argued to the referee that his narcotics violation was not a “felony connected with his work,” since it took place away from work.

The referee found that the record dates were not in error and that therefore he was without jurisdiction to hear the appeal on its merits, as the deputy’s determination had become final. Plaintiff appealed to the Board of Review and submitted a written memorandum. The, Board affirmed the referee’s decision and plaintiff then filed this suit for administrative review.

The Circuit Court heard evidence relating to the rear sons for the delayed appeal and decided that the statute (Ill Rev Stats ch 48, § 470 (1963)) permitted the hearing of late appeals under certain circumstances, found that such mitigating circumstances existed, and remanded the case to the Board of Review for a hearing on the merits. Pursuant to that order, the Board of Review conducted a hearing on January 31, 1964, at which plaintiff was represented by counsel. Evidence and argument were presented dealing with both the jurisdiction of the Board and the merits of the claim. The Board decided on the merits of the case that plaintiff had been discharged for a “felony in connection with his work” and was thereby precluded from receiving benefits based on that employment.

Thereafter plaintiff again appeared in the Circuit Court, by petition, without filing a complaint in admin istrative review. His petition, bearing the docket number of the earlier complaint, requested the court to “hear plaintiff’s claim for Unemployment Compensation Benefits in the nature of Judicial Review,” recited the prior proceedings, and prayed “that the decision and record of the proceeding culminating [in the Board’s decision] be reviewed by this court; that said decision may be wholly reversed, thereby granting plaintiff his full benefits. ...” The state did not argue that these procedures were inadequate to confer jurisdiction on the trial court, and while the proceeding is indeed novel, we have decided the case on other issues involved. The Circuit Court then entered the order reversing the decision of the Board of Review and ordering the Director of Labor to pay plaintiff $1,071 as unemployment benefits. Thereupon the appeal to this court was taken.

Defendants contend that the statute allowing only nine days for appeal is mandatory and that the agency does not have the power to extend the period. They further contend that in any event the court erred in hearing evidence from which it determined that mitigating and extenuating circumstances existed so that the nine day limit would be relaxed. There can be no doubt that this latter point is sound.

Section 11 of the Administrative Review Act provides that “No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency [in the instant case, the Board of Review] shall be heard by the court.” Ill Rev Stats ch 110, § 274 (1963). Section 12(g) provides that if there is need, the court has power to remand for the purpose of taking additional evidence. Ill Rev Stats ch 110, § 275(g) (1963). These sections have been applied many times. Rock Island Metal Foundry, Inc. v. City of Rock Island, 414 Ill 436, 11 NE2d 499; see Biggs v. Cummins, 5 Ill2d 512, 517, 518, 126 NE2d 208; Pipe Trades, Inc. v. Rauch, 2 Ill2d 278, 291, 118 NE2d 319. Plaintiff contends that the testimony given in the trial court was merely a reiteration of the testimony in the record and was not “in opposition to the decision of the administrative agency.” This contention misconceives the purpose of the provision, which is not to prevent introduction of new matter, which can be done upon remand, but to define the scope of judicial review. This scope is confined to questions of fact and law presented by the record, and the wisdom of this policy is evident where, as here, the administrative action to be reviewed has undergone consideration at three separate levels within the ageney. (Administrative Review Act, Sec 11; Ill Rev Stats ch 110, § 274 (1963).) The court did not find that the agency’s decision was unsupported by evidence, nor did it remand for the hearing of additional evidence bearing on the causes of the delayed appeal, but itself heard testimony as on a trial de novo. The order of October 15, 1963, remanding for a hearing on the merits was error.

Defendants also argue that the court misconstrued the statute imposing the nine day limitation on appeals by holding it to be directory rather than mandatory. (Ill Rev Stats ch 48, § 470 (1963).) We need not reach this issue. Under the circumstances of the instant case it was proper for the Board to adhere strictly to the nine day limit.

Plaintiff contends that since no appeal was taken from the October 15th order of remand, any error therein is not reviewable here. That order was interlocutory and nonappealable, and the errors we have considered were properly open for review on this appeal from the final order in the case. Thompson v. Industrial Comm., 377 Ill 587, 37 NE2d 350.

As the caption indicates, this suit was brought against the State of Illinois, as well as against the agencies and individuals there named. That the State is immune from suit without its consent is elementary, but no motion to dismiss was made, and we have left the caption unaltered. We have considered the substance of plaintiffappellee’s brief only after seriously considering striking it because of its numerous departures from the form set forth in our rule 5(2) (k), Supreme Court Rule 39. Lawyers filing briefs in this court must familiarize themselves with these rules and follow them, except when on application it is otherwise ordered.

Judgment reversed.

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


text:
    James L. Gardner, Plaintiff-Apellant, v. Village of Chicago Ridge, et al., Defendants-Appellees.
    Gen. No. 50,509.
    First District, Third Division.
    April 28, 1966.
    Rehearing denied July 7, 1966.

      Richard H. Lucy and James R. Mitchell, of Chicago, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Herbert C. Loth, Jr., Robert J. Wysong and Kenneth A. Knutson, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The plaintiff appeals to this court from a final order dismissing his second amended complaint as to the defendant municipalities on their motion. The plaintiff sued the villages of Chicago Ridge and Worth, individual police officers of these two villages, and four other persons, for personal injuries incurred by him.

The facts alleged are: The plaintiff was supervising a teen club dance in a hall in the village of Chicago Ridge on March 8, 1962. Four of the defendants, Skubis, La Valley, Posthuma and Souliotis, entered the club and when they were asked to leave by the plaintiff, the four proceeded to strike and beat the plaintiff. Later in the evening, with the help of information furnished by the plaintiff, the police officers of the villages of Chicago Ridge and Worth apprehended the four suspected attackers on a public highway. One of the Chicago Ridge police officers returned to the dance hall and requested the plaintiff to accompany him to that point on the highway in order that the four defendants might be identified by the plaintiff.

When the plaintiff came to the point of apprehension, the police officers allowed the four defendants to remain in very close proximity to the plaintiff. As a result, the four again attacked the plaintiff, in the presence of the police officers, whereby the plaintiff sustained severe injuries.

The plaintiff sued for $100,000 for injuries sustained, naming as defendants the four attackers, the police officers, and the two municipalities.

In his original complaint the plaintiff included four counts. Count I complained of the negligence of the two villages and their police officers in failing to adequately guard the four persons arrested and in negligently allowing them to beat the plaintiff. Count II was a statutory cause of action based upon Illinois Revised Statutes (1963), chap 24, sec 1-4-6. Count III complained that the two villages were guilty of negligence in hiring the police officers knowing that they had no formal training, and in failing to provide them with training once they became police officers. Count IV complained of the four persons who administered the beatings.

The defendant villages moved to strike the original complaint on the ground that the statutory notice had not been pleaded. Plaintiff amended the complaint by attaching the required notice in open court.

The defendant villages individually filed motions to strike the amended complaint and dismiss the action insofar as it pertained to each of them on the ground that the amended complaint failed to state a cause of action against them. These motions were allowed by the trial court as to counts I, II and III. The court also gave leave to the plaintiff to file a second amended complaint against the defendant villages and the police officers.

The second amended complaint recited facts not given in the amended complaint and set forth the acts of negligence specified in Count I of the original complaint. Significantly, the plaintiff did not include a statutory cause of action in his second amended complaint. The second amended complaint was dismissed on motion as to the defendant municipalities. The plaintiff appeals from this order.

The theory of the plaintiff is that the second amended complaint stated a good cause of action against the defendant municipalities for their negligent failure to take precautions reasonably necessary for the protection of the plaintiff after he had reported the commission of a crime and had been summoned by the police officers to the place of apprehension in order to make an identification; as a result of this negligence the plaintiff was severely injured when he was attacked and beaten in the presence of the defendant police officers.

Plaintiff also urges on appeal that chapter 24, section 1-4-6, of the Illinois Revised Statutes (1963), is controlling in the case at bar. We do not have to decide the applicability of this statute since this cause of action was not included in the second amended complaint which was filed by the plaintiff. The order appealed from struck the second amended complaint and dismissed the action as to the municipalities. An amendment which is complete in itself, and does not refer to, or adopt, the prior pleadings, supersedes it and the prior pleading ceases to be a part of the record, being in effect abandoned, or withdrawn. (ILP, vol 30, Pleading, sec 113; People ex rel. Nelson v. Central Mfg. Dist. Bank, 306 Ill App 15, 28 NE2d 154.) In the instant case, since the plaintiff failed to include the statutory cause of action in his second amended complaint, he has abandoned this theory and must base his action on the common law theory of negligence.

The plaintiff in his brief has argued at length that since the decision in Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89, which held that municipal corporations are liable for the negligent acts of their agents, there is a direct right of action against municipalities for their torts. The defendant villages do not challenge the above statement. The defendant villages have stated in their brief:

“Plaintiff apparently believes that the defendant municipalities challenge direct right of action against the villages. Of course, these defendants make no such challenge. Nor do these defendants doubt for a moment that a city may be directly liable for the tortious acts of its police officers. Plaintiff cites many cases confirming such a liability.”

However, the villages do contend that they are not liable for the failure of their police officers to prevent the torts and illegal acts of other persons. In support of this contention they cite the case of Adamczyk v. Zambelli, 25 Ill App2d 121, 166 NE2d 93. There two policemen failed to stop the unlawful explosion of fireworks from a truck during a parade on the city streets. The annual parade was sponsored by a religious society under a city permit. A statue was carried on a float, the truck upon which the fireworks were carried was driven close behind the float, and at various points fireworks were exploded therefrom. Two city policemen were assigned to the parade as guards. A twelve-year-old boy was injured by a piece of shrapnel from one of the fireworks explosions.

The trial court directed a verdict for the municipality which was affirmed by this court because there was no evidence that the policemen aided, abetted, or assisted in the explosion of the fireworks. The court stated: “A municipality is not liable in tort for the failure of its policemen to prevent and stop others from violating the law.”

Generally this statement is correct. A municipality is not liable for failing to prevent the tortious or unlawful acts of others. However, this statement does not apply to cases where there is a duty owed by the police to an individual. We feel that this is such a case and the decision of the trial court dismissing the defendant municipalities must be reversed.

The boy who was injured in Adamczyk, supra, was a member of the general public; as such, the police owed him no special duty. They were not liable to him for failing to prevent others from violating the law. In the instant case, the police officers did owe a duty to the plaintiff. The plaintiff was asked by one of the police officers to accompany him to identify the four suspects at the side of a highway where they had been apprehended. The suspects were in the custody of the police. Yet, they proceeded to beat the plaintiff. Clearly under the facts as alleged in the complaint the police were negligent in failing to restrain the defendants from beating the plaintiff. Once the police asked the plaintiff to come to the place of apprehension, they owed him a duty to protect him and this duty cannot be avoided.

In the case of Schuster v. City of New York, 5 NY2d 75, 154 NE2d 534, plaintiff’s intestate had been shot and killed after having supplied the police with information that led to the arrest of a known criminal. The intestate’s role in the arrest had received wide publicity and he had received threats upon his life which he had reported to the police. When shot, he was without police protection. The Court of Appeals reversed the courts below which held that there was no cause of action. After noting that municipalities had frequently been held liable for the negligence of police officers engaged in law enforcement or closely related activities, the court held that where a municipality uses a private person in making an arrest, it owes a duty to that person to furnish protection to him. The court noted that where public authorities have made use of a private person, the authorities are not merely passive, but they are active in calling for a person’s help and in using it when rendered. As such, a duty exists to protect that person.

The holding in Schuster, supra, actually goes further than the position for which the plaintiff in the instant case contends. There the person was shot several weeks after the arrest; plaintiff here sustained injuries within a short time after the suspects were apprehended and in the presence of the police officers. Schuster was killed while pursuing his own business; plaintiff here was injured after he had appeared at the express request of the police to identify the suspected assailants.

The defendant villages contend that liability attaches only in cases of actual misfeasance, and not in cases of nonfeasance. They assert that since the beatings were administered by four individuals, an act of misfeasance, the villages cannot be liable for the failure of the police officers to prevent these torts, an act of nonfeasance. This is untenable. As we have previously pointed out, the police owed a duty to the plaintiff. The plaintiff was called into a position of peril by the police who allegedly knew that defendant Souliotis had previously been arrested in a tavern fight and had a violent temper and was capable of physical violence. They therefore assumed a duty to exercise reasonable care to protect him against injury from the suspected persons. This duty then also became the obligation of the municipalities, since the police officers were acting as agents of the municipalities and within the scope of their authority.

We conclude that under the circumstances here presented, the police had a duty to exercise reasonable care for the safety of the plaintiff, and that as a result of their negligence in failing to perform that duty, the plaintiff was injured. For the above reasons, the order striking the second amended complaint and dismissing the action as to the villages of Chicago Ridge and Worth is reversed and the cause is remanded.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Appellee, v. Robert Somerville, Gail Somerville and Paul Langusch, Appellants.
    Gen. No. 50,245.
    First District, First Division.
    May 23, 1966.
    Rehearing of Somerville denied June 22, 1966.
    Rehearing of Langusch denied June 27, 1966.

      Julius Lucius Echeles, of Chicago, for appellants, Robert Somerville and Gail Somerville; Alan Berg, of Chicago (Melvin B. Lewis, of counsel), for appellant, Paul Langusch.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, Robert Somerville, Gail Somerville, and Paul Langusch, were convicted in a joint jury trial of committing an armed robbery at a Zayre’s Department Store in Oak Lawn, and were sentenced to terms of not less than ten years nor more than twenty years in the penitentiary. In this appeal, the defendants contend that they were deprived of a fair trial by: (1) the erroneous admission into evidence of the written statement of a confessed accomplice; (2) the fact that the written statement was taken to the jury room by the jurors; and (3) the alleged misconduct of the prosecutor in conducting cross-examination and in making his closing argument to the jury. In addition, two of the defendants, Robert and Gail Somerville, contend that the written statement was admissible, if at all, only against defendant Langusch; and that the trial court should have insulated them from the prejudicial effects of that statement by means of an appropriate and timely instruction, or by ordering a severance.

Although the defendants do not contend that the evidence was insufficient to support their convictions, we feel that a detailed review of the record is nonetheless warranted. The Zayre’s Department Store, at 88th Street and Harlem Avenue in Oak Lawn, closed its doors at 10:00 p. m. on Saturday, March 23, 1963. The cashiers brought bags of money containing the day’s receipts to the office, and turned them over to the assistant manager of the store, who was being assisted by the manager of the men’s department, Robert Olszewski. While they were processing the money, a man appeared at 10:17 p. m. wearing a grey hood which covered his entire face except for eyeholes, and carrying a gun with a cloth bag over it. The robber ordered the men to lie down on the floor, and then removed about $22,000 from the open safe. Olszewski testified that the robber, before leaving, asked, “What time do you bug this thing?”, referring to the A.D.T. alarm system on the safe, and that the assistant manager told him “About twenty after.” In the course of his testimony, Olszewski explained that the alarm system on the safe is set, or “bugged,” at the time the safe is closed, and that if the safe is not closed before a given time, the alarm goes off automatically. He further testified that the time for which the alarm was set varied between 10:15 and 10:30 p. m.

Olszewski then heard two shots from the front of the store, which occurred he said as the robber and his accomplices had to shoot the glass out of the front door of the store as they left. Olszewski then heard that the night janitor had been shot. In the vestibule, he found a shoe and about $9,000 in cash which had been dropped by the robbers. At 6:30 a. m. the following morning, he and two other Zayre’s employees searched the area near the store, and found another shoe about 40 feet behind the store and a black hood about 50 feet further away. On the floor of an abandoned dark blue four-door 1963 Chevrolet they found another hood, which Olszewski testified was the one that the robber had worn. A third hood was found in a gulley about three-quarters of a mile from the store.

The State’s principal witness was Leon Arnold, who also was indicted for this robbery, but was not tried with the appellants. Arnold testified that at about 7:00 p. m. on the day of the robbery he was in a tavern with Douglas Aldridge and Eddie Somerville (who were also indicted, but tried separately from appellants), and that Eddie Somerville said, “he had something real good. Doug Aldridge asked him what it was. He said, ‘Zayre’s.’ ” About 8:00 p. m., they went to Eddie Somerville’s house, where they met Gail and Robert Somerville and Paul Langusch, and discussed robbing the Zayre’s Department Store. Gail Somerville told them what wall a certain room was on and what the job of each participant was to be. Arnold testified, “Eddie Somerville and Douglas Aldridge were to take the office, and I was to keep guard on the people that would be up by the cash register. . . . Paul Langusch was to drive the getaway car. Gail Somerville was to drive the truck.” Arnold described the truck, and said that after they abandoned the getaway car they were supposed to get in under some mattresses in the rear of the truck. He said they made hoods out of trousers, and identified the hoods introduced by the prosecution as the hoods they had made.

At about 9:00 p. m., according to Arnold, all six men left the Somerville’s house together for the Zayre’s Store, travelling in three vehicles. Robert Somerville drove the car in which Arnold, Aldridge, and Eddie Somerville rode, while Langusch drove the getaway car, a 1962 or 1963 blue Chevrolet, and Gail Somerville drove the truck. Before they left for the store, Langusch had told Arnold and the others that after the robbery he would be parked in front of the store in the getaway car. When Arnold, Aldridge, and Eddie Somerville entered the store, they put on their hoods, and while inside removed their shoes to reduce noise. All carried guns; Arnold carried one “walkie-talkie,” and Langusch had another. After the robbery had been completed and the three men within the store had rendezvoused, they encountered the night janitor, who was shot in the scuffle which followed. Arnold testified that the shot had been fired from behind the janitor, and that at the time it was fired the janitor was on top of him, while Aldridge and Eddie Somerville were behind the janitor’s back. The men then ran from the store, and Arnold threw down his mask and the one shoe which he then held in his hand, and continued running through the prairie without shoes. He met Aldridge several blocks from the store, and noticed that Aldridge was wearing only one shoe. Aldridge told him that Langusch had driven the getaway car down a one-way street and that they had to “ditch” the car. The following morning, Aldridge and Arnold called Gail Somerville and the two men were picked up by him and driven to a woman’s house. The money was divided between the six participants, with a seventh share going to Donald Somerville, another brother, who was, at the time, a Chicago police officer. Arnold testified that he rented a safe-deposit box in Chicago, and placed his share in it. He later bought a 1955 Cadillac with part of this money.

Arnold Locke testified that he was the owner of Locke Patrol Service and Detective Agency and had provided guard service for the Zayre’s store in question. On September 10, 1962, he employed the defendant, Robert Somerville as a guard and took him through the store, explaining to him the store’s security system and outlining his duties as a guard. He also explained to the defendant the details of the A.D.T. alarm system. Robert Somerville was discharged from this employment on November 30,1962.

A neighbor of the Somervilles testified that a truck like that described by Arnold had been kept at the Somerville home. On the day of the robbery, she saw Paul Langusch working on the truck, and Robert and Gail Somerville with him. She said the truck left the premises at 9:30 p. m. and returned between 11:00 and 11:30 p. m. that night. The next morning she looked inside the truck and saw mattresses in the back.

Two women employed at the Zayre’s store on the night of the robbery testified that as they left the store at about 10:10 p. m. that night they saw a dark blue 1963 Chevrolet in the parking lot, with a man sitting inside it. They assumed that the car belonged to the assistant manager of the store, who in fact owned a similar car. Mistaking the man in it to be Robert Olszewski, the women walked over to the Chevrolet, but when they saw its occupant and discovered their error they walked away. In February of 1964, almost eleven months later, the women went to the police station and identified the defendant Langusch from a group of photographs as the man in the car. They identified Langusch again in a lineup, and again at the trial.

Detective Ernest Neely of the Cook County Sheriff’s Office and another police officer testified that they arrested Langusch, Aldridge, and Edward Somerville at a tavern on April 29, 1963, and found one walkie-talkie in the glove compartment of Gail Somerville’s car and one in Aldridge’s car.

Leon Arnold was arrested in February of 1964, and gave the police a written statement which was substantially the same as his testimony at the trial. He testified that thereafter he read the statement to defendant Langusch in the Bedford Park Police Station, in the presence of Detective Neely, and that when he finished reading it, Langusch, “said that it was true.” He further testified that when Detective Neely then asked Langusch to sign a statement, Langusch said, “he was afraid to.” Detective Neely testified that when Arnold completed reading his statement, Langusch said, “Almost all of it is true, but not all of it.”

Paul Langusch testified in his own behalf and denied any participation in the robbery. He and his wife both testified that he was at home on the night of the robbery. Mrs. Langusch said that she was given Arnold’s statement to read at the police station, and that after she finished reading it she asked her husband whether he was implicated, and he said he was not. Langusch said Arnold read his statement to him, while he followed along with a copy given him, and that at its conclusion he denied any complicity in the robbery.

In their original briefs, defendants contend that the admission into evidence of the written statement of Arnold, which implicated all of the defendants and which defendant Langusch allegedly adopted by orally admitting it to be true, violated section 114-10 of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 114-10, 1963). That section provides that evidence of an oral confession is not admissible where the defendant, before trial, has moved for a list of witnesses to its making but the State has failed to provide such list. At the arraignment, trial counsel for the defendants requested “any written or oral statements or lists of witnesses,” to which the Assistant State’s Attorney replied he didn’t think there were any, but that if there were he would supply them within ten days. In their original brief, defendants contended that no such information was ever supplied. But the State filed a supplemental record and abstract, which contained the affidavit of trial counsel for the defendants stating that he did receive, about ten days after the arraignment, a list of witnesses to the alleged oral statement of Paul Langusch. From this we conclude that the requisites of § 114-10 were met, and that the evidence of the alleged oral statement of Langusch admitting the truth of Arnold’s written statement was admissible.

Defendants’ next contention is that it was reversible error to permit the jury to take a copy of Arnold’s statement to the jury room during their deliberations. In People v. Allen, 17 Ill2d 55, 160 NE2d 818, our Supreme Court held that where the defendant failed to object in the trial court to the taking of exhibits to the jury room, that error was waived for purposes of appeal. 17 Ill2d at 62. The Court went on to hold:

It is well established that the matter of whether exhibits should be taken to the jury room is within the sound discretion of the trial judge and his ruling will not be disturbed unless there was an abuse of such discretion to the prejudice of defendant. (People v. Ciucci, 8 Ill2d 619). We are of the opinion that no such abuse of discretion or prejudice is shown here. (17 Ill2d at 62, 63).

While it may not have been necessary to have Arnold’s statement read to the jury after he had orally testified to its contents, or to permit the statement to be taken to the jury room, we hold that it was not an abuse of discretion to do so, and that the defendants were not prejudiced thereby.

Defendants cite People v. Spranger, 314 Ill 602, 145 NE 706, in support of their contention. In that case, it was held to be error to allow a codefendant’s written statement to go to the jury room over the defendants’ objections. But this case differs from Spranger in that here the contents of the statement had all been presented in oral testimony by an accomplice who was not a codefendant.

The defendants Robert and Gail Somerville next contend that Arnold’s written statement, if admissible at all, was admissible only against Langusch; and the trial judge failed to insulate them from the prejudicial effects of that statement, either by an appropriate and timely instruction, or by ordering a severance. Trial counsel, who represented all three defendants, did enter an objection at the time the written statement was offered into evidence, but it was on grounds merely that Arnold’s recollection of events at the time the statement was given was too hazy and that the statement was merely repetitious of Arnold’s testimony. No motion was made for a severance at any time.

In support of their position, defendants cite People v. Johnson, 13 Ill2d 619, 150 NE2d 597; People v. Hodson, 406 Ill 328, 94 NE2d 166; and People v. Skelly, 409 Ill 613, 100 NE2d 915. These cases make clear that Arnold’s written statement, if adopted only by Langusch, was admissible only against Langusch. But it should be noted again that substantially everything contained in Arnold’s written statement had already been presented in Arnold’s direct testimony at the trial. Since his testimony was clearly admissible against all the defendants, it is difficult to see how the admission into evidence of a written statement containing the same assertions could be prejudicial to any defendant. But aside from this fact, the record discloses that the trial judge gave the following instruction to the jury:

The Court instructs the jury that if they believe that Paul Langusch admitted that Leon Arnold’s written statement (People’s Exhibit 12) was true said written statement is admissible against Paul Langusch alone.

This instruction properly limited the application of Arnold’s written statement to the defendant Langusch.

As regards the failure of the court to order a severance, it does not appear from the record that the defendants moved for a severance at any time. In People v. Watt, 380 Ill 610, 44 NE2d 580, it was held that a severance of trial of a joint defendant is not a matter of absolute right, but is within the sound discretion of the trial court. The court further held that where through the inaction of the defendant the trial court had no opportunity to exercise that discretion, there was no error. In the case at bar, the fact that the trial court did not order a severance sua sponte did not constitute error.

The defendants contend that the conduct of the prosecutor deprived them of a fair trial, and call to our attention two separate instances. Defendant Langusch contends that the prosecutor was guilty of grave misconduct in suggesting, without proof, that Langusch had confessed to his father and that Langusch’s father had reported this confession to a policeman. It was undisputed that Langusch and his father talked alone at the police station on the night of Langusch’s arrest. In cross-examining the defendant Langusch and his wife, the prosecutor asked whether Langusch had confessed to his father, and whether his father had reported this to a policeman. Both witnesses answered in the negative, and no further proof was offered on the subject. On appeal, defendant Langusch contends that this innuendo without proof to support it was viciously and deliberately unfair.

Again, we note that at no time during the trial was an objection made on these grounds to the prosecutor’s cross-examination. At the close of all the evidence, the trial court properly instructed the jury that they should not be influenced by anything but the law and the evidence in the case and in determining any of the questions of fact presented in the case, they should be governed solely by the evidence introduced before them. The jury was also instructed to make up their verdict upon the evidence actually given in the case, without placing any reliance upon, or giving any consideration to, any statements of counsel not supported by the evidence.

Furthermore, we must assume that if the defendant had considered the prosecutor’s suggestions as prejudicial, he could have called his father as a witness to deny that any such confession was ever made to him.

For all these reasons, we conclude that the defendant was not prejudiced by the prosecutor’s cross-examination of defendant Langusch and his wife.

It is further contended that the prosecutor engaged in inflammatory and prejudicial argument when, after describing the details of the planned robbery, including the wearing of masks, the use of “walkie-talkie” radios, the carrying of guns and the shooting of the Zayre’s employee, he compared the Somerville brothers to the Dalton brothers, the James brothers, and the Younger brothers of other decades. The record shows that trial counsel did not object to these remarks. The general rule is that objections not made in apt time are regarded as waived. People v. Thigpen, 33 Ill2d 595, 213 NE2d 534. In any event, we consider the comparison of the defendants to notorious gunmen of the past to be within proper bounds of argument.

We have carefully reviewed the entire record, and find the evidence of the guilt of the defendants to be overwhelming. We are satisfied that they received a fair trial, and were proved guilty beyond a reasonable doubt. Their convictions must therefore be affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur


author: MR. JUSTICE MURPHY

text:
    Hortense Steiner, Plaintiff-Appellee, Cross-Appellant, v. Jane Lawson and Peter Lawson, Her Husband, Myron J. Rudd, and C. Bradshaw, Inc., an Illinois Corporation, Defendants-Appellants, Cross-Appellees.
    Gen. No. 50,248.
    First District, First Division.
    May 23, 1966.
    Rehearing denied June 27, 1966.

      Slater and Kahan, of Chicago, for defendants-appellants.
    Brown, Dashow and Langeluttig, of Chicago (Norman H. Arons, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an action between two sisters to set aside a recorded deed to a lot which had been owned by their deceased father. Defendants appeal from a decree which declared a constructive trust in favor of plaintiff, as owner of an undivided one-third interest. Plaintiff cross-appeals, contending that she should have been adjudged owner of a one-half interest.

Plaintiff, Hortense Steiner, and defendant, Jane Lawson, her sister, were the children and sole heirs at law of Abe and Rose Weil. On January 17, 1934, Abe Weil and his wife Rose conveyed three parcels of real estate to Myron J. Rudd, who was the brother of Rose Weil, by quitclaim deeds recorded on January 19, 1934. Abe Weil died intestate shortly thereafter on March 13, 1934, and Rose died intestate on January 28, 1948. After the death of Abe Weil, Myron J. Rudd and his wife conveyed the three parcels to Jane G. Weil (now Lawson) by three separate deeds dated March 27, 1934. These deeds were recorded on various dates. The deed to the subject parcel, the southeast corner of 154th and Vine Street, Harvey, Illinois, was recorded on October 21, 1937. This is the deed plaintiff seeks to be “adjudged a nullity and be removed as a cloud on the title.”

The complaint alleges that Rudd paid no consideration for the conveyance of the three parcels and took title “solely as nominee for Abe Weil, or in the event of the death of Abe Weil for the family of Abe Weil, as will appear by reference to the affidavit of said Myron J. Rudd, dated August 24, 1961.” A copy of the affidavit is attached to the complaint and made a part thereof.

The amended answer of Jane Lawson admits that the quitclaim deed to her of the subject premises was dated March 27, 1934, and was recorded on October 21, 1937, and alleges there can be no recovery “under this supposed trust in view of the Statute of Frauds.” It is further alleged that the subject premises “had been given to Jane Weil Lawson as a gift by Rose Weil, their mother, with the approval and instructions of Abe Weil, their father ... as part of her dowry.”

The matter was referred to a master in chancery. The master’s report states:

“Myron Rudd [a witness for plaintiff] testified in a straightforward and credible manner that Abe Weil, the husband of Rudd’s sister, Rose, came to him in 1934 and advised him that Weil had conveyed to Rudd three parcels of real estate which Weil wanted Rudd to hold for Weil’s benefit and, in the event that something happened to Weil, then for the benefit of Weil’s wife and children, that after Weil’s death, Rudd found that holding the titles was a source of annoyance and requested his sister, Rose Weil, to arrange for the transfer of the properties from him, that Rose Weil brought to Rudd and his wife blank deed forms which Rudd and his wife signed without filling in the forms and without appearing before a notary public, which signed deed forms Rose Weil took with her.
“Two of the deeds in question, including one concerning the property involved in this cause, appear of record in the Office of the Recorder of Deeds of Cook County, are complete in form and bear certificates of acknowledgment made by a notary public whose authority as a notary public has not been questioned here, and show as grantee, Jane Gertrude Weil, now Jane Lawson, a defendant, without any limitation as to her interest.
“The foregoing testimony and evidence pose several questions as to the competency of the testimony of Myron Rudd, as follows:
“(1) Inasmuch as the deed to the subject property appears of record in the Office of the Recorder of Deeds of Cook County in completed forms and bears a certificate of acknowledgment before a notary public, and this constitutes prima facie evidence of the execution and delivery of the deed, may the execution thereof be impeached by the sole testimony of a grantor, in this case Myron Rudd, that the deed was signed in blank, even though the law is that a deed signed in blank is void ?
“(A) ... In our case we have only the testimony of Myron Rudd, a grantor, and his unsupported testimony cannot overcome the certificate of the notary public that the deed was executed and acknowledged. . . .
“(B) It follows, therefore, that I cannot consider Rudd’s testimony as to the execution and acknowledgment of the deed which he and his wife signed, and since there is no other evidence on this point, I must conclude that the deed from the Rudds to Jane Gertrude Weil was duly executed, delivered and acknowledged.
“(2) Since I must conclude that the deed from the Rudds to Jane Weil was duly executed, delivered and acknowledged, is Myron Rudd’s testimony, given almost 30 years after the deed, that he had taken title as a trustee acceptable?
“(A) The law is that a trustee having divested himself of title by an absolute conveyance cannot thereafter convert the grantee into a trustee, by his written or oral declarations, or by admitting the trust. . . .
“Accordingly, in my Findings of Fact hereinafter made, I have not considered the testimony of Myron Rudd as to the form of the deed or his testimony that the absolute conveyances to him were in trust.”

The conclusions of the master included (1) that a release agreement between the sisters of December 10, 1948, “while general in its terms, must be considered to be limited to the property referred to in the recital and as concerning only a disposition of the mother’s estate,” and not a bar to plaintiff’s claims to the subject property; (2) “while Hortense Steiner has known about the subject property since 1948, there has been no evidence showing a change of position by the defendant, Jane Lawson, in reliance on Hortense Steiner’s non-action . . .”; and (3) “there is no evidence to establish a constructive trust against the defendant, Jane Lawson, . . . and the claim by Jane Lawson of a gift from her mother, fortified by the presumption of a gift because she was a natural object of the bounty of her mother, . . . even though there was another child, is not overcome in any manner by any evidence (clear, convincing or satisfactory . . . ), that Jane Gertrude Weil took an absolute conveyance charged with a trust in favor of her mother (who was alive in 1937), her sister, and herself. There is no evidence whatsoever as to the circumstances under which she took the conveyance, and necessarily no evidence that she induced the conveyance, or took with notice of limitations in favor of her sister or mother, or that she made any promises or representations to get the title,” and “the present cause should be dismissed for want of equity.”

The trial court entered a decree which sustained part of plaintiff’s exceptions to the master’s report and found:

“1. That the testimony of Myron Rudd was competent to establish and did establish a constructive trust imposed on Myron Rudd in favor of Abe Weil, with respect to the premises involved herein and hereinafter described, by virtue of the confidence and trust reposed in Myron Rudd by Abe Weil at the time the latter conveyed the said premises to Myron Rudd.
“2. After the death of Abe Weil, Rose Weil and her two (2) daughters, Hortense Weil Steiner and Jane Weil Lawson, each succeeded to a one-third interest in said property.
“3. That Myron Rudd, as such constructive trustee, could not and did not in equity convey more than a one-third interest in said premises to the defendant, Jane Weil Lawson, after the death of Abe Weil.
“4. That Jane Weil Lawson did not pay any consideration for said deed from Myron Rudd and does not rely thereon in claiming title to said premises, but claims the said property as the result of a gift thereof from her mother, Rose Weil.
“5. That Rose Weil, could not give or convey to Jane Weil Lawson, more than a one-third interest in said premises.
“6. That plaintiff, Hortense Steiner, since the death of her father, has been, and is now entitled to a one-third interest in said premises, together with one-third of the rents, issues and profits therefrom and, as found by the Master, has not been guilty of laches in asserting her rights thereto.”

The decree adjudged Hortense W. Steiner to be the owner of an undivided one-third interest in the premises and directed defendants Jane Lawson and Peter Lawson, her husband, to make such a conveyance to plaintiff.

From this record it is fairly evident, and apparently not disputed, that Weil made the three conveyances to Rudd as a nominee only and without any consideration. No gift was intended to Rudd, and Weil retained the equitable ownership. Rudd never received any deeds or papers from Weil and did not know of the conveyances until he was so informed by Weil and, as found by the master, “Weil wanted Rudd to hold for Weil’s benefit and, in the event that something happened to Weil, then for the benefit of Weil’s wife and children.” There is no evidence of fraud or a confidential relationship, and the decree states that plaintiff, “as found by the Master, has not been guilty of laches in asserting her rights thereto.” Weil attempted to set up in Rudd a facade of complete ownership which, we infer, was intended to hide the beneficial ownership previously enjoyed by Weil. Obviously, an express trust was not created by the conveyances by Weil to Rudd, and this point requires no discussion.

On appeal, defendants contend (1) that no constructive trust was established by the conveyance from Weil to Rudd, because “none of the elements necessary to establish the existence of such a trust have been proved”; (2) a deed in completed form and bearing a certificate of acknowledgment before a notary public, whose authority as a notary public has not been questioned, is deemed duly executed, delivered and acknowledged, and the said deed cannot be set aside by the unsupported testimony of the grantor; and (3) a trustee, having divested himself of title by an absolute conveyance, cannot thereafter convert the grantee into a trustee by the grantor’s written or oral declarations or by admitting the trust.

We note here that defendants’ brief did not include or argue the question of laches. Therefore, we have not considered it and have accepted both the master’s and chancellor’s findings on this point.

Plaintiff contends in substance that “Myron Rudd stood in a fiduciary capacity to Abe Weil when Rudd agreed to accept the three parcels of real estate . . . ,” and “since Rudd was a constructive trustee,” the rule that “a deed bearing acknowledgment before a Notary Public is presumed to be duly executed and cannot be set aside by the unsupported testimony of the grantor is not applicable here.”

Initially, we observe that this record portrays a situation which calls for the application of the observations made by Mr. Justice Schwartz of this court in Merschat v. Merschat, 1 Ill App2d 429, 117 NE2d 868 (1954), atp 440:

“In our time . . . formal land titles are no longer held in such high sanctity by courts, laymen, or lawyers. Such titles are frequently put in the names of nominees or ‘strawmen,’ or a title may be in the name of one when, as a matter of fact, he has an interest along with many. . . . This is the realistic conception which we must take of real estate transactions today. Any other view can often lead to great injustice. This does not mean that this court departs from accepted rules of long standing with respect to proof required in cases of resulting trusts.”

We agree with the contention of defendants that “none of the elements necessary to establish the existence of” a constructive trust have been proved. The Illinois cases involving constructive trusts are divided into two general classes: “One consisting of those cases in which actual fraud is considered as an equitable ground for raising a constructive trust, and the other consisting of those cases in which the existence of a confidential relation and the subsequent abuse of the confidence reposed is considered sufficient to take the case out of the statute.” (Miller v. Miller, 266 Ill 522, 533, 107 NE 821 (1915).) To justify the declaration of a constructive trust, plaintiff was required to “plead and prove either actual fraud or the abuse of a confidential relationship.” (Hanley v. Hanley, 14 Ill2d 566, 571, 152 NE2d 879 (1958).) In the absence of a showing of a fiduciary relationship between Weil and Rudd, and fraud in its breach, there can be no constructive trust. (Fender v. Yagemann, 29 Ill2d 205, 210, 193 NE2d 794 (1963).) As there is no evidence in this record of fraud on behalf of Rudd or that he abused any confidential relationship, the proof here does not show that a constructive trust arose.

If any trust arose because of the conveyances from Weil to Rudd, it must have been a resulting trust. The subsequent parol agreement of Rudd to hold title for Weil did not prevent an implied resulting trust being acknowledged and did not destroy any resulting trust already raised in favor of Weil. See Mauricau v. Haugen, 387 Ill 186, 56 NE2d 367 (1944), at p 195:

. . where a contract was made after the trust had arisen, the court said: ‘Where the transaction is such that at the moment the title passes a resulting trust would arise in the absence of such parol agreement, such agreement will not prevent a trust resulting. ... In this case not only did the trust arise by operation of law, but it was adequately manifested by writing . where the transaction is such that at the moment the title passes either a resulting or constructive trust would arise in the absence of a parol agreement, such agreement will not prevent a trust arising. . . . The intention of the parties in the premises may be shown by proof of the parol agreement in accordance with which the title is taken.’ ”

Resulting trusts, as a rule, generally arise where one person furnishes the consideration and the title is taken in another. As Weil in effect furnished the consideration here, we have taken “the resulting trust” pronouncements of our Supreme Court as the guidelines to be applied here. In Hanley v. Hanley, 14 Ill2d 566, 152 NE2d 879, it is said (p 571):

“A resulting trust arises by operation of law and is founded on the presumed intent of the parties ascertained from their acts and attendant facts and circumstances, and usually comes into existence where one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the title is taken in the name of another, (Wright v. Wright, 2 Ill2d 246; Craven v. Craven, 407 Ill 252; Tuntland v. Haugen, 399 Ill 595,) and it arises, if at all, at the instant legal title is taken and vests. (Tilley v. Shippee, 12 Ill2d 616.) Acts of the alleged trustee or equitable owner subsequent to the taking of title, have no bearing upon the question of whether a resulting trust was raised. (Wright v. Wright, 2 Ill2d 246; Craven v. Craven, 407 Ill 252; Briscoe v. Price, 275 Ill 63.) ... To justify the declaration of such trust, the evidence must be clear, convincing and unmistakable. Scanlon v. Scanlon, 6 Ill2d 224; Tuntland v. Haugen, 399 Ill 595; Cook v. Blazis, 365 Ill 625.”

See also:

“[A] resulting trust of the nature here involved cannot be predicated upon a condition subsequent but must arise at the instant the purchase price is paid by one and title is taken in the name of another, if it arises at all.” Bowman v. Pettersen, 410 Ill 519, 531, 102 NE2d 787 (1952).
“A resulting trust is based upon the presumed intention of the parties distilled from their conduct; it comes into being at the instant the title vests, or not at all.” Fender v. Yagemann, 29 Ill2d 205, 208.
“A resulting trust may be found where one person’s money has been invested in land and the conveyance taken in the name of another. Tf the fact exists, by mere operation of law a trust is raised in favor of the party whose money was paid to purchase the land, either to the whole or his equivalent portion thereof.’ ” Merschat v. Merschat, 1 Ill App2d 429, 435, 117 NE2d 868.

Applying these foregoing principles, we conclude that the instant Abe Weil conveyed the three parcels to Rudd, a resulting trust arose in favor of Weil. This holding is in accord with the settled principle that “[A] resulting trust (arises) wherever the circumstances surrounding the disposition of property raise an inference, not rebutted, that the transferor does not intend that the person taking or holding the property . . . should have the beneficial interest therein.” Belton v. Buesing (Ore), 402 P2d 98, 101 (1965).

The subsequent testimony of Rudd before the master confirms this “presumed intent” of Weil. Therefore, although the legal titles were placed in Rudd, the equitable titles and beneficial interests in the three parcels remained in Weil until his intestate death, when the beneficial interests descended in equal shares to his three heirs at law, his wife (Rose Weil) and his two daughters (Hortense and Jane).

We agree with defendants that the deed from Rudd to defendant, dated March 27, 1934, and recorded October 21, 1937, “cannot be set aside by the unsupported testimony of the grantor,” and that Rudd, considered as a trustee, having divested himself of title by his absolute conveyance to defendant, could not convert the defendant into a trustee. See Stubbings v. Stubbings, 248 Ill 406, 412, 94 NE 54 (1911):

“ [T] he law is well settled that a trustee having once divested himself of all interest in the trust property by an absolute conveyance, it is no longer competent for him, either by parol or by written declaration, to convert a party taking under such conveyance into a trustee.”

However, the quitclaim deed to the instant premises by Rudd to Jane, which was made pursuant to directions given Rudd by Rose Weil after the death of Abe Weil, was ineffective to convey the undivided one-third equitable or beneficial interest of her daughter Hortense. Rudd could not convey something he did not have — the equitable interest. His deed to Jane conveyed to Jane the legal title to her one-third interest, of which she already had the beneficial interest.

As to the beneficial interest of Rose, plaintiff claims that it passed intestate to her and Jane in equal shares, unaffected by the deed of Rudd, and that the trial court should, have decreed a one-half interest in plaintiff. We do not agree. While we cannot use Rudd’s testimony to set aside the deed to Jane, his uncontradicted testimony shows that it was at Rose’s request that the deeds were executed. Thus, the presumption is that Rose intended the conveyance to Jane to include Rose’s one-third beneficial interest, and the testimony in the record of a later oral gift by Rose to Jane was merely a confirmation of this previous transaction. Where there is a conveyance to a child of a party furnishing the consideration, there is a presumption that the conveyance was intended as a gift to the child, and the burden is on those seeking to impose a trust to rebut the presumption by clear, convincing and satisfactory proof, and if the evidence is doubtful or capable of reasonable explanation of any other theory, this burden was not sustained. (Kraft v. Kretchman, 17 Ill2d 71, 76, 160 NE2d 806 (1959).) We conclude that plaintiff has not rebutted the presumption of a gift to Jane by Rose of her one-third beneficial interest. Therefore, Jane should be considered the legal and beneficial owner of an undivided two-third interest in the subject property.

As found and decreed by the trial court, “Hortense Steiner, since the death of her father, has been, and is now entitled to a one-third interest in said premises, together with one-third of the rents, issues and profits therefrom . . . .”

For the reasons given, the decree appealed from is affirmed and the cause is remanded for further proceedings in accordance with the views expressed herein.

Affirmed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Garland Walston (Impleaded), Defendant-Appellant.
    Gen. No. 50,380.
    First District, First Division.
    May 23, 1966.

      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 Joel M. Flaum, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Garland Walston, pleaded guilty to the charge of armed robbery. His motion to withdraw the plea prior to being sentenced was denied. He appeals, claiming the motion was timely and that no prejudice would have been suffered by the state if the motion had been allowed and the defendant permitted to have the cause tried on the merits.

Defendant originally entered a plea of not guilty. A hearing was held on a motion to suppress evidence. The motion was denied. Thereafter, counsel informed the court that the defendant desired to withdraw his plea of not guilty and enter a plea of guilty. After an admonishment as to the consequences of pleading guilty, including the possibility of incarceration in the penitentiary, the court accepted defendant’s guilty plea and entered a judgment thereon.

At the court’s request, and without objection by the defendant, the State’s Attorney made a statement of the facts in the case, some of which were stipulated to by the defendant. Application for probation was made and entered, a presentence investigation report ordered, and a hearing in aggravation and mitigation was deferred.

When the matter came up for final disposition, the Assistant Public Defender, representing the defendant, said: “Your Honor, I was informed today of a possibility of a pending motion that I know nothing about. I understand Mr. Branion, also a Public Defender, is preparing a motion.” The court directed the cause to proceed with a hearing in aggravation and mitigation, saying: “And we’ll go from there; and any motions which might have any application at this moment will have a similar application later.”

During the hearing it was indicated that counsel had previously read the presentence investigation report which disclosed defendant’s criminal record and activities and that he was then on probation for a prior charge. After the State’s Attorney said he opposed probation and recommended a long sentence in the penitentiary, defendant said: “Your Honor, I would like to withdraw my plea because I have a witness to prove that I didn’t have anything to do with it. The only reason I pled guilty was because I thought I would be placed on probation.”

The court denied application for probation and sentenced defendant to the penitentiary for a period from three to ten years. An oral motion of the defendant to vacate the plea of guilty was entered and set for hearing two days later.

On the date set, defendant presented a written motion to vacate the plea of guilty and grant a new trial. In support thereof defendant made affidavit wherein he averred that he was innocent of the charge and had entered a plea of guilty only because he believed that he was going to receive probation and be permitted to obtain work and be able to care for his children. The court reviewed the facts and recalled that there was “no discussion with the court about entertaining a motion for probation” and that the plea “was entered voluntarily by Mr, Walston without any pretrial discussion of any kind.” The motion was then denied.

It is defendant’s contention that having made his motion before sentencing, it should have been granted.

It is well-established law that where an accused, with full understanding, pleads guilty to an indictment, it is discretionary with the court whether the plea will be permitted to be withdrawn and a plea of not guilty substituted therefor. The mere fact that an accused, knowing his rights and the consequences of his act, hoped or believed he would receive a shorter sentence or a milder punishment, or some favor by entering a plea of guilty other than that which might be his lot after trial and conviction, presents no grounds for the withdrawal of the plea of guilty. The People v. Grabowski, 12 Ill2d 462, 468, 147 NE2d 49 (1957).

We have held in People v. Zuckerman, 46 Ill App2d 210, 215, 197 NE2d 136 (1964) that, there is however a countervailing legal principle that “the refusal to grant leave for such a change will be ruled an abuse of discretion when it appears that the plea of guilty was entered on a misapprehension of the facts or of the law; or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority; or unless the case is one where there is doubt of the guilt of the accused; or where the accused has a defense worthy of consideration by a jury; or where the ends of justice will be better served by submitting the case to a jury. If such be the case, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty. People v. Morreale, 412 Ill 528, 107 NE2d 721. ‘In the application of the foregoing rule we have held that the least influence or surprise causing a defendant to plead guilty, when he has any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty.’ ” Page 532.

In the instant case defendant did not charge, nor does the record indicate, that the plea was entered on a misapprehension of the facts or of the law or in consequence of misrepresentations by counsel, the State’s Attorney or anyone else in authority. From the evidence adduced at the hearing on the motion to suppress, the statement of the facts by the State’s Attorney, together with those facts stipulated to by the parties, the guilt of the defendant was well established. At no time during the proceedings or in his written motion did defendant set out any kind of a defense. He did say to the court that he had a witness but his written motion and affidavit did not set forth this claim or indicate what such witness would testify to. Defendant simply said that he was innocent without denying the facts and evidence that implicated him as an active and identified participant in the robbery. There was no evidence that influence or surprise caused defendant to plead guilty. When the presentence report indicated that probation was not forthcoming and the review of his previous record stimulated the State’s Attorney to recommend a “stiff” sentence, defendant sought to forestall the obvious — a sentence to the penitentiary.

We do not believe that the ends of justice would be better served if the motion had been allowed. We find that the trial court did not abuse its discretion in denying the defendant his motion to withdraw the plea of guilty. The judgment is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.