author: Mr. JUSTICE DIXON Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James E. Lewis, Defendant-Appellant.
    (Nos. 72-84, 72-85 cons.;
    Third District
    June 14, 1973.
    ALLOY, P. J., dissenting.
    James Ceis, of Defender Project, of Ottawa, for appellant.

      James N. DeWulf, State’s Attorney, of Rock Island, (William G. Schick, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, James Lewis, was charged with unlawful sale of heroin by two separate indictments. He was found guilty of both charges and he was sentenced by the Circuit Court of Rock Island County to concurrent terms of 15 to 30 years. The two cases were consolidated for appeal by order of this court.

The first issue on appeal is whether defendant’s constitutional right to due process and a fair trial was violated by the trial court’s refusal to allow discovery of the name and address of the informer who participated in and witnessed the alleged offenses.

(In case no. 72-85)

On June 2, 1972, Illinois Bureau of Investigation Special Agent Grover Webb and a female informer went to the Armstrong residence in Rock Island for the purpose of making a controlled narcotics purchase. Webb testified that the informer suggested that he go to the Armstrong house to purchase narcotics and that she was paid by and under the control of the I.B.I.

Agent Webb further testified that when they entered the house the informer introduced him. After introductions the informer first approached Mrs. Armstrong but there was no sale. Then he and the informer then went out to the porch where the informer asked the defendant to sell him some heroin. The defendant then gave the informer a tin foil packet which later turned out to contain heroin and Webb gave the defendant $50.00.

Mrs. Valeria Armstrong testified that the informer was Nancy Wyerus who knew her well enough to know that she no longer used heroin, that she and Nancy used to “shoot it together”, last year sometime, that Webb and the defendant were never alone on the porch and that before departing Nancy told her that she had not been able to make a purchase.

The defendant testified that no sale was made.

(In case No. 72-85)

Webb testified that on June 3, 1971 he and the same informer again went to the Armstrong residence to make a purchase. That he, the iri-fbr'mer and the defendant were alone in the kitchen. At defendant’s request the informer called Patricia Armstrong (a daughter of Valeria) into the kitchen whereupon defendant reached into her blouse, removed a'foil packet "which he gave to Webb in exchange for $100.00. The packet contained' heroin.

Patricia Armstrong testified that she had never seen Webb before the day of the trial and that on June 3 defendant was never at her home.

The defendant denied ever being in the home on June 3 and denied a sale.

Prior to both trials the defendant’s attorney filed a motion wherein he sought to learn the identity of the informer-participant. The motion was denied. At the first trial on cross-examination of Webb, the defense was not permitted to elicit the informer’s name, after a showing by the State that there had been threats to the life of the informer.

The facts in the case before us clearly establish that Valeria Armstrong, a defense occurrence witness had a close personal acquaintanceship with the informer Nancy Wyerus long prior to the offenses charged herein but the defendant did not.

Defendant asserts that the privilege of non-disclosure did not exist in this case, that the prosecution’s refusal denied him due process of . law, that he was denied his constitutional right to meet the witness against him face to face and to have process to compel attendance of witnesses in his behalf. Ill. Const., art. I, sec. 8. ,

Could the privilege of refusing to divulge the identity of the informer be properly exercised in this case?

It is a general rule, usually referred to as “the informers privilege”, that the government is privileged to withhold from disclosure (notwithstanding its relevance) the identity of persons who furnish information relating to violations of law to officers charged with enforcement of that law. The privilege is founded on public policy, and seeks to further and protect the public interest in effective law enforcement. (Annot., 1 L.Ed.2d 1998.) There is an exception to the general rule, which is that if disclosure of the informer’s identity is necessary to show the innocence of one accused of crime .that the rule must yield to a stronger one which says that one is not to be condemned when his innocence can be established. Annot., 83 L.Ed. 155.

Defendant cites Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639. In People v. Mack, 12 Ill.2d 151, 165, our supreme court first discussed Roviaro in the following language, “The Roviaro case also pointed out that the privilege is not absolute and added to the already established exceptions those cases where disclosure is required by fundamental fairness, e.g., where the disclosure of the identity is relevant and helpful to the defense of the accused, or is essential to a fair determination of the cause. Accordingly, since the informer against Roviaro had helped set up the commission of the crime, * * * an¿l because he had been present at its occurrence [emphasis supplied], the court con-eluded that nondisclosure was mánifestly unfair, pointing out that the informer was in fact a participant in the crime and that conversations with Roviaro, (heard by a concealed police officer,) which only the informer could amplify or contradict, had been used as evidence to secure the conviction.” (In Mack, the' facts showed that the informer neither participated in the crime nor was he present.)

In People v. Durr, 28 Ill.2d 308, the supreme court again recognized the rationale of Roviaro but found that the facts of Durr were distinguishable since the informer was not “so involved in the commission of the offense that his availability to testify was essential to fundamental fairness.

In People v. Wilson, 24 Ill.2d 425, the informer was a “key witness” present at the sale. The defense was entrapment. The informer had been sent beyond the jurisdiction of the court. The court held that the testimony of the informer as to what was said was critical and that the ruling in denying defendant’s motion to compel her production deprived defendants of a fair trial. Wilson was followed in People v. Williams, 40 Ill.2d 367 (same facts). Also, see People v. Jarrett, 57 Ill.App.2d 169; People v. Castro, 10 Ill.App.3d 1078.

In People v. Williams, 38 Ill.2d 150, 152-153, the court stated that the principles of Roviaro were recognized “* * * when the informer is a material witness on the issue of guilt or innocence of the defendant at the trial.” “[W]hen the informers testimony may bear upon the question of guilt or innocence rather than upon probable cause, the government’s interest in protecting its sources of information must yield to the defendant’s right to a trial based upon all the relevant evidence”.

Cleary, Handbook of Illinois Evidence (2d ed.), sec. 10.29 says, “The privilege is based upon the assumption that the identity of the informer is not relevant to the issues in the case. If this assumption is unfounded in the particular case, as when the informer was a participant in or witness to the alleged crime and hence might give testimony helpful to the accused, * * * the privilege is recognized as being inapplicable”

76 A.L.R. 2d 282 states the privilege of non-disclosure must give way and disclosure of the identity of an informer is required where * * * (286) the informer is able to testify directly about the very transaction constituting the crime. Also see McCormick, Evidence (2d ed.), sec. 111; 21 Am. Jur. 2d Criminal Law, sec. 332; 58 Am. Jur. Witnesses, sec. 534 (1972 Cumulative Supplement); Jones on Evidence (6th Ed.), sec. 21; 39; Illinois Evidence Manual, Gard (1972 Supp.) Rule 442; 23 C.J.S. Criminal Law, sec. 954b; Nedrud, The Illinois Law of Criminal Investigation, part A, sec. 4.5; Hunter, Trial Handbook for Illinois Lawyers (4th ed.), sec. 17:6; Supreme Court Rule 412 (j)(ii), Committee Comments.

And, as was stated in Roviaro, “The desirability of calling John Doe as a witness, or at least interviewing him in prepartion for trial, was a matter for the accused rather than the government to decide.”

We conclude that under the circumstances the trial court committed prejudicial error in permitting the People to withhold the identity of its undercover employee in the face of the demands by the accused for her disclosure. The judgments of the Circuit Court of Rock Island County are reversed and the causes remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. PRESIDING JUSTICE ALLOY

dissenting:

I believe that the decision of the trial court permitting invocation of the informers privilege in the present case should be upheld. There are grave policy questions involved in this case and in two companion cases being filed simultaneously — People v. Weathers, post, p. 776 and People v. Flippo, post, p. 774 — and if any change or modification in the Illinois rule is made, it should be made only by the Illinois Supreme Court. The effect of the majority opinion would be to destroy the informer’s privilege in all cases in which the so-called informer is present or may be a witness at the time of the commission of the narcotics violation. I do not believe that the majority position is consistent with the United States Supreme Court decision in Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, nor does it bear any direct relationship to any other applicable decision of the United States Supreme Court or of the Illinois Supreme Court.

The so-called “informer’s "privilege” is, in reality, the privilege of the government to withhold from disclosure the identity of persons who furnish information of violations of law to law enforcement officials. In the public interest for effective law enforcement, the privilege recognizes the obligation of citizens to communicate their knowledge of the commission of a crime to the proper authority, and, by preserving their anonymity, encourages them to perform that obligation. (People v. Mack, 12 Ill.2d 151, 164.) As employed, the “privilege” has been extended to include not only the citizen who merely furnishes information, but, also, to embrace persons who, in assisting law enforcement officials, help the authorities establish the commission of a crime by a defendant, notably in narcotics cases, (E.g., People v. Banks, 116 Ill.App.2d 147, 253 N.E.2d 631.) The privilege to which we have referred, however, is not absolute. The court in Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639, 77 S.Ct. 623, in basing its decision on fundamental requirements of fairness, held that “Where the disclosure of an informers identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” (353 U.S. 60-61, 77 S.Ct. 628.) The Roviaro case was treating with a problem of the general character we have before us involving the right of the government to withhold the identity of an informer who helped set up, and participated in, a crime involving narcotics.

It is the main thrust of defendant’s argument before us that the decision is to be read as establishing a rule that disclosure must be made when an informer is present at the time of sale. I believe it is apparent from reading the case, that Roviaro neither intended nor propounded such an inflexible rule. After stating the problem, the Supreme Court in that case stated, “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (353 U.S. at 62, 1 L.Ed. 2d at 646, 77 S.Ct. at 628-629.) The court thereafter, in the Roviaro case considered the circumstances of the case and the possible significance of the informer’s testimony and concluded, in balancing the various factors, that the informer’s identity should have been disclosed in that case. We are, therefore, confronted here, not with the application of a fixed rule, but a determination of whether disclosure should have been required under the particular circumstances in the records of the cases before us. Defendant, relying upon Roviaro and People v. Williams, 40 Ill.2d 367, contends that the circumstances require that the identities of the informer or “special employee” be disclosed. It is my conclusion that the circumstance which led to the result in the Roviaro and Williams cases have no compelling parallels in the cases before us. This is particularly true since defendant’s denial that he had committed the crimes removed any issue of entrapment. (See: People v. Jones, 73 Ill.App.2d 55.) It is also significant that the informer did not testify and, also, that the informer was not the purchaser of the narcotics in the sale which forms a basis of the conviction.

In the Roviaro case, where the issue was decided with reference to a charge that the accused had illegally transported narcotics, the informer was the sole outside participant (with the defendant) in the crime. The conviction of the accused rested on the testimony, of two law officers. One of the officers had been in the surveillance car which followed the automobile of the informer, in which the latter and the accused were riding. The other officer was concealed in the trunk of the informer’s car, where he eavesdropped on the conversation of the accused and the informer, a circumstance which caused the court to comment that the officer’s testimony as to the conversation emphasized the unfairness of non-disclosure in that case. Thus, under such circumstances, the accused was prevented from cross-examining the only person with whom he had dealt and the only person who knew all that transpired. In the cases before us, by way of contrast, defendant did not deal with the informer alone. On the contrary, the evidence in each case showed a direct sale of narcotics to the agents who testified, and each was available to defendant for cross-examination concerning the transactions.

People v. Williams, 40 Ill.2d 367, did involve a sale of narcotics to a policewoman in the presence of an informer. The principal issue on appeal, however, did not center around the disclosure of identity, but on the circumstances that a known informer had been sent outside the jurisdiction of the court and was thus rendered unavailable to the accused as a witness. In addition, the testimony of the policewoman created an issue as to whether the narcotics had been sold to the policewoman, as charged in the indictment, or to the informer. The essence of the court’s decision was that the deliberate removal of the informer from the jurisdiction of the trial court was a violation of the accused’s Sixth Amendment right to have compulsory process for obtaining witnesses in his favor. (See: United States v. Wolfson, 322 F.Supp. 798, 819.) Because of this basic unfairness and the conflict of evidence peculiar to the Williams case, it was held that the accused was entitled to a new trial in which he could compel the attendance of the informer. Similar or comparable unfairness on part of the government did not occur in the cause before us. The ony circumstance common to both cases is that defendant’s denials that he sold the narcotics created a conflict with the testimony of the narcotics officers. In my opinion, this single' circumstance is insufficient to require disclosure of the true name of the informer.

For many years its has been a basic tenet of criminal law that the testimony of one witness alone, if positive and if the witness is credible, is sufficient to convict, even though the testimony is contradicted by the accused. (People v. Catlett, 48 Ill.2d 56.) No distinction has been made in the narcotics cases. (People v. Anthony, 28 Ill.2d 65; People v. Banks, 116 Ill.App.2d 147.) As observed by the court in the United States v. McCorkle (7th Cir), 413 F.2d 307, where an agent testified to the sale of narcotics and defendant denied it, it was determined that the court was entitled to narrow the issue to one of credibility. I, therefore, see nothing in Williams or Roviaro which abrogates this principle, or stands for the proposition that the credibility of a narcotics agent must be held to be shrouded with doubt merely because an informer participated with him in the crime. In the context of defendant’s contention, it is clear that neither Williams nor Roviaro establish that the existence of a conflict in the testimony of the accused and a witness for the prosecution, creates a circumstance which requires that the identity of an informer be disclosed. To hold otherwise would effectively nullify the “informer’s privilege” and conceivably could nullify effective Narcotics Act enforcements.

In the Williams case, additionally, the conflicting testimony created an issue as to whether the accused had sold the narcotics to the policewoman or to the informer, an issue which the officers in the surveillance car could neither corroborate nor deny. In the cases before us, the issue was whether the agent had purchased narcotics from a defendant or had even been to defendant’s house. Obviously, the testimony of the surveillance officers to the effect that the respective agents and special employee were observed entering defendant’s residence, had a certain corroborative value. The efforts made not to disclose the identity of an informer are obviously based not only on the public desire to make use of such informer by preserving his anonymity, but also, to guard against his removal or destruction. The prosecution’s interest in protecting the anonymity of an informant has been manifest in other cases decided in this court, such as People v. Rogers, 6 Ill.App.3d 1092, 286 N.E.2d 365, where defendant’s testimony was that the informer had provided the heroin which was the basis of the charge of illegal sale by defendant. The informer was not called by the prosecution, even though this was the only effective way in which the State could meet such defense testimony. The Rogers case is an illustration of an entrapment defense in which the public interest in maintaining the anonymity of the informer outweighed any potential value in assuring the conviction in a particular case under consideration.

It is also noted that the so-called “informer’s privilege” has been incorporated in the Illinois Supreme Court rules relating to criminal prosecutions in Rule 412 (Ill. Rev. Stat. 1971, ch. llOA, §412(j) (ii)), where it is specified that a disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and failure to disclose will not infringe the constitutional rights of the accused. It is further provided in that Rule that disclosure of identity should not be denied as to witnesses who are to be produced at a hearing or trial. Recognition of the value of retention of the so-called informer’s privilege has, therefore, been codified by our Supreme Court by Rule and should be implemented, where appropriate, as in the instant case.

In McCray v. Illinois, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056, the United States Supreme Court had before it an Illinois case involving a motion to suppress evidence which evidence was the basis of defendant’s conviction. Defendant contended that his constitutional rights were violated, in that he did not receive a fair trial, in violation of the Federal Constitution in the Due Process clause of the Fourteenth Amendment and the Sixth Amendment right to confrontation of witnesses. Defendant asserted that this resulted from the failure of the Illinois Court to force the disclosure of the identity of an informer upon whose statement the sworn testimony of the arresting officers was based. While this action involves a question of probable cause to sustain an arrest of a narcotics suspect and a search of his person, it was, truly, the effective basis for the conviction of such defendant, when heroin was found by the arresting officers in defendant’s possession. This judgment of conviction was affirmed by the Supreme Court of the United States.

We need not speculate as to what the Supreme Court actually meant by the Roviaro decision. In the course of the McCray opinion, the Supreme Court again discussed the Roviaro case and noted (18 L.Ed.2d at 70) that what Roviaro made clear was that the Supreme Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity, even in formulating evidentiary rules for federal criminal trials. The Supreme Court also stated (18 L.Ed.2d at 71): "We are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment and upon the Sixth Amendment right of confrontation * * The Supreme Court points out very clearly that neither the Due Process Clause nor the Sixth Amendment right to confrontation of witnesses is violated nor was defendant deprived of any rights to cross-examine the arresting officers themselves because of their refusal to reveal the informer’s identity. It was correctly pointed out that if this argument would be followed no witness on cross-examination could ever constitutionally assert a testimonial privilege, including a privilege against compulsory self-incrimination guaranteed by the Constitution itself. The court stated that it has never given the Sixth Amendment any such construction and declined to do so.

The rationale of the majority opinion in the instant case, if applied to the so-called probable cause cases (where evidence which could convict is sought to be suppressed), could be just as logically applied to such cases. If the same argument and principles would be applied, the informers privilege would in effect cease to exist. If a distinction is attempted between the situation such as existed in the McCray case, where the arrest and seizure of the heroin on the person of the defendant was the essence of the case as against defendant, and cases such as the type we have in the causes now under consideration, we find no fair distinction between cases such as those before us and the situation in the McCray case. At least in the cases before us, the defendant would actually have seen the informer and be in position to determine whether the informer could possibly have been involved in an entrapment problem or some other situation which could be raised as a matter of defense. In the cases involving the unknown informer, a defendant is in position where he knows nothing of the informer and presumably is completely deprived of any information which might be helpful to him in preparing his defense. Other questions necessarily would arise in connection with such attempted distinction. How far would the rule requiring disclosure of the identity and the address of an informer be extended? Is it to be extended to the informer who simply takes an agent to the home at which the suspect was to be seen, and where the informer does not enter? Does it apply to an informer who simply introduces an agent to a suspect? Does the fact that the informer sees the agent going into the residence make him a witness to the narcotics crime which ensues? Does the fact that the informer sees the agent talking to the defendant make him a witness to the crime and require that his identity be disclosed? Does this apply to the numerous cases where an informer accompanies the officers to the scene where a suspect is apparently engaged in the process of transferring or selling narcotics, and where the informer simply points out the suspect and the officers proceed with an arrest in the absence of the informer, who may still be within view?

As we have indicated, serious policy questions are involved, and, as stated in Roviaro, the question of fairness to a defendant must be weighed in the light of all of the facts and circumstances and of the public policy to be applied in the effort to prevent the destruction or removal of an informer if his true identity is disclosed. In none of the cases before us has there been any contention that there was any entrapment nor did the informer testify nor was a sale made to an informer which would form the basis of a conviction. In all of the cases the defendants contended that no sale was made, and in most instances, even denied that the agent was present or had even been seen by the defendant. No contention is made that the informant would be called as a witness by defendant or that anything could be disclosed by the informer which would be other than cumulative of the testimony of the officer testifying in the case. It is apparent from the cases which have been heard in this court that the proliferation of narcotics violations has been of such nature as to pose a serious national problem of such magnitude as to call forth all of the ingenuity and resources of law enforcement authorities in an effort to cope with this problem. It is apparent also that the violators keep abreast of decisions with respect to the issues with which we are confronted and seek to adapt their activities to trends in enforcement procedure. By way of illustration, in the Lewis case, we note that the narcotics which were sold to the officer, in one instance,' were obtained from the brassiere of a young lady who was called in by defendant, and, who herself, was not involved in the sale of the narcotics but simply acted as a repository for the narcotics to be on call by the defendant. It is apparent, therefore, that a search warrant based on information from an informer to search the residence and the person of the defendant Lewis, as a suspect, would not have brought forth any narcotics, since the young lady, as a walking repository of the narcotics would not have been subject to search in such case. We cite this simply to indicate, not only the ingenuity of defendants in seeking to avoid detection, but also the nature of the problem of dealing with narcotics and the apparent need for the aid of informers as one means of trying to cope with the widespread narcotics traffic.

The Supreme Court of the State of Illinois in its Rule 412(j) (ii) has recognized the value of retaining the informers privilege, and, in the Committee Comments following such Rule 412, it is specifically stated that "the value of informants to effective law enforcement is so highly regarded that encouragement of their use, through protection of their identity, has resulted in the development of one of the few privileges accorded to the State. The public intrest in protecting the sources of information concerning the commission of crimes is served by providing for the non-disclosure of the identity of informants except when compelling circumstances require it.” The Illinois rule (Rule 412) is a practical and effective implementation of a fair rule to be applied with respect to the informer’s privilege. It provides that, if the informer testifies, his identity must be disclosed, whether he testifies at a hearing or a trial. It is noted that the rule specifically refers to preliminary or probable cause hearings as well as the trial. The rule retains the general language authorizing nondisclosure of the identity if the standards of Roviaro are met.

As indicated in Roviaro, no fixed rule should be applied with respect to disclosure of identity of informants. It calls for a balancing of public interest in protecting the flow of information as against the ind.v.dual’s right to prepare a defense. Basically, the proper ba.ance should take into consideration the crime charged, possible defenses, possible significance of the informer’s testimony, and other relevant factors. As indicated in United States o. Day, 384 F.2d464, in a concurring opinion of Circuit Judge McLaughlin, Roviaro places the discretion in the trial judge in weighing and balancing the conflicting interests of law enforcement and the individual’s right to prepare his defense. Justice McLaughlin concludes that the trial judge becomes the “arbiter of fundamental fairness” on the question of disclosure of an informer. He also points out that a decision of non-disclosure is justified in a situation where any testimony by an informer, even if it may be helpful, may not be decisive on the ultimate issue of guilt or innocence and where its weight is not greater than the public interest in fighting illegal sales of narcotics. As stated by Justice McLaughlin, disclosure based on a “mere supposition” would completely block the use of an informer in fighting illegal narcotics sales. 384 F.2d 464, 469.

I believe that the Illinois Supreme Court has established a fair rule in Illinois in Rule 412(j)(ii). If an informer testifies, his identity must be disclosed. Under a factual situation as exists in Roviaro, if the sale leading to conviction is made to the informer, and the informer does not testify, then his identity should be disclosed. If an informer, however, is simply present or a witness to a part of a narcotics violation, but does not testify, although the purchasing officer does testify, then the trial judge, as the “arbiter of fundamental fairness”, in balancing public interest against defendant’s right to preparation of his defense (in cases such as we have before us) should properly be permitted to approve non-disclosure of the informer’s identity. It is believed that this is now the law of Illinois, that it is expressed in Rule 412(j)(ii), and that it should be upheld.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bill Flippo, Defendant-Appellant.
    (No. 72-8;
    Third District
    June 14, 1973.
    ALLOY, P. J., dissenting.
    James Geis, of Defender Project, of Ottawa, for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, (William Schick, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant Bill Flippo was charged in the circuit court of Rock Island . County with unlawful sale of heroin. Following a bench trial, he was found guilty and sentenced to a term of not less than 3 nor more than 10 years in the Illinois State Penitentiary. Defendant contends that his constitutional rights to due process and to confrontation of witnesses, against him were violated by the court’s refusal to allow discovery of the true identity of the informer who set up, participated in, and witnessed the alleged offense.

Illinois Bureau of Investigation agent Pavichevich testified that both he and “Joe McDonald”, following a prearranged plan to purchase heroin from Bill Flippo, went to a residence in Moline, Illinois. After they entered the home, Pavichevich remained in the living room while “McDonald” went into the kitchen area. Moments later, McDonald called Pavichevich into the kitchen and introduced him to defendant,

Bill Flippo. After a 10 to 15 minute interruption, Flippo exhibited a tinfoil packet and when Pavichevich inquired how much it would be, defendant replied that it was $100. The sale from Flippo to the agent was then completed. The Illinois Bureau of Investigation Crime Laboratory analysts who testified, established that the substance was heroin.

Defendant testified that prior to the time he was jailed for the current offense, he was a heroin addict. He said that he was at the house on February 8, 1971, the date of the alleged sale, and that the agent’s testimony was true in stating that there was a girl with long blond hair watching television at the house, and that a Kenny Vogelbaugh had become sick from an overdose of narcotics. Defendant testified, however, that he did not sell drugs to Pavichevich that, night. Special agent Erd-man had maintained a surveillance of the residence and had observed Pavichevich and Joe McDonald approach the house at approximately 8:05 P.M. and leave at approximately 8:40 P.M. While Pavichevich and McDonald were at the house, there were 6 or 7 persons present. One individual was sitting with a needle inserted in his arm (Kenny Vogel-baugh), who later became sick from an overdose and was taken outside to recuperate. Pavichevich also testified directly that he counted out the $100 and handed it to Flippo, and that Flippo handed the agent Pavichevich the tinfoil packet. As the agent and McDonald were leaving, Pavichevich said that Flippo warned them to be careful of the stuff, that it was pretty potent and might kill them. The trial court found Flippo guilty.

Prior to the trial, defendant moved for the names and addresses of all persons who were present at the time of the purported sale of heroin. The motion was denied. At the trial, on cross-examination of agent Erd-man, defense counsel was precluded from ascertaining the true identification of “Joe McDonald”. There was testimony by one detective that two unnamed persons had told him that if an informant was identified in court there was a possibility he would be killed. The threats were not made against “Joe McDonald” specifically but against informants in general. Attempts to ascertain the correct identity of Joe McDonald during Pavichevich’s cross examination were likewise denied by court-rulings. It was, however, established that one detective loaned McDonald money and the last time the detective talked to McDonald he recommended an attorney for McDonald’s friend. Agent Erdman also testified that he paid McDonald money for the work he did.

With respect to the contention made by defendant that his constitutional rights to due process and to confrontation of witnesses against him were violated by the court’s refusal to allow discovery of the informer, we have this day treated the same issue in People v. Lewis, ante, p. 762. We adopt that opinion herein.

The judgment of the circuit court of Rock Island County is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE ALLOY

dissenting:

I believe that the decision of the trial court refusing to require disclosure of the identity of the informer was proper and should be upheld. The issue before us was considered extensively in the case of People v. Lewis, ante, p. 762. I filed a dissenting opinion in such case which expresses in some detail the views which should be applied in the instant case. I renew my dissent as expressed in the Lewis case as a dissent in this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Russell Weathers, Defendant-Appellant.
    (No. 72-14;
    Third District
    June 14, 1973.
    ALLOY, P. J., dissenting.
    James Geis, of Defender Project, of Ottawa, for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, (William Schick, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Following consecutive bench trials in the circuit court of Rock Island County, defendant Russell Weathers was found guilty under three separate indictments charging the unlawful sale of narcotic drugs. He was sentenced to the penitentiary for a term of 7 to 20 years on each charge, with sentences to run concurrently. Defendant contends in this appeal that the trial court failed in each case to compel the identity of the informer to be disclosed and that this caused him to be deprived of due process and of his right to be confronted with the witnesses against him.

In each case a police officer testified to a sale of narcotics by defendant to the police officer and there was an express denial by defendant that such sale was made. The credibility of the opposing witnesses was, therefore, an issue. In one of the indictments, Daniel Pavichevich, an agent for the Narcotics Division of the Illinois Bureau of Investigation and the defendant were the chief witnesses. Pavichevich testified that around 6:00 P.M. on February 8, 1971, he and a fellow agent, David Erdman, met in a motel room with a “Joe McDonald” to plan a purchase of heroin from defendant. McDonald was acquainted with the defendant but the agents were not. An hour later, Pavichevich stated, he and McDonald drove to defendant’s residence, and after he had been introduced to defendant by McDonald, both men made purchases of heroin from defendant. On cross-examination, the agent Pavichevich stated that he knew Joe McDonald by another name, but that he had chosen to use the name Joe McDonald for this operation. As partial corroboration, Erdman testified that he had observed Pavichevich and McDonald enter and leave the residence premises at the time and date in question. Defendant appeared as a witness on his own behalf and denied having sold the heroin to the agent or anyone else on February 8, 1971, and also denied that the agent had ever been in his home.

Under a second indictment, the agent Pavichevich was again the principal witness for the prosecution. He testified that he and McDonald returned to defendant’s residence on May 7, 1971, at about 1:45 P.M., at which time McDonald asked defendant if he had any cocaine for sale. Defendant, according to the agent, said that he did and that the cost would be $125 for “half a spoon”. Defendant then stated (according to the agent) that defendant would be required to go after the drug and would need the money in advance, and that the two men should return later in the day. The agent further testified that he gave defendant $125 and that when he and McDonald returned later, they were told by a girl who answered the door that they were to wait in their car in front of the residence. After they waited about an hour, defendant drove up in a green Ford automobile, pulled alongside the agent’s car, rolled down the window of the Ford, and threw a tinfoil packet into the agent’s car. The agent testified that he opened the packet and found it to contain a white powder. The agent also testified that the defendant parked his car and then came back to the agent’s car and engaged in a conversation with McDonald and the witness, after which the agent drove away. On cross-examination, the agent stated that this meeting with defendant had “evidently” been arranged by McDonald.

Agent Erdman also testified in the second case. He maintained a surveillance and stated that he saw Pavichevich and McDonald waiting in their vehicle in front of the residence on the date in question; that he saw a green Ford pull up and stop beside the waiting vehicle but he could not see what was occurring, although he did see the driver of the green car park it and then return to have a conversation with agent Pavichevich and McDonald. Erdman stated that the driver of the green car was a Negro, but when asked, stated he did not see or recognize the man as being in the courtroom. In this case, also, defendant had denied that he sold cocaine in the manner or at the time prescribed by agent Pavichevich, and stated that he had never known the agent to have been in his house.

In the case involving a third indictment, a sale of narcotics was allegedly made on June 3, 1971, to Grover Webb, another agent of the Illinois Bureau of Investigation. According to Webb’s testimony, he and a “special employee”, identified only as a female, went to defendant’s residence on that date to make a purchase of narcotics. Upon arriving at the home of defendant, Webb said, defendant and the special employee went into a bathroom and conversed for about five minutes, and that defendant thereafter sold agent Webb, two packets of heroin for $50. Upon cross-examination, Webb stated that he had never met defendant before this occasion, and that he had been introduced by the “special employee” after the “special employee” and defendant had finished their conversation in the bathroom. In partial corroboration of Webb, two City of Rock Island police officers testified that they had seen the agent and “another person” enter defendant’s residence at the time and the date testified to by Webb. As in the other cases, defendant denied that he sold narcotics to Webb or a woman in his company, and stated that he had never seen the agent prior to trial.

Pretrial discovery motions were filed by the defendant seeking the disclosure of names and addresses of persons who had knowledge of the offenses, or who were present at their occurrence. These were denied. At the ensuing trial, on the basis of the “informer’s privilege” invoked by the State, the trial court refused to permit defendant to elicit on cross-examination of the narcotics agents, the true identities of McDonald and the “special employee”. It is now contended on appeal by defendant that the court’s refusal to require disclosure violated the concept of fundamental fairness inherent in the constitutional guarantee of due process of law, and that it also deprived defendant of his constitutional right to be confronted with the witnesses against him.

The precise issue was raised in People v. Lewis, ante, p. 762 wherein we concluded that, “under the circumstances the trial court committed prejudicial error in permitting the People to withhold the identity of its undercover employee in the face of the demands by the accused for her disclosure.” We adopt that opinion herein.

The judgments of the Circuit Court of Rock Island County are reversed and the causes remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE ALLOY

dissenting:

I believe that the decision of the trial court refusing to require disclosure of the identity of the informer was proper and should be upheld. The issue before us was considered extensively in the case of People v. Lewis, ante, p. 762, I filed a dissenting opinion in such case which expresses in some detail the views which should be applied in the instant case. I renew my dissent as expressed in the Lewis case as a dissent in this case.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Zola Mae Bailey, a/k/a Jane Doe, Defendant-Appellant.
    (No. 72-197;
    Third District
    June 18, 1973.

      Rehearing denied June 26, 1973.

      Whitney D; Hardy, of Land of Lincoln Legal Assistance Foundation, Inc., of Danville, for appellant,
    Thomas M. Pennell, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

By complaint, defendant, Zola Mae Bailey, was charged with the misdemeanor offense of battery. She pleaded guilty in the Circuit Court ef Tazewell County and was sentenced to two years probation. She has appealed contending that her conviction and sentence were not in accord with applicable constitutional requirements.

The offense charged was described as occurring on March 18, 1972. A complaint was signed by the victim on March 20. Defendant was arrested on March 22 and released on bail secured by a real property bond of other persons. The case was continued until April 12 and on that date she appeared in court, pleaded guilty and was sentenced to probation with a special condition requiring payment of medical expenses of the victim.

On this appeal the defendant argues generally she was denied due process because the general procedure, statute and rules, failed to accord her fair treatment because she was indigent. In particular, defendant argues her right to legal representation was violated. On the other hand, the State argues the common law record shows defendant’s plea of guilty was voluntary and the rules regarding legal representation of an indigent charged with a criminal offense were not applicable as defendant was not in fact imprisoned.

From the common law record there are three items which form the basis of this dispute and which are essential to our resolution of the issue,

At the bottom of defendant’s copy of the complaint appears the following,

“Notice of Legal Rights
You are hereby notified that in connection with the charge in the complaint herein you are entitled to a trial by jury or by the Court without a jury and you are entitled to be represented by counsel of your choosing, with the right to have counsel appointed for you in cases involving a jail sentence upon a finding of guilty; * #

No verbatim transcript of the proceeding was made. On April 12 defendant signed a written plea of guilty. This document states that the defendant understood the nature of the charge against her and the penalty to which she could be subjected; also that she had a right to plead not-guilty, persist in the plea and to have a trial by jury. The plea further stated she understood a plea of guilty waived the right of trial and the right to confront witnesses against her. This plea also represented no force, threats or promises had been exerted to obtain the plea and she was 33 years old.

On April 12, the trial judge included the following in his order:

“The Court finds that the Defendant is of the age of 33 years or older; and further that Defendant is present in open Court and; being fully advised of his rights herein, understandingly waives his right to a jury trial [and] Enters a plea of guilty after being informed of the maximum penalty provided by law."

It is undisputed the record fails to show defendant was represented by an attorney and the parties concede in fact she was not so represented.

Defendant has referred to several constitutional provisions of this State and of the United States as they have been discussed and applied in the recent case of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. As a general rule Argersinger declares that so far as legal representation is concerned there should be no differences based on whether the offense is regarded as serious or petty or whether it is classified as a felony or misdemeanor. According to Argersinger,

“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony unless he was represented by counsel at his trial.
We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail."

The Argersinger opinion was filed June 12, 1972 (after the conviction and sentence in the instant case), but in People v. Morrissey, 52 Ill.2d 418, 288 N.E.2d 397, and People v. Coleman, 52 Ill.2d 466, 288 N.E.2d 396, the court determined the rule of Argersinger was of such significance it was entitled, to retroactive application. In Argersinger, Morrissey and Coleman, the defendants were charged with misdemeanors and received sentences of imprisonment. In the instant case the defendant did not receive a sentence of imprisonment and consequently, according to the State, the rule of Argersinger is not applicable.

Accepting for the purpose of argument the State’s position that probation is not legally equivalent to a sentence of imprisonment, the fact is the Argersinger case does not decide that legal counsel is required only when imprisonment results, as distinguished from those cases where the offense is punishable by imprisonment but no imprisonment results, rather the court disclaims any intention of deciding the issue in advance of the fact. However, we find it unnecessary to decide whether the rule of Argersinger should apply to offenses because merely punishable by imprisonment, since in our opinion the procedure invoked in this case requires reversal for other reasons.

In our opinion, when the notice of rights included on the complaint is considered with the provisions of the guilty plea and the court’s order, the patent ambiguities and conflicts in the documents and procedure are such that the voluntariness of the plea may be regarded at best as doubtful.' The advice contained on the complaint is vague and falls short of advising a party charged as to whether they do or do not have a right to counsel if indigent. In fact, the most likely conclusion from such advise is that an attorney will be appointed if the offender is indigent, and the failure of the later procedure to deal with this subject at all is confusing. Even the State’s position on this point is somewhat confusing because since defendant was advised of all of her rights according to the order of the court, it follows perhaps she was advised of her right to counsel. However, the record fails to indicate she was ever so advised and the written plea which is asserted to be the basis of defendant’s waiver of her rights does not include any mention of legal representation, even assuming such a document is an appropriate basis for waiving rights described therein, without other indication of the defendant’s understanding thereof.

Although we do not decide the issue in this case, it seems to us that based on practical and legal consideration, the better policy in misdemeanor cases would be for the court to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, sec. 402), where the offense charged is punishable by imprisonment. If offenses can be so described and' categorized so that only a fine may be imposed, it might well be that a contrary result should ensue. See, Gilliard v. Carson, 348 F.Supp. 757.

• For the foregoing reasons, the judgment of the Circuit Court of Taze-well County is reversed and remanded with directions that defendant be permitted to plead anew.

Reversed and remanded with directions.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clifford Bradley, Defendant-Appellant.
    (No. 56625;
    First District (1st Division)
    June 4, 1973.

      Ronald P. Alwin, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Frederic Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Clifford Bradley (defendant) was charged with intimidation (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 6(a)(1)); theft (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1)) and attempt theft (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(c)(1).) The second count for theft was dismissed by the State. After trial by jury, defendant was found guilty on the first and third counts and was sentenced to three to five years in the penitentiary.

Defendant has appealed to this court contending that the first count fails to charge an offense so that the conviction thereon is void; the trial court erroneously received evidence in violation of defendant’s rights against unreasonable search as protected by the fourth amendment to the United States Constitution; identification of defendant’s voice was the result of suggestive procedure and the trial court failed to instruct the jury properly upon the charge of attempt theft.

No point is raised on. the sufficiency of the evidence to prove guilt of defendant upon both charges beyond a reasonable doubt. However, we will state a brief summary of the testimony heard on the motions to suppress and the case in chief. The owner of a tavern received a telephone call on February 17, 1970 advising that the caller had been hired to kill him but would not do so upon payment of $2500. Within the next few days, the complaining witness received approximately 25 similar calls, all made to the same pay telephone in his place of business. The voice of each caller was the same. Threats were made to kill the witness himself, to injure his family and to burn down his place of business. The witness advised the police department after the first call.

On February 26, 1970, another call was received. By arrangement with the police, the witness agreed with the caller that he would put $1100 in a brown paper bag and leave it in a black mail box on the front porch at the outside of a certain specified address in Chicago. Acting with the police, three $1 bills, and pieces of paper cut to the same size, were placed in a paper bag. Three police officers then took possession of the bag. The serial numbers of the three bills were recorded.

The police officers testified that Officer Smith placed the bag in the mail box and then observed the box with two other officers. They saw the defendant walk úp and back in front of the box until he reached in, took out the bag and went into the building. He took a key from his pocket to unlock the front door. Officer Albert pursued defendant and Officer Smith went to the rear. Smith saw the defendant climb out of a rear window with the bag in his hand and go onto the roof of an enclosed porch adjoining. In a few moments, defendant went back into the window without the bag. Officer Albert then placed defendant under arrest. Smith joined them. Defendant was given proper Miranda warnings which he said he understood. He told the officers that he did not know about money in the bag but he thought it contained narcotics. He said that he had placed it on the porch and he would get it for them. Officer Smith and defendant went out on the porch roof. Defendant reached under a roofing tile, recovered the bag with the marked money and handed it to the officer.

The three, officers took defendant in their car to the place of business of the complaining, witness. One went in and told the witness that they had the man who picked up the bag from the mail box. They asked him to come out to the car to see if the man had ever been in the tavern before the series of telephone calls had been received. As the witness and the officer approached the car, defendant said to the ..other policemen, “Why are you doing this to me?” or words to that effect. The complaining witness then immediately identified defendant’s voice as being that of the anonymous caller. The witness also testified that defendant had been in his place of business and had used the telephone upon which the calls were received. •

Defendant testified in his-own behalf that the police had arrested him after he entered his apartment. He denied that he had picked up any package in the mail box.- The police drove him to the complaining witness’ place of business. The complaining witness came out and threatened him with a gun. The police then took him to the police station where he was beaten and kicked. .The complaining witness entered the room at one time and said that he knew the defendant was not the person they were looking for. It is apparent from the above that the evidence is more .than amply sufficient to prove guilt of the defendant as. charged beyond reasonable doubt.

Defendant’s counsel first addresses himself' to an alleged deficiency in the indictment. The applicable statute defines intimidation, as involved in the case at bar, as communication of a threat to inflict physical harm on person or property “without lawful authority.” (Ill. Rev. Stat. 1967, ch. 38, par. 12 — 6(a)(1). Defendant urges that, because of omission of the quoted phrase,, the indictment- fails to allege a crime and is therefore void. We note that defendant never raised this issue in the trial court by preliminary motion of any kind or in his written motion for a new trial. Therefore, he may raise the point in this court for the first time only if the indictment fails completely to charge commission of a crime so that it is void. People v. Ray, 5 Ill.App.3d 624, 283 N.E.2d 696; also People v. West, 128 Ill.App.2d 63, 67, 262 N.E.2d 323.

This contention regarding sufficiency of the indictment has been rejected by the Supreme Court. See People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269 involving the quite similar phrase “without legal justification” used in the statute defining battery. (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3(a).) Note also the opinions by the appellate court which were affirmed by Harvey: People v. Harvey, 3 Ill.App.3d 774, 278 N.E.2d 417 and People v. Hussey, 3 Ill.App.3d 955, 279 N.E.2d 732. Harvey has already been followed by this court. (People v. Gant, 9 Ill.App.3d 774, 293 N.E.2d 20 and People v. Hoffman, 9 Ill.App.3d 842, 293 N.E.2d 16.) See also People v. White, 7 Ill.App.3d 1084, 1090, 288 N.E.2d 705 citing the appellate court opinion in Hussey. Thus, People v. Whelan, 132 Ill. App.2d 2, 267 N.E.2d 364, cited and relied upon defendant, must be deemed supplanted by these above cited decisions. Note 294 N.E.2d at 270.

Defendant next contends that his fourth amendment rights were violated when the paper bag was seized by the police. Defendant made a motion to suppress the bag and its contents. After full hearing, the court denied this motion. It is clear from this record that defendant gave voluntary consent for the police to recover the bag and that he accompanied them to the adjoining roof for that purpose. There is no evidence of physical or other coercion. The police officers testified that defendant voluntarily offered to and did retrieve the bag. Defendant simply denied that he ever took possession of the bag. The cases hold that consent to search by the police is valid when it is freely and intelligently given and is unequivocal and specific in its nature. (People v. Stanbeary, 126 Ill. App.2d 244, 251, 261 N.E.2d 765.) The nature of the consent in this case and whethér it complied with these requirements were issues of fact for the trial court which raised questions of credibility. By his denial of the motion to suppress, the court determined these issues against the defendant. This ruling is amply supported by the evidence. See People v. Armstrong, 41 Ill.2d 390, 396, 243 N.E.2d 825.

Defendant next urges that, although he was given proper Miranda warnings, he was not specifically informed by the police of his fourth amendment rights so that there could not have been a valid waiver of these rights prior to seizure of the paper bag. Defendant cites cases' which support this theory, such as U.S. v. Nikrasch (7th cir. 1966), 367 F.2d 740. Our Supreme Court adheres to the contrary view as stated in People v. Ledferd, 38 Ill.2d 607, 610, 232 N.E.2d 684:

“There is authority in support of this position (see, e.g., U.S. v. Nikrasch, (7th cir.) 367 F.2d 740) and there is authority rejecting it. (See e.g., State v. Andrus, 250 La. 765, 199 So.2d 867.) This court is not prepared to hold that the People must show under circumstances such as were concerned here, not only the consent by the defendant to the search, but also that he was advised of rights secured by the fourth amendment.”

Defendant next attempts to attack identification of his voice by the complaining witness. Defendant made a motion to suppress this identification. The trial court heard all of the evidence tendered on .this motion and denied it. The police officers testified that the confrontation, with the complaining witness was entirely voluntary in that the complaining witness heard defendant’s voice and spontaneously identified it. Defendant testified that he was not thus identified but was subjected to threats. Defendant had the burden of proving that the procedure at his confrontation was suggestive and unfair. See People v. Brown, 52 Ill.2d 94, 100, 285 N.E.2d 1, also People v. Sanders, 4 Ill.App.3d 494, 280 N.E.2d 269.

The evidence proves amply that the identification was not suggestive or prejudicial. Identification by voice is a recognized and proper method of identifying a defendant. (People v. Nelson, 127 Ill.App.2d 238, 245, 262 N.E.2d 225.) The complaining witness had spoken to the previously unknown caller on the telephone approximately 25 times during a period less than ten days. Thus, he had ample and uninfluenced prior opportunity to become familiar with the callers voice. Consequently, when the defendant voluntarily spoke to the police in the presence of the complaining witness, he himself gave the witness a fair and unsolicited opportunity to identify his voice.

Cases cited and relied upon by defendant are not pertinent here. (People v. Sanders, 4 Ill.App.3d 494, 280 N.E.2d 269; Biggers v. Neil (6th cir. 1971), 448 F.2d 91, and Palmer v. Payten (4th cir. 1966), 359 F.2d 199.) In Sanders, there were suggestive circumstances in the confrontation, the identification itself was not clear and important descriptive details given by the witness varied from the facts. In Biggers, the circumstances surrounding the lineup were unduly suggestive without a previous untainted and adequate observation of-the defendant. These cases both involve confrontation for the purpose of obtaining visual identification; a circumstance entirely lacking in the case at bar. Here, the defendant was taken to the tavern by the police only for the owner to view him so that it might be ascertained whether defendant had ever entered the place of business before. In Payten, the suspect was required to repeat certain words and he was thus identified by the complaining witness. In the case at bar, the statements made by defendant which gave the complaining witness an opportunity for vocal identification were completely voluntary. Furthermore, the contention of the State that prior to the confrontation the police had sufficient evidence for an arrest and prosecution of thé defendant is justified by the record. The motion to suppress was properly denied.

The final point raised by defendant goes to the instructions. Defendant urges that People’s Instruction No. 13, which purported to give the jurors the issues in connection with the crime of attempt theft, was fatally defective in that it failed to include the essential element of intent to obtain money in excess of $150. Defendant was represented at tire trial by counsel of his own choice. No such instruction was tendered by counsel to the trial court. Under these circumstances, the court was under no duty to give such specific instruction unless tendered by counsel. People v. Springs, 51 Ill.2d 418, 425, 283 N.E.2d 225.

There is another complete refutation of this contention. We cannot select any one or several of the instructions and consider them alone in an effort to determine their legal sufficiency. In determining the adequacy of the instructions, we must consider all of them as a unit to ascertain if they fully and fairly cover the law. (People v. Jackson, 116 Ill.App.2d 304, 313, 253 N.E.2d 527; People v. Jones, 107 Ill.App.2d 1, 10, 247 N.E.2d 40.) With this principle in mind, we have examined all of the instructions. We find that the court gave People’s Instruction No. 12 defining the crime of attempt theft and specifically requiring the amount involved to be.a sum in excess of $150. This instruction was properly given by the court in form as suggested in IPI-Criminal at page 62, No. 6.05. It also appears that the verdict given to the jury, and signed by it, expressly described the attempt theft as involving in excess of $150. The instructions given by the trial court were entirely proper.

We find no error in this record.

Judgment affirmed.

BURKE, P. J., and HALLETT, J., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Jackson, Defendant-Appellant.
    (No. 56229;
    First District (2nd Division)
    June 5, 1973.

      James J. Doherty, Public Defender, of Chicago, (Darrell M. Fineman and James N. Gramenos, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Patrick J. McNally, and Ferdinand Minelli, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Walter Jackson, was charged with armed robbery. In. á trial without a jury, he was convicted and sentenced to. the penitentiary for not less than three nor more than nine years. On appeal defendant contends that he was denied due process of law in that the identification procedure was suggestive.

On the motion to suppress the identification evidence, the arresting officer testified that on January 26, 1971, he received information from an assistant State’s Attorney that defendant might be a suspect in the robbery that occurred on May 11, 1970. He went to the victim’s store, the Rodriguez Grocery, with seven or eight photographs, one of which was of defendant. Ernest Rodriguez, the store owner, picked out defendant’s photograph. The photographs were then shown to Victor Rodriguez who also picked defendant’s photograph. The officer testified that all the photographs were of the same type — each was black and white and contained a front and profile view of each man. The officer neither retained the photographs used nor did he retain a record of the names of the men in the other photographs. He testified that he did not indicate to Rodriguez brothers which photograph depicted defendant.

Immediately upon identification of defendant’s photograph, the officer and his partner arrested defendant at his home. Defendant’s contention that the victims were with the police when defendant was arrested at his home is not supported by the record. After the arrest, two officers who were stationed at the rear of defendant’s home were sent to the Rodriguez store to request Ernest to immediately view a lineup at the police station. The lineup consisted of five men and defendant; none of the other men in the lineup appeared in the photographs shown to Ernest. The officer testified that Ernest was not shown a photograph of defendant prior to the lineup, and that nothing was said by Ernest or himself during the lineup. A photograph of the lineup was introduced.

Ernest Rodriguez also testified that on January 26, 1971, he was shown seven or eight photographs. He stated that the photographs were the same size and color, and that he looked only at the front of the photographs. All the photographs were of young, male Negroes. He testified that prior to the lineup no one told him that defendant would be one of the participants, and that he did not see defendant’s photograph at the police station. The motion to suppress the identification evidence was then denied.

At trial Ernest testified that on May 11, 1970, at approximately 1 P.M., two men entered his grocery store. They remained about 15 minutes without making a purchase. At 6:30 P.M. these two men returned. Ernest testified that, while he was working the cash register, one of the men, the defendant, put a gun in his side and told him to walk to the meat cooler located in the rear of the store. Defendant and Ernest walked to the meat cooler where defendant also forced Victor Rodriguez and the stockboy into the meat cooler. The other offender remained at the front of the store. After approximately three minutes, Ernest looked out the cooler door and observed the two men walking out of the store with bank currency bags. The occurrence lasted five minutes. Ernest testified at trial that he picked defendant’s photograph from seven or eight photographs shown to him on January 26, 1971, and that he picked defendant from a lineup two hours after his photograph identification. In addition Ernest made an in-court identification of defendant.

Victor Rodriguez’s testimony corroborated his brother’s account of the robbery. In addition he testified that he looked at the photographs on January 26, 1971, and picked defendant’s photograph. On cross-examination he stated that he did not see which photograph his brother chose, and that he did not view the lineup. Victor also made an in-court identification of defendant as the robber.

The only evidence connecting defendant to the robbery was the pretrial identification testimony and the in-court identifications of defendant by the Rodriguez brothers. On cross-examination Ernest testified that he did not pay attention to whether the offender had a goatee, and that he had short hair and no mustache or long sideburns. Victor stated on cross-examination that the offender had short hair, but he did know if he had a goatee. Victor also stated that he did not get a good chance to look at him, but thought that he had a “clean face.” Both witnesses testified on redirect that they looked at the man’s face. Defendant and defendant’s mother testified that in May 1970 defendant had a mustache, goatee and long sideburns. Defendant denied robbing the store.

Defendant contends that the photograph identification nine months after the robbery and the lineup identification two hours after the photograph identification was unduly suggestive and was a violation of due process.

Initial identification by photograph has been approved by the United States Supreme Court. In Simmons v. United States, 390 U.S. 377, 384, the court held:

“[E]ach case must be considered on its own facts, and that con-tions based on eyewitness identification at trial following a pretrial identification by photograph will be. set aside on that ground only if the photograph identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

In the instant case, defendant was not in custody at the time of the photograph identification, and the Rodriguez brothers testified that they were shown seven or eight photographs of different individuals. The exhibition of the photographs constituted a part of the normal investigá-tive procedure.

This court recognizes that the burden is on defendant to establish that the identification procedure was so suggestive as to give rise to a substantial likelihood of irreparable misidentification. (People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3.) In addition, we recognize that in a situation such as that in the instant case, where the photographs were not produced at the hearing on the motion to suppress or at trial, it is difficult to prove suggestiveness. We believe that effective police and prosecutorial procedures require retention of the photographs or a record of the photographs. In this case, however, the police officer and the victim testified at the hearing to suppress and at trial that seven or eight photographs of different subjects were shown to the Rodriguez brothers. The record does not reflect that the police in any manner directed attention to defendant’s photograph, or in any manner suggested that he was the one who committed the robbery. Nothing improper or suggestive was done. Ernest and Victor separately viewed the photographs one at a time and identified defendant from among them. The police officer and the brothers were cross-examined extensively regarding the photograph identification. Under these circumstances, we hold that the photograph identification was not suggestive. See People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1.

The pretrial lineup procedure, within two hours of the photograph identification, was also not suggestively conducted. After identifying defendant from the photographs, the police did not discuss the matter with Ernest Rodriguez until after he was asked to view the suspects. He was not told that one of the suspects was the man he had identified from the photograph. Additionally, a photograph of the participants of the lineup was introduced into evidence.

Even assuming that the identification procedures were suggestive for the reason that the photographs were not produced at the hearing to suppress and the lineup was conducted within two hours of the photograph identification, we must look to the “totality of circumstances” to determine whether the identifications were reliable. (Neil v. Biggers, 409 U.S. 188; People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634.) The robbery occurred nine months before the identification of defendant. Ernest Rodriguez testified that he observed defendant for a total of approximately 20 minutes on the day of the robbery. Defendant was in. the store standing near Ernest for approximately 15 minutes some hours-before the robbery. Only four or five customers were in the store at this time. At approximately 6:30, Ernest saw defendant again. The store at this hour was very busy, but defendant put a gun to Ernest’s side and pulled him from behind the cash register. They then walked 100 feet to the rear of the store. The robbery took five minutes, and Ernest testified that he, his brother and the stockboy spent three of those minutes in the meat cooler. Ernest testified that he looked at defendant’s face, but he did not notice facial hair. Victor Rodriguez testified that he only saw defendant for a few minutes since he was in the rear of the store when defendant walked in at 6:30. He described defendant to police after his brother had given his description of the robber. His description corroborated his brother’s, but he did admit on cross-examination that he did not get a good chance to look at the robber.

We are aware that the identification evidence is the only evidence adduced by the prosecution, and that such evidence must be carefully scrutinized. (People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232.) In view of the facts, Ernest Rodriguez had ample opportunity to closely observe defendant at the time of the robbery. We do not believe that the subsequent identification procedures were so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Nor do we believe that the conviction of defendant rests on identification which is doubtful, vague and uncertain.

The judgment is affirmed.

- Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.

       There is evidence that after the robbery of May 11, 1970, the Rodriguez brothers were shown photographs, but failed to identify any of the photographs. Defendant’s photograph was not included in this first group.


text:
    American National Bank & Trust Company of Chicago, as Trustee, et al., Plaintiffs-Appellees, v. The Zoning Board of Appeals et al., Defendants-Appellants.
    (No. 56971;
    First District (2nd Division)
    June 5, 1973.

      Rehearing denied July 10, 1973.

      John P. Murray, of Chicago, for appellants Rosemary Baur Bull. ■
    Robert Marks and Norton V. Smith Jr., both of Chicago, for appellees.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises under the Administrative Review Act. Defendants Bull and Smith appeal from an order of the circuit court affirming resolutions of the Chicago Zoning Board of Appeals which (1) interpreted a rear-yard ordinance so as to validate plaintiffs existing garage and (2) granted plaintiffs a variation in the event the interpretation of the ordinance is erroneous. Defendants’ sole contention is that a prior appellate court decision, Bull v. American National Bank & Trust Co., 112 Ill.App. 2d 32, 250 N.E.2d 839, has precluded the Zoning Board’s consideration of these issues.

In order to determine if the doctrine of estoppel by judgment or estop-pel by verdict apply, we must discuss the events preceding the Zoning Board’s resolutions.

Plaintiff Trust Co. (hereinafter Trustee) holds legal title to all unsold units in a 27-story condominium building at 1515 Astor Street in Chicago. The additional plaintiffs are condominium unit owners who purchased their units from Trustee after Trustee had initiated the proceedings herein involved. The property is located in an R-7 general residential district. In 1966 Trustee applied for a permit to construct an attached rear-yard, 3-story garage, 27 feet, 6 inches in height. On March 26, 1966, the Zoning Administrator interpreted the ordinance as limiting the height of the proposed garage to 18 feet, and thereby disapproved the application. On April 14, 1966, Trustee appealed the ruling of the Administrator to the Board of Appeals.

Public hearings were held; however, prior to the Board’s decision, Trustee reapplied for a permit, and, on August 30, 1966, the Administrator issued the permit. Plans for construction of the garage then commenced. The Board of Appeals was neither notified of the issuance of the permit, nor was the appeal withdrawn. On October 4, 1966, the Board affirmed the disapproval of the permit. No further appeal of this decision was taken; however, in July of 1967 construction of the garage commenced.

Approximately one month later, Rosemary Bull, a defendant in this action, filed a suit in circuit court to permanently enjoin the construction of the garage. The trial court denied the injunction and dismissed the complaint. On appeal this court reversed and remanded the cause and directed that the injunction issue for the reason that the Trustee had no right to rely upon the later approval of the Zoning Administrator when the Trustee was involved in a pending administrative appeal from his earlier disapproval. Bull v. American National Bank & Trust Co., supra.

Thereafter, plaintiffs applied to the Zoning Administrator to declare legal its existing 3-story garage. On December 15, 1969, the Administrator denied the application. On January 13, 1970, plaintiffs filed an appeal with the Board of Appeals requesting a reinterpretation of the rear-yard ordinance, and also requesting a variation from the height requirements. On February 26, 1970, the Board refused both requests.

Plaintiffs then instituted the instant Administrative Review proceeding. The circuit court held that the Board’s ruling of October 4, 1966, did not preclude it from reinterpreting the ordinance, and the appellate court decision did not litigate the issue of the reinterpretation of the ordinance. In addition, the determination of the variation application was not precluded by prior board resolutions or the appellate court decision. The court then remanded the cause to the Board of Appeals for a determination on the merits as to both issues.

On August 25, 1971, the Board resolved that the ordinance did not limit the height of a garage in a rear yard, and in addition granted plaintiffs a variation. Defendants Bull and Smith then filed their complaint in administrative review to reverse these resolutions of the Board. The circuit court affirmed the orders of the Board of Appeals, and defendants appealed to this court. The injunction granted to Rosemary Bull in Bull v. American National Bank & Trust Co., supra, has been stayed pending resolution of this appeal.

Under the doctrine of estoppel by judgment, a former judgment is deemed conclusive not only as to all matters actually litigated and determined, but all matters which might have been presented to support or defeat the claim. (Hoffman v. Hoffman, 330 Ill. 413, 161 N.E. 723.) Where a former adjudication is relied upon as an absolute bar, there must be, as between the two actions, identity of parties, subject matter and causes of action. Mistretta v. Village of River Forest, 2 Ill.App.3d 102, 276 N.E.2d 131.

A cause of action includes every essential element necessary for plaintiff to prove in order to entitle him to succeed and every essential element which defendant would have a right to traverse. (City of Elmhurst v. Kegerreis, 392 Ill. 195, 64 N.E.2d 450.) The cause of action in Bull v. American National Bank & Trust Co., supra, was an action to enjoin Trustee from constructing and operating the garage. The basis for the action was the Board of Appeals’ refusal to approve a permit because of its interpretation of the ordinance. The cause of action in the instant suit was instituted by plaintiffs to request a reinterpretation of the ordinance and to apply for a variation from the height provisions. Therefore, the causes of action are not identical, and the decision in Bull v. American National Bank & Trust Co., supra, is not a bar to the instant suit.

The second doctrine which must be considered is collateral estoppel, or estoppel by verdict. This doctrine is applicable where the cause of action in the prior suit differs, but a specific issue has been determined in that suit and the same issue is again involved in a subsequent suit between the parties or their privies. Determination of the issue in the former suit bars only the relitigation of that specific issue in the later suit. Hoffman v. Hoffman, supra; City of Chicago v. Provus, 115 Ill. App.2d 176, 253 N.E.2d 182.

In the case at bar, plaintiffs had not requested a variation prior to the instant suit. Plaintiffs filed their request for a variation only after the appellate court decision held that the disapproval of the first permit application was a final determination. As plaintiffs indicate, it was only then that the need for a variation arose.

The appellate court decision dealt only with the procedural question of whether the denial of the permit governed the subsequent issuance of a permit. The issue of a variation from the height limitations of the ordinance was not before the Board of Appeals or the court, and was not determined prior to this suit. Therefore, the consideration of plaintiffs’ application for a variation was not barred by either the prior resolutions of the Zoning Board of Appeals or by our court in Bull v. American National Bank & Trust Co., supra. The order of the court affirming the granting of the variation is affirmed. In view of this decision we need not consider the question of the interpretation of the ordinance.

Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.

       Municipal Code of Chicago, ch. 194A, par. 7.9 — 7.

       Plaintiffs condominium owners, as subsequent purchasers from Trustee, are in privity with Trustee. I.L.P. Judgments §§ 413, 422.

       Article IV of the Rules of Procedure of the Zoning Board of Appeals states:
      “No application for a variation * * * shall be filed except in a specific case where a building permit ° ° * has been denied by the Zoning Administrator on the ground that the proposed plan or use is not a permitted use under the provisions of the Zoning Ordinance as applied to said property.”


text:
    Philip S. Cangelosi, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the Village of Wilmette, Defendant-Appellee.
    (No. 56986;
    First District (2nd Division)
    June 5, 1973.
    Adamowski, Newey & Riley, of Chicago, (Francis X. Riley, of counsel,) for appellant.
    Robert J. Mangier, of Wilmette, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, Philip S. Cangelosi, appeals from an order denying his prayer for a declaratory judgment. The complaint alleged that persons statutorily ineligible were permitted to take a police lieutenant’s examination, and that the certification of those persons was illegal and void. Plaintiff’s complaint prayed that the appellee, Board of Fire and Police Commissioners of the Village of Wilmette, be ordered to follow its previous grading practices and to make promotions from the revised list, retroactively to the date of the examination. The trial court based its order upon the doctrine of laches and entered judgment for the Board.

Plaintiff submits the following contentions for our review:

1. That the trial court’s denial of declaratory relief denied appellant due process and equal protection of law, in that it arbitrarily applied the “six months” limitation rule which is limited to extraordinary writs of certiorari, quo warranto and mandamus.
2. That the trial court erred in applying the rule where it could have granted appellant relief, without transgressing any reason for the rule.

Plaintiff took two examinations, December 1, 1967 and April 30, 1968 for the position of lieutenant. He failed to attain a passing grade in either of the tests. It was not until February 2, 1971, nearly three years later, that plaintiff filed the instant litigation.

Plaintiffs contention that the doctrine of laches is not available in a declaratory judgment proceeding is without merit. (Stern v. Material Service Corp., 44 Ill.App.2d 198, 194 N.E.2d 511.) The next contention is that, assuming laches is applicable, it should not be successfully asserted because, if plaintiff was granted the relief he seeks, this relief would not create the problems enunciated in Kadon v. Board of Fire and Police Comm’rs, 45 Ill.App.2d 425, 430, 195 N.E.2d 751. We disagree. The relief sought would directly affect the rights of persons not parties to this litigation. In addition, the applicability of the doctrine of laches rests in the discretion of the court. We find no abuse of that discretion. The final contention is that plaintiff has been deprived of his rights and thus denied due process of the law. We disagree. Plaintiff was afforded an opportunity to assert his rights but it was his fault that by his own delay and inaction, of almost three yeai-s, he deprived himself of any relief. The law favors the vigilant. We therefore affirm the judgment.

Affirmed.

LEIGHTON and HAYES, JJ., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Linda F. Pope, Plaintiff-Appellant, v. Henry D. Pope, Defendant-Appellee.
    (No. 55712;
    First District (3rd Division)
    June 7, 1973.

      Muller Davis, of Davis, Jones & Baer, of Chicago, for appellant.
    Jacob N. Gross, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

this is an appeal by the plaintiff, Linda Pope, from a decree of divorce entered upon the motion of the defendant, Henry Pope.

The Popes were married in March 1965 and lived together until March 1970. Two children were born of the marriage. Mrs. Pope sued for divorce and alleged that her husband was guilty of extreme and repeated cruelty. The defendant denied the charge. An .uncontested hearing was held pursuant to stipulation on May 1, 1970, at which the plaintiff and her witnesses testified. At the conclusion of the testimony the court addressed the attorneys and stated: “All right. You gentlemen draw your decree and each of you approve it and come back before me.”- The decree, however, was not presented because on May 16th, at the plaintiff’s initiative, the parties were reconciled.

The Popes then vacationed in Mexico, returning to Cook County in early June. They had decided to move to California, and in June they rented a house in San Diego into which they moved with their children. During the reconciliation the plaintiff became pregnant. After the parties had been living in San Diego for a short time, marital difficulties again arose. The plaintiff sought psychiatric care and her pregnancy was terminated by an abortion. Their relations continued to deteriorate and on August 2nd the defendant left the plaintiff. He paid the rent for the month and gave her a check for $500. He then went to Europe for three weeks.

On October 26, 1970, the defendant filed a motion for the entry of the divorce decree. His motion alleged that the plaintiff had fraudulently induced him to reconcile with her for the purpose of preventing the entry of the decree in May 1970. The plaintiff moved to dismiss the motion, filed an answer which denied the defendant’s allegations, and sought permission to amend her pleadings and introduce evidence regarding the actions of the parties subsequent to May 1, 1970. The only testimony presented at the hearing was that of the plaintiff. She did not testify in person but it was stipulated that if she were called to testify she would recount the events that had transpired since May 1st, the last time the parties were in court. This testimony, as related by her counsel, was to the effect that the reconciliation was sincere and genuine and that the subsequent separation was the fault of the defendant. The court granted the defendant’s motion and on November 24, 1970, entered the decree which had been submitted by his attorney. The court approved, as part of the decree, a property settlement which had been agreed to by the parties on March 9, 1970, in contemplation of their divorce.

The settlement provided for alimony of $150 per month, $450 per month child support and the payment of $2,500 to the plaintiff’s attorney. The defendant agreed to establish an insurance trust for the benefit of the plaintiff and the children; he promised to pay to the plaintiff one half of the equity in their home in Northbrook, Illinois, and to deliver to her the personal property in the residence. In June 1970 the defendant paid the plaintiff’s attorney $2000. The cost of moving the personal property from Northbrook to San Diego was paid in July. The insurance trust was established and the plaintiff’s share of the equity of the North-brook property amounting to $15,324.10 was segregated. After .the November. decree, the plaintiff accepted $600 monthly from the defendant.

The first problem confronting us is the defendant’s motion to dismiss the appeal on the ground that the plaintifFs acceptance of decretal benefits precludes her from attacking the decree.

Generally, a litigant who has enjoyed the benefits of a decree cannot attack it, especially if the reversal of the decree would place the opposing party at a distinct disadvantage. (Hancox v. Hancox (1964), 54 Ill.App.2d 476, 203 N.E.2d 613). We do not think the rule applies in the present case. When the defendant paid the fee to the plaintiff’s attorney, the Popes were reconciled and there was no intention to enter the decree. The situation is markedly different from that in Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614, where the wife herself accepted the fee for her attorney after the decree was entered. Indeed, the acceptance by the plaintifFs attorney of a fee lower than that originally agreed upon suggests that he considered himself relieved of the duty of preparing and entering a decree. Also, the payment for the transportation of the household goods of the parties from their home in Northbrook to San Diego was made while they were still living together in San Diego. The fact that the plaintiff and her children continued to use these items after the date of the decree does not bar her right to appeal nor does her acceptance of the alimony and support payments. (Lemon v. Lemon (1958), 14 Ill.2d 15, 150 N.E.2d 698). The plaintiff produced evidence of the expense necessarily incurred in maintaining the standard of living which she and the children were accustomed to after moving to San Diego. There was no evidence that she. was a woman of means or that she had independent sources of income. Retention of money essential for her and her childrens existence1 from the person whose responsibility it was to support them, does not bar her appeal. In any case we fail to perceive how the plaintiff's actions might place the defendant in a disadvantageous position in the event of a reversal. She refused to accept her share of the real estate and; did not exercise any dominion over the insurance trust. The defendant’s motion to dismiss the appeal is denied.

The plaintiff contends that the delayed decree should not have been entered because the reconciliation with her husband condoned the grounds for divorce upon which the decree was based. The defendant argues, on tire other hand, that the doctrine of condonation does not extend to grounds for divorce after a trial has been had on the issues raised in the complaint and answer. Following the May 1st hearing all that was necessary to give Mrs. Pope the divorce she sought was for an agreed decree to be prepared and submitted to the trial judge for his approval. However, until this was done the judge’s oral announcement of his decision and his reasons therefor had no effect. (McKeon v. McKeon (1955), 4 Ill.App.2d 515, 124 N.E.2d 564.) Ill. Rev. Stat. 1969, ch. 110A, par. 272, provides: “If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, * * * the judgment becomes final only when the signed judgment is filed.” Thus, the matter remained under the control of the judge until the decree was entered. Richmond v. Richmond (1945), 326 Ill.App.234, 61 N.E.2d 573.

When confronted with a procedural situation similar to the present one this court permitted a plaintiff, whose ground of divorce was established, to present a new defense to avoid the entry of the decree. (Norwood v. Norwood (1948), 333 Ill.App.469, 77 N.E.2d 552.) In Norwood the wife sued for divorce because of her husband’s habitual drunkenness, and upon a default hearing the court indicated that she would be granted a decree. However, the decree was not presented and after a few weeks had passed counsel acting for her husband, who had been declared mentally incompetent, filed a petition requesting entry of the decree. The plaintiff resisted this effort contending that she did not know of her husband’s mental illness at the time of the trial and under the circumstances she did not want the divorce. Nevertheless, the trial court entered the decree. On appeal the decision was reversed. It was held that the announcement that a decree would be granted did not constitute a final judgment, and that the plaintiff should not be compelled to submit to a divorce against her wishes.

It is the practice in Illinois for the party who obtains the decree to prepare it and submit it to the trial judge. (McKeon v. McKeon.) Mrs. Pope chose not to do so, and her husband, in exercising her prerogative, made himself the moving party in order to obtain a divorce she did not want. He submitted a decree which, contrary to the court’s instructions, had not been approved by both attorneys. In resisting this effort Mrs. Pope should not be estopped from interposing the factor of condonation, although it is normally an affirmative defense raised by a defendant. Cf. Kovack v. Kovack (1971), 131 Ill.App.2d 382, 268 N.E.2d 258.

Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on the condition that it not be repeated and that the forgiving party shall thereafter be treated with conjugal kindness by the offender. (Kovack v. Kovack; Ollman v. Ollman (1947), 396 Ill. 176, 71 N.E.2d 50.) At the hearing on May 1, 1970, the plaintiff established grounds for divorce; however, she forgave her husband- his matrimonial misdeeds and, at her suggestion, they became reconciled. During the reconciliation they cohabited, took a vacation together, and established a new home for themselves and their children. The defendant alleged in his motion for entry of the decree that the reconciliation had been made in bad faith but at the hearing on the motion he offered no evidence to substantiate this charge.

The essence of condonation is the recognition that problems affecting the continuity of the marriage have arisen and, notwithstanding prior mistakes or misconduct, there is the understanding and forgiveness to create an appropriate basis for continuing the marriage. (Quagliano v. Quagliano (1968), 94 Ill.App.2d 233, 236 N.E.2d 748.) The evidence of the plaintiff’s efforts in effecting the reconciliation and in resuming her life with the defendant shows the forgiveness necessary to constitute condonation of her grounds for divorce. That the reconciliation did not prove permanent does not establish the contrary. The trial court therefore erred in granting the defendant’s motion and entering the decree of divorce.

The judgment is reversed.

Reversed.

McNAMARA and McGLOON, JJ., qoncur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Toney Crosby, Defendant-Appellant.
    (No. 56912;
    First District (3rd Division)
    June 7, 1973.
    James J. Doherty, Public Defender, of Chicago, (Robert M. Gray and Bernard L. Schwartz, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (John C. O’Rourke and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Theodore Thompson, Defendant-Appellant.
    (No. 57319;
    First District (3rd Division)
    June 7, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks and Thaddeus L. Kowalski, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Robert Stroka, and Ronald F. Neville, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

McGLOON, J., took no part.


author: Mr. JUSTICE EGAN.

text:
    The City of Chicago, Plaintiff-Appellee, v. Harris Trust & Savings Bank et al., Defendants-Appellants.
    (No. 58727;
    First District (1st Division)
    June 7, 1973.
    Sheldon O. Zisook and Avrum Reifer, both of Chicago, for appeUants.
    Richard L. Curry, Corporation Counsel, of Chicago, for appellee.
    Robert L. Graham, of Jenner & Block, of Chicago, for intervenors-appellants.
   Opinion by

Mr. JUSTICE EGAN.