author: PRESIDING JUSTICE JONES JUSTICE EARNS,

text:
    PATRICIA WOODSIDE, Plaintiff, v. GERKEN FOOD COMPANY et al., Defendants (Hawkeye-Security Insurance Company, Plaintiff-Appellant, v. United States Fidelity & Guaranty Company et al., Defendants-Appellees).
    Fifth District
    No. 5—84—0122
    Opinion filed January 4, 1985.
    Rehearing denied February 1, 1985.

      John D. Bauman, of Wagner, Bertrand, Bauman & Schmieder, of Belleville, for appellant.
    Walker & Williams, P.C., of Belleville (Donald J. Dahlmann and Jeffrey S. Hebrank, of counsel), for appellees.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Hawkeye-Security Insurance Company (hereinafter Hawkeye-Security), appeals from an order granting the motion of defendant, United States Fidelity & Guaranty Company (hereinafter USF&G), for summary judgment and simultaneously denying plaintiffs motion for summary judgment in a declaratory judgment action to determine which company’s insurance policy would furnish primary coverage for an alleged personal injury sustained on the premises of the Hy-Ho Cafe in Belleville. This declaratory judgment action brought by plaintiff, Hawkeye-Security, was consolidated for purposes of discovery with, and arose out of, a personal injury action initiated by Patricia Woodside, an employee of the Hy-Ho Cafe. Various defendants were named in Woodside’s complaint, including the Gerken Food Company (hereinafter Gerken), a wholesale food supplier for the cafe and the insured of both parties now before us. Plaintiff, Hawkeye-Security, contends on appeal that the denial of their motion for summary judgment and the granting of defendant’s motion was improper because the injury on which we are focusing did not come within the terms of Gerken’s motor vehicle liability policy issued by Hawkeye-Security, but rather was encompassed by the provisions of Gerken’s general liability policy issued by defendant USF&G. After consideration of both motions for summary judgment, the circuit court held that the injury sustained by Woodside fell within the loading and unloading clause of the policy issued by Hawkeye-Security. We affirm.

The facts are that on the morning of September 26, 1979, Gerken delivered two sacks of potatoes, each weighing 100 pounds, to the Hy-Ho Cafe for use in its restaurant business. An employee for Gerken deposited both sacks inside the doorway entrance of a walk-in storage cooler which was situated adjacent to the kitchen. He departed from Hy-Ho’s premises immediately after obtaining a signature on a receipt form. Patricia Woodside, the head cook of the cafe and person responsible for taking deliveries, was unaware at the time that the Gerken delivery had been accomplished.

Woodside had cause to obtain some food supplies from the walk-in storage cooler sometime later that morning. Upon reaching the entrance of the cooler, she encountered the two sacks of potatoes sitting up inside the doorway impeding entry into the walk-in cooler. In an effort to clear the entrance, Woodside dragged one sack of potatoes approximately 12 feet to the rear wall of the cooler where potatoes were ordinarily kept. She returned to the doorway and lifted the second sack into her arms. Upon turning to carry it back to the rear wall, Woodside slipped and fell, incurring serious injuries to her back, hip and legs. There was evidence that the concrete floor of the cooler was substantially covered with water and, as a result, may have contributed to Woodside’s injury. The record further indicates that there was a persistent leak within the cooler.

There was also substantial uncontroverted evidence that the potatoes were to have been delivered to the rear of the walk-in cooler to where Woodside had successfully moved the first sack. More specifically, Woodside, as head cook, had explicitly instructed each Gerken delivery employee to deposit the potatoes against the rear wall of the storage cooler. Each such employee, except one, had had no difficulty in complying with this direction. The nonconforming driver frequently deposited the potatoes in the doorway to the cooler despite Woodside’s instructions to discontinue this practice.

On September 24, 1981, Patricia Woodside filed suit against Gerken on the basis of negligence as a result of her injuries. The complaint alleged, inter alia, that Gerken had negligently and carelessly placed the sacks of potatoes in the doorway of the cooler, thereby precluding access to the cafe’s food supplies and subjecting her to a dangerous condition.

A dispute arose between the two insurers, USF&G and Hawk-eye-Security, as to who would furnish primary coverage to Gerken. The plaintiff, Hawkeye-Security, filed a complaint for declaratory relief to resolve the issue whether the comprehensive general liability policy issued by the defendant, USF&G, or the motor vehicle liability policy issued by Hawkeye-Security was to provide coverage for the injuries to Woodside. Resolution of that issue depends entirely on whether the occurrence complained of by Woodside was covered by the “loading and unloading” clause of the motor vehicle policy issued by Hawkeye-Security.

On July 21, 1982, plaintiff filed its motion for summary judgment, which prompted defendant, USF&G, to file a motion for summary judgment on its own behalf. The circuit court granted defendant’s motion for summary judgment on October 15, 1982, holding, in effect, that the loading and unloading clause contained in the motor vehicle policy provided coverage to the exclusion of the general liability policy. Plaintiff’s motion for reconsideration was subsequently denied, and this appeal followed.

Hawkeye-Security contends on appeal that the circuit court erred in finding that the accident in question came within the coverage of their policy. In pertinent part Hawkeye-Security’s motor vehicle policy provided coverage for bodily injury “caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading” of the insured vehicle. Hawkeye-Security contends that the accident did not arise from the use of the delivery vehicle, or from the unloading which is part of its use, because Woodside’s act of moving the potatoes occurred subsequent to their delivery of the potatoes and departure of the vehicle and' was, therefore, not part of the unloading process. Hawkeye-Security contends further that the causal relation between the accident and the use of the vehicle was insufficient to give rise to liability under their policy.

To ascertain whether an act constitutes “loading or unloading,” the courts have adopted two basic tests: the “coming to rest” doctrine under which “unloading” includes only the actual removing or lifting of the article from the motor vehicle up to the moment when it has actually come to rest, and the “complete operations” doctrine which holds that “unloading” encompasses all of the operations which are required to effect a complete delivery. (Entz v. Fidelity & Casualty Co. (1966), 64 Cal. 2d 379, 412 P.2d 382, 50 Cal. Rptr. 190; Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp, 893.) The “complete operations” doctrine, therefore, covers the entire process involved in moving the goods, while coverage under the “coming to rest” doctrine terminates when the deliveryman has finished his handling of the goods.

Illinois courts have unequivocally adopted the “complete operations” doctrine in construing the coverage of a “loading and unloading” clause contained in a motor vehicle insurance policy. Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; see also Liberty Mutual Insurance Co. v. Hartford Accident & Indemnity Co. (7th Cir. 1958), 251 F.2d 761; Coulter v. American Employers’ Insurance Co. (1948), 333 Ill. App. 631, 78 N.E.2d 131.

In Estes, the Illinois Supreme Court established that motor vehicle insurance policies containing “loading and unloading” clauses will provide coverage under that clause to the point that unloading has been completed. They held that “ ‘unloading’ has been completed when, subsequent to removal of the material from the vehicle, the deliverer has finished his handling of it, and the material has been placed in the hands of the receiver at the designated reception point, despite the fact that it is necessary to transport the material thereafter to another point.” Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 234, 402 N.E.2d 613, 616.

The injury in Estes occurred after cement had been delivered by Ready Mixed Concrete Company to the Anderson Construction Company by pouring the concrete from the truck into a bucket connected to an overhead crane. The bucket and crane were used to transport the concrete to locations where it was to be placed in forms. It had been established that the bucket was the designated reception point for delivery of the concrete. The supreme court in Estes relied principally upon this unrebutted fact in holding that the “loading and unloading” clause of the motor vehicle policy did not provide coverage because the injury in question occurred subsequent to delivery of the concrete to the designated reception point.

In the instant case the facts indicate that the sacks of potatoes were to be placed inside the walk-in cooler and against the rear wall. While it is not entirely clear which employee of Gerken delivered to the Hy-Ho Cafe on September 26, 1979, the day in question, we find it unnecessary to address that aspect of this controversy. Each of Gerken’s deliverymen had been instructed to place the potatoes inside of and to the rear of the cooler. On the morning that Woodside sustained her injuries, one of those individuals placed the sacks of potatoes in the cooler’s doorway. If the rule in Estes is followed, such delivery was incomplete regardless of which Gerken deliveryman was involved because it was necessary to “transport the material [potatoes] to another point.”

The determination as to when “unloading” has been completed requires an examination of two distinct elements. First, the deliverer must have finished his handling of the material, and, second, it must have been placed in the hands of the receiver at the designated reception point. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613.) The evidence for plaintiff, HawkeyeSecurity, satisfies the first element, for Gerken’s employee had departed from the Hy-Ho Cafe prior to the accident. Hawkeye-Security, however, fails to satisfy the second requisite element due to the substantial unrebutted evidence in the record that the designated reception point for delivery was against the rear wall of the cooler. Wood-side had informed each of Gerken’s deliverymen that they were to place the potatoes to the rear of the walk-in cooler. Since the potatoes were not deposited at this designated reception point on September 26, 1979, the delivery by Gerken on that date must be considered incomplete.

Hawkeye-Security argues additionally that the causal connection between the accident and the insured’s use of the vehicle here was insufficient to give rise to liability under the motor vehicle policy. This argument is closely related to the question whether Woodside’s attempt to move the potatoes came within or as part of the unloading process, since unloading necessarily constitutes a use of Gerken’s vehicle. Plaintiff’s basis for its contention stems from Woodside’s geographic proximity to the delivery vehicle, or more appropriately, her lack thereof. In other words, since Gerken’s delivery vehicle had departed from the Hy-Ho Cafe prior to the accident, Hawkeye-Security contends that Woodside’s injuries were not sustained as part of Gerken’s use of the vehicle.

It is well settled that some causal relation between an injury and the use of a motor vehicle is necessary for there to be coverage under the “arising out of the use” clause of a vehicle insurance policy. Proximate causation in the strict legal sense, however, is not required, and the loading or unloading that constitutes the vehicle’s use need not be the sole cause of the accident. It is sufficient that the events giving rise to the claim arose out of the vehicle’s use and are related to it. (Entz v. Fidelity & Casualty Co. (1966), 64 Cal. 2d 379, 412 P.2d 382, 50 Cal. Rptr. 190; see also 7 Am. Jur. 2d Automobile Insurance sec. 207, at 721-22 (1980); 1 R. Long, Law of Liability Insurance sec. 1.22, at 1—57 through 1—58 (1981).) This court in Toler v. Country Mutual Insurance Co. (1984), 123 Ill. App. 3d 386, 392, 462 N.E.2d 909, 913, characterized the requisite causation as that which would not have occurred “but for” the improper or incomplete delivery. Geographical proximity of the delivery vehicle to the injured party is, therefore, not the sole determinant of the causation issue. What is determinative is whether the accident in question arose out of the defective delivery or would not have occurred but for that defective delivery, and geographic proximity is but one factor to be considered.

The facts of the instant case reveal that the insured delivered two sacks of potatoes to the Hy-Ho Cafe. The Gerken employee placed the sacks in the doorway of the walk-in storage cooler, thereby impeding entry and exit. Thus, further movement of the potatoes was rendered necessary by the as yet incompleted delivery. When Woodside had cause to obtain supplies from the cooler, she attempted to move the potatoes to the rear of the cooler. It was during this attempt that Woodside sustained her injuries.

While the water on the concrete floor of the cooler may have been a contributing factor, it is apparent that Woodside’s injuries would not have occurred but for the defective delivery of the insured. Gerken deliverymen had been explicitly instructed to place the potatoes within the cooler to the rear, not in its entrance. Had those instructions been followed, this court would not have had reason to resolve this dispute, for Woodside would not have had to move the potatoes in the first place.

For the reasons stated in this opinion, we hereby affirm the judgment of the circuit court for the defendant and against the plaintiff, Hawkeye-S ecurity.

Affirmed.

KASSERMAN, J., concurring.

JUSTICE EARNS,

dissenting:

I believe the majority reads Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613, too broadly. In holding that the delivery there was a “completed operation,” the opinion cannot be considered authority that decidedly different circumstances are not “completed operations.” While it is true that Illinois has adopted the “completed operations” doctrine, which requires that the material delivered be placed at a designated reception point, there still must be some causal connection with the placement of the material and the use of the vehicle.

Here the material was placed inside the small cooler, although not at the precise place designated. (In my opinion it is doubtful that this could be considered a “misdelivery.”) The driver of the vehicle departed. The immediate cause of plaintiff’s fall was water on the floor of the cooler. Perhaps “but for” the placement of the potatoes this accident would not have occurred, but such remote causal relationships have consistently been rejected as a basis of imposing responsibility. (See Prosser, Torts sec. 41, at 239 (4th ed. 1971).) The causal connection of the occurrence with the use of the vehicle is simply too remote. Entz v. Fidelity & Casualty Co. (1966), 64 Cal. 2d 379, 412 P.2d 382, 50 Cal. Rptr. 190.

Even though the. sacks might be considered misdelivered, they were finally delivered to the control of the consignee. No further movement was necessarily contemplated or required. Other cases have considered such delivery a “completed operation.” Liberty Mutual Insurance Co. v. Hartford Accident & Indemnity Co. (7th Cir. 1958), 251 F.2d 761; General Accident, Fire & Life Assurance Corp. v. Liberty Mutual Insurance Co. (Fla. App. 1972), 260 So. 2d 249.


source: Caselaw Access Project

author: PRESIDING JUSTICE JONES

license: Public Domain

text:
    CAROL ROBINSON, Plaintiff-Appellant, v. REGIONAL BOARD OF SCHOOL TRUSTEES et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0822
    Opinion filed January 3, 1985.

      Stegmeyer & Stegmeyer, of Belleville, for appellant.
    Darrell Williamson, Assistant State’s Attorney, of Chester, for appellee Regional Board of School Trustees of Monroe-Randolph Counties.
    Richard A. Brown, of Chester, for appellee Jim Leavitt.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

This dispute arises from an order of the Regional Board of School Trustees for Monroe-Randolph Counties (the board) dated May 31, 1983, granting detachment of certain territory in the Sparta Community Unit School District No. 140 and annexing that territory to the Chester Community School District No. 139. Plaintiff, Carol Robinson, appeals from an order granting defendants’ motion to dismiss filed pursuant to section 2—619(a)(1) of the Civil Practice Act (Ill. Rev. Stat. 1983, ch. 110, par. 2—619(a)(1)). The circuit court, having heard evidence in support of and in opposition to the motion to dismiss, found that plaintiff’s complaint for administrative review was not filed in the circuit court within the time prescribed by law and, accordingly, its jurisdiction was improperly invoked.

On April 25, 1983, a petition for a school district boundary change was filed in the office of the Regional Board of School Trustees for Monroe-Randolph Counties by persons residing in the Sparta Community School District No. 140. The petition requested that certain territory therein described be detached from the Sparta School District and annexed to the Chester School District. The petition, as required by section 7—1 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7— 1), contained the signatures of two-thirds of the registered voters in the territory proposed to be detached.

After compliance with the publication and notice requirements of section 7—6 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7— 6), a public hearing on the petition was held on May 23, 1983, at the Red Bud High School, Red Bud. The petitioners presented sworn testimony, cross-examination was conducted, and a transcript of the proceedings was made. Plaintiff was present at this hearing, as were many other members of the general public. Plaintiff did not testify as an objector to the petition or otherwise manifest her opposition to the proposed detachment. Despite several inquiries from the board as to whether members of the audience would care to comment, plaintiff remained silent.

On May 31, 1983, a second public meeting of the Regional Board of School Trustees was held in the office of James Carpenter, the regional superintendent of schools, Red Bud, for the purpose of discussing the evidence taken at the May 23, 1983, hearing and entering an order thereon. Plaintiff was also present at this meeting, and at its conclusion the board entered an order granting the petition for detachment effective for the 1983-1984 school year.

Thereafter, and pursuant to section 7—6 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7—6), James Carpenter, an ex-officio member of the board, mailed a copy of the board’s order to the parties of record to the administrative proceedings. These parties consisted of the members of the petitioners’ committee, both school districts and the attorneys involved, all of whom received copies of the order on June 2, 1983. A copy of the order was not mailed to plaintiff.

On August 29, 1983, plaintiff filed a complaint for administrative review in the circuit court of Randolph County requesting review of the board’s order granting detachment. Defendants filed a motion to dismiss asserting that the complaint was not timely filed and that the court was accordingly without jurisdiction to hear the case. After an evidentiary hearing the circuit court granted the motion and dismissed the complaint with prejudice. We affirm.

Our first inquiry is whether plaintiff’s complaint for administrative review was properly barred by reason of untimely filing. The board’s decision to grant detachment constitutes final administrative action, and, as such, our review of that decision must be in accordance with the Administrative Review Act. (Ill. Rev. Stat. 1983, ch. 122, par. 7—7; Sobel v. Board of Education (1977), 50 Ill. App. 3d 371, 365 N.E.2d 693.) It is well settled that “the right to review a final administrative decision is limited and circumscribed by the statute or statutes authorizing such review.” Stirniman v. County Board of School Trustees (1960), 26 Ill. App. 2d 245, 249, 167 N.E.2d 829, 831.

Section 3—103 of the Administrative Review Act (Ill. Rev. Stat. 1983, ch. 110, par. 3—103) provides in pertinent part:

“Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.”

(See In re Charges Against Crotty (1983), 115 Ill. App. 3d 248, 450 N.E.2d 399.) A party who fails to seek review of an administrative decision “within the time and manner” provided in the Act “shall be barred from obtaining judicial review of such administrative decision.” (Ill. Rev. Stat. 1983, ch. 110, par. 3—102.) The Illinois Supreme Court has held that a party seeking judicial review of an administrative decision must act promptly and within the time prescribed by statute. Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691.

The 35-day time limit for filing a complaint for administrative review is a jurisdictional requirement. It follows that if that requirement is violated, the reviewing court may dismiss the action because jurisdiction was improperly invoked. (In re Charges Against Crotty (1983), 115 Ill. App. 3d 248, 450 N.E.2d 399; Hoffman v. Department of Registration & Education (1980), 87 Ill. App. 3d 920, 410 N.E.2d 291.) This the circuit court did when it granted defendants’ motion to dismiss.

That plaintiff failed to comply with the 35-day time limit is not contested. A copy of the board’s detachment order was served upon the parties affected on June 3, 1983. Hence, June 3, T983, is the date from which plaintiff had 35 days to file. (Ill. Rev. Stat. 1983, ch. 110, par. 3—103.) Plaintiff’s complaint was filed on August 29, 1983, some 21 days beyond the time prescribed by statute. On this basis alone, the case law determines conclusively that plaintiff’s complaint was properly dismissed. (In re Charges Against Crotty (1983), 115 Ill. App. 3d 248, 450 N.E.2d 399; Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 437 N.E.2d 1277; Murphy v. Policemen’s Annuity & Benefit Fund (1979), 71 Ill. App. 3d 556, 390 N.E.2d 45; Varnes v. Dougherty (1976), 39 Ill. App. 3d 476, 350 N.E.2d 6.

But plaintiff maintains, however, that she, as a “party affected,” was never served with ¿ copy of the board’s order on June 3, 1983, and that we, therefore, must carve out an exception to the 35-day rule. We decline to do so.

Only a party of record affected by administrative action has standing to seek judicial review of such action. (Williams v. Department of Labor (1979), 76 Ill. 2d 72, 389 N.E.2d 1177; Pisano v. Giordano (1982), 106 Ill. App. 3d 138, 435 N.E.2d 899.) Even if plaintiff had complied with the 35-day rule, we hold that her action was properly dismissed since she was not a party of record who was entitled to receive a copy of the board’s order. The applicable School Code provision is dispositive:

“At the conclusion of the hearing the regional superintendent of schools as ex officio member of the regional board of school trustees shall within 30 days enter an order either granting or denying the petition and shall deliver to the committee of petitioners, if any, and any person who has filed his appearance in writing at the hearing and any attorney who appears for any person and any objector who testifies at the hearing *** a certified copy of its order.” Ill. Rev. Stat. 1983, ch. 122, par. 7—6.

Plaintiff did none of those acts enumerated in section 7—6 above which would have cast her as a party of record who was entitled to receive a copy of the board’s order. She did not file her appearance at the hearing in writing. She did not have an attorney appear for her at the hearing. She did not testify as an objector at the hearing. Indeed, we find nothing in the record to indicate that plaintiff was anything more than a passive spectator at the administrative hearing. Plaintiff was merely an interested party, not a party of record affected by the administrative decision. That status, without more, does not entitle her to seek judicial review of the administrative action. “The standing of any person to appeal the result of an administrative review proceeding must appear as a factual matter in the record made before the administrative body.” (Allender v. City of Chicago Zoning Board of Appeals (1978), 63 Ill. App. 3d 204, 210, 381 N.E.2d 4, 8.) The record before us is devoid of those facts that would indicate plaintiff has standing to seek judicial review.

Finally, we turn to plaintiff’s contention that she was denied an opportunity to object at the administrative hearing and that the board, in conducting the hearing, disregarded procedural due process requirements. We find no merit in this contention. The record reveals that, at the hearing, sworn testimony was presented, cross-examination was conducted and a transcript of the proceedings was made. Furthermore, the board on several occasions inquired as to whether members of the audience would care to comment on the proceedings. It is well settled that a “County Board of School Trustees as an administrative agency is not held to the refined legal standards of procedure that exist in courts of record.” (Bridgeport Township High School District No. 3-12 v. Shank (1955), 7 Ill. App. 3d 183, 189, 129 N.E.2d 264, 267.) Plaintiff simply made no use of her opportunity to be heard. Her failure to do so does not diminish the sufficiency of that opportunity.

We, accordingly, affirm the order of the circuit court of Randolph County dismissing plaintiff’s complaint for administrative review.

Affirmed.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES FRANKLIN, Defendant-Appellant.
    Fifth District
    No. 5—84—0405
    Opinion filed January 9, 1985.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Charles Franklin, was indicted for concealment of homicidal death (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.1). Following a jury trial in the circuit court of St. Clair County, he was convicted and sentenced to a three-year term of imprisonment. Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt and that he was denied his right to a fair trial when the trial court precluded him from presenting evidence as to the State’s chief witness’ motivation to testify falsely.

The testimony shows that on Sunday, December 5, 1982, at approximately 1 p.m., Aileen Johnson was riding in East St. Louis in a car driven by George Stallion. When Mr. Stallion stopped the car next to a field at McCasland and 15th streets, Ms. Johnson saw a tennis shoe sticking up in the weeds. Mr. Stallion approached the shoe and discovered that it was attached to a body. An East St. Louis patrolman, a detective and an evidence technician were dispatched to the scene, where they observed the body of a Negro male lying face down in the trash and weeds with his hands and feet tied behind him and with a gag in his mouth. The body was inside what looked like some kind of bedcover or furniture cover. Because of the way the victim was bound and gagged and because no signs of struggle were seen, the detective and the evidence technician testified that it appeared to them that the crime had occurred elsewhere and the body was then dumped where it was found. The area where the body was found was described as being a trash dump in an empty field in an out-of-the-way area. Two bullet slugs were recovered when the clothing and cover were removed. When the body was discovered, there was a large amount of blood on the victim’s jacket and some blood on the cover, although the blood had not soaked through the cover. Later, through fingerprints, the body was identified as that of Stephan Rollins.

The coroner’s pathologist who conducted an autopsy on the body about 8 a.m. on December 6, 1982, concluded that the cause of death was seven gunshot wounds to the chest which had entered from behind between the shoulder blades, penetrating the- heart, and then exiting the chest wall. The pathologist testified that Rollins would have died instantly and in her opinion had been dead about 24 hours at the time of the autopsy. In addition to the wounds, she discovered a large bump or abrasion on Rollins’ forehead.

Steven Griffin testified that he had known Rollins, the victim, since he (the victim) was a child. He knew that Rollins had broken into a van belonging to someone named Breadman because Griffin bought the stereo equipment taken out of the van. Breadman worked at Conrad’s Tavern in East St. Louis (about five blocks east of where the body was found) as a disc jockey, and his van was parked at the tavern at the time of the theft. Griffin saw Rollins on the evening of December 4, 1982, at Griffin’s cousin’s house, when Rollins, who was perspiring and breathing heavily, said that somebody had just shot at him. Griffin told him to leave the area, which Rollins did, telling Griffin he was going to the house of his girlfriend, Rokeena Wright. Sometime after Rollins left, another person came to Griffin’s cousin’s house and told Griffin to go to Conrad’s Tavern. Griffin did so, and when he walked inside the tavern, he saw the tavern owner, Lloyd Conrad, and his cousin, Larry Hicks, standing behind the bar. Conrad called Griffin over and took him to his office, a back room, inside which Griffin saw the defendant, whom he called “Butch,” and Rollins, who was “laying on the floor hog-tied with a rag in his mouth and ropes tied around his arms and legs.” Griffin could tell that Rollins was still breathing because he could still see his chest moving up and down. While Conrad, Hicks, and Griffin were standing in the doorway, Hicks started asking Griffin about the stereo equipment, to which Griffin responded that he had given it to his brother in Decatur. The defendant then pulled a pistol out of his back pocket and said, “This boy is going to die tonight.” When Griffin asked why, the defendant told him to shut up, at which point Griffin backed out of the office door, left the tavern, and went home. Griffin testified that he did not call the police that night because he feared for his own life. He learned the next afternoon that Rollins had been found in some weeds somewhere shot seven times. Griffin identified Rollins from pictures of the scene where the body was discovered, stating that Rollins had been wearing the same clothes and had been bound and gagged in the same manner when he last saw Rollins alive at Conrad’s. Griffin finally told the police about what had occurred when he decided to leave town because defendant was threatening to kill Griffin’s cousins and Rollins’ friends. At the time he made the statement Griffin was in the East St. Louis jail, having been arrested for allegedly carrying an unregistered gun. Griffin admitted that he did not leave the East St. Louis area for Florida until March 1984 because he was waiting for his divorce to be final.

Rokeena Wright testified that between 7 p.m. and 8 p.m. on December 4, 1982, Rollins came into her apartment in East St. Louis. He was breathing heavily and appeared nervous and excited, saying that someone had been chasing him and trying to shoot him. He told her that he was in trouble for having stolen some equipment from Conrad’s Tavern. Wright testified that Rollins left her apartment about 12:30 a.m. after she cautioned him to stay away from Conrad’s.

Officer Marion Hubbard testified that between 10 and 11 p.m. on December 4, 1982, he answered a “fight in progress” call at Conrad’s Tavern. The place was crowded, with music playing, and after talking with the owner and a few patrons, he concluded after only checking the front room of the bar that there was no disturbance and left.

Goldie Truss, a regular at Conrad’s, testified that on the evening of December 4, 1982, she saw defendant leave the tavern between 10 and 11 p.m. carrying something. She just glanced at the back of his head as he left and could not remember how big the bag was other than he carried it in his hands; it was larger than a grocery bag and could have been the size of a garment bag. Truss remembered that she told the grand jury that two people could have been carrying the bag and that it appeared to be heavy and pretty large and that whatever was inside was balled up. On cross-examination, Ms. Truss explained that she had tried to tell the grand jury that she could not clearly remember anything because she was intoxicated from drinking for five or six hours at the tavern.

Daphne Truss, Goldie’s daughter, testified that she dropped by the tavern between 10:30 p.m. and 10:45 p.m. on that evening to talk to her mother. As she was getting into the car to leave, she glanced back and saw defendant coming out carrying something that looked like a trash bag. She thought just one person put the bag in the back of a pickup truck but she recalled telling the grand jury that she saw the defendant and Conrad carrying a large green clothing bag. She conceded on cross-examination, however, that she was not really sure of anything that she saw.

Ponce Weston testified that he arrived at Conrad’s about 10:30 p.m. on December 4, 1982, and stood outside drinking with his friend, Charles Hicks. He saw the defendant come out of the tavern carrying a large bag. He could tell that the bag was not empty because it made a sound when it was thrown on the back end of the pickup truck. The defendant then got in the back end of Conrad’s truck with the bag, and Conrad drove away. He recalled telling Charles- Hicks afterward that they should go get another drink, but Weston agreed that he might have told the police on April 30, 1983, that he had said to Hicks, “Let’s get the hell out of here.” Weston stated on cross-examination that he had been drinking throughout the afternoon of December 4. He also stated that he gave the police the statement he gave because they scared him and made him feel that he had done something wrong.

Charles Hicks, who recalled arriving between 11 and 11:30, corroborated Weston’s account. Hicks described the bag as a “traveler’s bag” and stated he just glanced at the defendant with the bag because it was normal for people to take things in and out of the place. Hicks did not think the bag was empty because of the way defendant was carrying it.

A police search of Conrad’s Tavern, conducted six months later, on May 3, 1983, found only a single hole in the paneling, but it could not be determined if it was made by a bullet.

The defendant presented no evidence. After deliberation, the jury found defendant guilty of concealing a homicidal death.

Defendant’s first contention on appeal is that he was not proved guilty beyond a reasonable doubt of the offense of concealing a homicidal death (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.1), where the State’s evidence was wholly circumstantial and where important corroborating evidence was missing. Defendant further argues that there was no showing that that Rollins (the victim) was dead when the alleged act of concealment occurred.

Section 9—3.1(a) of the Criminal Code of 1961 provides:

“A person commits the offense of concealment of homicidal death when he conceals the death of any other person with knowledge that such other person had died by homicidal means.” (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.1(a).)

The statute contains two elements whose presence must be established in order to prove the offense: knowledge that a homicidal death had occurred, and some affirmative act of concealment of the death by the defendant. People v. Vath (1976), 38 Ill. App. 3d 389, 347 N.E.2d 813; People v. Dyer (1975), 28 Ill. App. 3d 436, 328 N.E.2d 716.

Turning to defendant’s argument regarding circumstantial evidence, we note that in this case the evidence is concededly circumstantial. Circumstantial evidence can generally supply the basis for a conviction if it is inconsistent with any reasonable hypothesis of innocence. (People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 608.) While circumstantial evidence must produce a reasonable and moral certainty that the defendant committed the crime (People v. Berland (1978), 74 Ill. 2d 286, 308, 385 N.E.2d 649, 659), the jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but rather it is sufficient if all the evidence taken together satisfies the jury beyond a reasonable doubt of defendant’s guilt (People v. Williams (1977), 66 Ill. 2d 478, 485, 363 N.E.2d 801, 804). The jury is not required to search out all possible explanations compatible with innocence and raise them to the level of reasonable doubt, but instead is entrusted with determining whether a reasonable hypothesis of innocence exists. (People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 608.) Proof of guilt beyond a reasonable doubt does not require proof beyond any possibility of a doubt. (People v. Branion (1970), 47 Ill. 2d 70, 77, 265 N.E.2d 1, 5.) Whether or not a reasonable hypothesis of innocence has been shown is to be determined by the jury, and this determination will not be disturbed on review unless the proof is so unsatisfactory as to cause a reasonable doubt of guilt to appear. People v. Ellison (1981), 100 Ill. App. 3d 282, 289, 426 N.E.2d 1058, 1063.

Defendant contends that the testimony of the State’s chief witness, Steve Griffin, was both incapable of belief and questionably motivated. The defendant states that Griffin’s story is incredible when one considers that Griffin went home, without making an anonymous call to the police, after seeing a neighborhood friend lying hog-tied on the floor of a bar being threatened with death by the defendant waiving a gun. Even more incredible, according to defendant, is that Griffin would have waited for more than a year to report the crime, particularly when the victim was his friend, and not until he himself was in jail on a weapons charge.

The credibility of Griffin was a matter to be determined by the jury in this case. (People v. Foster (1979), 76 Ill. 2d 365, 373, 392 N.E.2d 6, 9.) We see no reason to reverse the jury’s determination that Steve Griffin was a credible witness. He was not impeached, and he was not contradicted by established facts or by the testimony of any other witness. Furthermore, his testimony was corroborated in significant respects by other witnesses. Griffin’s testimony concerning a motive for the killing of Rollins, to punish him for the theft of stereo equipment, was corroborated by Rokeena Wright. Wright also corroborated Griffin’s testimony that someone was chasing Rollins shortly before his death. In addition, Rollins went from Griffin’s cousin’s home to Rokeena Wright’s apartment shortly before he was killed, as he told Griffin he intended to do. Also, Griffin’s description of Rollins’ clothing and the manner in which he was bound and gagged when he saw him on the tavern floor was corroborated in every respect by the three East St. Louis police personnel who were present at the dump site investigating the crime, leaving no doubt that Griffin in fact saw Rollins shortly before he was murdered. Additionally, four witnesses other than Griffin placed the defendant in Conrad’s Tavern in the company of Conrad, carrying a bag large enough to contain a body out of the tavern. Griffin explained the reason for his delay in reporting the crime as being his knowledge of threats on the victim’s friends and his cousins, coupled with a fear that he himself would be killed if he made a statement. A delay in reporting a crime prompted by fear does not destroy a witness’ credibility. (People v. Hayes (1979), 70 Ill. App. 3d 811, 822, 388 N.E.2d 818, 826.) Given the extent of corroboration of Griffin’s testimony, the jury was entitled to believe his testimony.

Besides Griffin, defendant also attacks the credibility of two of the tavern witnesses, Goldie Truss and Ponce Weston, contending they were not to be believed because they admitted that they were intoxicated. However, the testimony of both of these witnesses, that they saw the defendant carrying a large bag out of the tavern on December 4, 1982, was corroborated by two other tavern witnesses, Daphne Truss and Charles Hicks. Daphne Truss and Charles Hicks and Ponce Weston all saw the defendant load the bag on the back end of Conrad’s pickup truck. Weston testified that Conrad entered the cab of the pickup to drive it away while the defendant got in the back end of the truck with the bag, which seems unusual to us considering defendant’s speculation that the bag defendant was carrying was simply trash.

Besides attacking the credibility of the State’s witnesses, the defendant argues that the State’s case is seriously undermined by their failure to call Larry Hicks or to explain his absence. Defendant argues that Hicks was present in Conrad’s back office when the defendant allegedly confronted Griffin and threatened Rollins’ life, that he presumably remained there after Griffin left, and was therefore in a good position to know what happened afterward, but he was never called as a witness by the State to corroborate Griffin’s story. The defendant asserts this failure raises the inference that Hicks’ testimony would have been unfavorable. We find that no such inference can be drawn under the circumstances. Hicks was an associate of Conrad and the defendant and was not a neutral occurrence witness. Hicks was not equally accessible to the State, and therefore the State’s failure to call him did not create any adverse inference. (See People v. Bianchi (1981), 96 Ill. App. 3d 113, 116, 420 N.E.2d 1187, 1190; People v. Beller (1977), 54 Ill. App. 3d 1053, 1058, 370 N.E.2d 575, 579.) We further note that defendant has the right to summon all witnesses necessary for his defense. If the defendant cannot get the witness to appear, he can request the court to call him as a court’s witness. In any event, the State is not required to call all possible witnesses to prove a case beyond a reasonable doubt. People v. Hayes (1979), 70 Ill. App. 3d 811, 823, 388 N.E.2d 818, 827.

The defendant makes the additional argument that even if the State’s witnesses were credible, their testimony failed to establish that Rollins was dead, as opposed to being bound and gagged or unconscious when his body was spirited out of the tavern in a bag and thrown on the back end of a pickup truck, and thus defendant could not be guilty of concealing a homicide. In supporting this, defendant points to Griffin’s testimony that Rollins was still alive when he left the tavern. Our review of the evidence leads us to the conclusion that there was sufficient circumstantial evidence from which the jury could infer that the victim was dead when his body was concealed and removed from the tavern and that the defendant was guilty of concealing a homicidal death. Both an East St. Louis detective and an East St. Louis evidence technician who were at the scene where the body was found testified that, because of the way the victim was bound and gagged and because no signs of a struggle were seen, it did not appear to them that the crime had occurred where the body was discovered, but rather “it appeared to be a dump.” The pathologist testified that the cause of death was seven gunshot wounds to the chest which entered from behind between the shoulder blades, penetrating the heart and then exiting the chest wall. While the physical evidence showed that there were bullet holes in the victim’s clothing corresponding to the wounds found on the body, the blue cover in which the body was concealed when it was found was not pierced by bullets. Additionally, there was a large amount of blood on the victim’s jacket and some blood on the cover, although the blood had not soaked through the cover. Further, there is the testimony of Steve Griffin that Rollins was bound and gagged in the same manner at the dump site as when he saw him on the floor of the back room of the tavern. In conjunction with this is Griffin’s testimony that the defendant pulled out a gun and said that Rollins was going to die that night. There is the testimony of four witnesses that defendant carried a bag large enough to hold a body out of the tavern and that he thereafter loaded it onto the back of the pickup. The body was found only five blocks from the tavern. It is the function of the jury in this case to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence, and where the evidence is merely conflicting, we will not substitute our judgment for that of the jury. (People v. Foster (1979), 76 Ill. 2d 365, 373, 392 N.E.2d 6, 9.) We find that based on the evidence before us the jury could reasonably infer that Rollins was killed in the back room of the tavern and that his lifeless body was then removed from the tavern by defendant and later dumped at the site where it was found.

The defendant’s second contention on appeal is that he was denied his right to a fair trial when the trial court precluded him from presenting evidence as to Steve Griffin’s motivation to testify falsely. The defendant contends that the trial court erred in refusing to permit him to ask Steve Griffin about his attack on a cellmate. Defendant suggests that this inquiry would have established that Griffin was motivated to give a false statement to the police in order to induce the State to refrain from prosecuting him for aggravated battery. The defendant failed to raise this cross-examination issue (although he raised four others) in his motion for a new trial, and, accordingly, it is waived and cannot now be urged as a ground for reversal on review. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856, 857.

In summary, although the defendant has ably pointed out weaknesses in the State’s proof, we cannot say that these efforts of the defendant created a reasonable doubt of guilt. At best, the defendant has raised questions of fact and credibility properly left for resolution by the jury. (People v. Miller (1980), 79 Ill. 2d 454, 466, 404 N.E.2d 199, 205; People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) From our examination of the record, we conclude the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of concealing a homicidal death.

Affirmed.

JONES, P.J., and EARNS, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL QUEEN, Defendant-Appellant.
    Fifth District
    No. 83—210
    Opinion filed January 11, 1985.
    Rehearing denied February 14, 1985.
    Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a bench trial in the circuit court of Perry County, Paul Queen, defendant, was convicted of murder. Defendant appealed to this court, and we reversed his conviction and remanded for a new trial, finding that the trial court abused its discretion in failing to order an examination into defendant’s fitness to stand trial. (People v. Queen (1982), 108 Ill. App. 3d 1088, 440 N.E.2d 126.) Defendant was subsequently found fit to stand trial, the case was tried by a jury, and defendant was again found guilty of murder. Defendant appeals this conviction, arguing, among other things, that he was not proved guilty beyond a reasonable doubt.

The evidence offered by the State established that Lida Belle King, age 65, was strangled in her DuQuoin apartment on or about January 2, 1979. None of the witnesses who testified at trial had ever seen defendant enter or leave the victim’s apartment, and no fingerprints suitable for comparison were found there. While witnesses testified that defendant and the victim sometimes talked to each other at Em-ling’s Cafe, where both ate most of their meals, it was also established that it was not unusual for patrons of Emling’s to converse, and that defendant and the victim had not been seen leaving the restaurant together at any time. The testimony most critical to the State’s case was offered by Daniel Tollerud, who shared a prison cell with defendant for about one month, and by medical witnesses Dr. Steven Nuernberger and Dr. Roger Adams. Tollerud, who had been convicted of aggravated battery and burglary, testified as to a statement made by defendant to him during their mutual confinement:

“Q. Would you tell the ladies and gentlemen of the jury what [defendant] said about the murder for which he was in prison?
A. He told me that on that night he was sitting in a bar, a woman came in and sat down and they had a few drinks together, got up and left together and went to her apartment or house and she went in the other room and he went in the living room. After a while he passed out or blacked out and when he woke up he seen it was still dark outside, he got up and walked home.”

Dr. Nuernberger, who performed the autopsy on the victim, testified that he found four bite marks on the victim’s body. Dr. Nuernberger removed one of these bite marks by excising the skin containing it; asked why he did not remove the others, he attributed his failure to do so to “stupidity” on his part. Dr. Adams, a dentist trained in forensic dentistry and oral surgery, testified that he compared molds made of defendant’s dentures with the bite mark on the skin sample excised by Dr. Nuernberger. After testifying at length regarding his methodology, Dr. Adams offered the following conclusion:

“Q. And based on what you have testified here today relating to your examination, doctor, your examination of the casts [sic] models, the skin specimen, the photographs, did you form an opinion within a reasonable degree of medical, dental certainty?
A. Yes, I did.
Q. Would you tell the ladies and gentlemen of [the] jury what that opinion is?
A. Yes. When I examined this material I came to the conclusion that I could not exclude these dentures as being the mechanism for perpetrating these bite marks.
Q. Why is it? What is it about those dentures that made you come to that conclusion?
A. Well, I feel, when I initially started evaluating this case I went into it with a certain amount of reservance [sic\ one dealing with some dentures. And I had some questions in my mind whether dentures could perpetrate a mark like this. So, I really strived throughout the entire investigation to exclude these dentures. I felt this was the best approach to take in this particular type of case. If I could find any portion of evidence that would exclude these dentures then I felt as though I would have done my job. When I finally concluded the valuation [sic] of the evidence I found nothing that I could definitely exclude these dentures on.”

Under re-cross-examination by defense counsel, Dr. Adams further explained the meaning of his conclusion:

“Q. Doctor, the summation of your testimony is that these dentures could have made the bite marks. Is that right?
A. My statement was that I could not exclude these dentures from making the mark.
Q. All right. Does that mean the same thing to you as they could have made the bite mark.
A. That means the same.”

Dennis Smith, an agent with the Illinois Department of Law Enforcement, testified regarding three conversations he had with defendant. In the first two conversations, defendant denied killing the victim or knowing who had killed her; in the third conversation, defendant stated that he did not remember killing the victim, and then said he remembered that he did not. Agent Dennis Bowman, who also interviewed defendant, testified that defendant appeared nervous and seemed to be “selective” about what questions he responded to.

Testimony from defense witnesses established that defendant was a chain smoker, and that none of the cigarette butts found in the victim’s apartment were of the brand which defendant smoked. Defendant’s mother indicated that defendant stayed with her for several days in early January of 1979, because the room rented by defendant was too cold. Defendant’s sister indicated that she saw defendant at their mother’s residence at about 5:30 p.m. on January 2, .1979, and at about 4:30 p.m. on the next day.

Where a verdict of guilty is returned by a jury, it is our duty not only to carefully consider the evidence, but to reverse the conviction “ ‘if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged.’ ” (People v. Bartall (1983), 98 Ill. 2d 294, 306, 456 N.E.2d 59, quoting People v. Jordan (1954), 4 Ill. 2d 155, 156, 122 N.E.2d 209.) Upon careful examination of the record here, we are compelled to conclude that the State failed to prove the defendant guilty beyond a reasonable doubt. Defendant was never seen entering, leaving or in the victim’s apartment, no identifiable fingerprints were found there, and the cigarettes found in the apartment were not of the type smoked by defendant. The forensic dentist who analyzed defendant’s dentures and the bite mark on the victim’s skin did not say that in his opinion defendant’s dentures caused the mark; rather, he could do no more than conclude that they could have done so, and that he could not exclude that possibility. The testimony of Daniel Tollerud regarding defendant’s statement to him, even if true, does not establish that defendant went to the apartment of the victim. Moreover, testimony establishing that defendant and the victim sometimes conversed in Emling’s Cafe, and that defendant seemed nervous and “selective” when answering questions asked him by the police, does little or nothing to bolster the conclusion that defendant committed the crime. The evidence simply does not establish defendant’s guilt beyond a reasonable doubt. We therefore reverse the judgment.

Reversed.

KASSERMAN and EARNS, JJ., concur.


author: JUSTICE EARNS

text:
    ALBERT NEIL SINKS et al., Plaintiffs-Appellees, v. GEORGE A. KARLESKINT et al., Defendant-Appellants.
    Fifth District
    No. 5-84-0210
    Opinion filed January 3, 1985.
    Rehearing denied February 1, 1985.
    Demetri Hassakis, of Hassakis & Hassakis, of Mt. Vernon, for appellants.
    Robert E. Shaw, of Musick & Mitchell, of Mt. Vernon, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

This permissive interlocutory appeal arises on the pleadings and is brought pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) from an order of the circuit court of Jefferson County. The trial court denied defendants’ (sellers) motion to dismiss plaintiffs’ (purchasers) action which sought specific performance of a contract for the sale of real estate and alleged consequential damages arising from breach of contract to convey merchantable title and breach of the implied warranty of possession and quiet enjoyment. The sole question of law found by the trial court to involve a substantial ground for difference of opinion is:

“Is title to real estate not merchantable as a matter of law if the real estate is not accessible?”

The trial court answered affirmatively and found that the purchasers’ amended complaint stated a cause of action for breach of contract for failure to convey means of access and, consequently, merchantable title. As it appeared that an immediate appeal from the order might materially advance the litigation, we granted the sellers’ petition for leave to appeal. (87 Ill. 2d R. 308.) Other counts in the complaint remain unresolved.

In 1963 plaintiffs, Albert and Norma Sinks, purchased by installment contract for deed certain agricultural real estate from defendants. Under the terms of the contract, defendants were to deliver “good and sufficient Warranty deed, and abstract of title certified to date showing a good and merchantable title to the real estate” upon final payment of the purchase price in 1983. Purchasers made their final payment in March 1983 and received the abstract of title from the sellers, whereupon plaintiffs notified the sellers that the abstract did not disclose a means of legal access to a described 40-acre tract. Plaintiffs noted in a letter to defendants’ attorney that there was no public road which provided access and that they had otherwise been denied access by the surrounding landowners in 1981. Accordingly, plaintiffs demanded “an easement or other conveyance from some owner of land adjoining the landlocked 40 acre tract providing access to such tract.” The record is silent regarding defendants’ response. Plaintiffs, however, inform us in their brief that they “elected to receive such title as the Karleskints could convey, and to sue for their damages ***.” A trial establishing the alleged damages has, of course, been continued pending the disposition of the sole question at hand.

We note initially that the trial court assumed the task of ruling upon the salient issue as a legal question. This court stated in Wilfong v. W. A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 337, 406 N.E.2d 828, 831, that whether title to real estate is merchantable is a question of law for the court. In that case, which involved a controversy concerning the buyers’ right to rescind a contract for deed, this court affirmed the trial judge’s determination that the evidence supported a finding that the title to the real estate in question was merchantable. It would appear to be established that merchantability is a question of law for the court; however, in Wilfong, the appeal included a full trial transcript from which the court could determine the legal question of merchantability. Here, the entire record consists of a complaint and a motion to dismiss, revealing the bare conclusion that access to real estate is a prerequisite to merchantability of title in all cases. Nonetheless, we are aided by additional agreed facts submitted by way of briefs and oral argument sufficient to enable us to dispose of the question submitted in this case.

Wilfong does not stand for the proposition that title to real estate is not merchantable if it is not accessible. What Wilfong does say is that merchantability can and must be decided by the court as a matter of law when sufficient evidence concerning the surrounding facts is determinable from the record.

Merchantable title is “a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay the fair value of the land for.” (Eggers v. Busch (1895), 154 Ill. 604, 606-07, 39 N.E. 619, 620; Wilfong v. W. A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 337, 406 N.E.2d 828, 831.) It has also been defined as “not perfect title, but rather title reasonably secure against litigation or flaws decreasing market value.” (Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 1053, 408 N.E.2d 496, 502, citing Christopher v. West (1952), 345 Ill. App. 515, 104 N.E.2d 309.) These definitions should be utilized by the trial court and applied to the myriad of circumstances which may exist in any given case.

Plaintiffs have accepted a general warranty deed in conformance with section 9 of “An Act concerning conveyances” (Ill. Rev. Stat. 1983, ch. 30, par. 8). That section of the Act provides:

“Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was the lawful owner of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.”

Merchantability does not equate with market value or marketability. Numerous factors may affect the market value of land and unquestionably access to a public way is such a factor; however, if the title is secure against defects in the statutory warranties, the title is merchantable. It is only defects in title affecting market value that result in unmerchantability. Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 408 N.E.2d 496.

Here, the purchaser of this real estate must be charged with knowledge of matters that a cursory visual inspection of the premises would reveal. Access to a public way would be disclosed by such an inspection. It would not normally be disclosed in an abstract. Attebery v. Blair (1910), 244 Ill. 363, 91 N.E. 475.

“In any transaction involving the transfer of land, the purchaser must concern himself, not only with the record title as shown by the abstract, but also with certain matters which the abstracter cannot be expected to show. Among the items of the latter class are:
6. When the tract of land in question has no access to a public street or highway, ways and means of arranging for such access should be considered before the property is purchased.” L. Fitch, Real Estate Titles in Illinois 756 (1948).

“[W]henever the abstract, together with explanatory affidavits, evidences an indefeasible title in fee simple, whether had by deed, devise or by the Statute of Limitations, there is a merchantable title.” Christopher v. West (1951), 409 Ill. 131, 135, 98 N.E.2d 722, 724-25.

As to the implied covenant of quiet and peaceful possession, the only covenant that could possibly be violated, in Brown v. Lober (1979), 75 Ill. 2d 547, 551-52, 389 N.E.2d 1188, 1191, the court stated:

“Subsection 3 sets forth the covenant of quiet enjoyment, which is synonymous with the covenant of warranty in Illinois. (Biwer v. Martin (1920), 294 Ill. 488; [128 N.E. 518]; Barry v. Guild (1888), 126 Ill. 439; [18 N.E. 759]; Bostwick v. Williams (1864), 36 Ill. 65.) By this covenant, ‘the grantor warrants to the grantee, his heirs and assigns, the possession of the premises and that he will defend the title granted by the terms of the deed against persons who may lawfully claim the same, and that such covenant shall be obligatory upon the grantor, his heirs, personal representatives and assigns.’ Biwer v. Martin (1920), 294 Ill. 488, 497 [, 128 N.E. 518, 522].”

Plaintiffs do not argue that they do not have the right to possession of the premises or that anyone has a superior right to possession. The covenant of quiet and peaceable possession is broken when the covenantee is evicted, actually or constructively, by the paramount title holder. (Brown v. Lober (1979), 75 Ill. 2d 547, 389 N.E.2d 1188.) Lack of access does not defeat their right to possession.

The purchasers acknowledge that access was available during their first 18 years of possession and was then denied to them by the adjoining land owners. Even were we to equate lack of access with a title defect, a purchaser of real estate who enters into a contract with actual knowledge of title defects in the form of easements or encumbrances waives any objection to those defects. Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 1054, 408 N.E.2d 496, 502.

While not obliged to do so, we note that the cases from foreign jurisdictions cited in support of the purchasers’ petition are distinguishable on their records alone.

To the extent that Myerberg, Sawyer & Rue, P.A. v. Agee (1982), 51 Md. App. 711, 446 A.2d 69, which was a malpractice suit against the purchasers’ attorneys, who had guaranteed access, might be considered to hold otherwise, we decline to follow it. We note that there the court expressly limited its holding to the facts of the case where the vendee was a California resident who had never seen the property purchased, and the parties agreed that property without access was not marketable.

The question certified for review must be answered in the negative, and the judgment of the circuit court of Jefferson County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

JONES, P.J, and KASSERMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BRYANT, Defendant-Appellant.
    Fifth District
    No. 83—138
    Opinion filed February 7, 1985.
    Randy E. Blue and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert W. Matoush, State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Susan M. Young, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Marion County, Steven Bryant, defendant, was convicted of burglary and sentenced to seven years in prison. On appeal, defendant argues, among other things, that he was not proved guilty beyond a reasonable doubt. We agree, and reverse defendant’s conviction.

The evidence offered by the State established that Elmer Harris, custodian of the Lincoln School in Centralia, went to work at about 7 a.m. on November 30, 1981, and found that a window in the special education room of the school had been broken. Examination of the inside of the building revealed that various items, including food, a tool box, and a television set, had been taken from the school. On the ledge outside of the broken window, Harris found a yellow button. On cross-examination, Harris testified as follows:

“Q. So if it hadn’t been for the fact that you noticed the wind was blowing the blind back and forth, kind of moving that blind, you probably wouldn’t have noticed that button on the outside ledge, would you?
A. No.
Q. You wouldn’t have taken a look at the window and noticed the button?
A. If I hadn’t seen the glass on the floor.
Q. So the first time you noticed that button there was that Monday morning, the 30th of November?
A. Yes.
Q. If that blind was closed on that Sunday morning, chances are it would have been closed the preceding Saturday morning when you made your rounds, wouldn’t it?
A. Yes.
Q. In fact, that button could have been there for quite some time and during the course of your regular duties, you wouldn’t have noticed that button was there?
A. You’re right, yes.”

On redirect examination, Harris testified:

“Q. Well, what I’m saying—what I’m asking, you’re standing there cleaning the window, the inside of the window, and the blinds are open. Now, in that process, wouldn’t you see a button on the ledge if it was there?
A. I would clean the inside of the ledge. I don’t clean the inside of the windows all the time. Take a dust cloth and wipe along the ledge. I couldn’t say whether it was there or not.
Q. Not asking you if in fact it was there. I’m asking you if—would it be fair to say that if it was there, you would have seen it in the process of cleaning the ledge?
A. More than likely.”

Arland Speidel, a police officer for the city of Centralia, testified that he was aware that a yellow button had been found at the scene of the Lincoln School burglary. Speidel indicated that on December 2, 1981, he was asked to pick up defendant for questioning, and found defendant that same day playing basketball at the community center. When Speidel told defendant that Captain Edmundson of the police department wanted to talk to him, defendant indicated that he had to get his coat before going with Speidel. Defendant then picked up a long green coat with yellow buttons, two of which were missing. Speidel then brought defendant to the police department, and turned him over to Officer Simer and Captain Edmundson. Officer Speidel testified that the button found on the Lincoln School window ledge and buttons on defendant’s coat looked “just alike,” in that all of the buttons were “beat up” and had paint chipped off of them. Officer Simer corroborated this testimony by describing the buttons as looking “exactly the same.”

Additional evidence presented by the State concerned the recovery of a television taken during the Lincoln School burglary. Lori Sharkey, who was pregnant with defendant’s child, testified that she and Lawanda Barnes shared a house at 607 North Maple in Centralia, and that defendant came over to visit her “every now and then.” According to Ms. Sharkey, Officer Simer and Captain Edmundson came to the 607 North Maple house on December 3, 1981, in order to get some items belonging to Mike Grady, who had admitted purchasing numerous items with bad checks. After recovering Grady’s property, Simer and Edmundson spoke to Ms. Sharkey about the stolen television; precisely what was said is in dispute. Ms. Sharkey testified as follows:

“Q. Did they ask you a question about a T.V.?
A. Yes.
Q. What did they ask you?
A. Told me Steve Bryant had sent me over for some belongings. I said, what? They started naming them. Said a T.V. I said, ‘There it is.’
Q. After they said that, you told them, ‘There it is’?
A. Yes.
Q. And pointed to a T.V.?
A. Right.
Q. And that T.V. was located in .your bedroom, isn’t that true?
A. Right.
Q. What did the Officers do after you told them where the T.V. was?
A. He looked at the—
Q. Serial number?
A. Yes, the serial number.
Q. And then what did the officers do?
A. He took it.”

Ms. Sharkey also testified that she did not know how the television got in her room, and that the house had broken locks and could be entered without a key. On cross-examination, Ms. Sharkey indicated that her responses to the officers’ questions were based on the assumption that they knew the television belonged to defendant, and not upon any knowledge she had regarding who owned the television. Ms. Sharkey also testified that Mike Grady was at her house “about every day” during November of 1981, and that Grady brought stolen merchandise into the home. Moreover, according to Ms. Sharkey, defendant, who was no longer her boyfriend during November and December, seldom stayed at her house, while quite a few other people were in and out of the house during that time period.

Officer Simer and Captain Edmundson offered testimony regarding their conversation with Lori Sharkey at 607 North Maple. Simer testified that he asked Ms. Sharkey, “What about the T.V. Steven Bryant brought to the house and left?” and that she responded, “It’s in the other room.” Edmundson testified that he heard Simer ask Sharkey “about a T.Y. that Steve Bryant might have possibly left there from Lincoln School.”

Defendant offered the testimony of three witnesses, all of whom indicated that defendant was at the home of Bonnie Robinson, mother of one of his children, during the evening of November 29, 1981.

In reviewing the jury verdict finding the defendant guilty, we are obligated not only to carefully consider the evidence, but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that defendant is guilty of the crime charged. (People v. Ash (1984), 102 Ill. 2d 485, 492-93, 468 N.E.2d 1153.) Upon careful examination of the record here, we are compelled to conclude that defendant was not proved guilty beyond a reasonable doubt. The two principal facts tending to connect defendant with the crime—discovery of the button on the window ledge and recovery of the television from Lori Sharkey’s home—simply do not establish beyond a reasonable doubt that defendant committed the offense. While the State points out that the button found on the window ledge was unusual and exactly like the buttons on defendant’s coat, the clear thrust of custodian Harris’ testimony was that he could not say when the button got on the ledge. In analyzing the sufficiency of fingerprint evidence in burglary cases, our supreme court has held that such evidence “must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed.” (People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605.) Applying a similar analysis here, we must conclude that, even if the button was distinctive enough to support the conclusion that it came from defendant’s coat, the evidence was not sufficient to establish that the button fell onto the ledge during the commission of the burglary. Finally, recovery of the television in the house shared by Lori Sharkey and Lawanda Barnes does not, even when considered along with the evidence regarding the button, establish defendant’s guilt beyond a reasonable doubt, where the evidence showed that the house was visited almost daily by a person who brought in unlawfully obtained merchandise, that the locks to the house were broken, and that defendant stayed there infrequently.

For the foregoing reasons, the judgment of the circuit court of Marion County is reversed.

Reversed.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM R. BONDI, Defendant-Appellant.
    Fifth District
    No. 5—82—0248
    Opinion filed December 4, 1984.

      Randy E. Blue and Susan A. Diehl, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Susan M. Young, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, William R. Bondi, was convicted by a jury in the circuit court of Franklin County on a charge of murder under section 9—1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(1)) and was sentenced to a term of natural life imprisonment.

On appeal defendant contends: (1) that the circuit court improperly denied his motion to suppress evidence seized in a warrantless search of defendant’s property, (2) that the prosecutor’s comments during closing argument deprived defendant of a fair trial, and (3) that the circuit court abused its discretion in sentencing defendant to a term of natural life imprisonment.

Since defendant does not challenge the sufficiency of the evidence against him, a complete recitation of the facts adduced at trial is unnecessary; however, those facts related to the issues raised by defendant are detailed below. We first address defendant’s contention that the circuit court improperly denied his motion to suppress evidence seized in a warrantless search of defendant’s property.

On Monday, December 31, 1979, Genevieve Bondi was reported missing by her cousin, Dorothy Hopkins. Genevieve Bondi’s body was found three days later in a shallow grave on property owned by her and her husband, the defendant, approximately 300 feet from their place of residence. A postmortem examination indicated that the cause of death was either a small caliber gunshot wound to the left side of the head penetrating into the brain, a skull fracture at the left forehead, or a combination of both injuries. The pathologist who conducted the examination testified that the skull fracture occurred prior to the death of the victim and that it was not the result of the bullet which inflicted the gunshot wound but that it resulted from independent causes. The record establishes that the search for Genevieve Bondi had been conducted without a warrant and without the consent of the defendant, who, by the time the search was commenced, was no longer present in the State. Based on these facts, defendant requested the trial court to suppress the body of the victim and various items of personal property discovered during the search.

The Illinois courts have had occasion to address the issue raised by defendant’s assertions in this regard and have held that no warrant is necessary when, as here, the authorities’ entry into and search of the premises was for the purpose of providing aid to persons or property in need thereof. (See People v. Clayton (1975), 34 Ill. App. 3d 376, 339 N.E.2d 783; People v. Brooks (1972), 7 Ill. App. 3d 767, 289 N.E.2d 207.) Evidence of crime discovered during such an entry may be legally seized without a warrant. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022; People v. Clayton (1975), 34 Ill. App. 3d 376, 379, 339 N.E.2d 783, 785; People v. Brooks (1972), 7 Ill. App. 3d 767, 777, 289 N.E.2d 207, 214.

The fourth amendment to the United States Constitution (U.S. Const., amend. IV) proscribes all unreasonable searches and seizures. “ ‘[SJearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” (Mincey v. Arizona (1978), 437 U.S. 385, 390, 57 L. Ed. 2d 290, 298-99, 98 S. Ct. 2408, 2412, quoting Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514.) The issue raised by defendant’s appeal involves one such exception.

Entry and search of premises for the purpose of providing aid to persons or property in need thereof is permitted without a warrant under the so-called “emergency” doctrine. (Mincey v. Arizona (1978), 437 U.S. 385, 390, 57 L. Ed. 2d 290, 298-99, 98 S. Ct. 2408, 2412; People v. Free (1983), 94 Ill. 2d 378, 395-96, 447 N.E.2d 218, 226.) The basic elements of this exception to the warrant requirement under the fourth amendment have been summarized in the following manner:

“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” (2 W. LaFave, Search & Seizure sec. 6.6(a), at 469 (1978).)

Applying these guidelines to the case at bar, we conclude: (1) that the fact that Genevieve Bondi was reported missing gave the authorities reasonable grounds to believe that she might be in imminent danger of death or serious bodily harm, (2) that as such the primary intent of the search of the premises was to locate her and provide assistance to her, not to seize evidence against the defendant, and (3) that her residence and the property surrounding it were the most likely places to search for evidence of the whereabouts of a missing occupant.

We reject defendant’s contention that because the victim was dead by the time her body was discovered, no emergency existed which would justify the warrantless intrusion which resulted in the discovery. Until the body was unearthed and identified as that of Genevieve Bondi, it was essential that the search for her continue and to continue with sufficient haste. These facts bring the instant search within the scope of the emergency doctrine. It is for this reason that the excavation of the burial site was within the permissible scope of the authorities’ search for Genevieve Bondi. In the context of their search for the missing woman, the presence of the fresh diggings which marked her grave provided sufficient grounds for the authorities to investigate. This excavation is different in no substantive way from the entry and search of the premises in People v. Brooks (1972), 7 Ill. App. 3d 767, 289 N.E.2d 207, in which the odor of a deceased body led the authorities to enter an apartment without a warrant. We conclude, therefore, that the circuit court’s denial of defendant’s motion to suppress was proper.

We next address defendant’s claim that he was deprived of a fair trial by various comments the prosecutor made during closing argument. Defendant urges that reversible error occurred when the prosecutor stated that defendant murdered his wife because she would not divorce him, when the prosecutor misstated the testimony of a psychologist who testified as a defense witness, and when the prosecutor impugned defendant’s motive for surrendering himself to authorities by stating that defendant did so in order to be able to return and inherit his wife’s property. Defendant further contends that the prosecutor made inflammatory statements to the jury to the effect that the victim had been buried alive; and finally, defendant objects to the prosecutor’s characterization of defendant’s trial tactics as smoke screens.

Defense counsel objected only to the prosecutor’s comment concerning the defendant’s wife’s refusal to grant defendant a divorce. However, that comment was later ably rebutted at trial when defense counsel pointed out to the jurors that there was no evidence to support the prosecutor’s statement. We can therefore conclude that the statement was not a significant factor in the jury’s determination and accordingly does not warrant reversal. (See People v. Moore (1973), 55 Ill. 2d 570, 576-77, 304 N.E.2d 622, 625.) Any error resulting from the remaining allegedly prejudicial remarks is waived by defendant’s failure to object thereto unless the comments are so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. (People v. Owens (1984), 102 Ill. 2d 88, 104, 464 N.E.2d 261, 268.) We have considered these additional comments and conclude that not only were neither of the above conditions reached, but that the comments are free of error.

We do not agree with defendant’s assertion that the prosecutor misstated the testimony of the defense psychologist. A comparison of the prosecutor’s description of the psychologist’s testimony and the actual testimony reveals only insignificant difference. Any misstatement was apparently unintentional and does not require reversal. (See People v. Hine (1980), 88 Ill. App. 3d 671, 679-80, 410 N.E.2d 1017, 1024.) Nor do we believe that the comments of the prosecutor which implied that the defendant surrendered in order to inherit his wife’s property transcend the bounds of proper argument. The purpose of the prosecutor’s comments was to counter defendant’s claim that he surrendered in order to exonerate himself. Although not supported by any direct evidence, the prosecutor’s comments were based on legitimate inferences therefrom. (See People v. Wright (1974), 56 Ill. 2d 523, 531, 309 N.E.2d 537, 542; People v. Hine (1980), 88 Ill. App. 3d 671, 680, 410 N.E.2d 1017, 1024.) The evidence reveals that defendant had begun to withdraw funds from the couple’s joint checking account prior to his wife’s death and that after her death defendant withdrew the remaining funds, closed the account and shortly thereafter left the State. Furthermore, the defendant testified that he was aware that he was the sole beneficiary under his wife’s will and that prior to his surrender he had begun to rim low on money. The prosecutor’s comments here are therefore distinguishable from those found in the cases cited to us by defendant. Unlike People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629, where the prosecutor made an unsupported allegation that the defendant had committed another crime while having reason to know that no such crime had been committed, here the prosecutor’s comments drew into question defendant’s stated reason for his surrender and were supported by evidence in the record. See People v. Wright (1974), 56 Ill. 2d 523, 531, 309 N.E.2d 537, 542; People v. Hine (1980), 88 Ill. App. 3d 671, 680, 410 N.E.2d 1017, 1024.

We also reject defendant’s claim of prejudice from the prosecutor’s statement that “he [defendant] took that woman out, presumably, unconscious, put her in a grave, made sure it was done, made sure it was done right.” Defendant contends that the prosecutor thus implied that the victim was buried alive. However, from the context in which such statement was made, it appears that the prosecutor’s statement was made simply in an effort to refute defendant’s claim that his wife’s death was the result of an accidental shooting by pointing out to the jury that defendant’s immediate efforts toward concealment of his wife’s body were not those a person would typically expect in a case of an accidental shooting. Moreover, the statement is supported by the evidence adduced at trial. The pathologist who conducted the postmortem examination testified that the victim’s skull had been fractured prior to her death. In an apparent attempt to explain that injury, the defendant had testified that the fracture must have occurred when he fell while carrying the body of his wife out to be buried. Thus, defendant’s own statements raise the possibility that the victim was still alive when he took her out to bury her. We.conclude, therefore, that the prosecutor’s remark regarding the burial of the victim was not grounds for reversal. See People v. Wright (1974), 56 Ill. 2d 523, 531, 309 N.E.2d 537, 542; People v. Hine (1980), 88 Ill. App. 3d 671, 680, 410 N.E.2d 1017, 1024.

Finally, comments similar to those made by the prosecutor here regarding the standard of proof beyond a reasonable doubt and defense counsel’s attempts to erect a smoke screen have been held to be within the bounds of proper argument. People v. Robinson (1984), 125 Ill. App. 3d 1077, 1081, 467 N.E.2d 291, 294; People v. Griggs (1977), 51 Ill. App. 3d 224, 226, 366 N.E.2d 581, 583.

Defendant’s final contention is that the circuit court abused its discretion in sentencing defendant to a term of natural life imprisonment. Defendant claims that the circuit court’s sentence was based on unreliable information, failed to consider certain mitigating factors, and failed properly to assess defendant’s rehabilitative potential.

The trial judge set forth on the record his reasons for imposing the natural life sentence, stating in part:

“I have, however, considered the mitigating factors listed in other portions of the statutes in the hope that there would be some mitigating factor that would be applicable to this case. The only significant mitigating factor in this case is the defendant’s lack of any prior criminal history, and I am giving that due consideration; however, all of the facts of the case provide a more than minimum amount in aggravation.
The death of Genevieve Bondi was caused by this defendant by some combination of means, which there is a very heavy indication that either of two separate means might have been sufficient, and there is the possibility that she was buried while still alive. The record in this case indicates that this may well have been part of a pre-meditated course of cleaning out of marital assets.
There does not appear to be the traditional significant amount of remorse or other recognizable indication of extraordinary rehabilitation potential, and I find that the conduct in this case does show brutal and heinous behavior indicative of wanton cruelty.”

Rather than being nonstatutory aggravating factors, as defendant claims, the above-cited observations regarding the victim’s death and burial and the defendant’s appropriation of marital assets represent the basis of the circuit court’s finding of wantonness upon which defendant’s natural life sentence is predicated. The circuit court’s observations are supported by evidence in the record, and that evidence in turn supports the finding of wanton cruelty. We believe that mention of the victim’s being buried alive was not made so much to demonstrate the brutality of defendant’s conduct as it was to demonstrate that defendant showed little concern for the gravity of his actions. (See People v. Winston (1982), 106 Ill. App. 3d 673, 688, 435 N.E.2d 1327, 1338.) So viewed, its inclusion in the trial judge’s remarks may well have been to support his later stated conclusion regarding defendant’s lack of remorse at the death of his wife. In this context, defendant’s lack of remorse is a proper factor upon which to base a sentence. People v. Carter (1980), 85 Ill. App. 3d 818, 828, 407 N.E.2d 584, 592.

We likewise reject defendant’s claim that the circuit court failed to consider certain mitigating factors. Although the trial judge did not recite all the mitigating factors he considered, evidence relating to mitigation and rehabilitative potential was in the record, and the trial judge’s statement of reasons indicates that he considered that evidence. A trial judge is not required to state the evidence he considered or the weight accorded each factor in determining sentence. People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14.

Last, while the circuit court’s use of the word “extraordinary” in the context of assessing defendant’s rehabilitative potential may have been ill-advised, we find nothing which would indicate that defendant’s rehabilitative potential was disregarded or that it was sufficient to cause a natural life sentence to be an abuse of discretion. Although there have been instances in which defendants received lesser sentences where the balance of aggravating and mitigating factors appear to be less favorable therein than here, such a showing by itself does not indicate an abuse of discretion. (People v. Bartik (1981), 94 Ill. App. 3d 696, 701, 418 N.E.2d 1108, 1113.) We conclude, therefore, that the trial court did not abuse its discretion in sentencing defendant to natural life imprisonment. See People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344.

For the reasons stated above, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

JONES and HARRISON, JJ., concur.


text:
    NETTIE ASHLINE, Plaintiff-Appellant, v. HARRY VERBLE, Defendant-Appellee.
    Fifth District
    No. 5—83—0786
    Opinion filed December 28, 1984.
    Howard B. Eisenberg, of Southern Illinois University, of Carbondale, for appellant.
    Thomas F. Crosby, of Winters & Garrison, of Marion, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Nettie Ashline (Ashline) appeals from separate judgments entered in the circuit court of Union County in favor of Harry Verble (Verble). In the first case (Union County case No. 75—CH—1), the court denied Ashline’s August 24, 1983, motion seeking to clarify a judgment which had been issued by the circuit court in 1979. In the second case (Union County case No. 81—CH—3), the court granted summary judgment in favor of Verble on his complaint seeking possession of certain property occupied by Ashline. For the reasons which follow, we reverse both judgments and remand for further proceedings.

Case No. 75—CH—1 began in January 1975, when Ashline filed a complaint for specific performance, alleging that she and Verble had entered into an oral contract under which Verble had agreed to sell her certain land in Union County. The trial court ruled in favor of plaintiff, and we affirmed that ruling, rejecting Verble’s contention that the contract was unenforceable due to inadequacy of the description of the subject real estate. (Ashline v. Verble (1977), 55 Ill. App. 3d 282, 284-85, 370 N.E.2d 613.) Finding, however, that there was some question as to whether Verble owned a certain portion of the land which he was ordered to convey, we remanded the case to the trial court, directing the court to make a finding in that regard. 55 Ill. App. 3d 282, 285-86.

On remand, the circuit court entered a judgment on August 31, 1979, ordering Verble to convey to Ashline the following land:

“ALL THAT PART OF THE FOLLOWING DESCRIBED REAL ESTATE LYING EAST OF A LINE SITUATED 100 FEET EAST OF THE CENTER LINE OF THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT A STONE MARKER AND SET PIN AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER (NE i/4) OF THE SOUTHEAST QUARTER (SE W) OF SECTION 28, TOWNSHIP 12 SOUTH, RANGE ONE WEST OF THE THIRD PRINCIPAL MERIDIAN, UNION COUNTY, ILLINOIS, PROCEEDING SOUTHWARD ALONG THE EASTERN BOUNDARY LINE OF SAID NORTHEAST QUARTER OF THE SOUTHEAST QUARTER FOR A DISTANCE OF 419.33 FEET TO A POINT; THENCE WESTWARD WITH A DEFLECTION ANGLE TO THE RIGHT OF 90° FOR A DISTANCE OF 372 FEET (MORE OR LESS) TO A POINT IN THE NORTHEAST BOUNDARY LINE OF A 40 FEET WIDE PUBLIC HIGHWAY; THENCE NORTHWESTERLY FOLLOWING SAID NORTHEAST HIGHWAY BOUNDARY FOR A DISTANCE OF 485.26 FEET TO THE POINT AT WHICH SAID NORTHEAST HIGHWAY BOUNDARY INTERSECTS THE NORTHERN BOUNDARY OF THE NORTHEAST QUARTER (NE Yi) OF THE SOUTHEAST QUARTER (SE V4); THENCE EASTWARD ALONG SAID NORTH BOUNDARY OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER FOR A DISTANCE OF 804.18 FEET TO THE POINT OF BEGINNING, SITUATED IN THE COUNTY OF UNION AND STATE OF ILLINOIS.”

Neither party appealed this judgment.

On August 24, 1983, Ashline filed a motion seeking to clarify the August 31, 1979, judgment. In that motion, Ashline alleged that, because of the omission of certain words, the judgment ordered Verble to convey land other than that which was the subject of the original oral contract, and that Yerble had now brought an action seeking to obtain possession of the land which should have been conveyed to Ashline. The motion further alleged that clarification and modification of the judgment was necessary “to effectuate the intention of the Court, to correct a manifest injustice, to correct or avoid inadvertent or clerical error or fraud, and to do equity.” In an order filed on November 1, 1983, the court denied the petition, finding that more than two years had passed since entry of the 1979 judgment, and that the court had no authority to reopen the case. Ashline filed timely notice of appeal on November 21, 1983.

From these facts, we are compelled to conclude that the court erred in summarily denying Ashline’s petition to clarify the 1979 judgment. The motion alleges, in essence, that failure to include the words “Southeast of the center line of the road frontage” in the description of the property has resulted in the judgment not expressing the intent of the court which rendered it. It is well settled that a court may, at any time, correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court, so long as the new entry is based upon a definite and certain record. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1056, 399 N.E.2d 216.) Clerical errors or matters of form are those errors, mistakes or omissions which are not the deliberate result of judicial reasoning and determination (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 810, 263 N.E.2d 708), and an error is not considered to be a judicial error merely because its correction alters a party’s obligations. See In re Marriage of Gingras (1980), 86 Ill. App. 3d 14, 407 N.E.2d 788.

While the summary disposition of Ashline’s motion in this case prevents us from determining whether the legal description of the land in the 1979 judgment contains an error which is clerical in nature, there appears to be a distinct possibility that such is the case. This court has recently held that an incorrect legal description of land in a court order may constitute a clerical error. (In re Marriage of Shelton (1984), 127 Ill. App. 3d 775.) Moreover, examination of the “definite and certain” record in this case establishes clearly that it was the intention of the trial court, and of this court, that Verble convey to Ashline the land upon which Ashline was living and had made improvements, and not some other tract. (Ashline v. Verble (1977), 55 Ill. App. 3d 282, 370 N.E.2d 613.) Because these factors lend support to Ashline’s contention that the 1979 judgment contains a clerical error, and because the trial court has authority to correct such an error, we must reverse the November 1, 1983, order denying Ashline’s motion to clarify, and remand this cause for further proceedings not inconsistent herewith.

In the second case between the parties (Union County case No. 81—CH—3), Verble sought possession of the property occupied by Ashline. It is undisputed that the land on which Ashline lives, and has lived since 1972, does not correspond to the land described in the 1979 judgment in case No. 75—CH—1 or in the deed issued pursuant thereto, and the court granted summary judgment in favor of Verble on this basis. Because of our determination in case No. 75—CH—1, however, the question as to what property actually belongs to Ashline remains unsettled, and proper resolution of the issues presented by case No. 81—CH—3 is thus impossible at this point. Accordingly, the entry of summary judgment in favor of Verble in case No. 81—CH—3 must be reversed, and this cause remanded for further proceedings to be had upon resolution of case No. 75—CH—1.

For the foregoing reasons, the order of November 1, 1983, denying Ashline’s motion to clarify the 1979 judgment is reversed, the summary judgment entered in favor of Verble on his complaint against Ashline is reversed, and both causes are remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

WELCH and KASSERMAN, JJ., concur.