author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Joseph Maramba, a Minor, by Daniel Maramba, His Father and Next Friend, and Daniel Maramba, Individually, Plaintiffs-Appellants v. Gerald C. Neuman, Individually and as Guardian for James Neuman, a Minor, and James Neuman and Polk Bros., Inc., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 51,033.
    First District, Third Division.
    April 6, 1967.

      Reibman & Hoffman, of Chicago (Sheldon N. Reibman and Burton L. Hoffman, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller and John F. O’Meara, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiffs appeal from an order sustaining a motion of the defendant, Polk Bros. Inc., to strike and dismiss the amended complaint.

The main point argued by plaintiffs on this appeal is that every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonable, probable and foreseeable consequence of his act.

The amended complaint alleged that on April 13, 1963, the plaintiff, Joseph Maramba, a child, was playing with James Neuman, age 10, in Prospect Park, Cook County, Illinois; that James Neuman threw a boomerang which struck the plaintiff in his right eye, causing a serious impairment of vision. It was further alleged that the throwing of the boomerang was negligent or, in the alternative, intentional. The boomerang was given to the father of James Neuman by the defendant, Polk Bros. Inc., a short time prior to April 13, 1963. According to the amended complaint, at the time the father secured the boomerang from Polk Bros. Inc., it (Polk Bros. Inc.) was aware that the boomerang was going to be used by the son James, who at the time was ten years old and neither experienced nor expert in the use of a boomerang. It was further alleged that the defendant, Polk Bros. Inc., knew that a boomerang was a dangerous instrumentality in the hands of a child inexperienced in its use.

It is argued by the plaintiffs that since a motion to dismiss a complaint admits those facts which are directly alleged by the plaintiffs, it must, therefore, be admitted for the purpose of this appeal (1) that a boomerang is a dangerous instrumentality when used by a child, in that it is thrown with great force into the air and is uncontrollable by the thrower; (2) that Polk Bros. Inc., knew that when it gave a boomerang to Gerald Neuman he would permit his son James Neuman to use it; (3) that James Neuman, who was ten years old, was not an expert or proficient in the use of a boomerang, and this fact was known to Polk Bros. Inc., and (4) that plaintiff was injured as a result of James Neuman’s negligent use of the boomerang.

The defendant, Polk Bros. Inc., contends that the amended complaint is faulty because it was based upon conclusions rather than ultimate facts.

For the purpose of this appeal we do not think it necessary to determine whether the amended complaint was based upon conclusions of fact or law, as we believe that the more important questions are whether the defendant here, Polk Bros. Inc., owed a duty to the plaintiff to guard against the particular injury complained of, and whether the injury complained of would naturally flow as a reasonable, probable and foreseeable consequence of its act.

The defendant, Polk Bros. Inc., in its argument referred to the boomerang as a toy boomerang. This reference was objected to by the plaintiffs, both in their brief and during oral argument. The amended complaint did not allege the type of boomerang and we think, since the pleading must be construed most strongly against the pleader before judgment, (Semmler v. Accettura, 31 Ill App2d 249, 175 NE2d 297), the defendant, Polk Bros. Inc., was at liberty to describe the boomerang as a toy boomerang.

We will consider the more important question: Did Polk Bros. Inc., by giving the boomerang to Gerald Neuman, knowing he would permit his son, James Neuman, who was then ten years old and not proficient in the use of a boomerang, incur a liability arising out of the use of the boomerang which resulted in injury to the plaintiff? We must first consider whether a boomerang as such is a dangerous instrumentality. Dean Prosser in (Prosser, Torts, 3rd Ed page 378,1964) states the following:

“There is virtually no condition upon any land with which a child may not possibly get himself into trouble. He may choke to death upon a green apple, pick up a stick and poke it into his eye, or have his skull fractured by a rock found and thrown by his companion. Unless the possessor is to shoulder the impossible burden of making his land competely ‘childproof,’ which might mean razing it to the bare earth, something more is called for than the general possibility of somehow coming to some harm which follows the child everywhere throughout his daily existence.”

A child can be injured by an ice skate, a roller skate, a bicycle, a baseball or bat, a croquet mallet and many other items which are commonly used by children. Had Polk Bros. Inc. given the father of James Neuman a bicycle and James Neuman was not experienced in operating the bicycle, could it be said that Polk Bros. Inc. would be liable because James Neuman, age 10, had injured the plaintiff while operating the bicycle? We think not.

The plaintiffs, in their brief, relied to some extent upon Pitts v. Basile, 55 Ill App2d 37, 204 NE2d 43. However, after the briefs had been filed, the Supreme Court reversed that case in 35 Ill2d 49, 219 NE2d 472. The Pitts case involved an injury to a child when he was struck by a dart thrown by another child of the age of 8, who had purchased darts from a retailer. The darts involved in that case were about 6^ inches long, with multicolored feathers on one end and a 1 inch steel barb on the other. In that case the wholesaler of the darts had been sued by the minor, Dale Pitts. The appeal was taken only by the wholesaler, who had sold the darts to the retailer, who, in turn, had sold a package to the eight-year-old child. In using the darts the eight-year-old child caused permanent injuries to another child’s eye. In that case the Supreme Court pointed out that a Tennessee court in Highsaw v. Creech, 17 Tenn App 573, 69 SW2d 249, 252, held “an air gun is not a dangerous instrumentality of itself, but is in fact a toy .... The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.” Again in the Pitts case, supra, the Supreme Court on page 52 said the following:

“In Morris v. Toy Box, (Cal App 1962) 22 Cal Rptr 572, 574-5, a complaint brought by a minor against a retailer alleging that the retailer knew that the intended user of a bow and arrow was the purchaser’s ten-year-old boy was dismissed, the court saying, ‘the bow and arrow has been in use by young and old alike for thousands of years. ... To us it is simply inconceivable that a 10-year-old boy, much less his mother, would be unacquainted with the use of so common an article as the one here in question.’ See also, White v. Page, (Ohio App 1950) 105 NE2d 652.”

The Supreme Court then commented on section 390 of the American Law Institute’s Restatement of Torts 2d, which reads as follows:

“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

The Supreme Court in the Pitts case continued on page 53:

“We think it is significant, however, that of the eight illustrations contained in the Comment to section 390, six deal with the liability of persons who permitted an automobile to be driven by one who, for one reason or another, was known to be likely to create an unreasonable risk of harm. Another illustration involved the renting of a boat to intoxicated persons. The illustration that is closest to the case before us is illustration No. 1: ‘A gives a loaded gun to B, a feeble-minded girl of ten, to be carried by her to C. While B is carrying the gun she tampers with the trigger and discharges it, harming C. A is subject to liability to C.’ The factual situation presented in this illustration is remote indeed from the case before us.”

The Supreme Court continues in the Pitts case with the discussion of the case of Semeniuk v. Chentis, 1 Ill App2d 508, 117 NE2d 883, and mentions that that case is cited in the Reporter’s Notes to section 390. The complaint in that case alleged that the defendant, a merchant, had sold an air rifle to the father of a seven-year-old boy; that the defendant knew or ought to have known that the boy was unacquainted with and inexperienced in the use of air rifles and that, if the boy loaded or discharged the rifle, it would be probable that a member of the public would come to some harm therefrom. The complaint further alleged that the boy was known to the merchant to be a child of less than seven years of age, lacking in judgment and discretion and lacking in knowledge of the dangerous consequences of the use and discharge of an air rifle. The trial court sustained a motion to dismiss the complaint insofar as it asserted liability against the merchant. The appellate court reversed, and remanded the case for trial. This significant language appears on page 53 of the Pitts case, supra, immediately after discussing the Semeniuk v. Chentis case, supra, “The judgment of the appellate court was not final, and was not subject to review by this court.” The natural inference to be drawn from that statement is that had the judgment of the appellate court been final and subject to review by the Supreme Court, the Supreme Court would have reversed the appellate court.

Our courts have held that automobiles are not inherently dangerous instrumentalities, Arkin v. Page, 287 Ill 420, 123 NE 30; Brill v. Davajon, 51 Ill App2d 445, 201 NE2d 253.

The plaintiffs cite the case of Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, in connection with the duty owed by persons to exercise ordinary care to guard against injury which might naturally flow as a reasonable, probable and foreseeable consequence of his act.

In a most recent case decided by the Supreme Court of Illinois, Lance v. Senior, 36 Ill2d 516, 224 NE2d 231, the court said:

“As the appellate court noted, we held in Kahn that whether or not a trespassing child would be permitted to recover was not to be mechanically determined by ascertaining whether the label ‘attractive nuisance’ had previously been applied to the factual situation before the court. The Kahn case recognized a trend in the law which conditions the nature of the precautions which an occupier of land is required to take to prevent injury to a visitor upon the circumstances and purposes of the visit and the burden of guarding against injuries. (See Wagner v. Kepler, 411 Ill 368, 372; Prosser, Torts 381 (3d ed 1964); Restatement of the Law of Torts 2d sec 339). But the Kahn case does not decide this one.”

In the Lance case, supra, Randy Lance was a nine-year-old boy who suffered from hemophilia. The defendants knew this. He was an overnight guest in the defendants’ home. The complaint alleged that the defendants on August 15, 1964, negligently and carelessly permitted and allowed the plaintiff to play with a needle which got into his throat and was sucked into the inner part of the plaintiff’s lung, causing injuries. The trial court sustained a motion by the defendants to dismiss the complaint and entered judgment in their favor. The appellate court reversed, holding that the complaint stated a cause of action for negligence. 66 Ill App2d 41, 213 NE2d 616. The Supreme Court reversed the appellate court and said:

“After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account. In the present case the risk that a nine-year-old boy would swallow or otherwise ingest a needle is minimal. The allegation that the defendants knew that the plaintiff was a hemophiliac does not justify the imposition of this duty, for it suggests that the plaintiff, who was not alleged to be mentally defective, would have been taught to guard against the special hazards to which his condition made him particularly vulnerable. The burden sought to be imposed upon the defendants is a heavy one, which would require intimate and constant surveillance.”

We conclude that a boomerang, which is used by children, is not a dangerous instrumentality as such, merely because after it is thrown its flight cannot be controlled, any more than a baseball, a dart or many other articles, which are classified as toys, can be held to be dangerous instrumentalities.

We further conclude that an injury occasioned by the use of the boomerang in question by an inexperienced child, even where the merchant could reasonably have foreseen that the boomerang was to be used by that ten-year-old child, does not impose liability upon him.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Peter Paul Natale, Plaintiff-Petitioner, v. Enterprise Publishing Company, an Illinois Corporation, and Elmer Johnson, et al., Defendants-Respondents.
    Gen. No. 51,620.
    First District, Third Division.
    April 6, 1967.
    Rehearing denied May 4,1967.

      Blumenthal and Schwartz, of Chicago (Milton M. Blumenthal and Arthur F. Schwartz, of counsel), for petitioner.
    Arvey, Hodes & Mantynband, of Chicago, for respondents.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff has petitioned this court for leave to appeal from an order vacating a judgment on verdict for $10,-000 proved up and entered in the absence of the defendants and their attorneys. Defendants have moved to dismiss on the ground that there is no provision for such an appeal, the order having been entered within the 30 day period pursuant to section 50 (6) of the Civil Practice Act. Plaintiff argues that the order is within the provisions of Supreme Court Rule 30 (now 306) which relates to the granting of new trials.

The order of vacation was conditioned upon the defendants’ paying $1,000 to the plaintiff and $500 to the County to reimburse them for expenses incurred. Defendants complied with the conditions imposed and the order of vacation became effective. The court at the time it entered the order stated that it was doing so pursuant to the provisions of section 50(6) of the Civil Practice Act (Ill Rev Stats, c 110, § 50(6) (1965)), which provides that the court may on motion filed within 30 days, in its discretion, set aside any final order, judgment or decree upon terms and conditions that shall be reasonable. Orders vacating judgments are interlocutory and not final. Williams v. Morton, 80 Ill App2d 442, 225 NE2d 671. Notwithstanding this, the plaintiff contends, as we have said, that the order of vacation was in effect the granting of a new trial and hence within the provisions of Supreme Court Rule 30 (now 306) which provides that this court may upon petition allow the parties the right to appeal from an order granting a new trial. Plaintiff bases this contention on the fact that while no one was present on behalf of defendants, answers had been filed on their behalf, a jury was called, evidence heard, and instructions submitted and carefully examined by the judge, and that this was in substance a contested (sic) case and that defendants’ failure to appear for trial cannot be considered a default. The resolution of this issue has special importance at this time because the enormous backlog of jury cases in this county has placed a great burden on both the bar and bench and has created many serious problems, not the least of which is what to do about defaults or the failure of parties to appear at the time of trial. The background of the case before us illuminates these problems.

Between the time of the filing of suit and entry of the judgment in question, four and a half years had elapsed. During that time the suit was on one occasion dismissed for failure of the plaintiff to appear. It was reinstated on his motion. The defendants’ attorneys on motion duly made withdrew from the case and when it came up for hearing, no one appeared on behalf of the defendants nor were they themselves present. While the trial court was careful in its presentation of the case to the jury, it cannot be considered to have been a contested trial. When defendants finally engaged a new lawyer and their motion to vacate was made, the court decided that justice would be better served by vacating the judgment upon compliance with the requirements before stated.

Plaintiff cites Miller v. Paoli, 39 Ill App2d 367, 188 NE2d 730, in support of his position. There, the defendant and his attorney were present on the call of the case in the morning. The court advised them the case would be heard at 1:30 p. m. When it was called at that time, the attorney of record was present and testified and was allowed to withdraw. Neither the defendant nor the attorney who was to be substituted appeared, although the testimony of the attorney of record revealed that they knew of the hearing. The court said that the defendant knew the case was to be called at 1:30 p. m. and that he knew the attorney of record was withdrawing and that he and the lawyer he had with him knew that the case was to be called for trial, but that they elected to be absent for reasons not disclosed. The court then heard the plaintiff’s case and entered judgment. The Appellate Court sustained the judgment, holding that the trial court had exercised its discretion properly in refusing to vacate. The distinction between that and the instant case is obvious.

Provision for appeals from orders granting new trials was first incorporated in the 1933 Civil Practice Act. Prior to that time no such provision existed in this state. The reason for its adoption was obvious. A genuinely contested case may take many months to try and at its conclusion the trial court could grant a new trial with perhaps many controversial issues of substance, procedure and evidence still undecided. The provision, now section 50(6) of the Civil Practice Act, for the setting aside of judgments within a 30-day period after judgment (that period being substituted for term time) was adopted in the 1933 Judgment Act (Laws of Illinois, Fifty-eighth General Assembly, at p 678) and, as we have said, no provision was made for appeal from such orders. Still another provision of the 1933 Civil Practice Act abolished the common-law writ of error coram nobis and provided for relief after the 30-day period under what is now section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72 (1965)). Provision was made for appeals from such orders. We must assume that the legislature acted advisedly in making the distinction as to appeal between these groups of interlocutory orders.

There is no appeal from an order of the trial court entered pursuant to section 50(6), and the motion to dismiss the petition for leave to appeal must be allowed.

Petition for leave to appeal dismissed.

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


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Louis Scott, Defendant-Appellant.
    Gen. No. 50,547.
    First District, Third Division.
    April 6, 1967.

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

delivered the opinion of the court.

The defendant was found guilty of rape in a non jury trial and was sentenced to the penitentiary for a term of ten to twenty years.

His theory on appeal is that the judgment of conviction should be reversed because the indictment did not specify the nature and elements, or the time and place of the alleged offense; that the State failed to prove the use of force; that the testimony of the complaining witness was so improbable that it was inadequate to sustain his conviction, and that the trial court erred in permitting the State to question him on the details of a prior conviction for rape.

The prosecutrix lived with her husband and four children on the eleventh floor of a nineteen-storied building in a public housing project on Chicago’s near north side. She returned from shopping about 8:15 on the night of January 18, 1964, and entered the lobby of the building. There were two elevators; one stopped at the odd-numbered and the other at the even-numbered floors. A man, whom she had never seen before, was waiting at the elevators and had pressed the buttons for both of them. After a few minutes’ wait the two elevators arrived about the same time. The man entered the even-numbered one and the prosecutrix the odd but before the doors closed the man jumped into the elevator for the odd-numbered floors. She pushed the button for the eleventh floor and he for the nineteenth. Near the fifth floor he pushed the emergency button and the elevator stopped. The man held a knife to her neck, warned her to be quiet and asked for her money and a kiss. They kissed twice and he searched for her money. Finding none, he said he had to have something. He told her to take off her coat. As she did so he grabbed it from her, threw it on the floor and told her to remove part of her underclothes. He said she could keep her dress on although he was used to naked women. He unzipped his pants, got on top of her and, with his knife at her neck, ordered her to put his sex organ into hers. She did this and he had an emission.

When he was through he told her to get up and put her clothes on. He said he had a gun and asked if she would like to see it pointing in her face. He instructed her to say nothing to anyone and not to get off when the elevator stopped at a floor. He pushed one button at a time until they reached the top floor and then did the same thing on the way down. No one entered the elevator at the odd-numbered floors. At the ground floor he pressed the button for the eleventh floor, left her in the elevator and jumped out. As soon as the elevator reached the eleventh floor she went to the apartment of a friend who had a phone and the police were called. She then went to her own apartment and informed her husband of what had happened. The police took her to a hospital; vaginal smears were taken which showed spermatozoa.

The next evening she and her husband were in the lobby waiting with other people for the same elevator. It was crowded when it arrived at the first floor and in the rear she saw the man who had raped her. He covered his face as he came out, went to the exit and started to run. She pointed him out to her husband as he passed her. Her husband chased but did not catch him. She again called the police and later on that evening went to a police station, saw the defendant in a lineup of six men and identified him as the man who had raped her. The defendant denied the accusation.

His defense at the trial consisted of an alibi, an attack on the probability of the complainant’s story and an attack on her virtue. He testified that he was in a tavern between 8:00 and 9:00 p. m. on the date of the alleged crime and his testimony in this respect was corroborated by his brother and an employee of the tavern.

The complainant testified that she and the defendant were in the elevator about twenty minutes and that during this time the emergency bell was ringing. She explained that it was not unusual for the bell to ring because children often closed the doors and played in the elevators. The defendant’s sister, who lived on the fifteenth floor of the same building, testified that security officers in the project made their rounds every two hours and that in the event of trouble tenants were supposed to call the officers. Another tenant whose apartment was also on the fifteenth floor, two doors from the elevator, said the same thing and added that if the emergency bell were to ring for a long time someone would call the security office. She said she was home the night of January 18th and that she did not hear the bell ring. A man who was visiting in her apartment that night said he did not hear a bell ringing. He also testified that he arrived at the building at approximately 8:30 p. m., and that the odd-numbered elevator was in service and that he rode it to the fifteenth floor.

The defendant testified that he was well acquainted with the prosecutrix, had dated her and had sexual relations with her — the last time at 1:00 p. m. the day of the alleged rape. His sister said she had seen him and the prosecutrix in bed together at her mother’s apartment in November of the previous year.

The indictment which the defendant criticizes as invalid stated in pertinent part:

“. . . that on January 18, 1964, at and within said County [Cook], John Louis Scott, a male person of the age of fourteen years and upwards, committed the offense of rape, in that he had sexual intercourse with . . . not his wife, by force and against her will, in violation of Chapter 38, Section 11-1, of the Illinois Revised Statutes 1963 . . . .”

The argument is that the indictment does not meet the requirements of the statute (Ill Rev Stats 1963, c 38, § 111-3(a)) which states that an indictment must contain provisions:

“3. Setting forth the nature and elements of the offense charged;
“4. Stating the time and place of the offense as definitely as can be done;....”

In reference to subsection 3, the defendant’s contention is that the indictment is deficient because it did not set forth the specific acts for which he was being prosecuted and did not allege that he used a knife to overcome the prosecutrix’s will. This argument is without merit. The indictment is substantially in the language of the statute defining the offense of rape, informed the defendant with reasonable certainty of the charge against him and cited the specific statutory provision alleged to have been violated. This is sufficient. People v. Sims, 393 Ill 238, 66 NE2d 86 (1946). The State is not required to plead evidence in an indictment. People v. Meaderds, 21 Ill2d 145, 171 NE2d 638 (1961).

In reference to subsection 4, the contention is that the indictment is deficient because the State knew, but did not allege, the address where and the time at which the offense took place. This contention is likewise without merit. This court has held that an indictment which alleges that an offense occurred on a certain date in a certain county complies with the requirements of subsection 4. People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 (1965); People v. Zeravich, 64 Ill App2d 150, 212 NE2d 282 (1965). The Supreme Court has held likewise: People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966); People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

Because the prosecutrix kissed the defendant, asked him if he was going to rape her when he said he "had to have something,” removed her coat and underclothes, made no outcry, did not resist him and suffered no physical harm, the defendant asserts that there was no proof that the intercourse was against her will or was the result of the force required to constitute rape. The defendant further asserts that the prosecutrix’s entire story was so improbable as to call for a reversal of his conviction because she testified that: the rape occurred on a Saturday night in an elevator of a nineteen-storied, public housing project; she was in the elevator twenty minutes; the emergency bell was ringing; no one was waiting for the elevator at any of the floors after it had been stalled for so long, and that he returned to the building the next day.

There is no definite standard regarding the amount of force required to establish the offense of rape. Generally, if a woman has the use of her faculties and physical powers she must resist to the extent possible and the evidence must show that the act was against her will. Each case must rest on its own facts and it is not necessary to resist under circumstances where resistance would be futile and would endanger her life, or where she is overcome by superior strength or paralyzed by fear. People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965). The testimony of a complainant, uncorroborated by other witnesses, may be enough to sustain a rape conviction. People v. Perez, 412 Ill 425, 107 NE2d 749 (1952). In the present case the prosecutrix was trapped in an elevator and a knife was held to her neck; escape was impossible; resistance would have been useless. She had to submit or run the risk of being slashed by the knife. Her submission under these circumstances is understandable. The evidence supports the charge that the intercourse was forcible and against her will.

Nor is the story related by the prosecutrix so improbable that it cannot be believed. Rapes do occur in the elevators of high-rise buildings. As we shall see, the defendant himself had been convicted of such a rape. That no one responded to the bell was explained by the frequency with which the elevator was out of service. That no one was waiting on the floors where the defendant stopped the elevator may have been coincidental or may be explained by the fact that there was another elevator which stopped at the alternate floors. A person could walk down a flight of stairs and take the one which was running; a person in the lobby wishing to go to an odd-numbered floor could ride to the nearest even-numbered floor and walk one flight of stairs. There was testimony that this was done. The defendant may have been in the building the next day because he wanted to see his sister, because of some compulsion to return to the scene of his crime, because he believed his victim was completely intimidated or because he was brazen or foolish. Whatever may have been the reason, he was there and he scurried away when he saw his victim point him out to the man accompanying her.

Moreover, the prosecutrix made complaint of the rape to two persons immediately after it took place and she made an immediate call to the police. She pointed the defendant out to her husband twenty-four hours later and again notified the police. When arrested, the defendant denied the crime but he did not tell the police that he was in a tavern at the time of the crime or that he and the prosecutrix had been intimate at other times. The evidence is not so improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.

During his testimony the defendant volunteered the information that he had a prior conviction for rape. On cross-examination the prosecutor, over objection, was permitted to elicit the fact that the rape took place in an elevator in the same building as in the case on trial. The defendant claims that the trial court committed prejudicial error in allowing the prosecutor to question him on the details of the prior conviction.

While it is generally improper to cross-examine a defendant as to prior crimes, there are exceptions to the rule. Where a defendant has himself opened the door by testifying on direct examination about his prior conviction, it is not error to allow the prosecution to cross-examine him concerning that conviction if the examination is pertinent to an issue in the case. Accord: People v. Nastasio, 30 Ill2d 51, 195 NE2d 144 (1963). Also, evidence of prior offenses may be admissible when the evidence tends to prove any fact material to the issue on trial. People v. Bernette, 30 Ill2d 359, 197 NE2d 436 (1964). In the case at bar the defendant not only denied committing the offense for which he was being tried, he went further and placed in issue the commission of the offense. He contended that the prosecutrix’s story was unbelievable and that a rape could not have taken place under the conditions related by her. Under these circumstances it was not error for the court to allow the State to show that such a rape was possible and that the defendant himself had been found guilty of raping another woman in an elevator in the very same building.

The judgment of the trial court is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE LYONS.

text:
    Robert H. James, Plaintiff-Appellant, v. Bank of Highland Park and Marvin Holland, Defendants-Appellees.
    Gen. No. 51,093.
    First District, Second Division.
    April 11, 1967.
    William Parker Ward, of Chicago, for appellant; Neil K. Quinn and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee, Bank of Highland Park; Berger, Newmark & Fenehel, of Chicago (Harry D. Lavery, of counsel), for appellee, Marvin Holland.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leo Lagardo (Impleaded), Defendant-Appellant.
    Gen. No. 49,911.
    First District, Second Division.
    April 11, 1967.

      Thomas L. Nicholson and David L. Lange, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Leo Lagardo, the defendant, his wife Laura and Isaac James Oshana were indicted jointly for the crimes of theft and burglary. This is an appeal by defendant, Leo Lagardo, from a conviction for the offense of theft in a trial before a jury. On the burglary charge, the jury found defendant not guilty. Defendant was tried alone. After a guilty verdict for the offense of theft, the trial judge sentenced defendant to a term of six to ten years in the State Penitentiary. (In this regard the common-law record is in error wherein it recites the sentence to be for a term of eight to ten years.)

After the guilty verdict and entry of judgment thereon, defendant made motions for a new trial, in arrest of judgment, and to vacate the sentence imposed, all of which were denied and from which this appeal is taken.

The evidence revealed that a coach house occupied by complainant, Paul McAllister, was burglarized on November 8, 1962. Coindictee, Oshana, was subsequently arrested at 2:45 a. m. that same day at his home, where numerous items belonging to the complainant were found on his person. Oshana was then questioned by police authorities who thereafter with Oshana proceeded to the apartment occupied by defendant and his wife, Laura. Announcing their presence, the door to the Lagardo’s one-room apartment was opened, revealing to the officers, certain items identified as belonging to the complainant in open view at the foot of the bed. Having been given a description of the burglarized property, the officers proceeded to seize it and to arrest defendant and his wife. The aggregate value of the goods stolen was much controverted, being in the neighborhood of $150.

It is defendant’s theory of the case (1) that defendant was deprived of his constitutional right to be apprised of the nature of the charges brought against him in that the indictment recited a different form of theft from that which he was tried for and convicted, (2) that the trial judge erred in denying defendant’s motion for a substitution of judges and change of venue, (3) that the State did not sustain a burden of proof sufficient to support the conviction obtained or the sentence imposed, (4) that reversible error was committed by the court in admitting certain matters into evidence and allowing the prosecutors to make prejudicial remarks regarding defendant, and (5) that the consecutive sentence imposed by the trial judge was excessive and unjust.

It is the State’s theory of the case (1) that defendant has failed to preserve his objections, as to his right to remain silent, as to the alleged defective indictment, as to the ruling on his motions for substitution of judges and change of venue, and as to the severity of the sentence imposed, by his failure to raise these objections in his motion for a new trial, (2) that certain evidentiary matters were properly admitted into the trial because they were relevant, (3) that the evidence supports the verdict, and (4) that certain alleged prejudicial remarks made by the prosecutors were but responsive statements to earlier arguments by the defense counsel.

Though defendant raises many issues, this court feels that a single issue is dispositive of the relief sought by defendant in this appeal; to wit, the propriety of the ruling which denied defendant’s motions for substitution of judges and change of venue without a hearing.

The State is correct in asserting that defendant has failed to include in his motion for a new trial any objection to the ruling on the pretrial motions. We do not believe, however, that he has thereby been precluded from arguing such an alleged defect before this court. Our Code of Criminal Procedure, section 121-9(a), dealing with causes on appeal, states:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. [Ill Rev Stats (1963), c 38, § 121-9(a)].

While the general rule is that non jurisdictional matters not included in a defendant’s motion for a new trial are deemed to have been waived and therefore not subject to review, section 121-9 (a) of the Code of Criminal Procedure has codified an exception to that general rule in instances where the alleged defect is patent, and it affects substantial rights to the satisfaction of the reviewing court in the exercise of their discretionary powers. Briefly, it may be said that the pivotal factors to be considered to determine whether or not an exercise of such discretion is warranted are, the closeness of the ease, the conduct of the trial judge, the extent to which questionable evidence may have contributed to a guilty verdict, the fairness of the trial in general, and the magnitude of the errors alleged. People v. Bell, 61 Ill App2d 224, 209 NE2d 366 (1965). Cf. People v. Bradley, 30 Ill2d 597, 198 NE2d 809 (1964), People v. DeStefano, 64 Ill App2d 389, 212 NE2d 357 (1965), and People v. Rodriquez, 79 Ill App2d 26, 223 NE2d 414. We feel that the circumstances attendant on the proceedings below warrant an exercise of such discretion to review the propriety of the trial judge's denial of a hearing on the aforementioned pretrial motions.

On January 18, 1963, after return of an indictment, defendant was arraigned, counsel appointed on his behalf and a plea of not guilty entered. The case was then assigned to Judge Harewood. On February 25, 1963, defendant’s wife and Oshana made motions for a change of venue, defendant not joining in such motion. It is disputed whether or not defendant; at this point, expressly waived his right to a change of venue. The motions were sustained, and the case was reassigned to Judge Fitzgerald. On April 9, 1963, defendant obtained private counsel. On May 27, 1963, defendant violated his bond. The bond was ordered forfeited and a writ of capias issued. The case was stricken from the trial docket with leave to reinstate. On October 8, 1963, the case was reinstated upon the docket and assigned to Judge Wells. Defendant was arraigned before Judge Wells and entered a plea of not guilty by a new counsel, his third since his first arraignment. On February 20, 1964, defendant changed counsel again, retaining Mr. Basvic who eventually represented him at the trial. On March 3, 1964, defendant, by counsel, filed written motions for a substitution of judges and change of venue, together with an affidavit in support thereof.

The two motions and supporting affidavit, which were accompanied by a certificate of counsel’s good faith, alleged in substance (1) that defendant fears he will not get a fair trial because of prejudice on the part of Judge Wells in that the said judge, in another cause on February 3, 1964, sentenced defendant to a term of ten to twenty years in the penitentiary, (2) that knowledge of said prejudice did not come to defendant until February 3, 1964, and (3) that appropriate relief is provided under Ill Rev Stats, c 38, § 114-5(a), (b) and (c) and Ill Rev Stats, c 146, §§ 18, 21, 25, and 26. Both motions were denied without a hearing, at which time the following took place:

The Court: I don’t need a reason, Counsel. The law is my reason. I say that you are not entitled to a change of venue or a substitution of judges under the law. Now, what about indictment number 63-44?
Mr. Basvic: Judge, can we go back to this? You mean we are not entitled — shouldn’t we have an explanation here?
The Court: Counsel, I don’t intend to explain or debate the subject with you. I made my ruling. And if you don’t like it, you know what you can do.

The jury was thereafter selected and sworn on March 30, 1964, and the trial commenced the following day.

The motion for substitution of judges is one which falls within the purview of and is governed by Ill Rev Stats (1963), c 38, § 114-5 (c) since defendant’s motion was filed more than 10 days after his case was placed on the trial call. Subsection (c) recites:

In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

The distinctions between subsections (a) and (c) are numerous and worthy of discussion for a more thorough understanding of subsection (c). As to subsection (a): (1) the motion must be filed within 10 days after a cause has been placed on the trial call of a judge, (2) it may name two judges, (3) the motion must show “prejudice” on the part of the judge/s, (4) the motion need not be verified nor be accompanied by a supporting affidavit, and (5) defendant has an absolute right to the substitution of judge/s if the statute is complied with. As to subsection (c): (1) a defendant may move at any time for the substitution by showing “cause,” (2) it may name only one judge, (3) the motion must be supported by affidavit, and (4) the court must conduct a hearing on the merits of the motion if the statute is complied with, but the defendant is not thereafter entitled to an automatic substitution as in subsection (a).

The State argues that the motion was untimely and employed as a delaying tactic. We believe otherwise. The alleged prejudice emanates from the prior sentence imposed by Judge Wells on February 3, 1964. Any motion of this sort made prior to that date would have been premature. The motions were made well before the trial date then scheduled for March 20, 1964. Mr. Basvic, who represented defendant at the trial, was not defendant’s attorney of record until February 20, 1964. The motions in question were filed twelve days thereafter on March 3, 1964, twenty-eight days subsequent to the date on which defendant alleges to have first become cognizant of such prejudice. The latter is of particular significance in regard to the State’s contention that the motions were untimely. Subsection (c) recites that a defendant may move for the substitution “at any time.” Moreover, Ill Rev Stats (1963), c 146, §§24 and 25, regarding applications for change of venue, when read in pari materia with subsection (c), indicate, notwithstanding the strictest construction given the phrase “at any time,” that a motion for a substitution is timely and not waived when made not more than thirty days after the earliest day on which knowledge of the alleged prejudice came to the applicant.

The record is barren of facts to support the State’s accusation that “the defendant delayed trial incessantly.” At no time prior to the denial of his motion did defendant make application for a continuance, substitution of judges, or change of venue so as to indicate a dilatory attitude. We do not think that his violation of the bond and changes of attorneys, alone, suffices to warrant a denial of his subsequent motion when he has, in all other respects, complied with the provisions of the statute which served as the basis of such motion.

The cases of People v. Catalano, 29 Ill2d 197, 193 NE2d 797 (1963) and People v. Lawrence, 29 Ill2d 426, 194 NE2d 337 (1963) do not dictate a contrary conclusion as the State contends. In both cases, motions for a change of venue based on prejudice of the trial judge were denied as delaying tactics. Unlike the instant case, however, these two decisions dealt with motions made only after defendant’s counsel ascertained that a lenient disposition was not available, at a conference with the judge in chambers before the trial. The court, in both cases, held that the motions had not been presented at the earliest opportunity in that they were made only after the judge had passed on substantive issues and indicated his views on the merits of the cause. Such is not the case here.

Defendant has in all respects complied with the requirements of subsection (c) and as such was entitled to a hearing on the merits of his motion. People v. Ethridge, 78 Ill App2d 299, 223 NE2d 437 (1966). The motion here named only one judge. It was accompanied by both supporting affidavit and a certificate of counsel’s good faith. It was filed prior to any determination of the case on the merits. The record shows no facts to evidence a waiver. The motion alleged prejudice resulting in fear of an unfair trial together with facts in support thereof; i. e., the prior sentencing by the same judge. Defendant’s alleged apprehensions were not unreasonable. This was more than was required in People v. Ethridge, supra, where the court said:

The motion did not contain detailed allegations of prejudice; it merely stated that prejudice existed. However, it is not necessary that a defendant enumerate facts to support a general allegation of prejudice . . . this can be reserved for the hearing which the court must conduct.

As previously noted, subsection (a) requires that “prejudice” be shown, whereas subsection (c) requires a showing of “cause” before a hearing becomes mandatory on the court. While much could be said concerning the distinction between a showing of “prejudice” and a showing of “cause,” we think that any such distinction would not operate to defeat defendant’s position in this particular case. The word “cause” is a generic term of broad import. It has been defined as a reason, a ground for producing a given effect, relating to a material matter, etc. The fact that defendant did not, as such, employ the word “cause” within the language of his motion is of little consequence. Certainly, an allegation of prejudice of a judge, supported by facts upon which such alleged prejudice is based, is a showing of “cause.” This is further substantiated by People v. Arnold, 76 Ill App2d 269, 222 NE2d 160 (1966), where the court, in sustaining a similar contention on rehearing, said:

According to the Committee Comments this section is to be read in pari materia with Illinois Revised Statutes, 1965, chapter 146, §§ 18-35. Section 18 of chapter 146, supra, provides that it is “cause” for a change of venue when a defendant fears “that he will not receive a fair and impartial trial in the court in which the case is pending, because the judge of the court is . . . prejudiced against him. . . .” In his petition defendant alleged under oath that he could not receive a fair and impartial trial because the trial judge was prejudiced.* That allegation is the statement of “cause.”

The State maintains that no error was committed by denying the hearing. They argue that even if the facts alleged in the motion were true, a hearing would be useless in light of Barnes v. United States, 241 F2d 252 (9th Cir, 1956) and United States v. Richmond, 178 F Supp 44 (2nd Cir, 1958). The courts there ruled that the fact that a judge has decided a former case against a litigant does not operate to serve as a basis for his disqualification in a subsequent case involving that same litigant. We disagree that such a rule obtains. The cases represent federal decisions and they are distinguishable on the facts. Neither decision was based upon this State’s substantive or procedural laws. The Barnes case was a civil action. There an affidavit alleging prejudice was stricken because it was “scandalous and impertinent” in that it charged the judge with having dominated and influenced another judge against the affiant in a prior cause. The Richmond case is equally not in point. There the denial of a motion to disqualify was based solely upon the court’s interpretation of 28 USCA § 144, which involves bias or prejudice as a basis for disqualification in a federal proceeding.

Our statutory provisions authorizing a substitution of judges is to be afforded a liberal interpretation in order to permit, rather than deny, a substitution. People v. Arnold, supra. We do not feel that the Barnes and Richmond decisions affect the favorable construction given to our statute by Arnold.

Defendant was entitled to a hearing. The motion for substitution of judges was thus improperly denied. In view of our holding, it is not necessary to discuss the other contentions of defendant. Since defendant was denied the hearing, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

BURKE and BRYANT, JJ., concur.

       Sec 121-9 (a) has been superseded and replaced by new Supreme Court Rule 615(a) which employs the identical language [Ill Rev Stats (1967) c 110, § 101.615(a)].


text:
    People of the State of Illinois, Appellee, v. Leo Lagardo, Appellant.
    Gen. No. 49,860.
    First District, Second Division.
    April 11, 1967.
    Rehearing denied May 3,1967.

      Dennis J. Horan, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Defendant, Leo Lagardo, appeals from a conviction for the offense of armed robbery, after a jury trial, for which he was sentenced to a term of ten to twenty years in the State Penitentiary, on which judgment was entered on February 3,1963.

On January 11, 1963, defendant was indicted with three coindictees, Isaac James Oshana, Frank Amato and Edward Pung, for having:

“. . . committed the offense of robbery, in that they, by the use of force, and while armed with a dangerous weapon, took a clock, watch, television set, camera, radio, typewriter, and two coats from the person and presence of (the complainant), . . .” (Insert supplied.)

On November 2, 1962, defendant and three of his coindictees, met in a restaurant, where they allegedly planned the robbery of one David L. Pruitt. Thereafter on November 3, 1962, coindictees Oshana and Amato and defendant proceeded to Pruitt’s apartment in the early morning hours and allegedly with Amato holding the gun, (.22 Derringer) on Pruitt, Oshana, who was also holding a gun, (.38 caliber) tied up Pruitt and one Stanko, who was in the apartment with him. They took articles, which were later identified as the property of complainant and are the items set out in the indictment above. During the course of the robbery, defendant allegedly remained downstairs in the car. Oshana took the goods downstairs, while Amato watched the complainant and Stanko. Defendant helped load the goods into the car. Thereafter, testimony was adduced that Amato left his .22 Derringer in the automobile of Lagardo.

Defendant was arraigned January 18, 1963, and re-arraigned on October 8, 1963, after having changed attorneys. At the second arraignment, the People were ordered by the court to furnish the defense with copies of written statements taken from defendant together with a list of witnesses within ten days thereafter. Counsel for defendant moved for leave to withdraw as counsel for defendant, which motion was denied.

On October 19, 1963, after defendant’s indictment and arraignment, and unknown to the prosecutors in this case, three police officers, investigating another and unrelated robbery, went to the County Jail, where defendant was incarcerated, to question him. One of these officers testified that they did not know at this time for what offense defendant was being held. The officers knew that defendant was represented by counsel, but did not inform counsel, nor seek his permission to question defendant. The questioning lasted about forty-five minutes to an hour. Asked during the course of the interrogation for what charge he was being held, defendant responded that he was being detained on an armed robbery charge. Officer Mason, testified that defendant thereafter volunteered the statement, “he was not worried about the armed robbery because the two fellows that were upstairs caught the finger and he was downstairs waiting for them.” No further questions relating to this offense were directed to defendant.

The officers did not then appreciate the significance of the statement, nor was the prosecutor aware of what had transpired. Consequently, defendant’s alleged admission was not brought to the prosecutors’ attention until January 15,1964, five days before the trial was to commence. The prosecutors did not inform the defense of the existence of such admission prior to the commencement of the trial, notwithstanding the previous order requiring the People to produce copies of written statements taken from defendant and to furnish a list of witnesses thereto. The testimony of a coindictee at the trial placed the defendant at the scene of the robbery downstairs waiting in a car. The subsequent introduction of the admission into evidence was the subject of a motion to suppress a confession by defendant, which was denied. Claiming surprise, defendant’s counsel requested and received a hearing on the voluntariness of the admission. The voluntariness of the admission is not in dispute on this appeal.

Testimony further revealed that on November 8, 1962, Officer Julien, as a result of a conversation had between himself and one of the coindictees, sought to gain entrance into the defendant’s apartment. Announcing his presence, the officer was admitted into the apartment by defendant’s wife. Defendant was then placed under arrest and a .22 Derringer gun, observed by the arresting officer on the top of a dresser, was seized.

After the trial had commenced, defendant’s counsel made a motion to suppress the weapon on the ground that it had been illegally seized by the arresting officer. The court denied the motion for want of timeliness. Defendant’s counsel contended he had been taken by surprise in that he did not know, nor did the indictment indicate, the use of a weapon other than the one already introduced into evidence, and hence his failure to object by pretrial motion. He then requested leave to file a written motion and affidavits in support thereof, which was also denied. The court stating that if counsel were surprised, it was only because his client had withheld information from him and such was not cause to delay the trial.

It is defendant’s theory of the case: (1) that police interrogation of an indicted and arraigned defendant, without consent of his counsel, deprives that defendant of his rights under the Sixth Amendment of the United States Constitution, (2) that a motion to suppress evidence is timely even when made after the trial has commenced, and (3) that the defendant was convicted of a charge for which he was not indicted.

It is the Peoples’ theory of the case: (1) that statements not deliberately elicited by the police from an indicted and arraigned defendant are not within the protection afforded a defendant under the decision of Massiah v. United States, 377 US 201 (1964), (cited by defendant), (2) that the motion to suppress was untimely and properly denied in that defendant’s counsel was not taken by surprise, and (3) that the indictment apprised defendant of the nature of the charges brought against him.

Defendant first contends that police interrogation of an indicted and arraigned defendant, without the presence or consent of his known counsel, deprives him of his constitutional rights to assistance of counsel and due process of law; that this alleged prejudice was compounded by the prosecutors’ failure to inform the defense of the existence of the admission prior to trial, in specific violation of the court order entered at the arraignment.

The decisions of Gideon v. Wainwright, 372 US 335 (1963), Escobedo v. Illinois, 378 US 478 (decided 6/22/64), and Miranda v. Arizona, 384 US 436 (decided 6/13/66) have firmly established, as well as extended, the application of the constitutional guarantee of right to assistance of counsel in State proceedings, to preindictment interrogation. Contrary, however, to the argument of defendant’s counsel, neither the Escobedo nor Miranda decisions have retroactive application to State proceedings in which the trial had not been commenced prior to the dates on which these two respective opinions were filed. Johnson v. New Jersey, 384 US 719 (decided 6/20/66). The defendant’s trial here began on January 20, 1964, and hence the inapplicability of the Escobedo and Miranda doctrines. It is from within this perspective that defendant’s constitutional objection must be evaluated.

Defendant’s contention is founded principally upon a line of decisions which have rendered the fruits of post-indictment interrogation of a defendant inadmissible in the subsequent trial against that defendant. Defendant, in this conjunction, relies upon Spano v. New York, 360 US 315 (1959), People v. Waterman, 9 NY2d 561, 175 NE2d 445 (1961), Massiah v. United States, 377 US 201 (1964), McLeod v. Ohio, 381 US 356 (1965), and People v. Halstrom, 34 Ill2d 20, 213 NE2d 498 (1966). Upon an examination of these authorities, we can find no overriding rule which would compel this court to find that defendant’s sixth and fourteenth amendment rights have been violated.

In Spano, an indicted defendant confessed to the charge for which he was under indictment, only after he had been subjected to continuous questioning for eight hours by law enforcement authorities and had unsuccessfully requested of them an opportunity to consult his counsel. Moreover, the court there, in footnote 6 at page 323, pointed out that the Spano decision was not intended to reverse their prior decision of Lisenba v. California, 314 US 219 (1941), wherein a defendant, arraigned on the charge of incest, later in response to questioning, confessed to a murder. The subsequent case of People v. Waterman, 9 NY2d 561, 175 NE2d 445 (1961), relying on the Spano decision, is equally not in point, for there the post-indictment interrogation was designed to deliberately elicit a confession to the charge for which defendant was then under indictment.

Nor can this court lend such broad application to the rule promulgated in Massiah v. United States, 377 US 201 (decided 5/18/64) as defendant suggests. The facts there involved an appeal of a federal narcotics conviction. After return of an indictment, and while defendant was free on bond, federal agents secured incriminating statements from defendant as to the charge under indictment, by means of a radio transmitter concealed in the automobile of a trusted confederate of defendant’s, who was then acting in alliance with the federal agents. The Supreme Court said at page 206:

“We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” (Emphasis supplied.)

Moreover, the court, at page 207, goes further in pointing out that they do not question the propriety of post-indictment investigation in general, but rather only, “. . . under the circumstances here disclosed, . . . .”

In State v. McLeod, 1 Ohio St2d 60, 203 NE2d 349 (1964), the Ohio Supreme Court considered a murder conviction which had been vacated by the United States Supreme Court and remanded to the Ohio court for consideration in light of the Massiah decision. The facts of the case involved an indicted, but unarraigned, defendant who had yet to procure or be assigned counsel. While riding with State authorities in an automobile in search of the gun alleged to have been used in the holdup, defendant made a voluntary confession to the charge for which he was then under indictment. The Ohio court affirmed the conviction. The United States Supreme Court, however, on petition for writ of certiorari, reversed rendering the succinct opinion:

“The judgment is reversed. Massiah v. United States, 377 US 201.”

The defendant suggests that the McLeod decision created an arena of far greater application of the Massiah doctrine to the States than the Massiah decision would, by itself, indicate. This court is unable to envision quite so far reaching an effect. Certainly the court would not establish new constitutional principles by way of a memoranda opinion. Irrespective of whether Massiah applies only to statements surreptitiously obtained or to all post-indictment statements deliberately elicited, the simple' fact remains that, unlike McLeod and Massiah, the case at bar concerns itself with a statement not deliberately obtained, which was made in the course of an interrogation totally unrelated to the charge for which defendant was then under indictment. We cannot accept defendant’s reasoning that just because he was questioned after he had been indicted, the interrogation necessarily related to the subject matter of that indictment. People v. Stanley, 15 NY2d 30, 203 NE2d 475 (1964).

The case of People v. Halstrom, 34 Ill2d 20, 213 NE2d 498 (1966) does not dictate that a contrary viewpoint be taken as defendant maintains. The court there reversed a burglary conviction based upon its interpretation of the McLeod and Massiah decisions. It is noteworthy that again the facts involved a confession, deliberately elicited, in regard to the charge for which defendant was then under indictment. We do not think it can be said that the Massiah doctrine, as implemented by the McLeod decision, was intended to be operative upon the States, beyond this aforementioned realm of misconduct.

In the instant case, the circumstances evidence an entirely different course of conduct by the interrogating officers. There is no dispute that the admission was voluntary, spontaneously offered, rather than deliberately elicited. The record reveals that the interrogating officers did not know for what charge defendant was being held. The officers thought so little of the statement at the time that they neither wrote it down, nor reported it to the prosecutors, until approximately three months later. At no time was defendant denied an affirmative request for assistance of counsel. Moreover, the interrogation itself dealt with matters other than that which was recited in the indictment. The cases of United States v. Gardner, 347 F2d 405 (7th Cir, 1965), United States v. Accardi, 342 F2d 697 (2nd Cir, 1965), and Gascar v. United States, 356 F2d 101 (9th Cir, 1965), though distinguishable on the facts, support this court’s reasoning and are dispositive of the issue of post-indictment interrogation before us.

The further contention that the People failed, in violation of court order, to furnish the defense with a copy of defendant’s admission and a list of witnesses thereto is equally without merit. The order of October 8, 1963, required that such information be furnished the defense within ten days thereafter. The admission itself was not made until October 19, 1963, eleven days after the entry of the court order. Furthermore, the prosecutors did not become cognizant of the existence of such admission until five days before the trial. The defense requested and received a hearing on the voluntariness of the admission. The statement itself did not constitute such a voluntary acknowledgment of guilt so as to constitute a confession and not an admission and thus fall within the purview of Ill Rev Stats (1963) c 38, § 114-10, as defendant contends. Rather, the statement embraced independent facts from which implication in the robbery could only be inferred. People v. Stanton, 16 Ill2d 459, 158 NE2d 47 (1959).

Defendant’s motion to suppress the weapon seized by Officer Julien during the course of the arrest was properly denied. The weapon was seized pursuant to a search incidental to a lawful arrest. The Supreme Court stated in People v. Magby, 37 Ill2d 197, 226 NE2d 33 :

“It has long been established that it is competent to prove that an accused person, when arrested, possessed a weapon suitable for the commission of the crime charged, even though no claim is made that he actually used it in committing the particular crime.”

Cf. People v. Gambino, 12 Ill2d 29, 145 NE2d 42 (1957). The evidence shows from the circumstances surrounding the seizure of the weapon and a reading of the indictment that defendant’s counsel should have been on notice for the existence of a second weapon. Any surprise on counsel’s part could have only resulted from his client’s withholding of information from him. The motion could have been properly introduced before the trial began, but was not. The motion was not cause to interrupt the trial, once it had begun. People v. Winn, 324 Ill 428, 155 NE 337 (1927), People v. Valecek, 404 Ill 461, 89 NE2d 368 (1950).

The defendant next argues that he was convicted of a charge (armed robbery) for which he was not indicted in that the indictment recited, “. . . committed the offense of robbery, in that they, by the use of force, and while armed with a dangerous weapon, . . . .” It is further maintained that the indictment was so ambiguously worded that defendant was denied his constitutional right to be apprised of the nature and cause of the accusation brought against him.

Our Criminal Code defines two separate offenses of robbery and armed robbery and provides a separate punishment for each. A reading of the indictment, however, clearly evidences the existence of all of the requisite elements for the offense of armed robbery. It is the definitional elements of an offense which must be given legal efficacy and not the generic term used to categorize that offense. As stated in People v. Dudin, 3 Ill2d 16, 19, 119 NE2d 742, 744 (1954):

“Every indictment is deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense.”

Cf. People v. McLain, 79 Ill App2d 131, 223 NE2d 235. Thus, the defect, if any, is one of form not substance and does not constitute grounds to disturb a conviction.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE and BRYANT, JJ., concur.


author: MR. JUSTICE BURKE

text:
    Estelle Werderitz, Estelle Werderitz, as Administrator of the Estate of Leonard Werderitz, Deceased; Dorothy Cosentino, et al., Plaintiffs-Appellants, v. Henry Berkhout, Jr., et al., Gold Building Corp., a Corporation, Harper & Sixty-Third Corp., a Corporation, Stony & Sixty-Third Building, Inc., a Corporation, James Cahill, Central National Bank in Chicago, a Corporation, as Trustee Under Trust No. 1003, George J. MacLean, Administrator of the Estate of Albert Schlossberg, Deceased, and Alan G. Schwartz, Defendants-Appellees.
    Gen. No. 51,102.
    First District, Second Division.
    April 11, 1967.

      Steinberg, Polacek & Steinberg, of Chicago (Bradley D. Steinberg, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson and Richard E. Mueller, of counsel), for appellees, Harper & Sixty-Third Corp., and Stony and Sixty-Third Building, Inc.
   MR. JUSTICE BURKE

delivered the opinion of the court.

The cause of action by plaintiffs who had sustained severe personal injuries and extensive medical expense in a collision of two automobiles, was against various tavern operators and real estate owners under the Dram Shop Act. By the time of trial the only defendants remaining in the lawsuit were Harper & 63rd Corporation and Stony & 63rd Building, Inc., represented by Mr. Harold Jacobson of the law firm of Lord, Bissell and Brook; and Vera Kljajic, Gold Building Corporation, George J. MacLean, Administrator of tha Estate of Albert Schlossberg, deceased and Alan G. Schwartz, represented by J. Richard Stanton.

On February 10, 1965, the trial commenced before Judge Charles R. Barrett. Plaintiffs were represented by Messrs. Matthew and Bradley Steinberg. The defendants, Vera Kljajic, Gold Building Corporation, George MacLean, Administrator of the Estate of Albert Schlossberg and Alan G. Schwartz were represented by J. Richard Stanton (hereinafter called the Stanton defendants). The defendants who are appellees, the Harper & 63rd Corporation and the Stony & 63rd Building, Inc., were represented by Harold Jacobson of the law firm of Lord, Bissell & Brook (hereinafter called the Jacobson defendants). Settlement negotiations were conducted before and during the trial. These negotiations at the commencement of the trial resulted in the Jacobson defendants offering to pay $10,000 for a release of their liability. The Stanton defendants offered to pay $10,000 in settlement of their liability. The plaintiffs demanded a total of $25,000. A jury was impaneled and the trial begun. After a mistrial, the selection of a new jury and the beginning of a second trial, the plaintiffs reduced their total demand to $23,000. The Stanton defendants thereupon increased their offer to $12,000.

Harold Jacobson, having no further settlement authority, telephoned a Mr. Walter Remdt, and requested Mr. Remdt to come to Judge Barrett’s chambers to discuss settlement. Mr. Remdt came to Judge Barrett’s chambers and in the presence of attorneys and the Judge, agreed to pay $11,000 on behalf of the Jacobson defendants. Pursuant to the agreement, Judge Barrett, on February 16, 1965, entered an order dismissing the suit. Each set of defendants sent separate releases, reciting separate consideration and terms. The releases reflected the offer and acceptance made by and between the respective parties. The documents releasing the Jacobson defendants were executed on March 9, 1965, by the plaintiffs Estelle Werderitz, individually and as Administratrix of the Estate of Leonard Werderitz, in consideration of the payment of $7,000, and Dorothy Cosentino and James Cosentino in consideration of the payment of $4,000 and thereafter returned to Harold Jacobson. On March 22, 1965, two checks payable in the amount and manner set forth in the Jacobson releases were forwarded on behalf of the Jacobson defendants to the plaintiffs and their attorneys.

The plaintiffs also executed releases in settlement of their claims against the Stanton defendants and had returned these releases to Mr. Stanton. The consideration called for in the Stanton releases, however, was never paid, because the Lincoln Casualty Company of Springfield, Illinois, the insurer of the defendants represented by Mr. Stanton, became insolvent subsequent to the settlement. Because of the insolvency of the Lincoln Casualty Company and its inability to pay the consideration for the Stanton releases the plaintiffs sought to rescind the settlement agreement with the Jacobson defendants even though these defendants had fully performed their agreement. The settlement checks of $7,000 and $4,000 respectively which had been forwarded to the plaintiffs’ attorneys were not cashed. Instead, on April 9, 1965, the plaintiffs filed a petition to set the settlement agreement aside and to reset the cause for trial. After listening to all the evidence and reading the briefs, the court, on August 13, 1965, denied plaintiffs’ petition to vacate the order of dismissal as to the Jacobson defendants, but in view of the failure of consideration vacated the dismissal with respect to the Stanton defendants. The court found (Judge Barrett presiding) that the settlement agreements, though negotiated simultaneously, were separate and distinct agreements; that the documents executed by the plaintiffs as to the Jacobson defendants are valid; and that the failure of the Stanton defendants to perform their agreement did not invalidate the executed agreement between the Jacobson defendants and the plaintiffs. In addition, Judge Barrett recognized that because the settlement agreement between the Jacobson defendants and the plaintiffs had been called a release, the Lincoln Casualty Company or the Stanton defendants might, at a subsequent date, contend that the release agreement between the Jacobson defendants and the plaintiffs constituted a full satisfaction of the plaintiffs’ claim and therefore barred any further action against the Stanton defendants. In an endeavor to prevent the Stanton defendants from benefiting from their failure to perform their agreement, Judge Barrett modified the release agreement between the plaintiffs and the Jacobson defendants to show that the agreements were in fact covenants not to sue and to thereby preserve the right of the plaintiffs against the Stanton defendants. The major part of the negotiations took place in Judge Barrett’s presence. The plaintiffs appeal.

Appellants maintain that there was an oral contract between the parties which created a binding joint settlement agreement by the terms of which the Jacobson defendants and the other defendants were jointly bound and that plaintiffs having only authorized a single total settlement in the sum of $23,000 in return for dismissal of their action are not bound to any alleged several agreement or agreements producing less than such sum. The Stanton defendants point out that a release or accord and satisfaction extinguishes or discharges the entire cause of action while a covenant not to sue does not affect the cause of action but only the right to sue thereon; that the agreement of all the parties involved a single suit and a settlement for a total amount of $23,000 for which plaintiffs’ total cause of action would be discharged; and that a covenant not to sue is only used where the circumstances indicate that the parties intend that the plaintiff preserve a cause of action against other defendants.

The Stanton defendants further assert that assuming that the “releases” are determined to be an agreement between the plaintiffs and the Jacobson defendants, then parol evidence is admissible to prove the existence of the fundamental assumption upon which the releases were based, that the binding effect of the releases was conditional upon each defendant paying its share of the promised commitments and that the true consideration was that each defendants’ group was to obtain the benefit of the promise of the other defendants’ group so that the total settlement would be a figure acceptable to the plaintiffs and from which the plaintiffs would each give of the said defendants a complete release. Finally, the appellants argue that the findings of fact made by the trial court in its amended order are contrary to the applicable law and are against the manifest weight of the evidence.

The findings of a trial court will not be disturbed unless against the manifest weight of the evidence or unless the findings are palpably erroneous. The facts for the most part are undisputed. After a mistrial and after the start of the second trial an oral agreement for settlement was entered into on February 16, 1965, pursuant to which the court dismissed the cause. Thereafter the settlement agreements with the plaintiffs were reduced to writing in the form of releases which were submitted to the plaintiffs through their counsel for execution. The agreements were executed by the plaintiffs on March 9, 1965, releasing the Jacobson defendants in consideration of $7,000 to Estelle Werderitz and $4,000 to Dorothy Cosentino and James Cosentino. The settlement consideration set forth in the settlement documents was forwarded to the plaintiffs on March 22, 1965. After the releases were returned it was learned that the Lincoln Casualty Company, the insurer of another tavern (not the tavern of the Jacobson defendants,) had become insolvent and may be unable to pay the consideration set forth in the settlement agreement. As a result of this discovery the plaintiffs endeavored to rescind their settlement agreement with the Jacobson defendants on the basis that the failure of consideration of the settlement with the Stanton defendants rescinds the agreement with the Jacobson defendants.

The trial judge, examined the settlement documents, heard testimony received and read briefs and found that the settlement agreements were separate and distinct agreements and that the failure of the Stanton defendants to perform their separate agreement did not invalidate the agreement between the Jacobson defendants and the plaintiffs. The trial judge was in attendance during the course of the settlement negotiations and had personal knowledge of what transpired before him. It is not disputed that a settlement agreement was entered into by plaintiffs with the Jacobson defendants and that the sole factor which caused the plaintiffs to change their mind in completing the settlement was the fact that the settlement agreement entered into by plaintiffs with the codefendants could not be completed by the insurer of the codefendants.

It is undisputed that the Jacobson defendants originally offered to pay $10,000 to satisfy their liability, if any, to the plaintiffs for the injuries which the plaintiffs sustained and that the Jacobson defendants offered to dispose of the litigation, finally did and were the last parties to agree to pay $11,000 to the plaintiffs for a release of their liability. The Jacobson defendants never agreed to pay the plaintiff $23,000 and did not agree to perform on behalf of the Stanton defendants. The Jacobson defendants have carried out their agreement to pay the plaintiffs $11,000 in release of their liability as shown by both the oral negotiations prior to the trial and by the written settlement documents. The plaintiffs’ argument that they had authorized the settlement of their claim upon the payment of $23,000 only, is without merit. The agreement signed by the plaintiffs shows that each knew precisely the amount of consideration to be received. In fact, not one of the plaintiffs was to receive $23,000. This amount was to be divided among each of three plaintiffs and the exact division was specifically recited in the settlement agreements when executed by the plaintiffs. The settlement agreements recited the intentions of all the contracting parties and were agreed to by all the contracting parties.

We have examined the cases cited by the appellants in support of their position and find them inapplicable to the factual situation presented by the record in the instant case.

As shown by the releases executed by each of the plaintiffs the settlement was not a lump sum settlement for all of the plaintiffs to be paid by all of the defendants. Each of the plaintiffs was to be paid a specific amount by each of the defendants. Estelle Werderitz, individually and as administratrix, was to and did receive $7,000 from the Jacobson defendants. Dorothy and James Cosentino were to and did receive $4,000 from the Jacobson defendants. Not one of the three plaintiffs was to receive $23,000. The only way that the plaintiffs could have been unaware of the amounts which each was to receive from each tavern was to fail to listen at the negotiations and to fail to read the settlement documents. The settlements were obviously authorized by the plaintiffs. The trial court admitted parol evidence of the prior negotiations between the parties which resulted in the settlements and found that the settlement between the plaintiffs and the Jacobson defendants was a separate, valid and binding agreement on all the parties. The question of admissibility of parol evidence is not an issue on this appeal since the trial court admitted all the parol evidence which the appellants sought to introduce.

Answering the contention of plaintiffs that it is inconceivable that they would have settled with the Jacobson defendants alone for the sum of $11,000, the Jacobson defendants say that there is no disclosure as to why such a settlement is inconceivable and point out that originally the plaintiffs filed suit against the driver and owner of the automobile and against four taverns; that the suit against the driver and owner of the automobile was apparently settled prior to the trial, since it was dismissed on February 2, 1965, and that the disposition of the case against the other taverns is not disclosed. Appellees state that the plaintiffs were apparently willing to settle their claims against the tortfeasor causing their injury, the driver of the automobile, without receipt of the full payment for their injury for which the driver may have been liable and that in view of the credit to which Dram Shop defendants are entitled to receive from payments received by the injured parties from the automobile insurers and the normal risks of trial, it does not appear, nor does the record disclose, why it is inconceivable that the maximum settlement value of plaintiffs’ claim against the Jacobson defendants was the sum of $11,000. Any settlement agreement contemplates a release of the defendants paying the consideration from any further liability. The release does not necessarily result in a payment of the full amount of the damage.

The releases executed by the plaintiffs releasing the Jacobson defendants released only the Jacobson defendants and no others from any further liability to the plaintiffs. The releases did not recite that the consideration to be paid constituted the payment of the full amount of damage. Each release specifically recited that the Jacobson defendants denied that they were liable for the injuries and that the settlement amounts were paid in settlement and compromise of all claims without in any way admitting liability for any claim made by the plaintiffs. The Jacobson defendants never agreed to pay more than the $11,000, which they did pay and which the plaintiffs agreed to accept.

The appellees do not argue in support of or against the acts of the trial judge in modifying the release agreements between plaintiffs and the Jacobson defendants to show that the agreements were in fact covenants not to sue.

We are of the opinion that the trial judge was right in deciding that the settlement agreement between the Jacobson defendants and the plaintiffs was a separate and distinct agreement binding upon the plaintiffs and that the court’s findings are not against the manifest weight of the evidence. Therefore the order of September 29, 1965, denying plaintiffs’ petition and supplemental petition to vacate the order of dismissal is affirmed.

Order affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE BURT

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Jinkins, Defendant-Appellant.
    Gen. No. 66-50.
    Second District.
    April 13, 1967.
    Rehearing denied May 8,1967.

      Kenneth F. Miles and Ernest R. Akemann, of Elgin, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellee.
   MR. JUSTICE BURT

delivered the opinion of the court.

William Jinkins, the defendant, was tried by a jury in the Circuit Court for the 16th Judicial Circuit, Kane County, for armed robbery. The jury returned a verdict of guilty and judgment was entered against him on March 8, 1965, after motions for new trial and for judgment notwithstanding the verdict were denied. The court sentenced the defendant to the penitentiary for a term of 7-21 years. Leave was granted defendant to appeal to this court.

The Fox Valley Country Club, just south of Batavia, Illinois, on Illinois State Route 25 in Kane County, was robbed at about 1:00 a. m. on August 27, 1964, by four armed robbers, three of whom entered the country club and participated in the robbery while the fourth waited a short distance away in a car. The getaway was made in two cars. The manager, J. D. Whittle, his wife, and several customers were present at the time. The defendant was arrested for the crime about two weeks later.

Defendant relies upon four grounds of alleged error in his petition for leave to appeal.

First, he complains that the verdict of the jury was contrary to the law and to the manifest weight of the evidence, and that the defendant was not proven guilty beyond all reasonable doubt. The principal defense was alibi. The defendant and three witnesses, Edna Doris Cole, J. C. Fields and Billie Stockton Myrick who were employees, or acquaintances of the defendant, testified that the defendant was in his tavern in Chicago during the hours when the robbery was taking place.

The abstract does not include the substance of the testimony produced by the State to identify the defendant and his participation in the robbery. The record, however, shows that J. D. Whittle, the manager of the country club, identified the defendant as one of the men who held him up at gunpoint and made him open the safe, get the money, and then lie down on the floor until the customers were searched and robbed and the getaway complete. He testified that he saw the defendant at a distance of 12 feet and face to face. He saw the defendant close up three times. He also quoted the defendant as saying to the witness as the witness was getting up off the floor where he had been compelled to lie, “If you try anything funny, I’ll shoot your wife.” In addition, the witness Henry Mayberry, one of the participants who pleaded guilty, testified in detail as to the plans for the robbery and the acts of the robbers while committing the crime. Mayberry had worked for the defendant in the defendant’s tavern for about two weeks as bartender prior to the crime. The witness rode with Jinkins in the witness’s car and followed the other participants who were driving in a Ford to the scene. The witness described his car, the road taken to the scene of the crime and the clothing worn by the participants. Frank Francis Robinson testified he followed defendant’s car from the scene and saw defendant in the back seat. He identified defendant at a police show-up also.

The jury heard and saw the witnesses and had an opportunity to consider the weight of both the State’s and the defendant’s evidence. This court cannot say that the verdict was contrary to the manifest weight of the evidence.

As to the second complaint that the indictment was insufficient because the date of the offense was blurred and unreadable, the indictment is not abstracted, but the record is clear on the date as the 27th of August 1964.

The third complaint of the defendant is on the admission and exclusion of evidence. The defendant objects that he was not permitted to introduce evidence of his good character and reputation, citing People v. Lewis, 25 Ill2d 442, 185 NE2d 254 (1957); and People v. Guzzardo, 4 Ill App2d 355, 124 NE2d 39 (1955).

The Lewis case, in which the charge was rape, held that the defendant in a criminal case can make proof of such previous good character as is inconsistent with commission of the crime with which he is charged, and that this proof is made by showing his general reputation for the specific trait of character involved, to suggest the inference that the accused acted consistently with his character.

The Guzzardo case, above cited, was a conviction for violation of the statute relating to unlawful assembly and the court held that the defendant’s reputation for being trustful, law abiding, and peaceful citizen could be shown.

As to the defendant’s reputation, four witnesses were produced by defendant. Karl Laskowski, the defendant’s barber, testified as to his customary haircut style, but also was asked the following questions and gave the following answers:

“Mr. Juergensmeyer: Do you know the defendant’s reputation in the neighborhood?
“Witness: How do you mean ?
“Mr. Juergensmeyer: Do you know of his reputation in the neighborhood?
“Witness: As best I could as a customer of mine, and as far as his private life, I don’t know anything about that.
“Mr. Juergensmeyer: What was his reputation in the neighborhood, to your knowledge ?
“Mr. Ketcham: I’ll object Your Honor. He hasn’t laid a foundation.
“The Court: Sustained.
“Mr. Juergensmeyer: How often did you say that you have seen the defendant during this period— the month of August, 1964 ?
“Witness: A couple of times a week, more than once every week I would see him. Maybe I would see him one day and the next day I would not, but I would see him the next day after that.
“Mr. Juergensmeyer: To your knowledge, had he ever associated with known criminals in the neighborhood ?
“Witness: Not that I know of.
“Mr. Juergensmeyer: Where you acquainted with his general reputation in the community, and his reputation for truth and veracity?
“Mr. Ketcham: I’ll object. That’s two questions.
“The Court: Sustained.
“Mr. Juergensmeyer: Were you acquainted with his general reputation in the community ?
“Witness: Yes.
“Mr. Juergensmeyer: Was it good ?
“Mr. Ketcham: I’ll object Your Honor. I don’t think there is an adequate foundation.
“The Court: Sustained.”

No proper foundation was laid for these questions and they were too generalized, since they did not call for any appropriate trait of character related to robbery.

Edna Doris Cole was asked if she was acquainted with the defendant’s reputation in the community for truth and veracity. Objection was properly sustained to this question as it was irrelevant and had no bearing on any trait of character involved in the crime of armed robbery, People v. Kendall, 357 Ill 448, 456, 457, 192 NE 378 (1934).

The witness J. C. Fields was asked whether he was familiar with the defendant’s reputation for peacefulness in the community. Objection was properly sustained. The case of People v. Redola, 300 Ill 392, 133 NE 292 (1921), a larceny case, holds that evidence of defendant’s reputation as a peaceable citizen is not relevant in a trial for larceny. The court stated that the inquiry must relate to the defendant’s character with respect to a crime of the nature involved and that evidence of general reputation for a trait of character not involved in the crime charged is not admissible. The court held the characterization as “peaceable” had no relation to the crime of larceny. The People v. Celmars, 332 Ill 113, 117-118, 163 NE 421 (1928). Cleary, Handbook of Illinois Evidence, 2nd Edition, 1963, pages 212, 213.

Complaint was also made that the testimony of the witness Benjamin B. Smith was excluded. The record also shows he was asked about defendant’s reputation for peacefulness (with no foundation being laid) and as to his association with criminals. This evidence was properly excluded.

As stated in People v. Guzzardo, 4 Ill App2d 355, 124 NE2d 39 (1955), page 371 . . . “it is not the purpose of a reviewing court to determine whether the record is perfect, but to determine whether the defendant has had a fair trial under the law, whether the conviction is based upon competent evidence establishing guilt beyond a reasonable doubt, and whether there was any such error as might be prejudicial to the defendant’s rights: . . . (Citing cases.)”

“Good character and reputation evidence, where such is in issue, is, of course, entirely proper and permissible to be considered as a part of the defendant’s case, along with all the other evidence in the case, though it is not a defense, as such, to a crime; it may, in a particular case, be sufficient to raise a reasonable doubt as to guilt; its sufficiency and weight, like that of all other evidence, however, is a question of fact for determination by the trier of the facts; if guilt is clearly established, good character or reputation avails nothing; People v. Munday (1917), 280 Ill 32; People v. Hrdlicka et al. (1931), 344 Ill 211; People v. Klemann (1943), 383 Ill 236; People v. Cozzie (1947), 397 Ill 620; People v. Bridgewater (1938), 369 Ill 633.”

Even if these rulings on reputation evidence were incorrect, yet the competent evidence so overwhelmingly and thoroughly proves defendant’s guilt beyond a reasonable doubt that we would not be justified in setting aside the conviction. The People v. Reeves, 360 Ill 55, 195 NE 443 (1935), on this ground only.

Objection was also made to the introduction by the People of photographs of the defendant taken about three weeks after the crime was committed. It is claimed that these photographs tended to show the defendant’s hair long. The length of the defendant’s hair at the time of the occurrence was at issue. The People’s witness Robinson asserted that the defendant had a cowlick and defense witness Laskowski asserted that his hair was short. The state pointed out, however, that the defendant was present in the court at all times during the trial for the jury to see and if his appearance did not match the photograph, the jury could see that too. He was also identified by the witnesses Mayberry, Loturco, Whittle and Prank Francis Robinson.

Finally, defendant complains that errors were made in the refusal to give three of defendant’s instructions. There were 18 instructions given in all and only four were abstracted.

As was stated in Pantlen v. Gottschalk, 21 Ill App2d 163, 157 NE2d 548 (1959):

“This point cannot be considered by this court since the defendant failed to abstract all of the instructions given in the cause. Our courts have uniformly held that error cannot be predicated upon the giving, refusal or modification of instructions unless all the instructions are set out in the abstract, for the reason that there may have been other instructions given which cured the errors complained of. Reavely v. Harris, 239 Ill 526; Thompson v. People, 192 Ill 79; Siegel, Cooper & Co. v. Norton, 209 Ill 201; Randall Dairy Co. v. Pevely Dairy Co., 291 Ill App 380.”
Other cases in point are: The People v. Todaro, 14 Ill2d 594, 153 NE2d 563 (1958); The People v. Husband, 4 Ill2d 451, 123 NE2d 315 (1954); People v. Gardner, 61 Ill App2d 326, 210 NE2d 545 (1965); People v. Robinson, 27 Ill2d 289, 189 NE2d 243 (1963).

Review of this record indicates that the jury was justified in finding this defendant guilty beyond all reasonable doubt and the defendant had a fair trial. The judgment of the Circuit Court of Kane County is, therefore, affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Defendant in Error, v. David Sanders (Impleaded), Plaintiff in Error.
    Gen. No. 51,456.
    First District, Third Division.
    April 13, 1967.
    Leon C. Rane, of Chicago, for plaintiff in error; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by

JUSTICE DEMPSEY.

Not to be published1 in full.