author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ollie Hammonds, Defendant-Appellant.
    (No. 71-143;
    Fifth District
    June 8, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Edith L. James,. of counsel,) for appellant.
    •: Nicholas G. Byron, State’s Attorney, of Edwardsville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Ollie Hammonds, represented by appointed counsel, pleaded not guilty to the charge of attempted murder and attempted armed robbery as charged by indictment in the Circuit Court of Madison County. The trial was held to a jury and resulted in a finding of guilty. The judgment of conviction was entered by the court on October 29, 1970. After a hearing in aggravation and mitigation, the defendant’s application for probation was denied and he was sentenced by the court to concurrent terms of seventeen to twenty years for attempted murder and three to six years for attempted armed robbery. The defendant has brought this appeal from the judgment of the court.

The facts that give rise to this matter are as follows:

At about 2:30 A.M. on April 5, 1970, two black men entered the Site Service Station, 2840 East Broadway, Alton, Illinois. They asked the lone attendant, Robert Kincade, for some cigarettes. Kincade turned around, got the cigarettes and put them on the counter. He then stooped to get matches. When he staightened up, he was looking into the barrel of a pistol. The pistol was being held by the taller of the two men. The taller man said “This is a stick-up” then “chuckled” and shot Kincade. Kincade fell and the men left the premises.

At 2:49 A.M. of the same night, Officer James Casper of the Alton Police arrived at the station. He found Kincade lying on the floor, conscious, but in much pain. Officer Casper attempted to interview Kincade before the ambulance arrived and was told by Kincade what is above described and also that the man holding the gun was approximately six feet tall. Kincade was then taken to the hospital where he remained some three weeks until April 27, 1970.

While in the hospital, Kincade was interviewed twice by Detective John Parker. During one interview, on April 10, Kincade stated that the gunman was a Negro male, six feet tall, slender and with a thin mustache. On April 21, Kincade stated the man was at least six feet tall, was neatly dressed and had clear features. Then again on April 30, during an interview in Kincade’s home, Kincade stated that the man was a Negro in his early twenties, at least six feet tall, slender, with short hair and was wearing a very loud colored sweater. He could not describe the color of the sweater.

At about 9:00 in the morning of May 21, 1970, the defendant was arrested at his home on a charge of disorderly conduct. While the defendant was in the station, being booked on that charge, he was told that he was under arrest for investigation of attempted armed robbery and attempted murder. The arresting officer testified that the defendant was advised of his rights. The defendant at this time signed an agreement to appear in the lineup and a waiver of counsel at the lineup. A lineup was conducted. It contained four persons. All were black males. The three men other than the defendant were respectively 39 years old and 5'9", 16 years old and 5T0", 55 years old and 6'2". The defendant was age 21 and 6'3" tall. Kincade picked tihe defendant out of the lineup. On May 22, 1970, the grand jury indicted the defendant for the crimes charged.

The defendant moved to suppress Kincade’s lineup identification on the grounds that the lineup procedure was unduly prejudicial and suggestive. This motion was denied. At trial, the defendant objected to testimony by Kincade as to his participation in the lineup.

The State’s case consisted not only of the testimony of Kincade but also arresting officers and the doctor who attended Kincade.

The defendant’s chief witness was his mother, Mrs. Hosie Hammonds, who testified that on the night in question the defendant was at home asleep on the couch. She said that she was awake reading the Bible most of the night. The defendant’s brothers, Ronald and John, corroborated their mother’s testimony. They all recalled the night of April 4, 1970, because the day before the defendant had been released from jail where he had been held on a disorderly conduct charge.

A defense motion for a directed verdict was made at the close of the evidence and was denied. The jury found the defendant guilty on both charges.

The defendant has brought this appeal and urges that the court erred in failing to suppress the lineup identification. The defendant contends that the lineup was unduly suggestive and prejudicial (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.) The court must look to the facts of each case to determine whether the particular lineup is inherently unfair. (People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469.) We must, therefore, look to the totality of the surrounding circumstances to determine if the lineup was so lacking in fairness to deprive the defendant of due process. (Stovall v. Denno, supra.) As we examine the record, we cannot find where the particular lineup in this case is so lacking. There is some discrepancy as to the age and size of the others in the lineup, but we cannot hold that this alone was of such magnitude as to deprive the defendant of due process. (See People v. Keane, 127 Ill.App.2d 383, 262 N.E.2d 364.) The burden is upon the defendant to show that the lineup was so lacking as to fall within the Stovall case dictates (People v. Garcia, 7 Ill.App.3d 742, 288 N.E.2d 637), and to the extent that suggestive procedures are established, they must be shown to have been “unnecessary” under the totality of the circumstances. (Stovall v. Denno, People v. Lee.) The manner of identification goes to the weight rather than the admissibility or competency of identification evidence. People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300; People v. Taylor, 123 Ill.App.3d 430, 258 N.E.2d 823.

The defendant further contends that the victim did not have sufficient opportunity to identify the perpetrator of the felony. The victim did see the defendant inside a lighted station and had at least two occasions to look directly at the defendant as well as down the barrel of the gun. The victim was basically consistent in his identification of the wrongdoer in the numerous interviews by the officers. There were minor differences in what he reported to the officers, but his reports to the officers have more than a thread of consistency. The case at hand does not fall within the bounds of People v. Morris, 131 Ill.App.2d 443, 266 N.E.2d 444, and other cases which require that an identification not be admissible evidence if the pretrial identification is unnecessarily suggestive and conducive to a mistaken identification. The trial court in the present case had the opportunity in a pre-trial hearing to determine the propriety of the lineup. “It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses.” (People v. Novotny, 41 Ill.2d 401, 412, 244 N.E.2d 182, 188; see also People v. Jones, 6 Ill.App.3d 669, 286 N.E.2d 87.) The other cases cited by the defendant do not control the present case because they involve one man and not lineup identifications or other defects not present in this case.

Because we do not hold that “the pre-trial identification confrontation was unnecessarily suggestive and conducive to mistake identification” (People v. Morris, supra), we need not determine whether or not the subsequent in-court identifications was proved by the State by clear and convincing evidence of an independent origin. People v. Morris, supra; U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 182 L.Ed.2d 1178.

Did the trial court err in not directing a verdict at. the conclusion of the evidence because the defendant had an uncontroverted alibi? This is the next question for this court.

Once again, the defendant relies most heavily upon the complaining witness’ identification or lack of same. It would servé little purpose to once again set forth the numerous cases that state that one eyewitness is sufficient to support a conviction. (People v. Clarke, 50 Ill.2d 104, 277 N.E.2d 866.) The Clarke case not only involved a single witness identification, but also an uncontroverted alibi by the defendant and was subsequently affirmed by the Supreme Court. The defendant in Clarke, which also had identification difficulties interwoven in the problem, made the assertion “that he has not been proven guilty beyond a reasonable doubt because the identification testimony, when considered with the defendant’s alibi, is sufficient to create a reasonable doubt as to the defendant’s guilt”. The Supreme Court, when confronted with this contention stated at page 109, “We disagree.”

The Court in the Clarke case continued at page 110 that where the conviction rests on vague and doubtful identification “which does not produce an abiding conviction of guilt, it will be reversed, and that evidence of alibi cannot be disregarded where the sole and only evidence contradicting it rests upon the identity of the defendant.”

We will, of course, reverse if we find reasonable doubt of the defendant’s guilt appears in the record. (People v. Peck, 358 Ill. 642, 118 N.E. 466.) We have reviewed the cases cited by the defendant and do not feel that they are dispositive of the instant case.

The identification we have found to be competent. Therefore, the evidence and its credibility is a matter for the jury’s determination. We believe there is competent evidence to support the jury’s conviction. People v. Perry, 5 Ill.App.3d 530, 283 N.E.2d 506.

As the final issue on this appeal, the defendant states that the sentence of from 17 to 20 years for the attempted murder is excessive. The defendant, as a corollary to the contention that the sentence is excessive, also states that there is not sufficiency of proof of the crime of attempted murder but that the charge should have been aggravated assault. The charge of attempt to murder or attempted murder is composed of the elements of the attempt to kill coupled with the specific intent to commit murder. (People v. Drink, 85 Ill.App.2d 202, 229 N.E.2d 409.) It is well settled law in this jurisdiction:

“* * * that intent is a state of mind, and, if not admitted, can be shown by surrounding circumstances, and intent to take a life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances. (People v. Shields, 6 Ill.2d 200.) Also, ‘Since every sane man is presumed to intend all the natural and probable consequences flowing from his own deliberate act, it follows that if one willfully does an act, the direct and natural tendency of which is to destroy another’s life, the natural and irresistible conclusion, in the absence of qualifying facts, is that the destruction of such other person’s life was intended.’ (People v. Coolidge, 26 Ill.2d 533, 537.” People v. Koshiol, 45 Ill.2d 573, 262 N.E.2d 446. Cert. denied 401 U.S. 978.

The evidence is clear in the case at hand that the defendant “chuckled” and fired a large caliber handgun point blank at his victim. Evidence submitted is of such nature that the jury could and did conclude that there was sufficient intent to support the charge.

We do not consider that People v. Davis, 6 Ill.App.3d 622, 286 N.E.2d 8, lends support to this defendant’s contention, and under any circumstances that case is distinguishable on the facts.

A sentence of 17 to 20 years leaves little discretion to parole authorities and may be discouraging to rehabilitative efforts and under our concept of indeterminate is not a proper one. Under the Uniform Code of Corrections attempt to commit murder is a Class 1 Felony punishable by a minimum of four years unless the court, having regard to the nature and circumstances of the offense and the history and the character of defendant sets a higher minimum term, Ill. Rev. Stat., ch. 38, 5 1005 — 8 — 1, and the minimum may exceed one third of the maximum in Class 1 Felonies. Under the provisions of ch. 38, § 8 — 4(c)(3), an attempted armed robbery sentence shall not exceed the sentence for a Class 3 Felony, and in Class 3 Felonies the minimum cannot be greater than one third of the maximum imposed. (Ch. 38, § 1005 — 8 — 1 (c)(4).) We are of the opinion that in this case the trial court can best determine the proper sentences.

We therefore, affirm the conviction, but vacate the sentences and remand for sentencing under the Uniform Code of Corrections. Ill. Rev. Stat. ch. 38, § 1001 — 1 — 1 et seq.

Conviction affirmed, sentences vacated, remanded.

JONES and G. MORAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jack W. Powers, Plaintiff-Appellee, v. Robert Sturm, Defendant-Appellant.
    (No. 71-239;
    Fifth District
    June 8, 1973.

      Bernard L. Minton, of McLeansboro, for appellant.
    Joseph W. Hickman, of Benton, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from the judgment of the Circuit Court of Franklin County, sitting without a jury, wherein the court gave judgment for the plaintiff in the sum of $6000.

Plaintiff filed a complaint for injury to real property, loss of income, and impairment of credit, praying for compensatory damages in the sum of $10,000. At the conclusion of the bench trial, plaintiff oraHy moved the court for leave to file an amended ad damnum prayer for $10,000 punitive damages. Over objection of the defendant, the court aHowed the amendment.

It appears that plaintiff, on or about June 9, 1970, was the owner of two undivided working interests of and the operator of two oil and gas leases in Franklin County, Illinois. On that date, defendant, allegedly without authority, removed two gasoline operated engines from the wells, shutting down production therefrom, and took them into his possession. Plaintiff alleged that prior to the removal of the motors, the leases were producing 600 to 700 barrels of oil per month; that, prior to removal, his undivided working interest amounted to approximately $250 income per month; and that he derived from operation of the leases approximately $100 per month.

As a result of defendant’s action, plaintiff alleged that he was compelled to sell his working interests; that several investors withdrew financial support; that removal of the motors caused damage to his wells; and that subsequent to the removal of the motors plaintiff’s credit was impaired.

Defendant admitted removing the motors in lieu of a $500 debt owed him by plaintiff. Also, the defendant returned the motors to the plaintiff some five weeks after he had removed them, after plaintiff paid the debt he owed to defendant.

After judgment for the plaintiff, defendant filed a motion for vacation or modification of judgment or, in the alternative, for a new trial; his motion was denied, and this appeal follows.

The first ground upon which appeHant appeals is that the lower court, when it awarded $6000 damages, should have designated what part was compensatory and what part was punitive. Because it did not do this, the defendant urges that the court erred. In support of his contention, appellant cites Madison v. Wigal, 18 Ill.App.2d 564, 153 N.E.2d 90 involving an action to recover damages to an automobile and for personal injuries occasioned by the alleged negligence and willful and wanton misconduct of the defendant in driving his automobile. The jury returned general verdicts for the plaintiffs. On appeal, one of defendant’s contentions was that there should have been a separate verdict for punitive damages and actual damages. The appellate court agreed with the defendant but limited its decision to those situations where there was more than one cause of action, and where the defendant had objected in the trial court to the general form of verdict at the time it was rendered. Defendant, in Madison, did object to the general form of verr diet tendered by the plaintiffs and did request the trial court to submit forms of verdicts separating the punitive damages demanded in Counts II and IV from the actual damages in Counts I and III of the complaint.

In the instant situation, there was one cause of action alleging that the defendant, without authority, willfully, vexatiously and unlawfully removed two pump motors from plaintiffs land, thereby causing plaintiff injury. The complaint contained one count stating this cause of action. Further appellant does not allege, nor does the record disclose, that the defendant below made a motion to the court to separate the judgment into actual and punitive damages. The appellate court in Madison deemed this point the determinative factor in deciding whether any error was involved. Defendant’s failure to demand separate judgments at the time of the trial precludes his raising this objection because by his omission he has waived his right to do so. McCarty v. O. H. Yates & Co., 294 Ill.App. 474, 14 N.E.2d 245.

Appellant next contends that plaintiff made no mention of, nor did he pray for; punitive damages in his original complaint; that it was not until after both parties had presented their evidence and rested their respective cases that plaintiff moved the court to amend the ad damnum clause of his complaint to include $10,000 punitive damages; and that the trial court committed reversible error because he had no opportunity to make specific objections pursuant to Ill. Rev. Stat. ch. 110, §68(3). However, sec. 68(3) does not apply because that section applies only to those situations where recovery is sought on separate demands in the same complaint. Further, that section applies only to separate causes of action based upon separate transactions. In the instant case, plaintiffs causes of action were based on a set of facts resulting only from one transaction. Plaintiff amended his complaint only in regard to the ad damnum clause — nothing else. Since the ad damnum clause is not a separate cause of action, it need not be separated in a separate count.

Ill. Rev. Stat., ch. 110, § 46(3) provides that: “A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may' be just.” The allowance of material amendments after the evidence has been closed rests largely in the discretion of the trial court, and his ruling will not be disturbed on review except in cases of clear abuse. (Moneta v. Hoinacki, 394 Ill. 47, 59, 67 N.E.2d 204, 210.) Also, to the end that justice may be done, courts are liberal in the allowance of amendments conforming the pleadings to the proof, but their materiality to the evidence already introduced must be apparent. (McCartney v. McCartney, 8 Ill.2d 494, 134 N.E.2d 789, 791.) There was evidence of defendant’s willful and wanton conduct in the instant case. Therefore the trial court did not abuse its discretion by allowing plaintiff to amend his pleadings to conform to the proof.

Appellant next alleges that punitive damages cannot be awarded in the absence of a court’s finding and awarding of compensatory damages, citing (Fentz v. Meadows, (1874), 72 Ill. 540). In that case, the court held that the plaintiff should prove, to the satisfaction of the jury, actual damages sustained, without which exemplary damages could not be awarded. According to appellant, plaintiff failed to prove any compensatory damages.

Plaintiff alleged as damages the loss of income from the operation of the wells, impairment of credit, and injury to the wells. While there was a paucity of evidence concerning the latter two allegations, it was sufficient on which to base recovery, and there was evidence concerning loss of income. The general rule is that in actions of tort where the amount of profits of which the injured party is deprived as a result of a trespass can be shown with reasonable certainty such profits to that extent constitute a safe measure of damages and may be recovered. (Chapman v. Kirby (1868), 49 Ill. 211; Illinois & St. Louis R.R. & Coal Co. v. Decker (1878), 3 Ill.App. 135.) See also Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill.2d 143, 281 N.E.2d 323. In the present case, there was a sufficient showing of actual damages, involving loss of profits, to support the trial court’s award of punitive damages.

Appellant’s contention that no recovery will be based on mere guesswork or inference without evidence of facts, circumstances, and data justifying an inference that damages awarded are just and reasonable compensation for the injuries suffered is not applicable because in the instant case there was evidence from which the trial judge could adduce that defendant’s willful and wanton act was the direct cause of plaintiff’s loss of income from his oil wells for a period of five weeks. For this reason, the case of Continental Nut Co. v. Robert L. Berner Co., 393 F.2d 283, cited as authority by appellant, is not in point, because in that case the court held that the mere showing of a decline in sales and profits was not enough to show a causal connection between the alleged libel and slander and plaintiffs loss of sales and profits. In the instant case, there was evidence which showed that defendant’s shutting down of plaintiffs oil wells was a direct and proximate cause of the loss of profits.

Consequently, since evidence introduced before the trial judge was sufficient to award compensatory damages appellant’s contention that punitive damages could not have been awarded is without merit. Actual damages were shown and evidence adduced at trial warranted an assessment of punitive damages. Aladdin Mfg. Co. v. Mantle Lamp Co. of America, 116 F.2d 708, 716.

One other point appellant urges this court to consider is that punitive damages are unconscionable in modern jurisprudence and such damages are untenable, absent proof of defendant’s pecuniary status. This was an issue presented in McEwen v. Walsh (1968), 96 Ill.App.2d 326, 238 N.E.2d 616, but not decided since it was raised for the first time on appeal, whereas it should have first been raised in the lower court. There is no indication that this proposition is a rule of law and we have found no cases as authority in its favor. It is true that proof of defendant’s financial condition is proper, but it is quite another thing to say that failure to provide this proof is reversible error where there is evidence of willful and wanton conduct, and the amount of punitive damages, if any, cannot be determined. Suffice it to say, if there is “evidence sufficient to support any count, the judgment must be affirmed.” Moore v. Jewel Tea Company, 116 Ill.App.2d 109, 124, 253 N.E.2d 636, 643.

Appellant contends that the court erred in not allowing his post-trial motion for a new trial based on the discovery of new evidence concerning a fact that one of the pump motors was not working at the time the appellant took the motors. The appellant’s attorney claims he misinterpreted the appellant’s statement that “one pump was no good” to mean that it was in need of repair rather than that the pump was not in operation.

To warrant granting of a new trial for newly discovered evidence it must appear:

(1) That the evidence in question relates to the merits.
(2) That its existence was discovered after the trial and it was not known before verdict.
(3) That it could not have been discovered before verdict by reasonable inquiry and due diligence. 3A Nichols, Illinois Illinois Civil Practice, § 3890.

The appellant’s attorney in the instant case himself admits that the reason for the evidence not being presented before was that he misinterpreted the statement of his client, “the pump was no good”, to mean that it was in need of repair, but in operation, when the defendant actually meant the pump was not in operation.

The applicant for a new trial must show affirmatively that there was no lack of diligence on his part in preparing his case for trial and that he was in no manner negligent in his efforts. (Graham v. Hagmann, 270 Ill. 252, 110 N.E. 337; Powers v. Browning, 2 Ill.App.2d 479, 119 N.E.2d 795.). And the applicant has the burden to rebut the assumption that the verdict is correct and he has to show that there has been no lack of due diligence on his part. (Henderson v. Skives, 10 Ill.App.2d 475, 135 N.E.2d 186.) And unless such new evidence is of a conclusive or decisive character which would be sufficiently important as to make it probable a different verdict would be returned on another trial, a new trial will not be justified. Cohen v. Sparberg, 316 Ill.App. 140, 44 N.E.2d 335.

The appellant in the case at bar had the evidence available and with proper diligence and care, would have been able to use this evidence during the trial. Nor would the evidence, if presented, have necessitated a new verdict or the rendering of only nominal damages. The judge, therefore, did not abuse his discretion in not allowing the motion, since there was no affirmative proof of proper diligence and due care to discover the evidence from the defendant on the part of his attorney.

Accordingly, the decision of the trial court is affirmed.

CREBS and G. MORAN, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Taylor, Defendant-Appellant.
    (No. 71-168;
    Fifth District
    June 11, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   PER CURIAM:

Appellant was convicted upon his guilty plea of burglary and theft over $150 in St. Clair County. Probation was denied and appellant was sentenced to a term of from two to five years on each count, sentences to run concurrently. Appellant here seeks alternative remedies. First, he asks that this court find that the trial court abused its discretion when it denied him probation. In the alternative, he asks this court to reduce his sentence.

The Illinois Unified Corrections Code classifies burglary as a Class 2 felony and Theft as a Class 3 felony. Class 2 felonies are punishable by a minimum of one year unless the trial court makes a special determination that due to the nature of the offense or the defendant a higher minimum is required and a maximum of twenty years. Class 3 felonies are punishable by a sentence of from one to ten years with the same provise as to the minimum sentence. (Ill. Rev. Stat., ch. 38, par. 1005 — 8 — 1(b) (3) and (4).) The Code further specifies that for Class 2 and 3 felonies the minimum shall not exceed one-third the maximum. (1005 — 8— 1(c)(3) and (4).) This court held in People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107, that cases brought to this court on appeal will be treated under the Code for resentencing.

Thus it is clear that this case must be returned to the trial court for resentencing. Appellant also claims that the trial judge abused his discretion in denying probation. Appellant asserts that the trial judge considered arrests where no disposition was reached and came to the conclusion that appellant was leading a “life of crime.” If this is the case, the decision to deny probation may have been an abuse of judicial discretion. Since this cause is to be returned to the trial court for resentencing, it would be proper for that court to reconsider appellant’s motion for probation.

Remanded with directions.


author: Mr. JUSTICE EGAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herron Love, Defendant-Appellant.
    (No. 57086;
    First District (1st Division)
    March 5, 1973.

      Rehearing denied July 19, 1973.

    Glenn C. Fowlkes, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE EGAN.


author: PER CURIAM: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas King et al., Defendants-Appellants.
    (Nos. 57130-31 cons.;
    First District (2nd Division)
    April 24, 1973.

      Supplemental opinion upon denial of rehearing July 5, 1973.

      DOWNING, J., took no part.
    James J. Doherty, Public Defender, of Chicago, (Stanley L. Sacks and Robert Morel Gray, Assistant Public Defenders, of counsel,) for appellants.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and George M. Keane, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM:

Defendants, Thomas King and Golden Williams, were convicted in a bench trial of knowingly carrying a weapon concealed in a vehicle in violation of ch. 18, sec. 24 — 1(a) (4), and of failing to have in their possession a firearms owner’s identification card in violation of ch. 38, sec. 83 — 2. Defendants were placed on probation for one year on condition that each serve the first sixty days in the House of Correction. On this appeal defendants argue: (1) the search was unlawful because it was conducted without probable cause in that the reliability of the informant was not established, and because there were no “exigent circumstances present” which prevented the officers from obtaining a warrant to search the vehicle; (2) since the defense did not consent to the stipulation that the evidence taken on the motion to suppress be allowed in the case-in-chief, there was no testimony to connect the defendants with either the weapons in question or the car involved; and (3) defendants were not proved guilty beyond a reasonable doubt because the prosecution did not show that they had knowledge that the firearms were in the automobile and were immediately accessible to the defendants. Since we conclude that the search was unlawful, it is unnecessary to consider the latter contentions.

At the hearing on defendants’ motion to suppress the guns as evidence, Golden Williams testified: At about 1:00 A.M. on October 16, 1971, he was in his mother’s automobile with Thomas King and Bernard Boyde; the car was parked and the police approached and told “us to get out with our hands up”; the police told them to get out and hold their hands up in the air and then lie down on the ground, and proceeded to search “us to see if we had any weapons”; they asked him for a driver’s license, which he showed them; and, after a search of his person, the police made a search of the vehicle and recovered a .22 caliber pistol and a .25 caliber automatic pistol from the glove compartment, and a rifle, a shotgun, and a “.30R6” [sic] from the trunk; he had been parked there for about half an hour; it was about 1:00 A.M. at 2836 W. Lexington, a residential side street.

Chicago police officer William Brown then testified: he is an officer with the Gang Intelligence Unit and on October 16, 1971, about 12:30 A.M. in the area of Lexington and California, he received information that an automobile would be in this area at a certain time, 1:00 A.M. to be exact, and have ammunition and guns in the car to sell to a certain party in the area; he conducted a “stake-out” at California and Lexington, and, after about 30 to 45 minutes, approximately 1:00 A.M., a white, 1965, Mercury automobile came up and parked in front of the address 2836 W. Lexington; in the approximately three minutes before the officers approached the automobile, five or six automobiles had come “through the area” and “just passed”; he announced himself as a police officer, told the occupants “to remove themselves” from the automobile, placed them under arrest, and searched the vehicle. Upon cross-examination, he testified that at “about five minutes to twelve” he had received a phone call that a sale of weapons was going to occur; the call was from an informant he had known for two years; the information was that a white, late model vehicle would be in the area, and would contain two people (but three were, in fact, in the vehicle); the officer knew the informant for two years, had received information from him on prior occasions, ten, fifteen times, and some resulted in actual arrests, but not convictions.

The State, apparently conceding that there was no lawful arrest, even for a traffic violation, argues that the right to search an automobile, as opposed to the person (of a suspect or a defendant) or premises, is not dependent on the right to arrest, but can be grounded on the reasonable cause that the officers have to believe that the contents of the automobile offend against the law. (Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280; Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975; Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022.) Defendant, on the same authority, argues that the warrantless search of a parked, although movable, vehicle requires not only probable cause, but also proof of exigent circumstances justifying the search.

One of the circumstances to be considered in determining probable cause, the defendant argues, is whether the information upon which the search is based is hearsay, and, while hearsay may support a search warrant, there must also be a substantial, independent basis to support the credibility of .the hearsay information. (Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) The Illinois Supreme Court has said that it encourages the police to seek warrants, rather than to act on their own; consequently, a higher standard is required of police officers acting on their own than of magistrates issuing warrants, and a magistrate’s issuance of a warrant will be upheld “on evidence of a less persuasive character than would have justified an officer acting on his own determination and without a warrant”. (People v. Saiken (1971), 49 Ill.2d 504, 511, 275 N.E.2d 381.) Therefore, the “substantial, independent basis” to support the credibility of the hearsay information which Aguilar v. Texas requires before the issuance of a warrant must also be present and to an even greater degree where, as here, an officer is acting on his own without a warrant. The fact that the search was of an automobile, rather than of the person or of premises, does not affect the need for the State to show probable cause; it merely affects the showing of the “exigent circumstances” which may excuse the failure of the police officers to procure a warrant.

The State’s evidence on the motion to suppress reveals only that the officer had known the informant for two years and that information previously furnished had led to arrests, but not to any convictions or to the recovery of any contraband. The State argues that the informant’s information was substantiated by the “events” just prior to the search, but the only “event” to which the State refers is that “the defendants arrived in the area, at the time and in the type of car as described by the informant, and were joined by a third individual”. However, the testimony heard at the hearing on the motion to suppress does not support the State’s assertion that the two men were “joined by a third individual”. The testimony of the defendant and the police officer agreed that three men were in the car when the arrest was made; the officer testified no cars stopped in the three minutes before the officer approached. It was not until the officer was recalled in connection with the case-in-chief that he answered a question about “how many people” were in the vehicle that stopped: “Two at the time, and one came in, got in.” Once the defendant has made a prima facie case that the police lacked probable cause (i.e. by evidence that the police had no warrant and defendant was doing nothing unusual when stopped), the State must prove probable cause at the hearing itself, not later at the trial. (People v. Cassell (1968), 101 Ill.App.2d 279, 284-285, 243 N.E.2d 363.) We conclude that the informant’s statement was not supported by any substantial, independent basis, as required by Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.

The behavior observed by the police officers in this case was innocent. Entirely absent from the situation here is any evidence from which the officers could even suspect that any illegal activity was afoot. This total lack of incriminating circumstance is what distinguishes this case from the leading Illinois case, People v. Canaday (1971), 49 Ill.2d 416, 275 N.E.2d 356.

Since the State did not prove that the officers had probable cause to believe that the contents of the automobile offended against the law and that there were exigent circumstances present that justified a warrant-less search, the search of defendant’s automobile was unlawful and the motion to suppress, consequently, should have been granted. The judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

SUPPLEMENTAL OPINION UPON DENIAL OF PETITION FOR REHEARING

PER CURIAM:

On petition for rehearing, the State contends that the conviction of defendants was improperly reversed. The State argues that the police had probable cause to conduct the warrantless search based on the informant’s tip. We held that it did not.

In Aguilar v. Texas, 378 U.S. 108, 114, the Supreme Court held that hearsay may justify the issuance of a search warrant if the affidavit sets forth some underlying circumstances tending to substantiate the informant’s conclusions, and some underlying circumstances from which it could be believed that the informant’s information was credible or reliable. A showing of underlying circumstances to support both the informant’s conclusions and his reliability is even more necessary in order to show probable cause for a warrantless search (People v. Saiken (1971), 49 Ill.2d 504, 511, 275 N.E.2d 381), though the underlying circumstances to show prior reliability need not be as strong when the informer is a citizen informer rather than a professional informer (Draper v. U.S. (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327). Moreover, the principles just stated as to the reasonableness of a warrantless search presuppose a reasonable showing of exigency.

Our holding was essentially targeted on the matter of the showing of underlying circumstances to support the informant’s conclusions, rather than on the matter of exigency or prior reliability. To illustrate our view of the basic flaw in the instant case, we contrast the instant case with the case of People v. Herbert (1971), 131 Ill.App.2d 518, 268 N.E.2d 205, in which this court reversed and remanded with directions to the trial court to deny defendant’s motion to suppress evidence. In Herbert, a police officer testified that he had received a call from an informant whom he had known for nine months. He knew this person through “prior meetings, prior conversations, prior acquaintances”. These prior occasions had resulted in approximately ten arrests, but no convictions as of the time of the incident. The informant told the officer that, at approximately 3:30 P.M.,in the vicinity of 2621 W. Greenleaf Avenue, an individual was going to deliver narcotics to the Lincoln Park area in a 1963 gold-colored Cadillac. The informant did not describe the individual, but told the officer that he had seen the individual put the “contraband” in the trunk of the car. The officer began a surveillance of 2621 W. Greenleaf, and, at approximately 3:30 P.M., they saw defendant and another person enter a gold-colored Cadillac.

Our court in Herbert held that the officer’s testimony was credible and that the officers had probable cause to search the Cadillac. In that case, all the requirements for Aguilar were met: the reliability of the informant was established because, even though prior arrests based on the informant’s tips had not led to convictions, the informant had told the officer that he knew that narcotics were in the trunk of the Cadillac because he had seen “the contraband” placed there; and the officers, by observation at the scene, had personally corroborated the descriptive details which had been given by the informant.

In the instant case, the informant had been known to the officers for two years, and information which he had furnished had led to arrests but not to convictions or recovery of contraband. The latter fact (as partially explained by the further fact that the Gang Intelligence Unit frequently deals with juveniles), plus the fact that the informant here was a citizen informant, may well meet the requirement of underlying circumstances to support the informant’s prior reliability. And the time available plus the movability of the car may well provide a reasonable showing of exigency. But there was no testimony by the officer as to how the informant knew that weapons would be in the car or that there was to be a sale of weapons. Therefore, no underlying circumstances were presented tending to substantiate the informant’s conclusions. The corroboration by police by personal observation at the scene substantiated some of the facts of the tip, but none of the substantiated facts, as adduced at the hearing on the motion to suppress, were in themselves incriminating up to the time the police acted. Under Aguilar this is not sufficient.

Petition for rehearing denied.

DOWNING, J., took no part in the consideration or decision of this case.


author: Mr. JUSTICE LORENZ

text:
    George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Northern Illinos Gas Company, Defendant-Appellee.
    (No. 55934;
    First District (5th Division)
    March 23, 1973.

      Modified upon denial of rehearing July 20, 1973.

      J. Edward Jones, of Blue Island, for appellant.
    Joseph J. Jares, Jr., of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court as modified upon denial of petition for rehearing:

Plaintiff appeals from a judgment of the circuit court in favor of defendant.

The facts are summarized. On November 17,1969, plaintifFs authorized agent, L. H. Smith, signed a contract on behalf of plaintiff to install, service and maintain vending machines on the premises of defendant.

An employee of defendant, Kenneth Schmitz, signed the contract in his own name under the heading “(Individual) Proprietor.” The space for signing as “(Corporation) Proprietor” was left blank. L. H. Smith wrote “Northern Illinois Gas Co.” on the blank entitled “Trade Name.” Plaintiff installed the machines and served the defendant at three of its locations from December, 1969 to March, 1970.

On April 8, 1970, A. J. Morphey, division personnel director of defendant, sent a letter to plaintiff, complaining of plaintiff’s failure to properly service the machines, to provide certain new machines, and to maintain the machines in sanitary condition. Morphey then requested plaintiff to remove the machines from defendant’s premises. On April 9, 1970, a letter sent by plaintiff’s attorney to Morphey maintained that either each situation complained of did not occur or was not the fault of plaintiff. The letter expressed plaintifFs intent to continue to perform the contract. Also on April 9, in a separate envelope, pursuant to the contract, a check for $260.42 payable to defendant for commissions and a statement of the account were sent to defendant.

Plaintiff alleged in its complaint that defendant breached the contract by refusing to permit the installation, servicing and maintenance of machines tendered for installation or already installed. In lieu of an answer, on June 18, 1970, defendant filed a motion to dismiss the complaint on grounds of legal insufficiency. The motion alleged that the contract is not binding on defendant since signed by an individual proprietor, Kenneth Schmitz; that the alleged contract limits the relief which may be sought; that, plaintiff’s sole remedy is in chancery; that since plaintiff drafted the contract, it should be construed against it; that the parties to the contract lacked written authorization; and that Leland Smith lacks power to bring the suit in the name of plaintiff. On July 8, 1970, the court dismissed the complaint on the grounds that the alleged contract was not signed or executed by the corporate defendant. On August 6, 1970, pursuant to plaintifFs motion, the court vacated its order to dismiss.

On September 29, 1970, defendant filed its answer to die complaint denying plaintiff’s allegations in Count I and alleging as to Count II tiiat defendant did not make or deliver the instrument, that the instrument lacks mutuality, and that the instrument limits the remedy to an action in chancery. Following a hearing on the merits, defendant filed an amended answer on January 25, 1971, in which it further alleged that the contract is not enforceable, failing to comply with the Statute of Frauds; that in the event of a finding of ratification, plaintiff substantially breached the contract; and, that, in any event, ratification was only partial.

On February 11, 1971, the court ruled in favor of defendant, finding that:

(1) Kenneth Schmitz did not have express or implied authority to enter into a contract on behalf of defendant.
(2) The Statute of Frauds applies.
(3) The amount in controversy exceeds $500, and the term sued upon exceeds one year.
(4) The instrument is not signed by defendant.
(5) The contract is invalid in respect to defendant.

Plaintiff appeals from this ruling, the following issues arising: if no authority existed, whether defendant ratified the contract so as to become bound by its terms, and even if defendant would otherwise be bound to the contract, whether the Statute of Frauds renders the contract unenforceable.

OPINION

We need not consider defendant’s contention that its employee who signed the contract lacked the proper authority at the time of signing to bind defendant corporation. Instead, we hold that corporate defendant, having ratified the contract, is bound by its terms.

Ratification need not be express; it may be implied from the conduct of the parties. (American Car & Foundry Co. v. Industrial Com. (1929), 335 Ill. 322, 329, 167 N.E. 80, 83; Campbell v. Millar (1899), 84 Ill.App. 208, 217; Magid v. Drexel Nat. Bank (1947), 330 Ill.App. 486, 492, 71 N.E.2d 898, 900.) Illinois cases are clear that retaining the benefits is tantamount to ratification. (Williamson v. McCann & Co., Inc. (1954), 2 Ill.App.2d 42, 118 N.E.2d 42; Wing v. Lederer (1966), 77 Ill.App.2d 413, 418, 222 N.E.2d 535, 538; Ault v. Associates Discount Corp. (1963), 43 Ill.App.2d 409, 414, 193 N.E.2d 226, 228; Buford v. Chief, Park District Police (1960), 18 Ill.2d 265, 270, 164 N.E.2d 57, 60.) In Karetzkis v. Cosmopolitan National Bank (1962), 37 Ill.App.2d 484, 490-91, 186 N.E.2d 72, 75, this court stated:

* * ratification may be found to have taken place when the principal, with knowledge of the material facts of the unauthorized transaction, takes a position inconsistent with non-affirmation of the transaction. An example of such ratification is for the principal to seek or retain the benefits of the transaction.”

The conduct of defendant in the case at bar clearly indicates a ratification of the contract entered into by Schmitz. With full knowledge of the material facts, defendant certainly acted consistently with the belief that a binding contract existed. Defendant, without objecting until the April 8, 1970 letter, retained the following benefits of the contract: the use of the vending machines by the employees and the servicing (however poorly conducted) of the machines by plaintiff. The letter sent by Mr. Morphey to plaintiff is further evidence of ratification. Recognizing that plaintiff owes defendant a duty under the contract to service the machines, the letter implicitly recognizes that defendant is a party to the contract. Thus, defendant will not be heard to deny the authority of its agent, Schmitz. Defendant is bound by the contract to the same extent it would have been, had Schmitz possessed proper authority.

Defendant next contends that the contract is unenforceable, the parties failing to comply with the Statute of Frauds. The law is clear that “the same formality is required for ratification as for original authorization.” (F. Mechem, Law of Agency (4th Ed. 1952) sec. 205.) It follows that where a writing is expressly required by a Statute of Frauds, a writing is also essential to effect a valid ratification. See Wyman v. Utech (1950), 256 Wis. 234, 42 N.W.2d 603.

While defendant argues that either the Uniform Commercial Code provision (Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 201(1)), or the more general provision (Ill. Rev. Stat. 1969, ch. 59, sec. 1), is applicable, we hold that neither statute prevents plaintiff from enforcing the contract.

A “sale” under the U.C.C. is defined in Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 106(1): “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.” (Emphasis added.) The contract in the case does not effect a passing of title. Thus, on its face, section 2 — 106,(1) is inapplicable; The case law also clearly indicates the inapplicability of this provision. In Garfield v. Furniture Fair-Hanover (1971), 113 N.J. Super. 509, 512, 274 A.2d 325, 326, the court discussed the issue of whether a transaction constituted a sale under the U.C.C. or a bailment:

«a a a first, in. a sale transaction title to the property in question is in the buyer * * * in a sale transaction there exists no obligation on the buyer to return the specific article.”

Here there is no sale and title to the machines will never pass to the defendant; the defendant has an obligation to return the machines; and the merchandise in the machines is not sold to defendant but to its employees. Therefore, under the Garfield standard, the contract does not qualify as a sale under the U.C.C. Defendant cites no cases in urging that the U.C.C. Statute of Frauds provision (Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 201(1)), is applicable. We find that the contract in question is not a sale, and the U.C.C. does not apply here.

Defendant argues in the alternative that Ill. Rev. Stat. 1969, ch. 59, sec. 1, renders the contract unenforceable. The test in applying this provision of the Statute of Frauds is articulated in Mutual Life Insurance Co. of New York v. Ritsher (1915), 196 Ill.App.27, 31:

“However, the test to determine whether such agreement comes within the statute is not whether it was performed within a year, but whether, when the agreement was made, it could have been performed within a year; and if so, it does not come within the .statute.” (Emphasis added.)

This test has been uniformly applied by Illinois courts. Defendant argues in its brief that obviously the contract cannot be completed within one year since the document expressly provides for a three-year period of performance. Defendant overlooks the contract provision that the “Vendor shall have the right to terminate this contract at any time sales of cigarettes within said premises are less than 120 packs per week.” Once the sales fall below the minimum level, plaintiff has a right to terminate. We hold, therefore, under the Ritsher test, that since the. contract could have been performed within one year, the Statute of Frauds is inapplicable. Mead v. Chicago & Northwestern Ry. Co. (1914), 189 Ill.App. 323, further supports our finding. That case held that a contract that could be terminated by the parties is not within the Statute of Frauds, since it could have been performed within one year. In conclusion, the contract in question is not within the Statute of Frauds.

Defendant’s third contention is that even if a binding and enforceable contract exists, plaintiff should not be permitted to recover for failure to adequately perform all of the conditions of the contract. In view of the rather unusual form of the judgment order appealed from, it is impossible for this court to determine whether or not the trial court gave consideration to that point even though it was raised by the pleadings. Omitting the prefatory portion of the judgment, it reads that the court “FINDS:

1. Under the evidence adduced, witness Kenneth Schmitz did not have the authority of NORTHERN ILLINOIS GAS COMPANY, either implied or express, to enter into a contract on behalf of said defendant.
2. Under the evidence adduced and the matters in issue, the Statutes [sic] of Frauds is applicable to this case.
3. Under the evidence adduced tire amount in controversy exceeds the sum of $500, and the term sued upon exceeds one year.
4. The instrument sued upon is not signed by the defendant.
5. This contract sued upon is invalid and void insofar as Defendant, NORTHERN ILLINOIS GAS COMPANY, is concerned.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Judgment be and hereby is entered in favor of Defendant, NORTHERN ILLINOIS GAS COMPANY, and against Plaintiff, GEORGE F. MUELLER & SONS, INC., and that plaintiff go hence without day.”

We note that by use of the word “THEREFORE” at the beginning of the last quoted paragraph, the court was specifically referring to its findings numbered 1. through 5. In view of this reference, and since those five findings would have been sufficient to support the judgment, we cannot presume that the court ever reached a determination of the issue of whether plaintiff had adequately performed its contract obligations. Nor is there any indication that the court considered the question of damages.

Therefore, the judgment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER, P. J., and ENGLISH, J., concur.

       Section 2 — 201(1) reads:
      “» a * a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing a a ay (Emphasis added.)

       Section 1 reads:
      “No action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing * *


author: Mr. PRESIDING JUSTICE BURKE

text:
    Martha Ciampa, Plaintiff-Appellant, v. The City of Chicago et al., Defendants-Appellees.
    (No. 56441;
    First District (1st Division)
    May 29, 1973.

      Rehearing denied July 24, 1973.

      Paul C. Ross and Morton J. Rubin, both of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Thomas J. Cachor, Assistant Corporation Counsel, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Plaintiff, Martha Ciampa, was the holder of a Food Purveyor License No. 1386 issued by the City of Chicago. After notice and hearings, the plaintiffs license was revoked by the Mayor of the City of Chicago.

Plaintiff subsequently filed a petition for a writ of mandamus in the circuit court of Cook County seeking to compel the Mayor to reinstate her Food Purveyor License. After having heard the testimony of the witnesses and having examined the evidence, the trial court denied plaintiffs petition. Plaintiff appeals.

On June 9, 1970, Officer James McGuinness of the Chicago Police Department purchased the magazine entitled “Sybil No. 1” from plaintiff for $3.50. The sale took place at plaintiff’s store at 1908 West Belmont Avenue, Chicago, the front portion of which was utilized by her as a food store where she sold ice cream, milk, cookies, candy, and school supplies. In the rear portion of the store plaintiff sold books and magazines. The Officer testified that he entered the store and proceeded to the rear where plaintiff had a book rack. He stated that he browsed through the rack and picked up the magazine “Sybil No. 1” which he purchased from plaintiff.

On June 10, 1970, Officer McGuinness appeared before Judge Robert J. Collins of the circuit court of Cook County and verified a complaint charging the plaintiff with a violation of Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20 and the Judge issued a warrant for plaintiff’s arrest.

On July 1, 1970, a hearing on the criminal complaint was conducted before Judge Jack A. Welfeld of the circuit court of Cook County. At this hearing, plaintiff entered a plea of not guilty. The Court, without making a finding as to whether or not the magazine “Sybil No. 1” was obscene, sentenced the plaintiff to six months supervision and released plaintiff’s bond.

Subsequently on August 20, 1970, a notice to revoke plaintiffs Food Purveyor License was issued by the Mayor of the City of Chicago based upon the charge that tire plaintiff had been “dispensing obscene literature contrary to the Ordinances of the City of Chicago and the Statutes of the State of Illinois.” The specific violations with which plaintiff was charged are embodied in Section 192.9 of the Municipal Code of Chicago and Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20 (a) (1) which provide respectively:

Section 192.9 of the Municipal Code of Chicago:
“It shall be unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. Any person violating any provisions of this section shall be fined not less than $20.00 nor more than $200.00 for each offense.
Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.”
Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20(a)(1)
“A person commits obscenity when, with knowledge of the nature ' or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:
(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene.”

On September 21, 1970 and September 28, 1970, hearings were conducted before the Commissioner designated by the Mayor. The Commissioner found that the magazine “Sybil No. 1” was obscene and on October 2, 1970, plaintiff’s Food Purveyor License was revoked by the Mayor, pursuant to the authority conferred upon him by the Municipal Code of Chicago, Sec. 101-27 which provides in relevant part:

“The Mayor shall have power to revoke any license issued under the provisions of this code for good and sufficient cause. If at any time after the granting of any license, any license shall have violated any of the provisions of this code or any of the statutes of the .state in the conduct of his business, the mayor may revoke the license therefor.”

Plaintiff argues that before the Mayor can revoke a license, there must be a prior judicial determination for the purpose of determining whether a publication is constitutionally protected or obscene. Plaintiff also maintains that since Judge Welfeld did not make an express finding in the prior criminal proceedings that the magazine “Sybil No. 1” was obscene and sentenced plaintiff to six months supervision and released her bond, this action was tantamount to a finding of not guilty and should have been considered res judicata in the subsequent hearing conducted by the Mayor.

We are of tire opinion that it is not necessary for us to reach a decision as to whether Judge Weifeld’s actions in the criminal proceedings constituted, as plaintiff maintains, a “finding of not guilty.” The outcome of the prior criminal proceedings would in any event be immaterial in the subsequent proceedings instituted by the Mayor to revoke plaintiff’s Food Purveyor License. (See Nechi v. Daley, 40 Ill.App.2d 326, 188 N.E.2d 243; Taylor v. Civil Service Com., 33 Ill.App.2d 48, 178 N.E.2d 200.) The doctrine of res judicata is inapplicable in this case for the principal reason that the burden of proof in the criminal proceeding is different from the burden of proof in the license revocation proceeding.

We believe the following pronouncement by the Pennsylvania Supreme Court in Commonwealth v. Funk, 323 Pa. 390, 400, 186 A.65, 70, is appropriate:

“It has been the established rule that a criminal prosecution does not bar a subsequent civil or administrative proceeding based upon the same set of facts, nor does a judgment rendered therein have any probative value in subsequent proceedings beyond the mere fact of its rendition: Wilson v. Wilson, 100 Pa. Superior Ct. 451. This results from the nature of criminal proceedings and the type of proof required therein. In criminal proceedings the guilt of the accused must be established beyond a reasonable doubt. In a civil proceeding to revoke a license it is sufficient if the offense be established by a preponderance of the evidence; this distinction is pointed out by Mr. Justice Sadler in Barach's Case, 279 Pa. 89; see also Summers v. Brewing Co., 143 Pa. 114; Morch v. Raubitschek, 159 Pa. 559.”

In People ex rel. Anderson v. City of Chicago, 312 Ill.App. 187, 37 N.E.2d 929 (Abstract), this court was concerned with a case in which the plaintiff’s prior license for the year 1940 had been revoked by the Mayor pursuant to Section 101-27 of the Municipal Code. Plaintiff had instituted a mandamus proceeding to compel the restoration of the license but before the hearings were concluded in that proceeding the 1940 license period had expired and the cause was dismissed. When the plaintiff applied for a license in 1941, his application was not approved. He then instituted another mandamus proceeding seeking to compel the Mayor to issue him a license for the year 1941 and this petition for a writ of mandamus was granted by the trial court.

This court, in reversing the judgment, stated:

“It is a well recognized principle of law that there is vested in the licensing authority a discretionary power which may be reasonably exercised in the granting or refusing to issue a license. Even when the applicant for a license has complied with all of the requirements governing the issuance of such license, nevertheless a discretion exists in the licensing officer and he will not be compelled to issue a license when in his discretion, reasonably and fairly exercised, the license has been refused. (Harrison v. The People, 222 Ill. 150; People v. Dever, 236 Ill.App. 135.)
The fact that plaintiff and his employees were discharged in the Municipal court when they were tried on charges brought against them as the result of the investigation made by the Police Department did not militate against the Mayor’s use of his discretionary power to refuse to grant a license to Carlson. The judgment in the criminal proceeding did not preclude the Mayor from exercising his discretionary power in the matter of refusing to grant Carlson a license for the year 1941. (People v. Ludwig, 258 Ill.App. 268; State v. Lewis, 164 Wis. 363.)”

Plaintiffs authorities stand for the general proposition that prior restraints on freedom of expression, such as mass seizure of books or impounding of films, are illegal unless a prior adversary hearing is provided. The defendants do not take exception to this general proposition. The action of the Mayor in the present case, however, was not one of seizure or suppression of the publications, but rather one of revoking a license for cause. We are of the opinion that there is no requirement shown under the law which would necessitate the Mayor having a prior judicial determination before he can revoke a Food Purveyor License for a violation involving the sale of obscene material.

Plaintiff argues that the magazine “Sybil No. 1” is not obscene and therefore is constitutionally protected.

This court stated recently in People v. Penney, 7 Ill.App. 3d 191, 194, 287 N.E.2d 220, 223:

“In Roth v. United States (1957), 354 U.S. 476, the Supreme Court held that obscenity as such was outside the protection of the First Amendment. The definition for obscenity set out in Roth and elaborated in the later cases of Manual Enterprises v. Day (1962), 370 U.S. 478, and Jacobellis v. Ohio (1964), 378 U.S. 184, has been repeated many times: ‘We defined obscenity in Roth in the following terms: “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U.S. at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value/ A Book v. Attorney General (1966), 383 U.S. 413, 418.”

Our determination as to whether or not the magazine “Sybil No. 1” is obscene must be made in accordance with the standards delineated by the Supreme Court in Roth v. United States, 354 U.S. 476, and elaborated in the later cases of Manual Enterprises v. Day, 370 U.S. 478, and Jacobellis v. Ohio, 378 U.S. 184. In making the determination, this court is required to make an independent constitutional judgment. Jacobellis v. Ohio, 378 U.S. 184; City of Chicago v. Kimmel, 31 Ill. 2d 202, 201 N.E.2d 386.

The magazine “Sybil No. 1” is a magazine composed predominantly of photographs portraying nude males and females, engaged in seductive embraces, and posed with their legs spread so as to focus attention on their genitals. Although the models portrayed do not appear to be actually engaged in sexual activity, it is manifestly clear and explicit from some of the photographs that sexual activity is suggested and imminent. In several of tire pictures, long stockings and garter belts are used to frame the female genitals and focus attention upon them. The models in many of the pictures have their hands, or mouths, in close proximity to another’s genitals, suggestive of abnormal sexual conduct. Some of the male models are posed with their heads close to the female sex organ, and vice versa. The magazine also contains sadomasochistic pictures portraying female models engaged in whippings and bondage.

We are of the opinion that the dominant theme of “Sybil No. 1” taken as a whole appeals to a prurient interest in sex and that it is patently offensive because it affronts contemporary community standards in the description of sexual matters. We are also of the opinion that this magazine is utterly without redeeming social value notwithstanding the fact it contains a limited amount of innocuous textual material. See City of Chicago v. Geraci, 46 Ill.2d 576, 583, 264 N.E.2d 153, 157-58; People v. Penney, 7 Ill.App.3d 191, 198, 287 N.E.2d 220, 226.

Plaintiff argues that the Mayor of the City of Chicago abused his discretion and acted arbitrarily when he made a finding that the magazine “Sybil No. 1” was obscene.

From the record it appears that after the notice of revocation was issued, plaintiff was afforded a hearing. Upon the conclusion of the hearing, the Commissioner made a finding that the magazine was obscene and the Mayor subsequently revoked plaintiff’s Food Purveyor License. It is significant to note that the trial judge who heard the plaintiff’s petition for a writ of mandamus was of the opinion that the magazine “Sybil No. 1” was obscene and as previously stated, this Court, after having made an independent constitutional judgment, is also of the opinion that the magazine is obscene.

When considered in this perspective, the Mayor’s finding that the magazine “Sybil No. 1” was obscene is amply supported and there is nothing in the record to support the allegation that the Mayor acted arbitrarily or abused his discretion.

For these reasons, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Burke, Defendant-Appellant.
    (No. 72-126;
    Second District
    June 20, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of Model District State’s Attorneys office, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This appeal is brought by the defendant, John Burke, from a sentence of 4 to 7 years in the penitentiary imposed by the circuit court of Lake County on his plea of guilty to the offense of robbery. The defendant contends that the sentence is excessive in light of the facts and circumstances of the case and is inconsistent with the theory of sentencing in Illinois and asks that it be reduced pursuant to our power so to do under Supreme Court Rule 615(b)(4).

On June 21, 1971, the defendant was indicted by a grand jury of Lake County and charged with four counts of armed robbery in violation of section 18 — 2 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, sec. 18 — 2.) On June 25 the defendant, represented by an assistant public defender, pleaded not guilty to each count. On October 12 he withdrew his plea as to the third count of the indictment and pleaded guilty to the lesser included offense of robbery pursuant to an agreement with the prosecution. As part of the agreement tihe other three counts of the indictment were dismissed and the State agreed that they would make no recommendation as to any period of incarceration or as to a denial of probation. After fully admonishing the defendant, the court accepted the plea, found him guilty of robbery and aUowed him to file his application for probation.

On December 3 a concurrent hearing was held on the probation application and in aggravation and mitigation. It was then disclosed that the defendant, then age 19 years, and a friend named Gus Kalodimos robbed the Shoreline Motel in Lake County on May 31, 1971. According to the defendant the two were returning from Wisconsin where they had purchased shotgun sheUs and stopped at the motel to buy cigarettes. The defendant had been to a party earlier where he had consumed heroin and some barbiturates but knew “pretty well” what he was doing. Kalodimos conceived the scheme to rob the motel and as they were taking their shotguns from the car the manager approached. Kalodimos and the defendant pointed their guns at the manager and told him that they wanted his money and that while they didn’t want to shoot him that they would do so if necessary. The defendant testified that his gun was actually empty since he had discharged his shells firing at signs on the drive from Wisconsin.

The two forced the manager into tire motel where Kalodimos tied him and his wife and the defendant took approximately $600 from the office. Kalodimos kicked the manager in the head and threatened to abduct their 3-year-old child but was dissuaded by the defendant. Kalodimos then went into an adjoining motel unit and forced a man and wife, at gunpoint, into the manager’s apartment where the defendant tied them up. The two women had been crying and screaming so they were gagged. After approximately IV2 hours at the motel, Kalodimos and the defendant left. Kalodimos was killed the next day in a shoot-out with police. One of the victims corroborated tire defendant’s testimony that he assured them that no one would be hurt and that he was sorry for what was happening. A police officer who investigated the crime stated that the defendant was cooperative.

The defendant was employed by a moving and storage company for approximately 6 months before this arrest. Prior to that he has been in the armed forces but was asked to resign “for the good of the service.” He came from a broken home and had a juvenile record for burglary and possession of drugs and had escaped from detention on two occasions. At the time of his arrest, he was out on bond after pleading guilty to two charges of burglary.

The defendant cites the case of People v. Conner, 131 Ill.App.2d 1035, 268 N.E.2d 439, as being almost identical to this one and where the Appellate Court, Fifth District, modified a sentence of 5 to 10 years for armed robbery to a term of 2 to 10 years. In Conner, the accused, then 18 years old, was picked up by two other persons. He was hoping for a ride home but instead they drove around for 4 hours. One of the others decided to rob a bakery and Conner went into the bakery with them and brandished an empty .38 revolver which had been in the car. A probation officer testified that Conner was not a “bad or vicious person” and that he was surprised he had not been recommended for probation. The appellate court based the modification of sentence, in part, on the comments of the probation officer and the fact that Conner’s prior record included only 2 arrests for minor liquor violations.

In the case of the People v. Taylor, 33 Ill.2d 417, 424, 211 N.E.2d 673, our supreme court stated that when the sentence prescribed is within the limits set by the legislature and the defendant contends that the punishment imposed is excessive, the appellate court should not disturb the sentence:

“* * * unless it clearly appears that the penalty constitutes 1 a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense.”

Section 11 of article I of the new constitution reads:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. # * *”

Although there are some obvious similarities between the facts in the Conner case and the one before us, there are some equally obvious differences. Here, the defendant and one accomplice held 4 people at the point of sawed off shotguns and threatened to shoot them. When the two women screamed and cried, they were both gagged. This ordeal of senseless terror continued for over an hour before they left. In addition, the defendant, unlike Conner, had a considerable record of prior criminal activity. Under the circumstances, we cannot conclude that the sentence imposed was excessive when considered in the light of the seriousness of the offense or the objective of restoring the defendant to useful citizenship.

The defendant has also filed a motion for summary modification of sentence under the provisions of the new Unified Code of Corrections. (Ill. Rev. Stat. 1972, ch. 38, sec. 1001 — 1 — 1 et seq., eff. Jan. 1, 1973.) Section 1008 — 2 — 4 of the Code provides that if the matter has not reached a “final adjudication” then the sentences under the Code are to be applied if they are less than under the prior law. It has been held that if there is a pending appeal the cause has not reached a “final adjudication” as defined in the Code. People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358; People v. Keating, 2 Ill.App.3d 884, 274 N.E.2d 362; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

The penalty for robbery at the time that this prosecution' was commenced was, and still is, a term of from 1 to 20 years in the penitentiary; (Ill. Rev. Stat. 1971, ch. 38, sec. 18 — 1(b).) The sentence for robbery under the Unified Code of Corrections also is a penitentiary term of from 1 to 20 years (as a Class 2 felony) but the minimum term, in any event, may not exceed one third of the maximum term actually imposed. (Ill. Rev. Stat. 1972, ch. 38, sec. 1005 — 8 — 1(c)(3).) Although the sentence under the Code is not less than the possible sentence under the prior law, the minimum sentence actually imposed was greater than that provided by the procedural rules of the Code. Sentences have been modified under similar circumstances. People v. Hendrickson, 11 Ill.App.3d 219, 296 N.E.2d 751; People v. Gargano, 10 Ill.App.3d 957, 295 N.E.2d 342.

We therefore conclude that the sentence must be modified so that the minimum does not exceed one-third of the maximum or to a term of 2 years and 4 months to 7 years and the sentence is so modified.

Judgment of conviction affirmed, sentence modified.

GUILD, P. J„ and T. MORAN, J„ concur.


author: Mr. JUSTICE STOUDER

text:
    The People ex rel. James H. Clark, County Collector of Du Page County, Petitioner-Appellee, v. Ralph B. Thompson et al., Objectors-Appellants.
    (No. 72-73;
    Second District
    June 26, 1973.

      Margaret E. Thompson, pro se.

    William V. Hopf, State’s Attorney, of Wheaton, (James F. Campion, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This appeal by taxpayers-objectors, Ralph Thompson and Margaret Thompson, is from an order entered by the Circuit Court of Du Page County on November 22, 1971, at which time the county collector was before the court in the matter of the application for judgment for delinquent taxes for the year 1970.

Taxpayers had paid their real estate taxes under protest for the year 1970 and on November 22, 1971, appeared to file written objections to these taxes. At that time there was also pending court litigation between the taxpayers and the collector on their 1967, 1968 and 1969 taxes, and taxpayers requested an incorporation of those years into the 1970 case which was then before the court. In addition, taxpayers sought a stay or continuance of the application of the county collector for judgment against delinquent lands. On the same day (November 22, 1971), the court entered an order denying taxpayers’ motion to stay or to continue the application of the county collector. The order also allowed taxpayers to file instanter their objections concerning real estate taxes for the year 1970 and provided for a pretrial conference to be held between the State’s Attorney’s office and taxpayers within 90 days. On December 20, 1971, taxpayers filed a notice of appeal from the above order.

On March 20, 1972, taxpayers petitioned this court for a writ of mandamus at which time they argued that although tire prior years’ tax cases were dismissed by the Illinois Supreme Court and certiorari denied by the United States Supreme Court, this court should include the prior years’ tax cases in the case at bar. Following a denial of the writ of mandamus, the taxpayers appealed that decision to the United States Supreme Court and the action is still pending.

We find the order of November 22, 1971, from which the taxpayers appeal, was not a final and appealable order. Review by the appeHate court is limited to final judgments and certain interlocutory orders as specified by the Supreme Court Rules. (See, Ill. Rev. Stat. 1971, ch. 110A, secs. 301-308.) Before a judgment or order is considered final, it must dispose of or terminate the litigation or some definite part of it on the merits of the cause. (Village of Niles v. Szczesny, 13 Ill.2d 45, 147 N.E.2d 371, and LaVida, Inc. v. Robbins, 33 Ill.App.2d 243, 178 N.E.2d 412.) If the court retains jurisdiction for future determination of matters of substantial controversy, the order is not final. Bernard Bros. v. Deibler, 344 Ill.App. 222, 100 N.E.2d 512, and Impey v. City of Wheaton, 60 Ill.App.2d 99, 208 N.E.2d 419.

The order in the present case cannot be considered final and appealable since it did not terminate the litigation on the merits. Instead the order merely denied a stay or continuance of the application, allowed taxpayers to file objections and provided for a pretrial conference. Only when the controversy is concluded with a judgment on the merits will this cause be reviewable by the appeHate court.

The trial court also entered an order on February 17, 1972, relating to certain aspects of the record and resulting in taxpayers’ second notice of appeal. Since the issues raised are dependent upon the original order, further discussion of such issues is not required.

For the reasons stated, this appeal is dismissed.

Appeal dismissed.

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


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rodney Dale Buckham, Defendant-Appellant.
    (No. 11967;
    Fourth District
    June 13, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Richard J. Doyle, State’s Attorney, of Danville, (John R. McClory, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant appeals from a sentence of not less than 4 nor more than 10 years in the Illinois State Penitentiary imposed upon his plea of guilty to the offense of involuntary manslaughter. The sole issue presented by this appeal is the defendant’s assertion that the sentence imposed is excessive.

Since the sentencing in this case, the new Code of Corrections has become operative. The supreme court (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Hussey, 53 Ill.2d 585, 294 N.E.2d 269), this court (People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750; People v. Mize, 9 Ill.App.3d 647, 292 N. E.2d 731), and other appellate courts (People v. DelGenio (2d Dist.), 10 Ill.App.3d 432, 294 N.E.2d 332) have held that the sentencing structure of the new Code of Corrections would be applicable to a case pending on appeal which has not reached a final adjudication. This is such a case. Involuntary manslaughter is a Class 3 felony. The new Code of Corrections provides with reference to a Class 3 felony the maximum term shall be any term in excess of 1 year, not exceeding 10 years, and the minimum term shall be 1 year, unless the court having regard for the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one third the maximum term set by the court. Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-8-1.

Accordingly, the defendant’s conviction is affirmed, sentence vacated, and this cause is remanded to the circuit court of Vermilion County for imposition of a new sentence in accordance with the now applicable statute.

Conviction affirmed, sentence vacated, cause remanded with directions.

SMITH and SIMKINS, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Mikesell, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Thomas J. Gordy, Defendant-Appellant.
    (Nos. 11920, 11943 cons.;
    Fourth District
    June 20, 1973.
    John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellants.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendants were convicted on their negotiated pleas of guilty to two separate charges of. burglary and robbery. Both defendants appeal from the denial of their petition for probation and from the concurrent sentences of 2 to 10 years imposed on the two convictions. We affirm.

In an opinion filed June 4, People ex rel. Ward, v. Moran, No. 45197, our supreme court held that Supreme Court Rule 615(4) allowing reviewing courts to “reduce the punishment imposed by the trial courts” did not include the power to reduce a penitentiary sentence to probation and that such power is vested solely in the trial court. Our authority on review is limited by the same case to a determination of “whether the trial court exercised its discretion or acted arbitrarily in denying probation”. Should we determine that the trial court abused its discretion or acted arbitrarily, then we should remand the cause to the trial court with directions to reassign it to a different judge for further hearing in aggravation and mitigation. See People v. McAndrew, 96 Ill.App.2d 441, 239 N.E.2d 314, for further discussion.

The agreement on the negotiated plea was that the defendants would plead guilty to burglary and to an amended charge of robbery reduced from armed robbery to ordinary robbery, and then apply for probation. The People would oppose probation. If probation was denied, the People would recommend sentences of 2 to 10 years in the penitentiary. The probation officer’s report recommended that probation be denied. The evidence heard by the trial court indicated that these defendants and two others not here involved met at defendant Mikesell’s house. From there on September 18, the defendants with three others broke into a parked automobile in Decatur and one Grafton used a wire coat hanger to gain entry to the car. Twenty-four stereo tapes were taken to defendant Mikesell’s home and later sold. The purpose of the burglary and of the robbery was to obtain bond money for one Foran’s fiancee who was then in jail charged with an unlawful sale of a controlled substance. The robbery incident occurred on September 20 and there Gordy went into the station with a gun concealed in his coat and took an undetermined amount of money from the attendant. The negotiated plea resulted in a dismissal of the armed robbery charge and any other pending charges. Were this not so, these defendants could not be admitted to probation under the laws existing prior to the new Code of Criminal Corrections, or since. The trial judge made a detailed analysis of his reasons and that analysis of the previous conduct of these defendants is borne out by the evidence in the record. We therefore conclude that the trial judge did not act either arbitrarily or abuse his discretion in denying probation.

The sentences of 2 to 10 year-s to run concurrently was in conformity with the negotiated plea. Both defendants were represented by counsel, Both knew the People would oppose probation and in event probation was denied, the People would recommend the minimum of 2 years and a maximum of 10 on each count and that they were to run concurrently. Neither side offered any additional evidence by way of mitigation and aggravation. On this record, we cannot say that the. sentences are excessive.

Accordingly, both sentences in each case should be and the same are affirmed.

Affirmed.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    Turk Furniture Company, Plaintiff-Appellee, v. Teamsters Union Local No. 722 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendant-Appellant.
    (No. 73-112;
    Third District
    June 29, 1973.
    John Panegasser, of Ottawa, for appellant.
    Joseph Lanuti, of Ottawa, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of La Salle County which granted the motion of the plaintiff, Turk Furniture Company, for a temporary injunction against the defendant, Teamsters Union Local No. 722. The injunction writ commanded the defendant to restrain from picketing or interfering with the plaintiff’s business.

During the oral argument of counsel in the appeal of this case information was imparted to this court that the difficulties and differences which had existed between the plaintiff and defendant and which resulted in this appeal have now been resolved and that the plaintiff and defendant have entered into a contract which has the effect of eliminating the necessity of deciding the issues presented by this appeal.

In view of this change of circumstances the issues presented to this court are now moot, and a determination of them would be of no substantial or practical benefit to the parties involved. The function of appellate courts is not to give opinions on merely abstract or theoretical matters but only to decide actual controversies injuriously affecting the rights of some party to the litigation, and questions or cases which have become moot or academic are not a proper subject of review. (People ex rel. Courtney v. Botts, 376 Ill. 476, 34 N.E.2d 403; People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154, 190 N.E. 286; National Jockey Club v. Illinois Racing Comm., 364 Ill. 630, 5 N.E.2d 224.) An exception to this rule is where the case presented involves issues of public interest which require a determination so as to establish a precedent or guidelines for future conduct. (See People ex rel. Lindstrand v. Emmerson, 333 Ill. 606, 165 N.E. 217.) We do not believe that such a question is presented in the instant case and therefore it is the ruling of this court that this appeal be dismissed.

Appeal dismissed.

ALLOY, P. J., and STOUDER, J., concur.