author: MR. JUSTICE LYONS BURKE, J.,

text:
    Dr. Harry H. Asher, Plaintiff-Appellant, v. Dr. William B. Stromberg, Jr., et al., Defendants-Appellees.
    Gen. No. 50,364.
    First District, Second Division.
    December 13, 1966.

      James A. Dooley, of Chicago, for appellant.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush and John M. O’Connor, Jr., of counsel), for appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of defendants after a verdict of not guilty was returned by a jury.

Plaintiff, Dr. Harry H. Asher, is a dentist practicing in Chicago, Illinois. Defendants are a group of doctors, specializing in hand surgery, affiliated with Passavant Hospital. Dr. Michael Mason, now deceased, was a member of the group.

Plaintiff, a practicing dentist for 33 years, had occasion to x-ray the dental structures of many patients. From 1931 to 1941, it was his custom to hold the x-ray plate in the patient’s mouth with his left index finger. In 1958, plaintiff developed a condition of radiation dermatitis and experienced a callous on his left index finger, which would break down and heal spontaneously. Radiation dermatitis is a condition resulting from excessive exposure to x rays and as a result the cellular structure of the skin breaks down and the underlying blood vessels are destroyed so that nourishment to the skin is cut off. Radiation injury is a source of skin cancer. There are several types of skin cancer, all of which destroy tissues in the body. One type is squamous cell cancer. When a squamous cell cancer has a hand or finger as its primary site, the secondary site of its spread is in the lymph nodes located in the armpit. In discovering the presence of skin cancer, the medical profession is in accord that the only sure way is by the performance of a biopsy. A biopsy is the removal of a small portion of tissue for microscopic examination.

Plaintiff first visited defendant, Dr. Koch, in the spring of 1958, at which time Dr. Koch suggested that the callous be removed from the finger and a skin graft be performed to prevent any further breakdown of the skin. The operation was performed at which time the callous was excised and skin taken from the thigh was grafted over the wound. The excised callous was sent in its entirety to a pathologist for examination or biopsy. There was no finding of malignancy. Plaintiff returned to the hospital for a further examination. The skin graft did not take and on August 18, 1958 further surgery was performed to accomplish another skin graft. Plaintiff concedes that the 1958 treatment is not the basis for his cause of action.

In July of 1961, plaintiff noticed a redness in the lower third of the same finger. Plaintiff contends he consulted and was examined by Dr. Stromberg in the fall of 1961 and that he thereafter saw Dr. Stromberg on five or six occasions. Defendants contend, however, that plaintiff first consulted Dr. Stromberg on February 18, 1962. The examination by Dr. Stromberg revealed that the skin on plaintiff’s finger had cracked open. Dr. Stromberg advised plaintiff that he would have to have another operation, either a split-thickness graft as before, or a pedicle flap graft from the next finger. Dr. Stromberg suggested that an amputation might be advisable. According to plaintiff, he asked if there was any malignancy and was told there was absolutely none. This was denied by Dr. Stromberg. Dr. Stromberg’s version, at the trial, was that he pointed out that the index finger was essentially a useless digit, due to the extent of the ulcer, stiffness and the lack of sensation. Dr. Stromberg advised plaintiff to clean the area with soap and water.

Plaintiff continued to see Dr. Stromberg several times a week and testified, at the trial, that Dr. Stromberg told him on these occasions that there was no malignancy. Plaintiff stated that Dr. Koch and Dr. Stromberg proposed that another split-thickness graft be performed. Dr. Stromberg performed the skin graft. He took no steps to determine whether there was any malignancy present. On April 1, 1962, and on subsequent visits, skin was snipped from the edges of the latest graft. Dr. Stromberg testified that he again recommended the removal of the finger. Plaintiff denies that this recommendation was made. Testimony was elicited from defendant, Dr. Stromberg, under section 60 of the Civil Practice Act, that on April 2, 1962, while plaintiff was hospitalized for pneumonia, he was given a physical examination by a fourth-year medical student at Northwestern University and there was found in the lymph nodes, one moveable, nontender smooth lymph node, one centimeter in diameter, palpated in the left axilla. Dr. Stromberg admitted that one of the methods in which cancer in the finger can be demonstrated as a secondary symptom, is discovery of such a lymph node in the armpit lymph glands. He further stated that during this hospitalization between April 2 and April 7, 1962, that he had all the hospital records and was familiar with their findings and that he did nothing to determine whether or not the examination report meant there was any malignancy in the finger he was treating. On May 8, 1962, plaintiff was informed that the operation was not a success and that a pedicle flap graft would have to be performed.

On May 10, 1962, plaintiff consulted with Dr. Wayne Slaughter, who sent him to Dr. Danely Slaughter, for multiple biopsies. Biopsies of tissue removed from the ulcerated area were performed and revealed the presence of cancer, specifically a squamous cell carcinoma. On learning of the presence of cancer, Dr. Danely Slaughter informed plaintiff that the finger and the head of the metacarpal would have to be removed and surgery for that purpose was performed on May 22, 1962. While operating, Dr. Danely Slaughter discovered that the cancer cells had spread beyond the finger and the operation was halted in order to get the plaintiff’s consent to remove more than the finger. A subsequent operation resulted in the amputation up into the forearm when the biopsies showed the presence of cancer in that area. A subsequent examination of plaintiff revealed' enlarged lymph nodes in the armpit, which was indicative that cancer cells had reached this area. The nodes were removed for biopsy purposes and it was determined that they contained metastic cancer. The forequarter operation was performed, which resulted in the removal of the entire arm and shoulder of plaintiff. Since the latter operation and up to the time of the trial, plaintiff has been observed and treated by Dr. Danely Slaughter.

Plaintiff’s theory of the case is

(1) that defendants failed to meet or overcome plaintiff’s prima facie case and thus the trial court erred in refusing to direct a verdict for plaintiff,
(2) that even if some defense was made which warranted submission of the case to the jury, the verdict of the jury was against the manifest weight of the evidence,
(3) that prejudicial error was committed by the trial court in
(a) failing to weigh the evidence,
(b) instructing the jury on the issue of contributory negligence and
(c) in excluding a statement of Dr. Stromberg, wherein he admitted he was at fault.

Defendants’ theory of the case is

(1) that the verdict was proper in that the evidence revealed
(a) that there was no malpractice on the part of the doctors in that the school of hand experts to which they belonged did not advocate partial biopsies,
(b) that the injury was not the proximate cause of the alleged negligent acts,
(c) that plaintiff’s condition was caused by his own contributory negligence, and
(2) that no prejudicial error was committed by the trial court in that
(a) the statement of the trial court did not indicate an inability to weigh the evidence,
(b) the jury instruction on contributory negligence was proper and
(c) the exclusion of the statement of Dr. Stromberg, wherein he admitted he was at fault, was not erroneous.

We disagree with plaintiff’s first contention that defendants failed to meet or overcome plaintiff’s prima facie case and that the trial court erred in refusing to direct a verdict for plaintiff. There was sufficient evidence introduced by defendants that the school of medicine to which they belong advocates that it is good medical practice that a biopsy be performed at the time of surgery. There was testimony introduced that it is customary, in cases involving suspect lesions of the hand to submit, for examination, a piece of tissue which is a result of the complete excision of the lesion rather than submit a fragment.

We disagree with plaintiff’s second contention that the verdict of the jury was against the manifest weight of the evidence even though there was a statement by the trial judge, during the course of the hearing on plaintiff’s post-trial motion, indicating surprise at the verdict and that the trial court would have held otherwise.

Plaintiff also contends that the trial court, by its statement, erroneously concluded that it had no duty or power to weigh the evidence. We do not agree with plaintiff. A consideration of the court’s complete remarks shows that, while he stated he would have held otherwise than did the jury, he did not indicate the interpretation plaintiff advances. The complete statement of the trial judge in regard to plaintiff’s contention appears as follows:

But the principal point relied on with respect to the verdict being against the weight of the evidence caused me a great deal of worry. I was surprised when the verdict came in. If I were a juror I would have held otherwise. I think possibly a good deal of my worry and doubt arises from the very nature of these actions. I always considered it rather anomalous submitting these technical questions, or medical questions to the jury, the laymen, and yet we see experts differ.
I conclude, maybe a community judgment of twelve laymen isn’t too bad an opinion. I state I would have held otherwise if I were a juror.
Then the question arises, take the Court’s responsibility in the case, the present posture of the case. I don’t believe I can go as far as Mr. Dooley has in arguing that there was a complete absence of any evidence tending to refute the prima facie case made by the plaintiff.
It seems to me that if I were to hold that the plaintiff was entitled to a new trial in this case at this present posture of the case or in the alternative to maybe enter judgment notwithstanding the verdict, the question of liability, just order a new trial on the question of damages, I would have to be saying as a matter of law that what these doctors did here made out — practically made out a conclusive case of liability, based on the failure to take a biopsy.
I don’t gather that at all from the testimony that I heard, and I do not know whether I, as a judge, can go so far as to hold that it was proved by the manifest weight of the evidence that it was negligence if the biopsy was not performed.
I have to await the ruling of a higher court.
So that to summarize — Well, I would have held otherwise. I cannot as a matter of law say that this verdict of the jury is so irrational, so completely out of line that it must have been the result of prejudice or misunderstanding, misconception of the instructions given by the court, and I have to see these question [sic] answered in the affirmative before I, sitting here, could grant a new trial. (Emphasis supplied.)
It is with something of regret that I deny the motion for a new trial, but I think I am following the law consistent with the principles enunciated instead of substituting my judgment. If I were on the jury I would have fought vigorously for the contrary.

These remarks clearly indicate that the trial court thought the' verdict was rational. The remarks of the trial judge that he would have found differently if a juror, could very well have taken place because of his knowledge of an alleged admission, knowledge that the jury did not possess.

Plaintiff next contends that error was committed by the trial court by submitting to the jury an instruction, requested by defendant, that the verdict should be for defendant if plaintiff was guilty of negligence. It is plaintiff’s position that the issue of contributory negligence cannot be submitted to a jury in a malpractice case. We disagree with plaintiff. It is true that where the fault of the patient occurs subsequent to the fault of the physician and merely aggravates the injury inflicted by the physician, it only affects the amount of the damages recoverable by the patient. Wesley v. Allen, 235 Ill App 322 (1925). Here, however, defendants introduced evidence that the fault of the patient occurred prior to the fault of the physician and thus the instruction requested by defendant was proper.

Finally, plaintiff contends that it was error to exclude the extrajudicial admission of Dr. Stromberg. A statement was allegedly made by Dr. Stromberg, testified to by plaintiff and his wife, that he told them that the result had not been a good one, and that as far as he was concerned he may have been at fault and that he had an insurance policy of $100,000 for malpractice. An offer of proof of this statement was made by plaintiff to the court out of the presence of the jury. Discussion pertinent to this offer of proof reads as follows:

Mr. Dooley: Judge, while we are here I might as well make an offer of proof and the offer of proof is that if the witness, Dr. Stromberg, were allowed to testify he would testify that in the early part of May before the patient had seen Dr. Slaughter he and Mr. and Mrs. Asher had dinner at the International House and that he told them that he realized that the result had not been a good one; that he further said to them that — I am trying to be exact as to what he said.
He further said to them that as far as he was concerned he may have been at fault and that he had an insurance policy of $100,000 for malpractice. That is what he told them.
Mr. Rush: I don’t know what basis you have for saying that. That isn’t what he said in his deposition, but I object to the offer.
Mr. Dooley: What do you mean ?
The Court: Mr. Rush is saying he doubts whether the doctor, if so called, would so testify. I suppose Dr. Asher would so testify, would he, or Mrs. Asher?
Mr. Dooley: Dr. Asher would certainly so testify. In fact, Dr. Stromberg admits that. The only thing he denies in his deposition is the amount of the policy.
Mr. Rush: That isn’t so, as I recall it.
Mr. Dooley: He admits he brought up the question of his policy.
The Court: I think I would permit evidence of a statement by Dr. Stromberg to the effect that he may have made a mistake. Is that the wording ?
Mr. Dooley: That is it, and he volunteered—
The Court: But I don’t think — I think I would have to cut that short. It seems to me the prejudice would far outweigh the probative value, but I would let in an admission under the theory of admission against interest the statement that he thinks he may have erred or made a mistake.
Was it any more specific than that? Did he indicate in that respect he had erred? Was it in the actual performance of the work? Was it in the failure to take a biopsy?
Mr. Dooley: No. He didn’t go into the details. They went and told him they were going to see another doctor. That was the purpose of this meeting. They went and they wanted to explain it to him and he admits that.
The Court: I can well understand under those circumstances a statement about carrying malpractice insurance may be a jocose statement, or one of bravado or it wouldn’t have had — Would it come in under the theory of an admission against interest?
Mr. Dooley: He admits it.
The Court: It may have been designed to soothe their ruffled feelings or tell them, “If you want to sue, go ahead. I have a policy.”
I don’t think it would be wise to let that kind of evidence, that kind of remark, go to the jury.
Mr. Dooley: You know this doctor never had any policy which provided for any doctor fees.
The Court: I thought — .

It has long been established that general admissions of liability are properly received into evidence in malpractice actions. Johnson v. Marshall, 241 Ill App 80 (1926).

In reply to plaintiff’s contention that this admission should have been allowed by the trial court, defendants contend that the alleged admission was not really an admission because all that Dr. Stromberg allegedly stated was that “as far as he was concerned he may have been at fault and that he had an insurance policy of $100,000 for malpractice.” (Emphasis supplied.) We disagree with defendants. We find that the above language could constitute an admission.

Furthermore, counsel for defendants objected to the offer only on the grounds that the alleged admission was not what Dr. Stromberg said in his deposition. Such was the only ground assigned. A specific objection is a waiver of all other objections. Town of Cicero v. Industrial Commission, 404 Ill 487, 495, 89 NE2d 354 (1949).

Defendants’ second answering argument to plaintiff’s contention is that the court properly exercised its discretion by its refusal to allow the question of insurance to be injected into the case because its prejudice would outweigh’ the probative. value of Dr. Stromberg’s statement. We disagree with defendants. Notwithstanding the well defined principle that a defendant cannot show whether a person has a policy of insurance, we feel that the offer of proof that Dr. Stromberg’s statement be admitted into evidence should have been sustained. In Seyferlich v. Maxwell, 28 Ill App2d 469, 171 NE2d 806 (1961), where the admissibility of evidence relating to insurance coverage was thoroughly discussed, it was stated at page 476:

... It may also be introduced in evidence when a party makes a statement amounting to an admission of liability and the jury is thereby incidentally apprised of the insurance coverage. 4 ALR2d 781, Garee v. McDonnell, (CCA 7th Ill,) 116 F2d 78. . . .

The trial judge could have admitted the alleged admission and excluded the reference to insurance. Furthermore, there was no duty on plaintiff to recommend to the trial judge that he adopt the above procedure. Finally, defendants themselves brought up the question of insurance during the course of the trial and thus took away any prejudicial effect.

Defendants’ final argument, that the offer of proof was insufficient in that no question concerning the alleged admission was asked of anyone, is without merit. Defendants’ counsel recognized the statement of Dr. Stromberg as an offer of proof when he objected to the offer. Moreover, the court made inquiry as to whether Dr. and Mrs. Asher would testify, to which plaintiff’s counsel replied that they would. This was more than a mere statement of counsel that he only desired to offer evidence. It was an affirmative statement that certain testimony would be presented to the court.

After careful scrutiny of the entire record in this case, it is apparent that it is a close case on its facts as is evidenced by the statements of the trial court at the hearing on the post-trial motion. The court stated, “I was surprised when the verdict came in. If I were a juror I would have held otherwise . . .” and “I state I would have held otherwise if I were a juror . . .” and “if I were on the jury I would have fought vigorously for the contrary.” It is apparent, however, that the only thing that the Judge knew and the jury did not know, was the alleged admission of defendant, Dr. Stromberg. We are, therefore, constrained to believe that had the jury heard the admission, they could have felt the same way about the verdict as the Judge.

For the above reasons, we believe the case should be remanded for a new trial. Therefore, the judgment of the lower court is reversed and cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded for a new trial.

BRYANT, P. J., concurs.

BURKE, J.,

dissenting:

The jury verdict was for the defendants. The evidence strongly supports this verdict. The adequacy of the care exercised is to be judged by the rules and principles of the school of medicine to which the defendants belong, the American Association of Hand Surgeons, which believes and teaches that the cancer can be spread in treating a suspected hand by snipping off pieces of tissue, and that the total infected area must be excised and sent to a pathologist. Defendants’ actions were in strict compliance with their school of medicine.

I agree with defendants that even if they were unskillful or negligent, their professional conduct was not the proximate cause of the injury of which plaintiff complains. The evidence is uncontradicted that when plaintiff came to Dr. Stromberg, in February of 1962, the cancer was already so far advanced that his hand and forearm could not have been saved. Dr. Danely Slaughter, plaintiff’s witness, who performed the amputation of plaintiff’s hand and part of his forearm, testified that in his opinion, on February 13, 1962, when plaintiff went to Dr. Stromberg, the cancer was already into the arm (indicating below the wrist watch) and that it would not have done any good to have taken off the finger at that time; the whole hand and a part of the arm would have had to come off then. He thought the lesion had probably begun to change to malignant a year before he first saw plaintiff on May 8,1962.

Drs. Wheelock, Bell and Stromberg, testified that on February 13, 1962, the cancer was at least as far as plaintiff’s wrist. In Dr. Wheelock’s opinion, the squamous cancer, which is slow growing, must have been in existence for one and a half to two years. Dr. Stromberg was not responsible for any condition plaintiff had when he came to see him, nor for anything that would inevitably result from his condition when he came to see Dr. Stromberg. The evidence is uncontradicted that plaintiff’s hand would have had to be amputated on that date.

I agree that the issue of contributory negligence was properly submitted to the jury. In his complaint the plaintiff alleged that he was in the exercise of due care. The plaintiff also submitted and the court gave an instruction telling the jury that he (plaintiff) “claims that he was injured and sustained damages while exercising ordinary care.” In the trial of the case the defendant recognized that one of the elements of the case was the proof of ordinary care.

It is interesting to note that when Dr. Danely Slaughter first observed the lesion, from just the appearance of it alone he did not believe it was cancer; he thought probably it was not. It did not look to him like the usual type of cancer. On May 21 or 22, 1962, Dr. Danely Slaughter amputated the index finger and the head of the first metacarpal, or second. This is essentially the same operation Dr. Stromberg had recommended three times before. While Dr. Slaughter was performing the operation he learned that the cancer cells had spread. On May 8, 1962, when Dr. Danely Slaughter first examined plaintiff he found no evidence of any lymph node activity. He specifically noted that on his office chart on May 8. On June 18, the node activity was noticeable. Following this discovery Dr. Slaughter told plaintiff he was suspicious of the nodes. He suggested that plaintiff see some other surgeon and sent him to Dr. Gordon Mc-Neer in New York City and let him take the responsibility.

The reversal and remandment for a new trial is allowed on the ground that a claimed admission of liability by Dr. Stromberg should have been introduced for consideration of the jury. In the discussion in chambers, the trial judge stated that he would let in the claimed admission, saying that he would “permit evidence of a statement by Dr. Stromberg to the effect that he may have made a mistake.” The trial judge indicated that he would exclude the purported statement by Dr. Stromberg “that he had an insurance policy of $100,000 for malpractice.” The attorney for plaintiff did not say whether he would rephrase his questions in accordance with the judge’s indicated ruling. From the discussion in chambers it appears that plaintiff’s attorney intended to prove the alleged admission by the testimony of Dr. Stromberg. The plaintiff at no time made a definite offer of proof. This subject was dropped and the trial went on. I am of the opinion that the trial judge was right in indicating that he would permit the part of the statement disclosing an admission, but would deny mentioning the insurance policy for malpractice. The fact that the physician had an insurance policy for malpractice would'not tend to show that defendant was guilty of malpractice. I do not think that this judgment supported by the evidence and following a trial by able and experienced lawyers and before an able and experienced judge should be set aside because of the discussion in chambers concerning an alleged admission. Furthermore, the claimed admission against interest by Dr. Stromberg would not be admissible against Drs. Koch and Bell. The judgment should be affirmed.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    The Department of Public Works and Buildings of The State of Illinois, etc., Plaintiff-Appellant, v. Albert A. Horejs, et al., Defendants-Appellees.
    Gen. No. 50,402.
    First District, Second Division.
    December 13, 1966.
    Rehearing denied January 10, 1967.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (Von Allan Carlisle, Special Assistant Attorney General, of counsel), for appellant.
    Kaplan and Kaplan, of Chicago, for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiff filed a petition to condemn, which included a small triangular piece of vacant land from a corner of defendants’ improved residential tract. The property was taken to assist plaintiff to provide drainage on a frontage road superimposed on a preexisting road, fronting defendants’ tract. Across the road from defendants’ realty, on land aquired by plaintiff from other property owners, plaintiff constructed a portion of the new Southwest Expressway, placing it along the top of an embankment. Defendants claim damages to the remainder, based in material part, on the alleged interference with or obstruction to view, light and air, caused by the embankment. The jury returned a verdict making an award for the taking and for the damages to the remainder upon which the court entered judgment. Plaintiff appeals.

Title to the land taken from defendants was acquired by plaintiff in a statutory proceeding for the immediate vesting of title. The part taken was a triangular sliver of vacant land from the southwest corner of defendants’ improved residential tract. The original tract was 20,000 square feet; the part taken was 425 square feet, or slightly over two percent of the total tract; the remainder, improved with a house, garage, shed and driveway, is 19,575 square feet. The purpose of the taking was to assist plaintiff in constructing a new frontage road which, in turn, was to provide defendants and neighboring property owners with access to and from their property. The frontage road would not have been built were it not for the construction of the Southwest Expressway. The expressway was built over and across an area formerly traversed by 71st Street and defendants and others formerly had access to 71st Street. The new frontage road, at defendants’ location, occupies the same area as the preexisting 70th Place and from their lot defendants have the same access to the frontage road which they previously had to 70th Place. No part of the expressway was constructed on land taken from defendants.

As part of the expressway general improvement, plaintiff acquired certain other properties across from defendants’ lot and across from the road fronting defendants’ lot. On these properties plaintiff constructed an embankment and on top of the embankment it placed the Southwest Expressway. The expressway is 18 to 20 feet above the level of the frontage road and defendants’ lot. There are about 16 feet between the north end of the “taking line” of defendants’ lot to the frontage road. Defendants’ house is set back about 50 feet from its frontage. It is about 50 feet from the edge of defendants’ property line to a point on the embankment where it begins to rise. The rate of incline is about 1 foot of vertical distance for each 3 feet of horizontal distance. It is about 121 feet from defendants’ property line across the frontage road to the edge of the nearest part of the Southwest Expressway pavement. The embankment and plaintiff’s vacant property between the frontage road and the embankment are landscaped.

Defendants filed a petition and an amended petition in the nature of a cross-petition alleging damages to the remainder. Pursuant to an order of the court, plaintiff moved to strike the defendants’ petition. The court allowed the motion in part, denied it in part and permitted a revision and amendment on the face of the bill. The bill, as amended, particularized damages to the remainder as follows: (3) the establishment of the Southwest Expressway over this property has diminished access and convenience of travel, thus impairing its value therewith, (4) obstruction to view arising out of the abutment built in front of property and along expressway, (5) reducing the square footage remainder for septic tank in the municipality in which the property is located, and (6) obstruction of light and air along the front of property. Plaintiff sought to prevent the admission of value evidence of damage to the remainder allegedly caused by the highway embankment by renewing its motion at the time of the trial and before the calling of witnesses. The motion was not allowed. The range of the evidence as to value and damage to the remainder was as follows:

Value witnesses for Plaintiff:

Mr. Walther: $180 taking; damage to remainder $70;

Mr. Shlaes: $200 taking; damage to remainder $200;

Value witness for Defendants:

Mr. Rathbun: $300 taking; damage to remainder $5,-500.

Defendants’ appraisal witness, Mr. Horace Rathbun, stated on direct examination, that he took into account in arriving at his opinion as to damage to the remainder, the road, the embankment, the interference with view and with air and light, and the zoning variation which he stated would be needed. Mr. Rathbun testified that he took two factors into consideration in making his judgment as to damages, one the embankment and the other the “zoning code.” In answer to the question as to which of these weigh more heavily “in your mind?” he answered, “Well that is a matter of opinion.” In responding, on cross-examination, to a question as to whether or not the present view might be an asset, he answered, “It would be very hard to sell that piece of property with an embankment in (and) the variation that we have today. It would have to be a low price seller. I mean it would have to be a low price, a very low price to sell it.” At the conclusion of the testimony of defendants’ sole value witness, plaintiff moved to strike his testimony, which motion was denied. After all the testimony had been concluded, plaintiff moved to withdraw a juror and declare a mistrial and this motion was denied. Plaintiff tendered corrective instructions on points of law at issue and unsuccessfully objected to certain instructions involving the same points. The jury returned a verdict in the amount of $200 for the taking of the subject property and $2,000 for damage to the remainder and judgment was entered thereon.

We agree with plaintiff’s contention that damage to the remainder, to be compensable, must be the proximate and direct consequence of the taking and use of claimants’ property, that it is improper to admit into evidence as to damage to the. remainder, elements of damage not caused by the specific taking, and that it is improper to instruct the jury to consider such elements. The trial court permitted value evidence to be introduced in support of the damages to the remainder not caused by the taking or use of defendants’ property. The taking was of a small piece of vacant land off one corner of defendants’ residential lot. Defendants claim that the taking requires a variation in the zoning to comply with the septic system requirements. This caused a slight irregularity of the lot. We agree that only damage due to the actual taking was admissible in evidence and that damage which may have flowed from the taking or use of the property acquired from neighboring property owners forms no basis for damage to remainder to these defendants. The “damage to the remainder” must be the direct and proximate consequence of the “taking.” In Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267, 191 NE2d 245, the court, after stating that the burden of proving damage to the remainder is on the owner, said, 270:

“The settled measure of such recovery is the depreciation in value of the land not taken which results from the taking, that is, the difference between the fair cash market value of the part not taken unaffected by the improvement and its fair cash market value as affected.” (Emphasis added.)

The court in the Bloomer case also said, 273:

“Depreciation suffered in common by all lands in the vicinity of an improvement is not compensable; . . .”

The damage which defendants may have suffered because of the building of the expressway was suffered in common by all lands in the vicinity. It is differentiated from the damage caused by the taking of defendants’ property and, therefore, is damnum absque injuria. Illinois Power & Light Corp. v. Barnett, 338 Ill 499, 502, 170 NE 717; East St. Louis Light & Power Co. v. Cohen, 333 Ill 218, 164 NE 182.

The defendants take the position that since the Southwest Expressway and the frontage road were part of the same general project, the taking of defendants’ property in connection with the frontage road opened the door for “damages to the remainder” allegedly flowing from the highway embankment. Defendants contend that the taking of their land, its use as part of plaintiff’s total construction plan and construction of the expressway, represent one total taking and entitles them to damages suffered by the remainder of their land “and/or damages suffered by abutting the frontage road expressway construction.” Defendants urge that the highway construction across the road from the defendants, obstructed and interfered with the light, air and view of the defendants and that this obstruction and interference with defendants’ light, air and view represents damage to the remainder which is compensable to them whether examined on a damage to remainder or abutting owner theory. We do not agree with this reasoning, which contravenes the established principle that the actual taking or the use of the part actually taken must be the direct physical cause of the damage to the remainder.

Interference with the easements of air, light and view, are compensable elements in eminent domain proceedings under certain limited circumstances. See Horn v. City of Chicago, 403 Ill 549, 87 NE2d 642. This may accrue to a property owner, for example, when an obstructive elevated railway is constructed on a public street directly in front of the property owner’s abutting property so as to damage his easement of access as well as light, air and view. Aldis v. Union El. R. Co., 203 Ill 567, 68 NE 95. It is interesting to note that when a railroad company constructed its elevated railway on its own right-of-way only 31 feet from claimant’s expensive apartment buildings, the latter’s claim for damages under the Illinois constitution was disallowed. Aldrich v. Metropolitan West Side El. R. Co., 195 Ill 456, 461, 63 NE 155. Defendants are not abutting owners to the highway embankment construction, nor was the embankment built oil the road which fronts defendants’ property; nor was the expressway constructed on or across any part of the property taken from defendants. They have failed to establish any easement to air, light and view. The claimed damage from the expressway embankment was common to all property owners in the area and the law provides them no basis for compensation.

Depreciation suffered in common by all lands in the vicinity of an improvement is not compensable. The claimant must show a direct physical disturbance of a right particular to his property which would have entitled him to recover at common law and neither the inconvenience and feelings of the owner nor the proximity of the public facility to his property are proper elements of damage to land not taken. In Rigney v. City of Chicago, 102 Ill 64, the court said, 80, 81:

“There are certain injuries which are necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not, and never has, afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street,— if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property . . .”

Our view is that whatever damage defendants may have suffered from the expressway embankment obviously was suffered in common by all other property owners in the area. Defendants submitted no evidence to the contrary. Defendants testified as to their inconvenience, their “hemmed in” feeling, their unhappiness with their new view as compared with the old.

In case it is necessary to take private property for public use, the compensation must be fixed and paid before possession can be taken and the improvement made, but where no property is taken the improvement may be made before the damages are ascertained and paid, the property owner in such case being driven to his action at law for damages. Such action, however, is in a nature of a condemnation suit and, when resorted to, the measure of damages and rules of evidence which are to be adopted remain as though a direct proceeding by condemnation had been brought to determine the amount of damages to be paid prior to the making of the improvement. See Aldis v. Union El. R. Co., 203 Ill 567, 573, 68 NE 95.

It does not appear that the Illinois courts have had occasion to pass specifically on a claim for damages to the remainder based on the construction of a public facility upon the land of others acquired for the same project. This question has been specifically passed on, however, by the United States Supreme Court and by a number of State courts. In Campbell v. United States, 266 US 368, a portion of Campbell’s land was acquired by the United States for a nitrate plant project. Properties of other persons in the same area were also acquired. The court said, p 369:

“The question for decision is whether plaintiff was entitled to the damages to the remainder of his estate resulting from the use to be made of the lands acquired from others. . . .
“The damages resulting to the remainder from the taking of a part were separable from those caused by the use to be made of the lands acquired from others. The proposed use of the lands taken from others did not constitute a taking of his property. (P 371.) . . .
“It is only because of the taking of a part of his land that be became entitled to any damages resulting to the rest. ... If the former private owners had devoted their lands to the identical uses for which they were acquired by the United States or to which they probably will be put, as found by the court, they would not have become liable for the resulting diminution in value of plaintiff’s property. The liability of the United States is not greater than would be that of the private users. (Pp 371-372.) . . .
“The rule supported by better reason and the weight of authority is that the just compensation assured by the Fifth Amendment to an owner, a part of whose land is taken for public use, does not include the diminution in value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking. (P 372.) ”

The Illinois decisions are in harmony with the holding of the Campbell case that damage to the remainder must be caused by the actual taking and that damages suffered in common by others in the area are not compensable. In the Campbell case nitrate plant facilities were to be built in part on land of the claimant and in part on land of other property owners. In the case at bar the expressway was built on land of other property owners and a part of claimants’ land was taken for another, but auxiliary, purpose. In the Campbell case the damages resulting from the construction of a nitrate plant on the land of others was “separable” from the damages caused by the use of claimant’s land for the same general purpose. In the instant case, this “separability” is even more apparent for the taking of defendants’ property “damaged” the part not taken by a slight change in the configuration of his remaining land resulting in an alleged necessity for a change in the zoning and the alleged “damage” caused by the embankment constructed on land taken from others was of a different character and effect.

In City of Chicago v. Webb, 102 Ill App 232, the court said, 235:

“That a railroad company is not liable in damages to adjacent property owners for the elevation of its tracks upon its own right of way, being its private property, may be deemed settled by the case of Kotz v. Ill. Central R. R. Co., 188 Ill 578. For the same reasons it would appear that the city can not be held liable for requiring such elevation by ordinance.”

To paraphrase the court in the Campbell case, the liability of the State of Illinois is not greater than would be that of private users.

Illinois cases permitting damage to the remainder where obstruction interfered with air, light and view, involved situations where the obstruction was built by the condemnor upon land taken from the claimants. Defendants rely on the case of Sanitary Dist. of Chicago v. Baumbach, 270 Ill 128, 110 NE 331 and of Illinois Cent. R. Co. v. Roskemmer, 264 Ill 103, 105 NE 695. These cases involved abutment or obstruction to air, light and view. But in each case the obstruction itself was built on land taken from the claimants and a true “damage to the remainder” situation was created.

In these cases the court did not rule, as defendants maintain, that the existence of spoil banks on a parcel belonging to one claimant was an element of damage as to parcels belonging to the other claimant. Each claimant, as to his entire parcel (even where no dwelling existed) could claim damages to his remainder, as residential land, due to spoil bank obstructions created on the land taken from him. It is well established that “esthetic considerations,” “personal inconvenience” and “unsightliness of a public facility” are not proper elements of damage. Illinois Power & Light Corp. v. Barnett, 338 Ill 499, 170 NE 717. In the Barnett case, “unsightliness of transmission towers” was not deemed a proper element to be considered in an opinion of value.

The expert witness for defendants, in arriving at his opinion that the remainder of defendants’ land was damaged in the amount of $5,500, based the opinion substantially on interference with air, light and view, caused not by the taking or by the use of the property taken but by the expressway embankment constructed on the property of other parties. He stated that this factor and the factor of the diminution of lot size below the zoning requirement, were the two major factors which entered into his opinion and that he gave weight to both factors. The fact that the jury verdict of $2,000 for damages to the remainder was $1,800 above the highest competent testimony with regard to damages shows that the jury considered and gave great weight to the incompetent testimony. On a retrial proffered testimony as to damage to the remainder caused by the erection of the embankment to the expressway should be excluded and not considered in determining the issue of damage to the remainder.

The part of the judgment for $200 in favor of defendants and against plaintiff as compensation for the land taken is affirmed and the part of the judgment for $2,000 in favor of defendants and against plaintiff for damage to the remainder of the land taken is reversed and the cause remanded for further proceedings not inconsistent with these views.

Judgment affirmed in part and reversed in part and cause remanded with directions.

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


author: JUSTICE BURKE.

text:
    Zygmunt Lach, et al., Plaintiffs-Appellants, v. Anton Gfesser, et al., Defendants-Appellees.
    Gen. No. 51,053.
    First District, Second Division.
    December 13, 1966.
    Stanley Stoller, of Chicago, for appellants; Richard C. Bleloch, of Chicago, for appellees.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Appellee, v. Emanuel Barker, Appellant.
    Gen. No. 51,278.
    First District, Second Division.
    December 13, 1966.
    Ronald N. Mora, of Chicago (Stuart B. Scudder, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    Nicholas Collini, Plaintiff-Appellee, v. Walter E. Heller & Company, a Corporation, Defendant-Appellant.
    Gen. No. M-51,549.
    First District, Second Division.
    December 13, 1966.

      Greenberger, Krause & Jacobs, of Chicago, for appellant; no appearance made for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Ethridge, Defendant-Appellant.
    Gen. No. 50,520.
    First District, Third Division.
    December 15, 1966.

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

delivered the opinion of the court.

The defendant, Robert Ethridge, who was indicted for armed robbery, made a motion before his trial for substitution of judge alleging that he could not receive an impartial trial because of the prejudice of the trial judge. The motion was denied. The case went to trial, a jury found him guilty and he was sentenced to a term of imprisonment of not less than eight and not more than twenty years. He contends that he is entitled to a new trial because his motion was improperly denied.

The record shows that on May 1, 1964, the defendant’s case was assigned to the trial judge by the presiding judge of the Criminal Court. The case was called on May 7th. The defendant was arraigned on May 7th and his attorney was in court. No subpoenas had been issued for that date and the case was continued to May 21, 1964, for trial. The defendant’s motion for substitution of judge was filed and denied on May 21st.

His contention is based on both subsections (a) and (c) of section 114-5 of the 1963 Code of Criminal Procedure (Ill Rev Stats, 1963, c 38, § 114-5(a), (c)). Subsection (a) is as follows:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of judge or any 2 judges on the ground that such judge or judges are so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another court or judge not named in the motion.”

In the Criminal Division of the Circuit Court of Cook County indictments are returned to the presiding judge who assigns them to the trial judges. Defendants are in court at the time the assignments are made and each defendant is told the name of the judge who will try. his case. When a case is assigned to a trial judge it is assigned for disposition and it becomes part of that judge’s trial call. Shortly after the assignment the minute clerk of the trial judge is informed of the newly assigned case and the judge immediately designates the date when it will be called in open court. The defendant, his attorney and the prosecutor are in court on the date designated but, normally, witnesses are not subpoenaed. A date is then selected for trial.

Defendants are usually arraigned before the presiding judge. In the present case the defendant was not. But the fact that he was arraigned by the trial judge on May 7, 1964, the date when his case appeared on the call without subpoenas, does not change the date when his case was placed on the trial call. His case was not placed on the trial call on May 7th nor was it placed on the trial call on May 21st, the date which had been selected for trial and the date his motion was made, as the defendant contends. It was placed on the trial call on May 1st, the date the presiding judge assigned it to the trial judge and it became part of that judge’s trial call upon assignment.

Since the defendant’s motion was filed more than 10 days after his case was placed on the trial call, the procedure concerning it was not controlled by subsection (a) but by subsection (c) of section 114-5. Subsection (c) provides, in part, that:

“ [A] ny defendant may move at any time for a 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 these: a motion filed within the 10-day period may name two judges, it does not have to be verified, and the defendant has an absolute right to a substitution of judge; if a motion is filed at any other time it may name only one judge, it must be supported by affidavit, and the defendant is not entitled to an automatic substitution but the court must conduct a hearing to determine the merits of the motion.

In the present case the defendant’s motion was not supported by a separate affidavit but the motion was verified. This was a sufficient compliance with the statute. 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 (People v. Arnold, 76 Ill App2d 269, 222 NE2d 160, supplemental opinion filed October 28, 1966); this can be reserved for the hearing which the court must conduct.

In the instant case the court did not conduct a hearing as contemplated by the statute. The order entered by the court stated:

“ [T] he Court hearing Counsel for said Defendant in support of said Motion as well as the State’s Attorney, Counsel for the People, in opposition thereto and being fully advised in the premises doth Deny said Motion. . . .”

This order indicates that the hearing was limited to the arguments of counsel. When an order states that the court is “fully advised in the premises” a reviewing court will conclude, in the absence of anything to the contrary in the order or record, that the trial court heard adequate evidence, received enough information or listened to sufficient law and argument to enable it to reach what it believed to be the right decision (Smith v. Smith, 36 Ill App2d 55, 183 NE2d 559 (1962)). However, when an order recites the actions taken or the matters considered by the court, there arises the inference that only the items specified took place or were considered, and that the court’s decision was based on these items. Stickler v. McCarthy, 64 Ill App2d 1, 212 NE2d 723 (1965).

We must conclude from the order that no testimony was heard or evidence received and that the denial of the motion was based on the arguments of counsel. If the defendant was unwilling or unable to support his charge of prejudice the order or the record should so indicate. Since the defendant was not accorded a hearing within the meaning of the statute, the defendant’s sworn allegation that he could not receive a fair and impartial trial must be taken as true. People v. Arnold, supra. The petition for substitution of judges was, therefore, improperly denied and all the actions of the court subsequent thereto are void. Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33 (1963).

The defendant also made the point in his brief that the indictment was defective because it did not specify the time and the place of the offense. This point was waived in oral argument under the authority of People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966) and People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

The judgment of the Criminal Division is reversed and the cause is remanded for a new trial.

Reversed and remanded with directions.

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


author: ME. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack J. Stepter, Defendant-Appellant.
    Gen. No. 50,714.
    First District, Fourth Division.
    December 16, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Brian L. Crowe 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 James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged in the Indictment

Murder and aggravated battery.

Judgment

After a bench trial, defendant was found guilty of both crimes. On the murder conviction he was sentenced to a term of 15 to 20 years, with a concurrent sentence of 3 to 5 years for aggravated battery. Defendant has appealed from the murder conviction only.

Contention on Appeal

Defendant’s sole contention is that he was not proven guilty of murder beyond a reasonable doubt.

Evidence

On August 7, 1964, Mrs. Helen Higgs held a party in her home at 6208 South Morgan Street. Among the guests were Cornelius Owens (the deceased), Eddie Anderson, and defendant. During the course of the party Helen Higgs was shot in the leg by defendant in the bathroom. Mrs. Higgs subsequently emerged from the bathroom and, according to the testimony of Eddie Anderson: (1) Owens (the deceased) was standing between the kitchen and bathroom; (2) Owens shouted at defendant either “Don’t shoot her” or “Don’t kill her”; (3) Anderson heard the gun fire and saw Owens fall to the floor; and (4) he (Anderson) looked at defendant and saw the gun in his hand. Anderson did not actually see defendant pull the trigger.

According to the testimony of Helen Higgs, she was shot after a brief struggle with defendant in the bathroom while the door was closed; she heard only one shot; she ran downstairs but returned in response to defendant’s pleas, and passed out shortly thereafter. (Anderson testified that he heard shots coming from the bathroom and that the gun again discharged when Owens was shot.) At the trial defendant admitted having the gun in his possession after removing it from a drawer, but stated that both Mrs. Higgs and the deceased were accidentally shot as he (defendant) and Mrs. Higgs struggled over the gun.

Opinion

It is undisputed that the deceased was killed by a shot fired from a gun in the hands of defendant. The defendant proffered his own testimony to show that the gun had been discharged accidentally. The trial judge obviously did not believe him. Other than in this testimony of defendant, which proved insufficient to raise a reasonable doubt in the mind of the trier of fact, the record does not disclose any mitigation, justification or excuse for the homicide, and thus the State’s evidence was properly found sufficient to establish beyond a reasonable doubt all the essential elements of the crime of murder, including the requisite mental state. People v. Kelley, 29 Ill2d 53, 59, 193 NE2d 21.

So far as mental state is concerned, it will be noted in the statutory definition of the crime (set forth in the footnote above) that the State need not prove that defendant intended to kill Owens, but only that he intended to do him great bodily harm, and the intent may be implied from the character of the act. People v. Latimer, 35 Ill2d 178, 183, 220 NE2d 314.

In the instant case the trial judge believed the testimony of Anderson that the deceased was shot as he yelled to defendant not to shoot Mrs. Higgs. The credibility of the witnesses is for the determination of the trial court and we will not substitute our judgment for his. People v. Henderson, 33 Ill2d 225, 210 NE2d 483.

We conclude that the defendant was proven guilty of murder beyond a reasonable doubt.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1963), eh 38, § 9-1, provides in pertinent part:
      § 9-1. Murder

      (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another;


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Defendant in Error, v. Farlane Bedford, Plaintiff in Error.
    Gen. No. 51,231.
    First District, Fourth Division.
    December 16, 1966.

      McCoy, Ming & Black of Chicago (Ellis E. Reid, of counsel), for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged in the Indictment

Unlawful possession of narcotic drugs.

Judgment

After a jury verdict finding defendant guilty, the court imposed a sentence of 10 to 20 years. Defendant sued out a writ of error in the Supreme Court and the cause was transferred to this court.

Contentions on Appeal

(1) Defendant was not proven guilty beyond a reasonable doubt because the prosecution failed to establish that he had either actual or constructive possession of the narcotics in question.

(2) Defendant did not receive a fair trial.

Evidence

Upon information supplied by a narcotics addict-informer (George Lemon, defendant’s brother-in-law who was deceased at the time of trial), the police obtained a search warrant and, on January 12, 1961, raided a third-floor apartment at 8118 South Ellis Avenue in search of narcotics. There they found defendant’s wife, Barbara Bedford, and their child. During a search of the apartment the officers discovered an envelope concealed' in the rear of the television set. It bore the name “Barbara” and contained narcotics. In a cigar box on a night stand next to Barbara Bedford’s bed were found various bills and receipts in the name of defendant (some of which were almost a year old), some bearing the name of Farlane and Barbara Bedford, and some in the name of Barbara Bedford alone. None of defendant’s clothes nor any other indicia of his residence at that address were found. Defendant was arrested approximately one week later in the corridor of the Criminal Court Building and interrogated by Officer Stribling. According to Officer Stribling’s testimony, defendant admitted living at 8118 South Ellis Avenue, admitted that he knew “the stuff was there,” and stated that “I guess I am stuck with it [referring to narcotics].” Robert Smith, an officer with the narcotics unit, testified that he had talked with the defendant on December 28, 1960, at which time defendant had stated that he lived at the Ellis Avenue address.

At the trial defendant testified that in January of 1961 he lived at 6002 South Princeton Avenue. He denied (1) renting the apartment on Ellis Avenue, (2) ever residing in or having a key to the Ellis Avenue apartment, (3) any knowledge of the narcotics in question, and (4) making the statements to Officer Stribling as testified to by the latter. He stated that in January of 1961 he was a chauffeur for a funeral home. His employment, however, was denied by the funeral director.

Barbara Bedford, defendant’s wife, testified that at the time of the raid she was living in the apartment in question at 8118 South Ellis; that she had then been separated from defendant for about one year; that the apartment was also occupied by her fifteen-month-old son, her father, and the informer George Lemon, her brother;' and that defendant was living at 60th and Princeton but sometimes came to see her. She identified Defendant’s Exhibit 3, a rent receipt for the apartment, and Exhibit 4, a five-day notice to vacate the premises, both of which were in her name alone. With regard to the above-mentioned bills and receipts in the name of Farlane Bed-ford, she explained that: “My husband had charge accounts at various stores in his name. ... It was in his name because he was my husband. . . . Everything I had was in his name.”

Opinion

To support a conviction for the unlawful possession of narcotics the State must prove beyond a reasonable doubt that the defendant had either actual or constructive possession of the narcotics in question. People v. Mack, 12 Ill2d 151, 145 NE2d 609. Narcotics are constructively possessed by an accused when they are in a place under his immediate and exclusive control. People v. Mack, supra. However, “knowledge of the location of narcotics is not the equivalent of possession, but merely a necessary element of criminal possession.” People v. Jackson, 23 Ill2d 360, 364, 178 NE2d 320.

In the instant case, according to the uncontroverted evidence, defendant did not rent the apartment in which the narcotics were found; was only an infrequent visitor to the apartment; and did not have a key thereto. Additionally, the envelope containing the narcotics was marked “Barbara,” and although Barbara Bedford was arrested as an addict, she was not charged as a possessor of narcotics. (It v/as her brother, an addict and an informer for the police in narcotics cases, who signed the complaint for the search warrant.) Neither the receipts and bills found in the apartment nor defendant’s purported admissions that he lived therein are sufficient, in our opinion, to establish defendant’s guilt. We will not substitute our judgment for that of the trial judge as to the credibility of the witnesses unless it can be said that the evidence is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Hiller, 7 Ill2d 465, 470, 181 NE2d 25; People v. Gardner, 35 Ill 2d 564, 221 NE2d 232.

It is our conclusion that defendant was not proven guilty beyond a reasonable doubt. We, therefore, need not consider his contention that he did not receive a fair trial.

Decision

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER, P. J. and McCORMICK, J., concur.

       George Lemon had been an informer for the police. Mitchell Ware, an inspector with the State of Illinois, Narcotics Division, testified that Lemon lived at 128 East 68th Street, not at the Ellis Avenue address.


text:
    City of Countryside, a Municipal Corporation, PlaintiffAppellee, v. Oak Park National Bank, as Trustee, etc., et al., Defendants-Appellants.
    Gen. No. 51,226.
    First District, Fourth Division.
    December 16, 1966.
    Nathan Hoffberg, of Chicago (Ira I. Silbar, of counsel), for appellants.
    Arthur C. Thorpe, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal from an order allowing the demolition of defendants’ building.

Plaintiff brought an action for leave to demolish defendants’ building on the ground that it was in an unsafe and dangerous condition. Defendants denied all material allegations and, in addition, filed a cross-complaint for a writ of mandamus directing plaintiff to issue a permit to repair the building. In their cross-complaint defendants alleged that requests had been made for the issuance of a permit to make repairs to the premises in question but that plaintiff had refused to issue such a permit. Plaintiff filed an answer to the cross-complaint, denying that defendants had ever requested the issuance of the permit.

Evidence was presented as to the dangerous and unsafe condition of the premises, presently used to store lumber. According to the testimony of Albert Mitchell, a registered engineer and also the building commissioner of the City of Countryside:

“. . . The doors, trim work and glass windows were in a deteriorated state. They were warped and hard to close; some of the windows were boarded up. There is no provision for heat in the building whatsoever. All of the electrical work is in a complete state of deterioration.
“All of the plumbing fixtures have been removed from the building. There are no sanitary facilities in the building at all for human occupancy. The roof is sagging and in a very dangerous condition which indicates a structural failure. The roofing material has been torn off so that the entire roof would have to be reinforced and removed. The floor in the building is sagging very precariously in several locations and the entire floor would have to be straightened structurally before occupancy could be made. . . . Based on my experience, it is my opinion that the building has deteriorated approximately 75% and is unsafe.”

The witness further stated that the building is a fire hazard and is vermin infested; and that “any children on the roof would fall if they got onto it.”

One of the defendants, Conrad Heidberger, denied that the building was vermin infested and, in addition, stated that operable plumbing facilities existed in the building.

The plaintiff asserted that the building was a nonconforming structure since it did not meet the set-back requirements of its zoning ordinance (which was adopted subsequent to the time the building was built). Plaintiff also adduced its zoning ordinance which provides in relevant part that should a nonconforming structure be “destroyed by any means to an extent of more than 50 per cent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.” Plaintiff contended the building could not be reconstructed (repaired) in conformity with the provisions of the ordinance because it did not meet the set-back requirements. Defendants argued that a subsequent survey showed compliance with the aforesaid set-back requirements, but that argument was rejected by the trial court.

The court then suggested that an appraiser be appointed to ascertain “whether or not that building has depreciated more than fifty per cent,” stating: “If it has, down it goes. If it hasn’t, I will give you [defendants] an opportunity to fix it.” No question was raised in the trial court as to the applicability of the ordinance or as to the aforesaid procedure. Defendants’ only apparent concern was that an impartial appraiser be appointed. No objection was made to the appointed appraiser.

The appraiser reported to the court by letter that the replacement cost was $6,000 and the cost of repair $4,000. Defendants offered no evidence as to another estimate of costs for either replacement or repair, nor did they request a hearing for the purpose of cross-examining the appraiser.

Defendants’ sole relevant contention on appeal is that the appraiser’s report was incorrect and that they were denied the right to cross-examine him. However, as we have heretofore stated, defendants had offered no evidence of any other estimate of replacement or repair costs, nor had they sought to cross-examine the appraiser. The issue has therefore been waived and cannot be raised for the first time on appeal.

The uncontroverted evidence supports the court’s finding that the defendants’ building had deteriorated more than fifty per cent of its replacement cost, and its demolition was therefore properly allowed. The order of the trial court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       While defendants argue the point, there is no question but that both the trial court and this court may take judicial notice of plaintiff’s zoning ordinance without its having been introduced into evidence. Ill Rev Stats (1963), ch 51, § 48a; 25 Ill App2d 433, 166 NE2d 291.

       We find no support for that argument in the record.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Defendant in Error, v. Frank Daniel, Plaintiff in Error.
    Gen. No. 51,436.
    First District, Fourth Division.
    December 16, 1966.

      Thomas J. McDonnell, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Saul A. Perdomo, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Murder.

Judgment: After a bench trial the defendant was convicted of murder and sentenced to the Illinois State Penitentiary for a period of not less than 14 nor more than 19 years. Defendant sued out a writ of error in the Supreme Court, which transferred the case to the Appellate Court.

Points Raised on Appeal : Defendant contends that he was denied a fair trial because:

1) He waived his right to a trial by jury without being properly and adequately informed of his rights;
2) He was prejudiced by the court allowing a witness to testify for the State whose name had never been furnished to the defense counsel who represented the defendant in the trial; and
3) His statement was improperly used to impeach him.

On January 25, 1962, the defendant voluntarily surrendered to the police and was taken into custody. The case came to trial on July 17,1963.

Evidence: Mrs. Georgia Mack, mother of the deceased, testified that after having lived downtown with the defendant for about a year and a half, her daughter, Dianne, had returned home two weeks prior to the date in question. She testified that on the evening of the shooting her doorbell rang at about 6:15, and that her daughter went to answer it. When she had not returned for some time, Mrs. Mack went to the glass porch door and saw her daughter running north. She further testified that she saw the defendant standing six to eight steps from the front door, with a gun in his hand; that she saw him fire one shot; that she then went back into the house to call the police and while there she heard another shot; that she then went outside and found her daughter lying in the snow, about five houses north of her home. On cross-examination, the witness denied having any conversation with Frank Daniel on the day in question; that he was not in her home and did not bring a dress to her home that day.

Mrs. Sylvia McCurdy was then called as a witness by the State. The then defense counsel objected, claiming her name was not on the list of witnesses he had been given and he was taken by surprise. (Defendant had had two other counsel, each of whom had withdrawn before the appointment of the counsel who represented defendant during the trial.) The court allowed counsel two hours to interview the witness and overruled his objections asking that the testimony of the witness be excluded. Mrs. McCurdy testified that on the day in question she was sitting in a car parked two houses north of the Mack residence. She said she had known the deceased about seven years but had never seen the defendant before the day of the shooting. Her testimony continued as follows: While she was sitting in the car she saw the deceased run out of the house, followed by a man, then by Mrs. Mack. The deceased ran north and the defendant continued to pursue her, firing a gun four times. The deceased ran until she fell in front of a house about five doors north of the Mack home. The defendant then jumped into a car and sped away. On cross-examination Mrs. McCurdy stated that she had not seen the face of the defendant. She also said that she was still at the scene when the police arrived; that she did not talk to them nor did she go to the place where the deceased was lying; that the first time she ever talked about the matter was more than a week after the occurrence when she talked with Mrs. Mack.

Mrs. Mack was recalled by the State and testified that she identified her daughter’s body at the morgue and that Dr. Tapia, coroner’s pathologist, was present when the identification was made.

By stipulation the doctor’s report of the cause of death was read into the record. The examination revealed that there was a bullet wound in the left lumbar region located at the level of the 12th rib; that the bullet was directed upward anteriorly and toward the left.

Police Officer Henry White testified that in response to a call he went to the 1800 block of Hartrey Street, where he saw the body of Dianne Anderson lying on the public sidewalk in front of 1829 Hartrey Street, her head to the north and her feet to the south. He stated that (on information received from the mother) he then made a search for the defendant and also for eyewitnesses. He further testified that the defendant surrendered in the police station on January 25, 1962, and gave the police a gun which he said he had used in the shooting. On cross-examination the officer testified that he did not find Mrs. McCurdy at the scene of the accident. He testified that Mrs. Mack had told him that the defendant had been in the house that day talking to her daughter, and that she did not tell him that anyone else except the defendant had come to the door or had talked to the deceased.

The defendant took the stand in his own behalf and testified that he had known the deceased since 1959; that he had been living with her since March 1959; that he had not at any time stopped living with her, and had been living with her at her mother’s where she had been for about two weeks or more. He said Mrs. Mack had told him someone had tried to break into her back door. He testified that he got the gun in Indiana about 2 o’clock the day of the occurrence; that he had gone to Mrs. Mack’s that day about 5:00 p. m., and had brought a black coat and a red dress for the deceased, together with the gun. He testified that he and the deceased and her mother were sitting in the dining room having coffee when the front doorbell rang; that Mrs. Mack answered the bell, then returned to the dining room and told the deceased that someone wanted to see her. He stated that when the deceased went to the door he walked behind her, taking the gun; with him, and saw a man standing there; that the man grabbed the deceased and pulled her outside; that he (the defendant) came behind the man, put the gun on him and told him to turn her loose; that the man pushed her and she came up behind the defendant, the man got into an automobile and drove away. The defendant said he then asked the deceased who the man was and she told him she didn’t know; that he turned to go back to the house and the deceased pushed him over and he fell, at which time the gun fired and the powder burned his face and he jumped up, thinking he was shot, and ran to the gas station. In response to a question as to how often the gun was fired, the defendant said he only heard one shot; that at the time it was fired he was lying on the sidewalk. He said he didn’t intend to shoot the deceased. On cross-examination he testified that the deceased had been at her mother’s for two weeks. The following questioning occurred:

Q. “And she wasn’t with you during those two weeks ?”
A. “I was up there.”
Q. “You went up there ?”
A. “Yes sir. I was with Mrs. Mack.”
Q. “When you say you were with Mrs. Mack, what do you mean?”
A. “I had been up to Mrs. Mack for two weeks, we had been there, me and her both lived in the house, our apartment, and we went to Mrs. Mack after she had the — ”
Q. “After what?”
A. “After Mrs. Mack said somebody else tried to break into her back door.”

The defendant further testified that he had been at Mrs. Mack’s house for about 45 minutes on the day in question. On cross-examination he testified that he didn’t know whether the deceased went to turn around or had pushed him, and he slipped; he only knew that he fell and that was when the gun was fired. When asked how many times he fired the gun his response was that he heard only one shot and he didn’t know whether or not there were more shots fired. He said that when he got up and left the deceased was still standing on the sidewalk. The defendant testified that at the time he was wearing a cap and a three-quarter length car coat.

For impeachment purposes the defendant was then questioned concerning a prior statement given by him to a prosecutor at the police station. The defendant denied making some of the statements to the prosecutor; he admitted that a court reporter took down the questions and answers. He was asked, concerning a former question:

“Were you asked this quesion:”
Q. “And when she was shot she fell right down at that spot?”
A. “I don’t know whether she was standing up or she fell or what. I don’t know when she was shot.”
Q. “But she fell right where she was ?” And did you answer: “She was laying right beside me when I got up.”
A. “No, I didn’t tell the State’s Attorney that.”
Q. “Did he also ask the question: ‘She didn’t get up when you did?’ A. ‘No, sir, she didn’t get up when I was there.’ ”

The defendant denied that he was asked the questions or that he made the answers. All of these questions were asked over Ms objection. A stipulation was entered into between the defendant and the State that if Donald Flannery were called to testify he would state that he is a stenographer for the State’s Attorney’s office and that on January 25, 1962, in the Evanston police station in the presence of an Assistant State’s Attorney, and Officers White and Cooper of the Evanston police force, certain questions were asked of the defendant and certain answers given by him, and that he would further testify that at that time the defendant stated (referring to the alleged third person) :

“A. He gets into his car. I say to her, ‘Dianne, who was that ?’ She said, T don’t know.’ I said, T guess you do.’ She said, ‘No, I don’t know,’ and she pushed me. It’s a small street, you know, and I slid down, I slid down and the gun went off, and how many times it was fired, I don’t know. When I got up she was laying down, when the gun was firing on me and I couldn’t see nothing, I couldn’t see nothing. I looks at her. She was laying down and he started running. I don’t know what to do because I thought I was shot and I went into the gas station. I told the guy I was shot and he also stated—
“Q. The question was when she was shot she fell right down at this spot, didn’t she ?
“A. I don’t know whether she was shot and standing up or she fell or what. I don’t know when she was shot.
“Q. She fell right where she was at ?
“A. She was laying right beside me when I got up.”

At that point counsel for defendant stated that he would object to the statement on the ground that it was involuntary and that there was no hearing on the statement. The court overruled the objection.

Opinion: In this court the defendant urges that he had waived his right to a trial by jury without being adequately informed of his rights. When the defendant appeared before the court the following colloquy occurred:

Court: “Your counsel tells me that you want to waive a jury.”
Defendant: “Yes.”
Court: “You are entitled to a jury trial, if you want one./’
Defendant: “Judge, I prefer to have a bench [trial].”
Court: “A bench trial ?”
Defendant: “Yes.”
Court: “All right. Sign the waiver.”
Mr. Stein: “He has signed the jury waiver, Your Honor.”

In People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404, where practically the same dialogue occurred between the court and the defendant, the court said:

“A jury trial is a right and a privilege and is not a jurisdictional requirement: The duty, of the court is to determine whether defendant knowingly and understanding^ waived this right. People v. Wesley, 30 Ill2d 131; People v. Clark, 30 Ill2d 216; People v. Surgeon, 15 Ill2d 236.”

The court held that from the excerpts from the record the defendant knowingly and understandingly waived his right to a trial by jury, and we so hold in the case before us.

The second contention made by the defendant is that the trial court abused its discretion in permitting Mrs. McCurdy to testify since her name was not on a list furnished to the then defense counsel; that the defense counsel was taken by surprise and the defendant prejudiced. Her name was on a witness memorandum appearing in the court file. The undisputed evidence tends to establish that the name of the witness, Mrs. McCurdy, had been given to the preceding defense attorney. She had been subpoenaed and had appeared four times in court. The court, however, permitted the defendant two hours to interview the witness. After the interview the defendant again objected to the witness’ testifying. The court overruled the objection and she was permitted to testify. It is within the court’s discretion to allow witnesses to testify whose names do not appear on the indictment when by so doing the defendant is not placed at an unfair disadvantage. The burden of showing unfairness is on the defendant. People v. Quevreaux, 407 Ill 176, 95 NE2d 62; People v. Ford, 19 Ill2d 466, 168 NE2d 33. In People v. Welch, 22 Ill2d 558, 177 NE2d 160, the court said:

“Although the statute directs the People to furnish to the defendant a complete list of witnesses, (Ill Rev Stats 1959, chap 38, par 729,) we have heretofore held the trial court may in its discretion allow unlisted witnesses to testify unless such a course unduly surprises or prejudices the defendant. However, where, as here, the defense was afforded an opportunity to talk to the witness, did not ask for a continuation or make any showing of prejudice, but proceeded with trial, no error resulted in such respect. People v. LaCoco, 406 Ill 303; People v. Weisberg, 396 Ill 412; People v. Scott, 261 Ill 165.”

In the instant case the defendant was afforded an opportunity to talk to the witness for two hours, and proceeded with trial without asking for a continuance. This brings the matter directly under the rule laid down in the Welch case.

The defendant further argues that a statement made by him on a prior examination by a State’s Attorney was improperly used to impeach him. His counsel objected on the ground that the statement was involuntary and also on the ground that the defendant did not make the statement. The State relied on People v. Hegovic, 348 Ill 58, 180 NE 561, and on the authority of that case the trial court ruled that it was not necessary to have a hearing to determine the voluntariness of the defendant’s statement, when the defendant denied that he made the statement. However, subsequent to the instant trial, People v. Norfleet, 29 Ill2d 287, 194 NE2d 220, specifically overruled Hegovic. In the Norfleet case the court held that the due process clause of the Fourteenth Amendment invalidates a state court conviction grounded in whole or in part upon a confession which is the product of other than reasoned and voluntary choice; and further, that the point is available to defendant despite the fact that he testified in the proceeding that he had never in fact confessed, voluntarily or involuntarily. •

In the case before us the State’s' Attorney filed a confession of error. People v. Stark; 33 Ill2d 616, 213 NE2d 503; People v. Thigpen, 33 Ill2d 595, 213 NE2d 534; People v. Taylor, 33 Ill2d 417, 211 NE2d 673; and Jackson v. Denno, 378 US 368, 84 S Ct 1774, 12 L Ed 908, all hold that the failure of the -court below to conduct a hearing on the admissibility of the confession was error and that, remandment for that purpose is required. However, it does not follow that this default of itself requires reversal of the conviction.

In accordance with the rule laid down in the foregoing cases, the cause before us is remanded to the Circuit Court of Cook County, with directions to conduct a hearing on the admissibility of the alleged statement of the defendant. If found to be admissible a new judgment of conviction should be entered. If found incompetent the judgment must be vacated and the defendant awarded a new trial.

Reversed and remanded with directions.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Brown, Defendant-Appellant.
    Gen. No. 49,937.
    First District, Second Division.
    December 20, 1966.
    Malcolm P. Brown, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for the crime of voluntary manslaughter, after a bench trial, with sentence in the Illinois State Penitentiary from 1 to 20 years. Defendant was indicted and tried for murder and pleaded self-defense.

At the trial, Ida Jenkins, a witness for the People, testified that she was the common-law wife of the deceased, Edward Jenkins; that she had talked to Jenkins on January 18, 1964, at 3:30 p. m.; that he sounded a little intoxicated; that Jenkins, in the months preceding the incident, had not been working; and that defendant (her son by a former marriage) and she were supplying him with his necessities.

Officer John Sullivan, a witness for the People, testified that he was assigned a call at 7516 South Ridgeland; that when he arrived at that address, he met defendant in the courtway; that defendant stated, “Get an ambulance. I cut my father”; that he went up to the second floor apartment and observed Jenkins lying on the floor in a pool of blood; and that there was a knife at Jenkins’ right side and a hatchet laying at Jenkins’ feet.

Officer Sullivan further testified that defendant told him that about two hours previous to the incident, he had come home and found Jenkins in the bedroom with a girl; that Jenkins left the apartment with the girl; that he called his mother and explained what had happened; that Jenkins also called his (defendant’s) mother before returning to the apartment; that upon his return Jenkins called him a “stool pigeon”; that a fight ensued; and that during the fight defendant reached for an axe, which was on the dining room table, and struck Jenkins. Officer Sullivan testified that defendant did not tell him that Jenkins had a weapon. On redirect examination of Officer Sullivan, however, he testified that defendant said, “I thought he had a knife, but I did not see it.”

A statement taken from defendant at the Third District Station on January 18,1964, was introduced into evidence, whereby defendant stated that upon the return of Jenkins to the apartment, he started to attack defendant and that he did not see any knife in Jenkins’ hand but thought he did have a knife. A second statement taken in the Criminal Court Building on February 5, 1964, from defendant, was introduced into evidence, whereby defendant stated that Jenkins, upon returning to the apartment, grabbed defendant, while he was lying on the bed, and chased him into the dining room, where defendant grabbed a hatchet and struck Jenkins on the head. In this statement defendant again reiterated that he did not see anything in Jenkins’ hand but further stated that when Jenkins fell to the floor, he turned him over and found a butcher knife on the floor.

Defendant testified in his own behalf and stated that he arrived at the apartment on January 18, 1964, at about 2:00 o’clock in the afternoon; that he could not get into the apartment because the door was locked; that he rang the bell; that Jenkins came to the door with only his shorts on; that he went into his mother’s room to look for a notebook; that he noticed the closet door move; that he opened the closet door and noticed a woman standing in the closet in her slip; that he asked her to come out of the closet; that she put her clothes on before coming out of the closet; -that he asked Jenkins to take the woman away; that they both left together; that Jenkins came back about 15 or 20 minutes later; that Jenkins stayed for about five minutes and left; that it was his opinion that Jenkins was under the influence of intoxicating liquor; that Ida Jenkins, his mother, called and he told her what occurred in the apartment; that Jenkins came back about a half-hour later and said, “You told her, didn’t you?”; that Jenkins left the apartment ; that defendant was asleep in the front room, when Jenkins returned at about 4:30 p. m.; that- Jenkins grabbed him from behind; that he broke away from Jenkins and stated, “Stay away from me”; that Jenkins kept charging him; that he saw the hatchet lying on the table; that Jenkins kept coming at him; that he swung the hatchet and struck Jenkins; that he was booked for aggravated battery; and that 17 or 18 days later Jenkins died. Defendant also testified that when he turned Jenkins over, he discovered a butcher knife in his hand. In response to a question as to whether or not he knew Jenkins had a knife when he was coming at him, defendant testified that “I knew he had something, but ... I never saw the knife.”

On cross-examination, defendant stated that he loved his mother and respected her and that Jenkins had told him that he did not love his mother. In response to a question of whether that made him mad, defendant stated, “No sir, it actually did not.” After hearing the evidence, the court found defendant guilty of voluntary manslaughter. Defense counsel requested probation, which was denied and the court imposed a sentence of from 1 to 20 years in the penitentiary.

It is defendant’s theory of the case (1) that he hit the deceased in self-defense and that he was improperly convicted of voluntary manslaughter in that there was no evidence of sudden or intense passion in which to convict a person under section 9-2(a), chap 38, Ill Rev Stats (1963) or proof by the State, beyond a reasonable doubt, that defendant did not believe the circumstances justified the killing and/or defendant’s belief was reasonable, as required by section 9-2 (b), chap 38, Ill Rev Stats (1963) and (2) that a statement and finding made by the trial court constituted prejudicial error. We agree with defendant. We find there was insufficient evidence to convict defendant of the crime of voluntary manslaughter. There was uncontroverted testimony by defendant that the derogatory remarks about his mother did not make him angry. Therefore, there was no evidence presented by the People that defendant was acting under sudden or intense passion, as required by section 9-2(a), chap 38, Ill Rev Stats (1963).

Despite the statement by the trial court, that defendant used excessive force in defending himself, that the use of the weapon was unwarranted and that the alleged attack by Jenkins was not of such a nature to warrant the acts of the defendant against Jenkins, we feel the People failed to prove, beyond a reasonable doubt, that defendant did not act in self-defense. There was uncontroverted testimony that Jenkins was intoxicated. There is further uncontroverted testimony that Jenkins had a bad reputation and had struck defendant’s mother on numerous occasions. Defendant, in his statement to the police, stated that he thought Jenkins had a knife. Furthermore, he testified that when Jenkins was coming at him “he knew he had something . . . but he never saw the knife.” There was evidence that Jenkins was shouting at defendant from a distance of a few feet; that Jenkins was angry at defendant for telling his mother about Jenkins’ escapade with another woman; and that defendant felt he was unable to get out of the apartment. We feel that there was sufficient evidence in the record for defendant to believe that deadly force was necessary to prevent his death or to protect himself from great bodily harm and that this belief was reasonable.

We do not have to consider defendant’s second contention because of the result reached above.

The judgment is reversed.

Judgment reversed.

BRYANT, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William H. Perdew, Defendant-Appellant.
    Gen. No. 50,021.
    First District, Second Division.
    December 20, 1966.

      David C. Falls, of Chicago, for appellant.
    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 appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction, after a jury trial, for the crime of resisting or obstructing a peace officer while armed. The trial judge placed defendant on probation for a period of three years.

At the trial, the People presented evidence that on March 24, 1963, defendant was involved in an automobile accident in front of his home at 550 Elmwood Avenue, Evanston, Illinois. An altercation followed with a motorist, one Harry Sturgeon, who subsequently signed a complaint for battery against defendant. On March 24, several Evanston police officers investigated the incident, including detectives George Murphy and Thomas Joyce. These officers spoke to defendant and his wife and asked defendant to come to the police station with them. He refused.

Further evidence was presented that on March 27, 1963, Officers Joyce and Murphy went to defendant’s home with a copy of an arrest warrant for battery, signed and sealed by a court clerk. They were admitted by defendant’s wife, who called her husband. Defendant was informed that he was under arrest for battery and was shown the copy of the warrant. • He went into another room to get a jacket and slammed the door. Mrs. Perdew and the officers entered the room and saw defendant with a gun in his hand. He ordered the officers to “Get on that telephone and do something about that warrant” while pointing the gun both at the officers and the telephone, but they refused to do so. Defendant placed the gun in an open drawer and reached for the telephone. Detective Joyce seized defendant. Defendant tried to regain possession of the gun but was overpowered by detectives Joyce and Murphy. Mrs. Perdew was also unsuccessful in an attempt to reach the weapon. After an additional struggle, defendant was handcuffed and brought to the police station.

It is defendant’s theory of the case that the evidence is insufficient to establish beyond a reasonable doubt (1) that he knew the officers were making an authorized arrest and (2) that he knowingly obstructed the officers in making the arrest.

Chapter 38, § 31-2, Ill Rev Stats (1963) states as follows:

RESISTING OR OBSTRUCTING A PEACE OFFICER WHILE ARMED. Whoever violates Section 31-1 while armed with a dangerous weapon shall be imprisoned in the penitentiary from one to two years.

Chapter 38, § 31-1, Ill Rev Stats (1963) states as follows:

RESISTING OR OBSTRUCTING A PEACE OFFICER. A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.

At the outset, we must distinguish this case from those situations where there is an arrest without a warrant and the defendant resists the arrest. In the instant case, we are dealing only with a defendant who questions the validity of the arrest warrant and resists and obstructs the execution of said arrest warrant.

In support of his first contention, defendant argues that he was justified in questioning the authority of the arrest, (a) because the copy of the arrest warrant served on him was not signed by a judge and (b) because the arrest was not made on the same day as the altercation with the motorist. (Emphasis supplied.) The absence of a judge’s signature on a copy of the warrant does not invalidate a warrant. The customary procedure followed by the State’s Attorney’s office in obtaining the issuance of a warrant, is to have the judge sign an original of the warrant and then obtain the seal of the court and the signature of the clerk on the copy. The copy is then served upon the party named in the warrant.

Furthermore, a pertinent Illinois Statute, Ill Rev Stats (1961) chap 38, Par 678, provides:

678. AMENDMENTS.] § 13. The prisoner shall not in any case be discharged on account of any insufficiency or informality in the complaint, or on account of any informality in the warrant, or because it is not under the seal of the judge or justice, but the warrant may be amended by the judge or justice of the peace at any time pending the proceedings.

This provision was examined in United States v. Pate, 354 F2d 588, 590 (7th Cir 1965). The court held that the omission of the seal and signature of the clerk or his deputy, did not invalidate the instrument as a warrant, or invalidate the arrest made thereunder. The court based this holding on the fact that the above section allowed the informality to be corrected. We feel that the absence of the judge’s signature on a copy of the warrant could also be corrected by amendment at any time pending the proceedings so long as the original of the warrant was signed by the judge.

Finally, defendant testified that the officer intimidated him by accusing him of an offense and that he obtained his gun because they were armed. Defendant did not testify that he resisted because he believed the arrest was illegal. Defendant also admitted that he was informed that a battery complaint was made by Sturgeon. The fact that the arrest was not made on the day of the accident, but three days later, does not diminish that fact and the inference that he knew why he was being arrested.

Defendant’s second contention, that he did not knowingly obstruct the officers, is likewise without merit. There is evidence in the record that defendant pointed his gun at the officers and attempted to regain possession of the gun before he was overpowered.

For the above reasons the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.