text:
    The People ex rel. William J. Scott, Attorney General, et al., Plaintiffs-Appellants, v. Dravo Corporation et al., Defendants-Appellees.
    (No. 72-92;
    Fifth District
    March 14, 1973.

      Rehearing denied April 24, 1973.

    William J. Scott, Attorney General, of Chicago, (Warren K. Smoot, Assistant Attorney General, and Fred F. Herzog, of counsel,) for appellants.
    Carey, Filter & White, of Chicago, (Edward M. White and Edmund P. Boland, of counsel), for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

The question in this appeal is, literally, where is Dog Island?

Although the Illinois Constitution of 1970 is silent on the subject, article I of the Illinois Constitution of 1870 fixes the boundary line of Illinois with Kentucky along the Ohio River on its northwestern shore. When Virginia ceded to the United States the Northwest Territory, in the year 1784, she retained the title to the bed of the Ohio River to the low-water mark on its north or northwest side. When Kentucky became a State she succeeded to the rights of Virginia.

It is stated in Joyce-Watkins Co. v. Industrial Com., 325 Ill. 378, 156 N.E. 346, that “The rule is that when a stream dividing coterminus States alters its channel by a gradual or imperceptible process of wear or alluvion the boundary shifts with the stream. Where a river is declared to be the boundary between States the river as it runs continues to be that boundary although it may have changed its course from natural causes by imperceptible wear, but if it suddenly changes its course or deserts its original channel the boundary remains in the middle of the deserted river bed. [Citations.] Considering the analogy of such a boundary line to one designated as low-water mark,’ constituting the boundary between Illinois and Kentucky, we are of the opinion that in the absence of a showing of sudden or perceptible changes in the course of the river the low-water mark of the Ohio river as referred to in the designation of the boundary between Illinois and Kentucky is to be determined by the evidence as to the point to which the waters of that river have receded at its lowest stage.”

.In the case at hand complaint for declaratory judgment was filed in the circuit court of Pope County, Illinois by the People of the State of Illinois ex rel. William J. Scott, Attorney General, The Department of Revenue of the State of Illinois and Barney J. Grabiec, Director of the Department of Labor of the State of Illinois as plaintiffs against Dravo Corporation, a corporation, S. J. Groves & Sons Company, a corporation and Gust K. Newberg Construction Company, a corporation as defendants. The complaint recites that defendants have entered into contracts with the Army Corps of Engineers to perform construction work on Dog Island, alleged to be in Pope County within the territorial limits of the State of Illinois. It further alleges that the boundary of the State of Illinois extends to a line which represents the low-water mark on the northwest shore of the Ohio River and the low-water mark has at times past and times relevant to determining the Illinois-Kentucky boundary been located such that Dog Island was not an island but rather was attached by dry land to the State of Illinois. By reason of the location of the construction work by defendants in the State of Illinois the defendants are required to comply with the laws of the State of Illinois, including the Illinois Income Tax Act and Unemployment Compensation Act. Plaintiffs have demanded defendants’ compliance with those statutes but defendants have advised the plaintiffs that they consider Dog Island to be within the State of Kentucky and that therefore their work will be governed by the laws of Kentucky and they are not liable to comply with the Illinois Income Tax Act or Unemployment Compensation Act. The complaint prays a declaratory judgment that Dog Island is within the territorial limits of the State of Illinois and that defendants are required to comply with the Illinois Income Tax Act and Unemployment Compensation Act.

Defendants appeared together and filed a motion to dismiss the complaint upon the grounds, as pertinent to this appeal, (1) that Dog Island is part of and under the jurisdiction of the State of Kentucky which has not been made a party to the proceeding; (2) in view of the conflicting claims of jurisdiction over Dog Island a complete determination of the issues may not be had without the presence in the case of the State of Kentucky and it is an indispensable party; (3) because of the controversy between the State of Illinois and the State of Kentucky the Supreme Court of the United States has exclusive jurisdiction of the case; and (4) inasmuch as the decision of the Illinois court in the present posture of the case cannot constitute a bar to proceedings by Kentucky in its courts for collection of Kentucky taxes, it would be a denial of defendants’ rights to due process under the fourteenth amendment to the Constitution of the United States for the Illinois court to maintain or exercise jurisdiction in the matter. Attached to the motion to dismiss is an affidavit of an attorney for the defendants which states that the three defendants are a joint venture engaged in the performance of a contract for the United States Government in the Ohio River on an island known as Dog Island; that various departments of the State of Kentucky have contended that Dog Island is within the Commonwealth of Kentucky and the joint venturers are therefore subject to certain taxes imposed by said State as more fully appears from exhibits A and B attached. Exhibit A to the affidavit purports to be a letter from the Commissioner of Revenue of Kentucky addressed to the three defendants. The letter states in essence that it has come to the attention of the department that the defendants are engaged in a joint venture on the Ohio River in the vicinity of Dog Island located near Smithland; since Kentucky has jurisdiction over the Ohio River to the low-water mark on the northern shore defendants will be hable for sales and use taxes on tangible personal property used and consumed in the construction operations and for the withholding of income tax on salaries paid to employees while engaged in the project and for corporation income tax on profits from the operation. Exhibit B to the affidavit purports to be a letter from the General Counsel of the Bureau of Employment Security of Kentucky. It is addressed to an attorney for the defendants and notifies him that Kentucky claims the defendants will be subject to unemployment insurance tax on wages paid to employees in the construction of the Ohio River dam at or near what is known as “Dog Allen” near Smithland, Kentucky. The letter also claims that “Dog Allen” is south of the Ohio River low-water mark of the rivers northwest shore and consequently is a part of the Sovereign Commonwealth of Kentucky and has been recognized as such since the border fine was established. The letters described as exhibits A and E are both dated almost a month after the filing of the complaint.

After argument on the motion the trial court entered an order dismissing plaintiffs’ complaint. The only finding in the order was as follows:

“The Court Finds that since the Courts Order in this case could not bind the State of Kentucky, to proceed further would be a denial of due process of law.”

Plaintiffs appeal. We reverse.

The issue here, as in the court below, revolves around the associated questions of the judicial jurisdiction of the Illinois court over the cause of action as alleged in plaintiffs’ complaint and whether the defendants will be deprived of due process of law as guaranteed in the fourteenth amendment to the United States Constitution if the case is permitted to proceed in the State court.

This suit is by the State of Illinois against three corporations with which it has a close affinity, one is chartered in Illinois and two possess certificates of authority to conduct business in Illinois. The applicable statute grants the latter two the same rights and privileges as domestic corporations and subjects them to the same duties, restrictions, penalties and liabilities. (Ill. Rev. Stat., ch. 32, sec. 157.103.) The action, then, is essentially one between a State and its corporate citizens. There is no question of notice and opportunity for hearing.

Defendants’ principal reliance is placed upon the case of Western Union Telegraph Co. v. Commonwealth of Pennsylvania, 368 U.S. 71, 82 S.Ct. 199, 7 L.Ed.2d 139. In that case the State of Pennsylvania, proceeding in its State court, sought to escheat certain obligations of Western Union, consisting of unclaimed telegraphic money orders and the like. The unclaimed monies were alleged to be properties within Pennsylvania. Ey reason of the unclaimed money orders large sums of money due from Western Union to the payees of those money orders had accumulated in the company’s offices and bank accounts throughout the country. Pennsylvania’s complaint was directed specifically against the amount of undispersed money held by Western Union arising out of money orders bought in Pennsylvania offices to be transmitted to payees in Pennsylvania and other States, chiefly other States. Western Union was a New York corporation with its principal place of business in that State. It contested Pennsylvania’s right to escheat the funds, urging that a judgment of escheat for Pennsylvania in its courts would not protect the company from multiple liability either in Pennsylvania or in other States. It argued that senders of money orders and holders of drafts would not be bound by the Pennsylvania judgment because service by publication did not give the State court jurisdiction. The Supreme Court declined consideration of the adequacy of notice and validity of service on the individual claimants by publication, rather, they found a far more important question raised by the record — whether Pennsylvania had power at all to render a judgment of escheat which would bar New York or any other State from escheating the same property. They noted that their prior opinions have recognized that when a State court’s jurisdiction purports to be based on the presence of property within the State, the holder of such property is deprived of due process of law if he is compelled to relinquish it without assurance that he will not be held liable again in another jurisdiction or in a suit brought by a claimant who is not bound by the first judgment. Upon applying that principle the court held that Western Union had been denied due process by the Pennsylvania judgment unless the Pennsylvania courts had power to protect Western Union from any other claim, including the claim of the State of New York; that the obligations are property “within” New York and are therefore subject to escheat under its laws. Since New York was not a party to the proceeding in the State court and could not have been made a party, Western Union was not protected by the Pennsylvania judgment, because a State court judgment need not be given full faith and credit by other States as to parties and property not subject to the jurisdiction of the court that rendered it. The court’s opinion .was apparently in some conflict with its holding in Standard Oil Co. v. State of New Jersey, 341 U.S. 428, 71 S.Ct. 822, where it said that “The debts or demands * * # having been taken from the appellant company by a valid judgment of New Jersey, the same debts or demands against appellant cannot be taken by another state. The Full Faith and Credit Clause bars any such double escheat.” But that case was distinguished because an actual controversy between States was found to exist in the Western Union case, as demonstrated by the fact that the State of New York was present and participated in the case before the Supreme Court as amicus curiae and had, in fact, already escheated some of the funds sought by Pennsylvania. The court concluded by stating that multiple claims of power to escheat should be considered only when all interested States — along with all other claimants — can be afforded a full hearing. Since the Pennsylvania courts, with no power to bring other States before them, cannot give such hearing their- judgments cannot protect Western Union from having to pay the same obligation twice and such judgment therefore cannot stand.

Defendants align the case before us with Western Union Telegraph Co. contending that since Kentucky is not and cannot be a party in the Illinois court, Kentucky need not accord full faith and credit to the Illinois judgment and will be free to pursue remedies in its own courts. Accordingly, the argument runs, defendants will be subjected to taxation by two States for the same activity and thereby deprived of due process of law.

The plaintiffs, for their part, rely upon the case of Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186. In that case the petitioners, in 1956, brought an action against the respondent in a Nebraska court to quiet title to certain bottom land situated on tire Missouri River. The main channel of that river forms the boundary between the States of Nebraska and Missouri. The Nebraska court had jurisdiction over tire subject matter of the controversy only if the land in question was in Nebraska. Whether the land was Nebraska land depended entirely upon a factual question — whether a shift in the rivers course had been caused by avulsion or accretion. The respondent appeared in the Nebraska court and through counsel fully litigated the issues, explicitly contesting the court’s jurisdiction over the subject matter of the controversy. After a hearing the court found the issues in favor of the petitioners and ordered that title to the land be quieted in them. Upon appeal the Supreme Court of Nebraska affirmed. The State Supreme Court specifically found that the rule of avulsion was applicable, that the land in question was in Nebraska, that the Nebraska courts therefore had jurisdiction of the subject matter of the litigation, and that title to tire land was in the petitioners. Two months later the respondent filed a suit against tire petitioners in a Missouri court to quiet title to the same land. Her complaint alleged that the land was in Missouri. The suit was removed to a Federal District Court by reason of diversity of citizenship. The District Court after hearing evidence expressed the view that the land was in Missouri, but held that all the issues had been adjudicated and determined in the Nebraska litigation, and that the judgment of the Nebraska Supreme Court was res judicata and “is now binding upon this court.” The Court of Appeals reversed, holding that the District Court was not required to give full faith and credit to the Nebraska judgment, and that normal res judicata principles were not applicable because the controversy involved land and a court in Missouri was therefore free to retry the question of the Nebraska court’s jurisdiction over the subject matter. The Supreme Court granted certiorari, reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court. The court noted that the full faith and credit clause of the constitution generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. To the respondents contention that the Federal Court in Missouri was free independently to determine whether the Nebraska court in fact had jurisdiction over the subject matter, i.e., whether the land in question was actually in Missouri, the court stated that while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of the Supreme Court have carefully delineated the permissible scope of such an inquiry. “From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” This rule was held to be applicable to questions of jurisdiction over the person, as- well as jurisdiction over the subject matter and would also apply to & case involving real property. It was argued that an exception to a rule of judicial finality should be made in cases involving real property because of the Supreme Court’s emphatic expressions of the doctrine that courts of one State are completely without jurisdiction directly to effect title to land in other States. This was rejected with the statement: “But the location of land, like the domicile of a party to a divorce action, is a matter To be resolved by judicial determination.’ ”

The court in Dmfee went on to emphasize that all that was determined in the Nebraska litigation was title to the land in question as between the parties to the litigation there. They note that nothing here decided, and nothing that could be decided in litigation between the same parties in Missouri, could bind either Missouri or Nebraska with respect to any controversy they might have, now or in the future, as to the location of the boundary between them or as to their respective sovereignty over the land in question. Either State may at any time protect its interest by initiating independent judicial proceedings in the Supreme Court.

We see no need here for devoting effort to the definition of judicial jurisdiction or due process of law. The generally understood meanings and applications of those terms will suffice for this appeal. In our view, the real issue that emerges is essentially factual. The issues here are closely aligned with those in Durfee v. Duke and we deem the principles applied in that case controlling ratiher than those in Western Union Telegraph Co. v. Commonwealth of Pennsylvania. Upon which side of the boundary line between the States of Illinois and Kentucky does Dog Island lie? If in Illinois, then the circuit court of Pope County does have jurisdiction and the defendants, having had notice and opportunity to appear and defend, will not be deprived of due process if the case proceeds in that court. If it is determined that it lies in Kentucky, then the Illinois court would be without judicial jurisdiction to render a valid judgment since jurisdiction of Illinois courts cannot constitutionally extend beyond its own boundaries.

It is so distinctly clear as to require no citation of authority that only the parties to a case will be bound by any judgment order that may ensue from litigation. This is pointedly so with respect to any interest that is now or may be claimed by the State of Kentucky. That State is not a party. The complaint of the plaintiffs does not involve Kentucky in any way. The defendants cannot avoid their prospective liability to the State of Illinois by saying only that they might be liable to Kentucky for the same types of taxes imposed on the same activity described in plaintiffs’ complaint. Yet, this is essentially their position here. Such an assertion on their part is not sufficient to deny an Illinois court the right to inquire into its judicial jurisdiction over the subject matter here. The allegation of the complaint is that Dog Island is, and has been at all times pertinent to the case, a part of Illinois. It is a question of fact and accordingly demanding of proof. Defendants’ motion to dismiss admits the location of Dog Island as the complaint alleges it to be. The affidavit and exhibits A and B thereto attached are insufficient to refute the complaint. The affidavit states only that various departments of the State of Kentucky have claimed that Dog Island is in Kentucky and defendants are subject to its taxes. The exhibit A letter claims notice that defendants are engaged in a joint venture in the “vicinity” of Dog Island and that Kentucky claims jurisdiction to the low-water mark on the northern shore of the Ohio River. The exhibit B letter notifies defendants that Kentucky claims defendants will be liable for taxation by it in the construction of the Ohio River dam “at or near what is known as Dog Allen.” [sic] It also states that “Dog Allen” [sic] is south of the Ohio River low-water mark on the river’s northwest shore and therefore part of Kentucky.

The State of Illinois is not seeking to tax property or activity in Kentucky, nor is it claiming the power to tax because of some incidence or connection with some activity in Kentucky. Rather, it is asserting judicial jurisdiction over activity wholly within its own boundary. If the plaintiffs succeed in establishing as fact what they allege in their complaint, clearly they will be entitled to the relief they seek. Nothing appears at this juncture that will deprive the Illinois court of jurisdiction. Indisputably, the defendants will not be foreclosed from proof that, as a matter of fact, Dog Island is a part of Kentucky, and the Illinois court is accordingly without jurisdiction to render a valid judgment. But the Illinois court, under the rules of judicial jurisdiction and res judicata discussed in the Durfee case, may receive evidence regarding the location of Dog Island with reference to the State boundary line, and therefrom make a determination of its jurisdiction.

We do not see this action as an intrusion into the exclusive jurisdiction over disputes between States conferred upon. the Supreme Court by article III, section 2 of the. Constitution of the United States. There is no legal dispute with respect to the location of the Illinois-Kentucky boundary. The two States are not in contention here nor are the issues tendered in the complaint sufficient to engage them in controversy. The State of Illinois cannot in this proceeding divest Kentucky of its claims to territory nor can it change the existing boundary line. It is not attempting to do so.

The situation here is analogous to that in the case of Joyce-Watkins Co. v. Industrial Com. where the court met an argument similar to that of defendants’ here by saying: ‘We would not be justified in this proceeding, where the State of Illinois is not represented, to determine the boundary line between this State and the State of Kentucky. That question is of far too great importance to be heard without the appearance of the State. It is sufficient in this proceeding to determine whether or not the (Industrial) commission and the circuit court were justified in holding that Minley was. within the jurisdiction of Illinois (at the time of an injury).” Like principles were also applied in Uhlhorn v. U.S. Gypsum Co. (8th Cir. 1966), 366 F.2d 211, cert. denied (1967 ) 385 U.S. 1026 where a contention was made that a tract of land in question was beyond the jurisdiction of the court because of a boundaiy change wrought by accretion in a river bed. Confronted with this argument the court held that the District Court had power to make a determination of its jurisdiction and the Circuit Court of Appeals would have jurisdiction to review the finding. The court said: “* * * the issues here do not involve the changing or establishing of the boundary line between sister states so that original jurisdiction lies with the Supreme Court of the United States. [Citation.] We simply decide the location of an established boundaiy. [Citations.]”

We cannot agree that this case bears a similarity to that of Western Union Telegraph Co. v. Commonwealth of Pennsylvania. It is distinguishable not only on the basis of the parties involved but the subject matter as well. In the Western Union Telegraph Co. case the subject matter was intangible personal property which a State sought to escheat. Once escheated the property would disappear with the result that Western Union could be left liable over to other claimants in other States and thereby deprived of its property without due process of law. In contrast, whatever the outcome of tins case, Dog Island, being realty, will doubtless remain intact and in place and die State of Kentucky will be free at any time to litigate any claims it may have respecting its boundary rights and territorial integrity.

Other matters raised by defendants in their motion to dismiss were not ruled upon by the trial court and accordingly we will not pass upon them here.

For the foregoing reasons we find that the defendants will not be deprived of due process of law if the case proceeds in the circuit court of Pope County, Illinois. Accordingly, the order of the circuit court of Pope County, Illinois dismissing plaintiffs’ complaint is reversed and the cause remanded for further proceedings.

Reversed and remanded.

G. MORAN, P. J., and CREES, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
      In re Estate of Douglas Allen Trautt, Deceased—(Norbert W. Trautt, Admr., of the Estate of Douglas Allen Trautt, Deceased, Petitioner-Appellant, v. Richard Stanton et al., Respondents-Appellees.)
    (No. 72-53;
    Fifth District
    March 28, 1973.

      Rehearing denied May 1, 1973.

      Schlafly, Godfrey & Fitzgerald, of Alton, for appellant.
    No appearance for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Appellant, as Administrator of the Estate of Douglas Allen Trautt, deceased, filed a petition for citation to recover property from Richard and Sue Stanton, Appellees.

The petition alleged that appellees were holding twelve paintings belonging to decedent which he had painted during his lifetime.

Appellees admitted that decedent had painted the paintings but contended that he had made a gift of the paintings to them during his lifetime.

After a bench trial, the trial court dismissed the petition.

Appellant contends that the order should be reversed since the evidence failed to show a completed gift. Appellant also contends that the court admitted improper evidence in violation of Sec. 2 of the Evidence Act. Ill. Rev. Stat. 1971, ch. 51, par. 2.

The evidence was heard on September 9, 1971 and September 29, 1971. On the first date defendant, Richard Stanton, was called as an adverse witness under Sec. 60 of the Civil Practice Act. On September 29, 1971 he was called as a witness by his counsel. At this time appellant objected to his testifying on the basis of Sec. 2 of the Evidence Act. His counsel claimed that the objection had been waived by reason of the prior questioning when he was called as a witness under Sec. 60. The trial judge then commented that this was the problem with split trials— he did not remember the prior testimony sufficiently to rule at this time. It was then suggested that the testimony be heard subject to the objection and this was done. There was no subsequent request for the judge to rule on this objection and no ruling appears in the record. Under these circumstances we cannot assume that the judge considered improper evidence. Since this testimony was not necessary for the result reached, we need not consider the question of its admissibility.

The other testimony was in direct conflict. There was ample evidence, if believed, to support the finding. The trial court saw and heard the witnesses and thus was in a better position to evaluate the testimony than this court.

Appellant also contends that the statements of appellees that they would have under some circumstances returned all or part of the gift proves that there was no completed gift. We do not agree. A donee may be willing at his option to return a gift to the donor if the donor is in need. However this state of mind does not defeat a previously completed gift. The gift being complete and tire intention being conditional, the intention would have to be carried out for ownership to revert to the donor.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Kehoe, Defendant-Appellant.
    (No. 72-74;
    Fifth District
    March 16, 1973.

      Rehearing denied May 3, 1973.

    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   PER CURIAM:

The defendant pled guilty to two charges of burglary, one charge of escape, and one charge of theft of property of over $150 in value, in the Circuit Court of Marion County.

Defendant contends in this appeal that the trial judge failed to comply with Supreme Court Rule 402(a)(3) and (4) and 402(b).

The record reveals that the defendant was not informed that he had a right to plead not guilty as required by Supreme Court Rule 402 (a)(3); that if he did plead guilty he waived his right to a trial by jury and the right to be confronted by the witnesses against him as required by Rule 402(a)(4); and that the trial court did not question the defendant personally, in open court, to determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea as required by Rule 402(b).

For the foregoing reasons the judgment of the trial court is reversed and this case is remanded to the Circuit Court of Marion County with directions that defendant be permitted to plead anew if he so desires.

Reversed and remanded with directions.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory Taylor (Impleaded), Defendant-Appellant.
    (No. 57361;
    First District (3rd Division)
    March 15, 1973.
   Opinion by

Mr. JUSTICE McGLOON.

Arthur L. Pullman and Richard J. Puchalski, both of Chicago, and John R. Buczyna, of Chicago Heights, all for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Stephen J. Connolly, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cyril Gargano, Defendant-Appellant.
    (No. 71-370;
    Second District
    April 6, 1973.

      Rehearing denied May 7, 1973.

      Julius Lucius Echeles and Carolyn Jaffe, both of Chicago, for appellant.
    Jack Hoogasian, States Attorney, of Waukegan, (Ben Ori, Assistant State’s Attorney, and Edward Morris and James W. Jerz, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant, Cyril Gargano, was convicted in the Circuit Court of Lake County of burglary and armed violence. He was sentenced to a term of 5-10 years for burglary and 5-12 years for the offense of armed violence, the sentences to run concurrently. The defendant appeals from these verdicts and has raised numerous alleged grounds for reversal which we shall consider respectively.

The defendant, Cyril Gargano, Edward McCormick, and Paul Raymond were indicted for burglary, attempt to commit burglary, attempt to commit murder of a police officer, and armed violence. The defendants Gargano and McCormick were tried before a jury in a two week jury trial and the charge of attempt to commit burglary was dismissed by the court prior to the submission to the jury.

On October 3, 1970, Gargano and Paul Raymond were driven by McCormick to the residence of Beverly Jane Rundgren located in a wooded area on Lake Villa in Lake County, Illinois, where they were let out of the car on the road in front of the Rundgren residence. Prior to their arrival, two Lake County deputy sheriffs and four Chicago policemen had staked out the premises. The police officers were stationed behind trees and in the bushes on the Rundgren property. Gargano and Raymond approached the house by crouching behind trees and shrubbery up to the breezeway attached to the house. ■ They went into die garage. A few minutes later they exited the garage and started down the driveway. Officer Cirone then identified himself, and called “Police, stop.” The defendant Gargano ran and then turned and fired two shots at the police officer. Officer Cirone and Michaels fired at Gargano and Raymond, who had fled southwesterly. Raymond was physically captured by Deputy Donaldson assisted by Officers Michaels and Cirone. Cirone took a .22 caliber Derringer from Raymond’s hand. Defendant Gargano almost ran into Officer Brown who hit him in the face with tire butt of a shot gun. Gargano fell and Officer Grundy found a .38 detective Colt revolver on the ground. The two men were subdued and taken into custody. Shortly thereafter, the car driven by McCormick returned to the scene and detective Grundy put a flashlight on the driver and said “Police, stop.” McCormick then drove away at a high rate of speed. Subsequently, he surrendered.

The defendant has raised numerous issues. The first contention is that there was no proof that the defendant committed the offense of burglary, and that therefore the charge of armed violence cannot stand. The substance of defendant’s contention is that the short period of time that the defendants were in the garage, the fact they had no burglar tools, and that no property was taken, is insufficient to establish at the time defendants entered the garage that they had the intent to steal required under the indictment. Actually, the defendant stealthily entered the garage attached to the home of Beverly Jane Rundgren armed with a .38 caliber revolver and wearing gloves. Mrs. Rundgren testified that the door between the garage and the house was locked. There was therefore actual entry into the premises and it is the function of the jury to weigh the credibility of the witnesses. The automobile in the garage was obviously a potential object of larceny and the jury were justified in finding that Gargano entered and the jury were justified in finding that Gargano entered the premises with intent to commit a theft. The fact that he may have been frightened away or found the inner door locked; the shortness of time he happened to be in the premises at this hour of the night having approached the premises stealthily by jumping from tree to tree does not indicate that he was a mere visitor, or as defense counsel would have us believe, a mere trespasser.

The indictment herein stated that the property in question was owned by Jane Rundgren. The proof disclosed that it was owned by Beverly Jane Rundgren. Defendant contends this is a fatal variance.

Counsel has cited People v. Walker (1955), 7 Ill.2d 158 at 161, 130 N.E.2d 182 at 183, as authority for this contention. However, counsel failed to cite the next sentence which reads as follows: “Proof of the Christian name is unnecessary, however where the facts in evidence leave no doubt as to the identity of the person.”

Likewise, defendant's contention that a garage attached to a house is not a part of the residence, is specious as the Burglary statute species “or any part thereof.” Ill. Rev. Stat. 1969, ch. 38, sec. 19(1); People v. Blair (1952), 52 Ill.2d 371, 288 N.E.2d 443.

The defendant next contends that he should have been allowed to take a polygraph or lie detector test and to permit the results of said test into evidence. The admissibility of polygraph tests in Illinois has been the subject of numerous cases. The most important one doubtless is People v. Zazzetta (1963), 27 Ill.2d 302, 189 N.E.2d 260, 263. In that case the court stated at page 306:

“In the absence of stipulation, our courts, without exception, reject the results of lie-detector tests when the same are offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime.”

We do not agree with defendant’s contention that the results of a lie detector test are admissible in evidence. The Illinois Supreme Court and this court have never held that the results of he detector tests used against the accused are admissible, and in this court’s opinion the converse is likewise true. If the test is unreliable as to the guilt of the accused it is equally as unreliable as to the innocence of the accused.

Defendant alleges “prosecutorial misconduct.” The substance of the alleged improper conduct of the prosecutor consists of a question by him of a fire-arms expert with reference to a report made by the expert “Does that report cover not only what was done?” There was an objection and no further inquiry was had. Secondly, he complains of the State’s Attorney’s closing argument that the Lake County Sheriff’s department contacted City of Chicago police authorities, where actually it was the reverse. This court fails to see how either of these contentions would affect the jury adversely in any way, nor would these contentions have anything to do with the guilt or innocence of the accused.

The same is time with regard to defendant’s contention that he should have been allowed to bring in the hospital records pertaining to the injuries sustained by him after the shooting and other statements therein. Ill. Rev. Stat. 1969, ch. 38, sec. 115 — 5 provides in pertinent part that hospital records are not admissible in a criminal. trial, and Plaintiff’s exhibit No. 15 pertaining to medical and hospital records of defendant was not admissible.

Counsel complains his right of cross examination was restricted and that he was not permitted to present his theory of the case to the jury. Examination of the record discloses that the court ruled correctly in limiting defendant’s cross examination on extraneous matters. An example is a question by defense counsel of one of the arresting officers Hughes as to whether or not he knew a James Dennis. As the State points out the acquaintance of the defendant with James Dennis would have absolutely nothing to do with his guilt or innocence of the instant crimes. Similarly, whether there was or was not a no trespass sign on the premises, likewise, had no bearing on the guilt or innocence of the defendants in being on the premises in the fashion previously described herein. Defendant’s theory is that defendant and Raymond were lured to the burglary site by the police who intended to “assassinate” them. No evidence whatsoever was produced that would substantiate this charge nor was any evidence produced in trial pertaining to this. It would appear that the basis of this argument is that the two defendants were entrapped. To raise the issue of entrapment we encounter the familiar principle that in order to do so, defendant must admit that there was a crime committed and that he was entrapped into committing it. (People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872.) Examination of the record discloses that counsel did argue at length his theory of the case. It would appear that only when he went outside the record was objection sustained to his closing argument.

We have examined the defendant’s instructions which the trial court refused to give. We find that the trial court was correct in so refusing these instructions and a tendered verdict form, viz. — an instruction on circumstantial evidence (IPI 3.02 covered this issue and was given); an instruction on entrapment; an instruction on disorderly conduct; and verdict forms of guilty and not guilty of disorderly conduct.

The defendants were tiled for three separate felonies. The trial court submitted three different forms of guilty for each offense and one not guilty form. Contrary to defendant’s contention this is the approved practice in a multiple charge case. The trial court was correct in submitting three forms of guilty verdict to cover each offense and one form of not guilty verdict. (See IPI Pattern Jury Instructions Criminal, page 473). The subsequent submission of three separate not guilty forms of verdict by the court to the jury was surplusage and was in no way prejudicial to the defendant.

The jury deliberated from 5:00 P.M. until midnight when they retired for the night. The next day they deliberated from 11:00 A.M. until 6:30 P.M., when the Judge asked the jury if they could reach a verdict. Several other inquiries of the jury took place, including the giving of the aforementioned not guilty verdict forms and finally about 9:00 o’clock in the evening the jury brought in the two verdicts of guilty. It has repeatedly been held that it is within the sound discretion of the trial judge as to the length of time a jury may deliberate. The case before us took two weeks to try, involved two defendants, and included three felony charges. Examination of the conversations between the Judge, the Jury, and the Jury foreman show no prejudicial statement made by the court, and show no coercion whatsoever on the part of the court. While the actual time the jury deliberated was about 29-30 hours we do not find that the court abused its discretion in allowing the jury to deliberate that length of time in this case.

The defendant was sentenced to 5-12 years for armed violence (Ill. Rev. Stat. 1969, ch. 38, sec. 33A — 2 and 33 A — 3) and to a term of 5-10 years for burglary. Ill. Rev. Stat. 1969, ch. 38, sec. 19 — 1.

The new Unified Code of Corrections is applicable to the sentences herein. (Ill. Rev. Stat. 1972, ch. 38, sec. 1003 — 1—2 et seq. effective January 1, 1973.) Sec. 1008 — 2—4 provides as follows:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under tire prior law upon which the prosecution was commenced.”

We have previously held that “final adjudication” includes pending appeals before this court. People v. McCloskey (1971), 2 Ill.App.3d 892 at 900, 270 N.E.2d 126, and People v. Chupich, 53 Ill.2d 572.

Ill. Rev. Stat. ch. 38, sec. 33 — A—3 as amended, effective January 1st, 1973, provides that:

“Violation of Section 33 — A—2 is a class 4 felony or the maximum sentence provided for the same act while unarmed, whichever is greater ” (Emphasis supplied.)

Ill. Rev. Stat. 1971, ch. 38, sec. 33 — A—2 provides that a person commits armed violence when, while armed with a dangerous weapon, he commits the act of burglary.

Ill. Rev. Stat. 1972, ch. 38, sec. 19 — 1 as amended, effective January 1st, 1973, provides that burglary is a Class 2 felony carrying with it a possible term of imprisonment of 1 to 20 years. The limitations on the penalty imposed for armed violence are therefore greater than a Class 4 felony in the case of the offense of armed violence committed in the act of burglary.

The sentence imposed herein for burglary was 5-10 years. The Unified Code of Corrections is applicable and in conformity with sec. 1005 — 8—1 (C) (3) this for a Class 2 felony must be reduced to a minimum of 3 years and 4 months and the maximum of 10 years. The sentence imposed for armed violence being governed by the burglary Statute, in our opinion the maximum of 12 years imposed on the armed violence charge is within the limits of the possible 20 year maximum sentence under the 1973 statute for burglary. However, to be consistent we will likewise reduce the sentence of 5-12 years imposed for armed violence to a minimum sentence of 3 years and 4 months, and a maximum of 10 years, in conformity with the applicable provisions of the Unified Code of Corrections. Under the authority of Supreme Court Rule 615 (111. Rev. Stat. 1973, ch. 110 — A, sec. 615), the sentences are so modified.

Convictions affirmed. Sentences modified.

SEIDENFELD and ARRAHAMSON, JJ., concur.


text:
    Jack D. Clark et al., Plaintiffs-Appellants, v. The Village of Oswego, Defendant-Appellee.
    (No. 72-11;
    Second District
    April 4, 1973.

      Rehearing denied May 7, 1973.

      Saxon, Niznik & Peterson, of Plainfield, for appeUants.
    Ingemunson & Bassak, and Dallas C. Ingemunson, State’s Attorney, both of Yorkville, for appeUee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The plaintiffs brought this action praying for an injunction to restrain the Village of Oswego from requiring or coercing them to construct curbing, and sidewalks in the subdivision of the plaintiffs. The complaint in the alternative prayed for a money judgment for the actual cost of said improvements as demanded by the village. The matter was heard by the trial court who entered an order dismissing the complaint. From this order the plaintiffs appeal.

The issue presented to this court is whether the Village of Oswego is estopped or should be enjoined from enforcing provisions of its Subdivision Control Ordinance relating to sidewalks, curbs, and gutters against the plaintiffs.

The plaintiffs, husband and wife, purchased a small tract of land within tlie village limits of Oswego and subdivided it into five lots, four of which are located on a cul-de-sac. The plaintiffs employed engineers to prepare a preliminary plat which was presented to the Village Board of Trustees. This preliminary plat was rejected by the Plan Commission. Robert Fennell, Chairman of the Plan Commission, returned the plat to the plaintiffs and advised them that it would have to be redrawn. Fennell gave the plaintiffs a copy of the Oswego Subdivision Control Ordinance No. 1957 — 0—3, and it appears that Fennell, who was a neighbor of the Clarks, advised them that if they would bring in the new plats and plans that he (Fennell) would take them to the Plan Commission. The plaintiffs’ engineer then redrafted the plats and plans, and a second preliminary plat was given to Fennell who submitted it to the Plan Commission, It was recommended for approval by the Plan Commission on September 24, 1968 approved, and signed by the President and the Village Board on October 8, 1968. Fennell then advised Mr. Clark to submit a final plat. The final plat was prepared, allegedly given to Fennell, Chairman of the Plan Commission, and on January 28, 1969, the Plan Commission voted as follows:

“that the P. C. recommends to the Village board that we accept the final Plat Jack D. Clarks Lincoln Estates subject to his satisfying the P. C.’s Committee on Subdivisions regarding storm & sanitary easements & signatures.”

The plaintiffs then had their engineers prepare plans and specifications purportedly pursuant to Ordinance No. 1957 — 0—3. The plans prepared showed a sanitary sewer only, and further showed a two foot drainage culvert, but did not show curbs, gutters, sidewalks, or storm sewers. This proposed sewer and water plan was again given to Fennell to take to the Plan Commission. Fennell denies that he saw this document or gave it to the Plan Commission. Nonetheless, on March 25, 1969, the Plan Commission approved the final plat of the subdivision of Lincoln Estates,

“subject to signatures and utility easements, stamps, and marked final plat.”

The approval of the Plan Commission appears upon the final plat signed by the Chairman thereof on the 22nd of April, 1969. The plat was then approved by the Board of Trustees of the Village of Oswego on May 1st, 1969, and signed by Harry Fuller, President of the Board of Trustees, on that date. The plat was subsequently recorded.

Following the approval of the plat the plaintiffs proceeded to improve the property, and installed sanitary sewer, water lines, and the cul-de-sac circle drive was laid out and graded. Building permits were issued by the village and houses were erected on Lots 1, 2 and 4 of the five lots in this subdivision. In November, 1970, the plaintiffs applied for a fourth building permit. On November 2, 1970, the village trustees voted to withhold further building permits until the plaintiffs:

“installed curbs, gutters or sidewalks or the required street surfacing for subdivisions.”

The village then on November 30, 1970, advised the plaintiffs:

“Since the ordinance on new subdivision requires street improvements, before any more building permits are issued for Lincoln Estates, a bond must be posted to cover the costs of curbing, streets and sidewalks.”

It is to be expressly noted that at no time prior to the last date was anything said by the village or any requirement made that the plaintiffs install storm sewers.

Examination of the record discloses that the complaint filed in the trial court sought solely to enjoin the Village of Oswego from requiring or coercing the plaintiffs to construct curbing and sidewalks. The complaint at no time sought relief from the alleged requirement of storm sewers. The order of the trial court denied the complaint for injunction and held that the plaintiffs had not sustained their burden of proof and judgment was entered for the defendant. While it is true that the issue of storm sewers was presented to the trial court and was in fact argued before this court, however, that issue cannot be considered by this court as the pleadings do not seek relief from the requirement for storm sewers.

The subdivision ordinance 1957 — 0—3 of the Village of Oswego is somewhat ambiguous and difficult to interpret. We turn first to the question presented to us on the requirement for curbs and gutters. Section VII of the ordinance provides in part, as follows:

“2. All streets within the corporate limits of the Village of Oswego shall be improved with roadways bounded by integral curbs and gutters, when such areas are served by storm sewers, to an overall width in accordance with the following minimum dimensions: * * (Emphasis supplied.)

Inasmuch as the issue as to whether the developer herein shall be required to install storm sewers is not presented to this court, it is impossible for us to determine whether the above ordinance provision is applicable.

We next consider the second issue presented to this court and that is the requirement of sidewalks. The ordinance in defining streets provides in Section III, 12 and 13 as follows:

“12. Secondary or Collector Street. A street which carries traffic from minor streets to the primary street system, including the principal entrance streets of residence development and streets for circulation within such a development.
13. Minor Street. A street intended primarily as access to abutting properties.”

Section VII E. Sidewalks, 1 provides:

“Concrete sidewalks to a width of not less than 4 ft., and a thickness of not less than 4 inches, except over driveways where the thickness shall be not less than 5 inches, shall be required on both sides of all secondary and major thoroughfares within the Village of Oswego, and the Plan Commission or the governing authorities may require sidewalks on local streets as part of the dedicated street improvement.” (Emphasis supplied.)

The village contends that the cul-de-sac, entitled Faro Court, is a collector street under the above ordinance provision which states that a collector street includes the principal entrance streets of residence development. The testimony of the engineer for the village is not clear in his attempt to define this cul-de-sac as a collector street. The equally qualified engineer for the plaintiff insists that a cul-de-sac servicing five lots is not a collector street. With this, we agree. As a matter of fact, a cul-de-sac for five houses is about as minor a street as we can envision.

We therefore find that under the provisions of the Oswego Subdivision Ordinance 1957-0-3, the plaintiffs herein are not required to install sidewalks. We further find under the pleadings presented to us, the requirement for storm sewers is not an issue before this court. It may well be that if the issue were determined as to whether or not the plaintiffs are required to install storm sewers, that the section of the ordinance providing for curbs and gutters would become applicable. However, that question is not before this court.

The judgment of the trial court in dismissing the complaint insofar as it applies to the question of sidewalks, is reversed and the cause remanded. The trial court is directed to issue the injunction, enjoining the Village of Oswego from requiring the plaintiffs to install sidewalks and for such other action as is consistent with this opinion. The judgment of the trial court dismissing the complaint and the finding that the plaintiffs have not sustained then burden of proof with relation to the requirement for curbs and gutters, is affirmed.

Reversed and remanded with directions in part. Affirmed in part.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Arthur Camel, Defendant-Appellant.
    (No. 11545;
    Fourth District
    April 12, 1973.

      Robert I. Auler, of Champaign, for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney, and Robert Wennerholm and L. Keith Hayes, Jr., Senior Law Students, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The Defendant-Appellant, Steven Arthur Camel, was convicted, after bench trial, of rape, deviate sexual assault, aggravated kidnapping, and indecent liberties with a child. He was sentenced on the rape, aggravated kidnapping and deviate sexual assault convictions but not on the conviction of indecent liberties, and all sentences imposed were to run concurrently. The defendant appealed from all of the convictions.

The complaining witness was Nancy Shakeshaft, who was 15 years of age at the time. The case of the People depended almost entirely upon her testimony though there is some corroborative evidence. One of the crucial issues in the case was the identification of the defendant. The record discloses that Nancy left the Edison Junior High School in the City of Champaign shortly after 4 o’clock P.M., on the afternoon of March 23, 1970. She walked south on the east side of Prospect Street and observed an individual standing in the middle of the sidewalk near the end of tire block. As she started to walk around him he grabbed her by the arm “hard” and turned to face her. His face was partially covered by a scarf. It was getting dusk but was still light. A conversation between them ensued. The defendant asked where the University was, Nancy inquired “What part of the University?” He responded “Just the University?” to which she replied, “I can’t help you.” The defendant then stated that he had a gun and that he wanted her coat and money. Nancy told him he could have it. He then told her that he could not take the items on a street which was as busy as Prospect and that he was going to take her to a car and told her to close her eyes which she proceeded to do. After she got into the car she was forced to lie down on the seat and keep her eyes closed. She was then driven to another place, forced to remove her panty hose, her hands were tied behind her back, she was blindfolded, and the acts which gave rise to the charges in question were committed. After commencing her walk to the car, Nancy did not again see her assailant.

The trial court had ordered, prior to trial, the production of the statements of witnesses, and in response to that order the People produced no statement taken of Nancy Shakeshaft. We remanded this cause to the trial court with directions to conduct an evidentiary hearing to determine whether or not such a statement was in existence, either at the time of the entry of the order or at the time of the trial of the cause on the merits. (People v. Camel, 4 Ill.App.3d 106, 280 N.E.2d 294.) Pursuant to that direction, the trial court conducted an evidentiary hearing, found that no record of a verbatim or substantially verbatim statement given by Nancy to any police officer, State’s Attorney, or member of his staff, was in existence on the date of the entry of the discovery order, or at the time of the trial of the case. Pursuant to our order, the trial judge certified that finding to this court together with a transcript of the evidentiary hearing.

The evidentiary hearing focused upon two documents identified as Peoples’ Group Exhibit A and Peoples’ Exhibit B. Peoples’ Exhibit B consists of a one-page document containing notes made at the time of an interview of Nancy Shakeshaft on March 27, 1970. The interview was conducted by Officers Dawkins and Voss of the Champaign Police Department. Officer Dawldns asked the question and Officer Voss made the notations which appear on tire exhibit. The exhibit was not signed by Nancy nor was it ever shown to her, and Officer Voss testified that he did not intend to take a “formal statement”; that he was primarily looking for a modus operandi and a description of the attacker. During the evidentiary hearing on the exhibit, Officer Dawkins, Officer Voss and Nancy Shakeshaft testified as to Exhibit B. We have made a line-by-line comparison of the contents of Exhibit B with the testimony of Officer Dawkins, Officer Voss and Nancy Shakeshaft, and hold that a significant portion of the statement is a record of a verbatim or substantially verbatim statement given by Nancy at the time. This has been an exceedingly tedious, and difficult analysis to make by reason of the fact that in some instances, Officer Dawkins and Officer Voss were asked about some of the items contained in Exhibit B but Nancy was not. In some instances Officer Voss was asked about items in the statement, so was Nancy, and Officer Dawkins was not; and in some instances Nancy was asked about items contained in the statement and neither Dawkins nor Voss were asked. But it is clear that a substantial portion of the statement was recorded in language verbatim or substantially verbatim and it should have been produced. For example, the statement describes Nancy’s assailant’s eyes as dark brown. Dawkins testified that that was what Nancy said and Voss testified that he accurately recorded that response. Nancy was not asked. The statement describes the assailant’s hair as being "curly, long hair down to eyebrows”. Dawkins testified that that was the description she gave of her attacker. Voss testified that he accurately recorded that response. Nancy was not questioned about that item. The statement described the assailant as having a “voice low and deep, hoarse”. Officer Dawkins testified that that was the way she described it; Officer Voss said that was his way of describing the voice but then testified that Nancy said the voice had a low tone, it was deep and sounded hoarse, or perhaps an accent. Nancy testified that she never said that the voice was low, deep and hoarse but that she told the officers “his voice was * * # he had a hoarsy voice and it was real deep and low”.

By the same method of analysis, it is clear that some portions of the statement are not verbatim or substantially so. For example, the statement described the attacker’s height as 5T0 to 5T1 — Voss testified that this was not something Nancy said but rather something she deduced, that she told the officers that the attacker was not as tall as Officer Voss but between his height and that of Officer Dawkins and her father and that the officers thus arrived at the height figure. Nancy testified to the same effect.

The statement also noted that the car in question was heading east on Daniel Street. Dawkins testified that “This is the way she described it”. Voss testified that Nancy did not say that but that “we figured that out” and Nancy testified that she never said the car was heading east on Daniel but that “Voss deduced that”.

Peoples’ Group Exhibit A is a police report prepared by officers who were investigating the case and contains notes made by the officers as a result of two interviews had with Nancy on the date of the occurrence. The report is three pages long and Officers Brady and Nelson of the Champaign Police Department and Nancy Shakeshaft testified with reference to the exhibit. Again, we have made a line-by-line comparison of the contents of the statement with the testimony of the three witnesses. Again, this was a long, tedious and time-consuming process and the same pattern appears as that which became apparent in our analysis of Exhibit B. In other words, some items contained in the report were not mentioned at all in the examination of the witnesses; testimony as to some items or sentences were elicited from one, two, or all three witnesses. Plowever, this analysis of Group Exhibit A establishes that a significant portion of this exhibit also accurately records verbatim or substantially verbatim statements of Nancy Shakeshaft. For example, she described her assailant’s hair as black and curly according to Officers Brown and Nelson. She described her assailant as having rough hands with long fingers, as having coughed a lot, as wearing a stocking cap that was red or blue, as having a red wool scarf on the lower part of his face. That the radio in the car was on WLS; that there were silver push buttons on the door handles of the car. As was true of the other exhibit, there are items contained in Group Exhibit A which are not recorded verbatim or substantially verbatim in the language of Nancy. For example, the statement indicates that the assailant was 6' tall. Officer Brady testified that this was an estimate on the part of the police based upon the height of Nancy’s father which she compared, and Nancy testified that she did not say that the defendant was 6’ tall. The statement indicates the age of the defendant to be “late 20’s or 30’s”. Officer Brady testified that this was a deduction on the part of the police that he didn’t recall Nancy describing his age. Officer Nelson was not questioned about this item. Nancy testified that she told the police just what her assailant said, # that he was 35”. That she said nothing about 20’s or 30’s, etc. This statement too should have been produced. Among other things, what emerges from an analysis of Group Exhibit A and Exhibit B, is a rather complete description of Nancy’s assailant set forth in language verbatim or substantially verbatim and thus bearing directly upon a crucial issue.

The record indicates that the State’s Attorney never made inquiry of the Police Department as to the existence of the statements. Other documents in the possession of the Police Department were also produced, but the evidence clearly fails to establish that they constituted a record of verbatim or substantially verbatim statements made by Nancy.

As we observed in People v. Camel, 4 Ill.App.3d 106, 280 N.E.2d 294, “That statements of witnesses are discoverable and available to defendants for purposes of impeachment is too firmly established to require citation of the many cases both Federal and State, including Illinois, which followed the decision in Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007.” The statements in question should have been made available to defendant and the failure to do so is error. We do observe that the clear probability that statements were in existence was elicited, during the trial, by defendant’s counsel during his cross-examination of the complaining witness. It is unfortunate that he did not renew his demand at that time. As we noted in our prior opinion in this case the failure to produce the statements in question, under the rule enunciated by the Supreme Court of this State in People v. Sumner, 43 Ill.2d 228, 252 N.E.2d 534, admits of but one result here. We must reverse and remand for new trial. Under Sumner we are not permitted to compare the testimony given at the trial with the contents of the statements with a view to ascertaining whether or not they were in fact impeaching. The rule in Jencks as implemented by Sumner (and further by Supreme Court Rule 412) is not new, and when compliance is not had a reviewing court has no alternative but to reverse and remand for new trial. In view of the clear, unequivocal mandate of Sumner it is hopefully unnecessary to further emphasize its importance and the certainty of the result which obtains from failure to comply.

On remand it would seem appropriate for the trial judge to insist, prior to trial, that counsel analyze these statements as we have, and in the event that an item is endeavored to be used for purposes of impeachment, to thus be prepared to assist the court in its rulings by promptly demonstrating the testimony of each witness as to that specific item.

On March 30th, one week after the incident in question, Nancy Shakeshaft was taken to the Champaign Police Station. She was shown the defendant on a television screen and identified him. No other suspect was shown to her. She identified the defendant as her attacker. Subsequently, while at the station, she was shown two polaroid photos of the defendant, a front and side view, and repeated the identification, no other photos were shown to her. Defendant urges that Nancy’s in-court identification of the defendant was tainted by these suggestive procedures and should have been suppressed, and that her opportunity to observe the defendant was so limited that the identification will not support the conviction, citing on the latter point People v. Thompson, 121 Ill.App.2d 163, 257 N.E.2d 197. The factual distinctions between Thompson and this case are so marked as to require only passing comment. In Thompson, the attack occurred at 11:00 P.M., and the victim was seized from behind. Here, the hour was shortly after 4:25 P.M., and while dusk, it was still light. Here defendant and Nancy were face to face while the above indicated conversation took place. In Thompson the witness was unable to describe her assailant’s height, dress, weight, or to give any description of him. In this case Nancy was able to, and did, furnish to the police a rather detailed and specific description of her assailant. The period of time during which she was face to face with her attacker goes to the weight of her testimony and we cannot, as a matter of law, hold that her opportunity to view was so restricted that reversal on this point is warranted.

We also note that Nancy’s description of her attacker was given to the police prior to her view of the defendant and the photographs at the police station, and that her in-court identification of Camel clearly had its origin independent of the pretrial confrontation and view of the photographs, and that the origin predated the view in question in point of time. It was not error to admit the identification during the trial by the testimony of Nancy Shakeshaft. People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631; People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425; People v. McMath, 45 Ill.2d 33, 256 N.E.2d 835.

There are numerous other assignments of error which we need not consider since the case must be retried. The ruling of the trial court that Group Exhibit A and Exhibit B are not verbatim or substantially verbatim statements of Nancy Shakeshaft is reversed for the reasons above indicated. The cause is remanded with directions to afford the defendant a new trial.

Reversed and remanded with directions.

CRAVEN, P. J., and SMITH, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Petty, Defendant-Appellant.
    (No. 11562;
    Fourth District
    April 12, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Robert James Steigmann, Assistant State’s Attorney, and Peter H. Straw, Senior Law Student, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant was convicted of forgery. The nature of his appeal does not mandate a recital of the evidence, hence we forbear doing so. He argues for reversal and a new trial, four points, which we take up seriatim.

Defendant’s wife was tried with him and likewise found guilty. During the course of the trial, a drivers license application signed with the same name — “James Hinkley” — as on the check which was the subject matter of the forgery and such was offered in evidence by the State. The application was among the effects of his wife taken from her at the time she was placed in the county jail. An “inventory search” that followed produced this document. The victim of the forgery had testified that a person representing himself to be James Hinkley had given him a check so signed as consideration for an automobile sold by him. The victim and his wife positively identified defendant and his wife as the persons with whom they negotiated and from whom they received the check. There was no identification of the signature “James Hinkley” on the application, and important here, the application was offered into evidence only as against the wife.

Defendant argues that this exhibit was obtained in an unlawful search and seizure from the belongings of his wife, and because of the lack of identification as to who — at least between him and his wife — had signed such application, it was immaterial and irrelevant as to his wife and prejudicial as to him.

Its irrelevancy is hard to see as against the wife. It was in her pocketbook at the time she was booked into the jail, it contained on the signature line the same name as that used on the forged check and she had been identified as one of the persons from whom the check had been obtained at the time the victims sold the automobile:. True, it is not relevant as against the husband — but it wasn’t offered into evidence against him. The material issue was whether the wife had anything to do with the forged check. An application for a drivers license signed with the same name as that on the check looks to that proposition, that is, it has a tendency to prove a proposition that was material. Relevancy has been defined as a tendency to render a proposition in issue — something material — more or less probable in the light of logic, experience, and accepted assumptions concerning human behavior. The signed application here has that tendency and in our opinion, therefore, is relevant. Whether such was obtained in an unlawful search and seizure is not something the husband can question. In short, he lacks standing. We reiterate the fact that it was offered and limited as evidence only against his wife, and the court admonished the jury to disregard such exhibit as to the husband. The constitutional right asserted by defendant to have been violated was against his wife and not against him, and such right is personal — that is, she is the only one that can complain. The pertinent section of the Illinois Code of Criminal Procedure so provides — “A defendant aggrieved by an unlawful search and seizure may move the court for the return of the property and to suppress as evidence anything so obtained * * (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12.) Simply put, the husband here was not “a defendant aggrieved by an unlawful search and seizure”. The husband made no claim of ownership or of a proprietary interest in the exhibit. As was stated in People v. Kelley, 23 Ill.2d 193, 177 N.E.2d 830:

“* * * We have held in numerous cases that where a defendant neither claims ownership or demands the return of the property alleged to have been illegally seized, he can not complain of the seizure or the introduction of the property in evidence against him. [Citing cases.] Under the doctrine of these cases it is clear that the defendants lacked standing to raise the question of an alleged illegal search * *

We conclude that defendant does not have standing to raise this question.

However, the lack of standing and a determination of relevancy as to defendant’s wife does not answer precisely the question of its prejudicial effect upon him. As we have noted, the exhibit was offered against the wife only, and the court stated that it “is admitted solely as to the defendant Yvonne Petty and should be disregarded as to the defendant Eugene Petty”. Defendant argues that it was impossible for the jury to follow this limiting instruction and that where evidence is such that a jury cannot properly limit its consideration to specific items of evidence, then such item should not be admitted even with a limited instruction. In a given context, this might be true — but not here. We agree that some items of evidence cannot be disregarded even though tire jury is so advised — and indeed, the very act of limiting the evidence can have the effect of accentuating its importance in the eyes of the jury. We are reminded here of the Mark Twain story of the boy being told to stand in a corner and not think of a white rabbit. But in our context, the exhibit itself was not inflammatory, it did not implicate the defendant as such— it was found in his wife’s purse, not in his effects — and if we couple these facts with the court’s admonition, we do not have, in our opinion, a “white rabbit” situation.

On cross-examination one of the State’s witnesses was asked whether he could state that defendant was in jail on a given date with the response, “No. They have been there so often I wouldn’t know”. The answer was disclaimed and a motion for mistrial denied. This is assigned as error. As with the exhibit, the court admonished the jury— “The jury should disregard the last answer”. Ordinarily a party cannot complain of evidence which he himself has introduced or brought out— we say ordinarily because if what was elicited, say, on cross-examination, was so prejudicial that it could not be limited, then, of course, a mistrial might be in order. This apparently was the situation in People v. Williams, 72 Ill.App.2d 96, 218 N.E.2d 771. In that case a police officer testified on cross-examination that he had obtained a description of the burglar from a report on another church burglary where the victim had been attacked by defendant. But this is far different from the situation here. In our opinion, even disregarding the court’s admonition and the fact that defendant elicited it on cross-examination, we do not deem the answer so prejudicial as to require a new trial. And the fact that the jury was so admonished, and further, that it was elicited by defendant himself, removes the answer from the category of reversible error. As was said in People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389:

“While it may be agreed that the reference to defendant’s prior incarceration in the penitentiary was completely incompetent and irrelevant, the State is not responsible for questions asked by the attorney for the accused, and neither is it responsible for the answers to such questions by the State’s witnesses. [Citing cases.] If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain. # * # ”

The answer complained of does not constitute reversible error.

During opening statement, tire assistant State’s attorney advised the jury that, “I represent you and all other people in Champaign County, Illinois”. Such was not immediately objected to, but only mediately — at the close of the statement. The court, in chambers, sustained an objection to the remark, but denied a motion for a mistrial. Defendant argues that the assistant State’s attorney misled the jury as to its role and that after being told this, they would naturally believe that the evidence presented by the State was really their evidence, in other words, the jury was on the side of the State and the defendant was on the other. We do not read such remark as carrying these implications. In our opinion, it would be far-fetched for a jury to infer from this remark that somehow it was them and the State against the defendant. While inapt, the remark without more could not possibly have diverted the jury from their role.

Finally, defendant assigns as error the denial of his motion for a pre-trial lineup. The short answer to this point is that we know of no requirement that a lineup should be provided at his request. In-court identifications without more have always been allowed. We consider the question as having been answered in People ex rel. Blassick v. Callahan, 50 Ill.2d 330, 279 N.E.2d 1, where it was specifically held that an in-court identification of an accused without a lineup does not deny due process of law, citing People v. Finch, 47 Ill.2d 425, 266 N.E.2d 97. Defendant argues that the denial was in effect withholding evidence favorable to him, citing Brady v. Maryland, 373 U.S. 83, and People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1. But this argument subsumes that the State possessed evidence that the victims were less than sure of their identification of defendant or that such was otherwise suspect. But no facts are produced to buttress this subsumption and we glean none from our examination of the record.

Accordingly, the judgment appealed from is affirmed.

Judgment affirmed.

SIMKINS and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marion Victor Wheeler, Defendant-Appellant.
    (No. 11760;
    Fourth District
    April 12, 1973.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Arthur A. Jones, State’s Attorney, of Paris, for the People.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


text:
    Carl W. Sorenson, Plaintiff-Appellee, v. Jacqueline Sorenson, Defendant-Appellant.
    (No. 11805;
    Fourth District
    April 12, 1973.

      Barbara A. Burkett, of Vermilion County Legal Aid Society, of Danville, (John S. Carroll, Senior Law Student, of counsel,) for appellant.
    Dyer, Richmond, Moore & Nelson, of Hoopeston, (William E. Nelson, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On October 20, 1970, the Appellee, Carl W. Sorenson, Sr. (hereinafter designated as “plaintiff”) was granted a divorce from Appellant Jacqueline Sorenson (hereinafter designated as “defendant”). Custody of their minor child, Carl W. Sorenson, Jr. was awarded to defendant. On October 7, 1971, plaintiff filed a Petition for Change of Custody alleging change of circumstances and that the child was living with defendant in places which were unsuitable, and that defendant had contributed to the physical and mental ill being of the child. An evidentiary hearing was held, and on January 11, 1972, the trial judge entered an order finding that a material change of circumstances had occurred since the entry of the decree and that the best interests of the child would be served by changing custody from defendant to plaintiff, and modified the decree accordingly. From this order defendant appeals.

The evidence, briefly summarized, shows that defendant and the child resided with her mother for a period of eight months following the entry of the decree for divorce. The child was bom December 9, 1969. In the latter part of June or the early part of July, 1971, defendant was “kicked out” because she didn’t clean the house according to her mothers wishes. Defendant and tire child then moved to a trailer which had no bathtub or shower and there resided for one month. While living in the trailer she had three or four parties, there was testimony that she became intoxicated and that the child was present, at least on one occasion when. this occurred. Defendant denied having been intoxicated. She then moved to Danville to an apartment for a period of approximately three weeks; then moved to another apartment in that City where they lived for four months and had moved from the latter location a few days prior to the hearing. She did not inform the plaintiff as to her whereabouts from time to time. She had, on occasion, attended “road parties” which are defined as parties in a deserted building or at the side of a road, where beer was served. Defendant had been receiving Illinois Public Aid for a month or two; had not been employed since the divorce. Defendant testified that the child was in good health and was regularly taken to a doctor. A case worker for the Department of Public Aid had seen the child on one occasion and found him to be clean, alert and pleasant. The plaintiff has remarried; his present wife is amenable to receiving the child into their home and to caring for him. The plaintiff is steadily employed and is purchasing a three bedroom home.

In order to justify a change in child custody, a material change of circumstance which affects the welfare of the child must be shown (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300), and the party seeking the change in custody has the burden of proving that the child’s best interest warrants the change. (Mikrut v. Mikrut, 113 Ill.App.2d 446, 251 N.E.2d 84.) After a divorce decree the custody of a child may be changed by order of the court from time to time as the best interests of the child demand (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300), and “The guiding star in a hearing to modify custody provisions of a decree is at all times the best interests of the child. (Maroney v. Maroney, 109 Ill.App.2d 162, 170, 171, 249 N.E.2d 871; Frees v. Frees, 99 Ill.App.2d 213, 240 N.E.2d 274.) Unless it appears that manifest injustice has been done a reviewing court will not disturb the determination of the trial court in matters concerning the custody of infant children. (Hahn v. Hahn, 69 Ill.App.2d 302, 216 N.E.2d 229.) The discretion of the trial court relating to custody should not be disturbed unless the same is against the manifest weight of the evidence. Bateman v. Bateman, 337 Ill.App. 7, 85 N.E.2d 196; Schmidt v. Schmidt, 346 Ill.App. 436, 105 N.E.2d 117; Maroney v. Maroney, 109 Ill.App.2d 162, 249 N.E.2d 871.

The effect of the trial court’s order is to remove the child from an unstable home into a two parent, stable atmosphere and to eliminate exposure to conditions which are not conducive to physical and moral well being. On this record we cannot say that the trial court abused its discretion, nor can we say that its judgment is against the manifest weight of the evidence.

Judgment affirmed.

CRAVEN, P. J., and SMITH, J., concur.


author: Mr. JUSTICE SMITH,

text:
    Denise Bertagnolli, a Minor, by Albert Bertagnolli, Her Father and Next Friend, Plaintiff-Appellant—(Cheryl M. Dufner, A Minor, by Carolyn Dufner, Plaintiff,) v. Dale Ambler et al., Defendants-Appellees.
    (No. 11883;
    Fourth District
    April 12, 1973.
    McGrady and Madden, of Gillespie, (D. A. McGrady, of counsel,) for appellant.
    Reed, Armstrong, Gorman and Coffey, of Edwardsville, (Harry C. Armstrong, of counsel,) for appellees.
   Mr. JUSTICE SMITH,

delivered the opinion of the court:

This is an appeal by one plaintiff from a judgment of the circuit court of Macoupin County entered on the verdict of the jury finding for the defendants and against both plaintiffs. The two twelve-year-old plaintiffs brought an action against the defendants for injuries sustained when the bicycle operated by Dufner and on which plaintiff Bertagnolli was a passenger collided with the defendants’ truck on S.B.I. Route 4 near Gillespie. Bertagnolli alone appeals from the judgment entered on the verdict after a denial of her motion for new trial.

On appeal, the plaintiff contends that the trial court erred in refusing to give her instruction 14 (IPI.11.02) which stated: “The issue of contributory negligence does not apply to plaintiff, Denise Bertagnolli.” We are thus asked to hold as a matter of law that Bertagnolli was not guilty of contributory negligence. To do so under the facts in this case flies squarely into the rule that “* * * [BJetween the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. (318 Ill. 149, 150.)” (Dickeson v. B & O Chicago Terminal R.R. Co., 42 Ill.2d 103, 107, 245 N.E.2d 762.) It seems clear that plaintiff’s position as a passenger on a borrowed bicycle operated by the other plaintiff imposed upon her a certain standard of care. A question of fact existed as to the plaintiff’s contributory negligence and reasonable minds could well have differed on that question. Pizano v. Trejo, 2 Ill.App.3d 944, 274 N.E.2d 861.

Defendant was driving his employer’s pickup truck in a northerly direction on a two-lane preferred highway. Plaintiff was hit when the bicycle on which she was a passenger pulled onto Route 4 from a side road from the west. Defendant estimated his speed at between 40-45 mph. He was carrying a compressor on the back of the truck and this had some effect on the steering of the vehicle. He first noticed the girls on the bike when he was at a distance somewhere between 100-200 feet south of the point of impact. They were just entering the west side of Route 4. Defendant hit his brakes after determining that he couldn’t veer around the girls. He did not recall whether or not he sounded the hom. When he hit the brakes, the girls were in the middle of the southbound lane. At the time of the impact, the back wheel of the bicycle was approximately on the center line of the highway. It was a clear, dry day. The middle right side of the truck hit the back half of the bicycle. When the defendant hit the brakes, the truck slid sideways and at the point of impact was headed west.

The testimony of both girls indicated that they entered a side road on the west side of the highway and there turned around at a stop sign and looked both ways before entering the highway. The plaintiff passenger testified that the next thing she knew the truck was on them when they reached the north lane of the highway. She did not remember a hom being sounded nor did she see the defendant’s truck until immediately before the impact. The passenger was riding behind the driver of the bicycle.

The driver stated that the truck was called to her attention when Bertagnolli screamed when the truck was practically upon them. She also testified that she looked both ways before entering the intersection and didn’t see a truck coming. From this testimony it is abundantly clear that if they looked, they didn’t see or if they saw, they ignored the oncoming truck which patently had to be in their vision sometime before the impact. Under such circumstances, it seems clear that the instruction tendered could not have been properly given as its giving as to this plaintiff would have amounted to holding as a matter of law that her conduct was free from contributory negligence.

In addition, plaintiff’s instruction No. 10 read: “A minor is not held to the same standard of conduct as an adult. When I use the words ‘ordinary care’ and ‘contributory negligence’ with respect to the plaintiffs, I mean that degree of care which a reasonably careful minor of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence. The law does not say how such a minor would act under those circumstances. That is for you to decide.” This correctly states the law. Accordingly, the jury was properly instructed under the facts in this case. They could properly and may have found under their general verdict that the plaintiff was guilty of contributory negligence for failure to exercise that degree of care which a reasonably careful minor of the same age, mental capacity and experience should have exercised. It is abundantly clear that for somewhere between 100-200 feet from this intersection the truck was in the vision of both girls. Under these circumstances, the trial court did not err in refusing the tendered instruction on contributory negligence. It gave the correct instruction on this issue and the jury had the right to follow it. The denial of the motion for new trial and the judgment on the verdict were accordingly appropriate and are affirmed.

Judgment affirmed.

CRAVEN, P. J., and TRAPP, J., concur.