author: MR. JUSTICE BRYANT

text:
    John Harold Lahman, Plaintiff-Petitioner-Appellant, v. W. E. Gould, W. E. Gould and Company and Harriett B. Gould, Executor of Will of W. E. Gould, Deceased, Defendants-Respondents-Appellees, and Philip H. Mitchel, Master in Chancery, Respondent-Appellee.
    Gen. No. 50,611.
    First District, Second Division.
    April 18, 1967.
    Rehearing denied May 16,1967.

      Raymond Harkrider, of Chicago, for appellant.

      Winston, Strawn, Smith and Patterson, of Chicago (Calvin Sawyier, of counsel), for respondents-appellees.
    Philip H. Mitchel, Master in Chancery, pro se, of Chicago, respondent-appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County which dismissed the plaintiff’s complaint, awarded the sum of $34,086 to the defendants and assessed the sum of $40,956.70 in master’s fees equally between the two parties. Plaintiff raises four issues on this appeal: (1) that the chancellor erred in refusing to allow him to file his amended and supplemental complaint; (2) in denying his petition to suppress the master’s report; (3) in issuing a decree which dismissed the plaintiff’s amended complaint for want of equity and which entered judgment against the plaintiff in the sum of $34,086 and assessed costs equally between the parties; and (4) in allowing master’s fees in the sum of $40,956.70.

The evidence in this case shows that the plaintiff, John Harold Lahman, was engaged in making profits out of speculative business ventures, and that the defendant, the now-deceased W. E. Gould and his company, W. E. Gould and Company were engaged in the making and brokering of loans to high-risk business ventures such as the plaintiff dealt in. Beginning in 1945, Lahman commenced borrowing money at high interest rates (commissions charged by Gould averaged around 20% per loan) from defendant, W. E. Gould and Company. On many of these ventures Lahman was making such profit that the high interest rates were a minor factor.

In February 1949, Lahman and one of his associates, Henry J. Brubaker, accepted a letter of intent to purchase a Navy Small Parts Plant at Rockdale, Illinois, from the War Assets Administrator, at a price of $875,-000. The property consisted of approximately 26 acres, improved with buildings, containing about 700,000 square feet of space, which the plaintiff planned to lease for industrial use. In April 1949, plaintiff and Brubaker formed an Illinois corporation, Interlake Industries Corporation, hereinafter referred to as “Interlake,” for the purpose of taking title to and possession of the property. Shortly after the formation of the corporation, Brubaker, because of illness, assigned to Lahman all of his right, title and interest in the letter of intent.

After June 1949, Gould and Company commenced to make substantial loans to Interlake, for which it received notes of Interlake. Interlake also picked up outstanding Lahman notes held by Gould and Company by the substitution of Interlake notes, thus in effect borrowing money on the very asset he was buying.

In 1950, Lahman and Interlake were in serious financial distress due to unfavorable economic conditions and, according to Lahman, a severe winter. Gould and Company held Lahman and Interlake notes and some Lahman “NSF” checks. It became apparent that the only way in which Lahman could salvage anything was to find a purchaser of the stock of Interlake or of all of its assets. Attempts were made to find a buyer. On March 27, 1950, the property was offered to H. A. Karsten for $1,150,000, which offer was not accepted, and in May the stock was offered to Arnold Hartman for $1,000,000, out of which sum Lahman was to pay $100,-000 of notes payable. This offer also was not accepted. On May 29, 1950, Lahman and defendant W. E. Gould entered into a contract on behalf of Gould’s company whereby Lahman completely parted with his interest in Interlake for a price of $960,000. The master found that this agreement “was an arms length business deal between two competent businessmen, each seeking to salvage as much as they could in the face of the prospect of a default on a land purchase contract” which indeed it was.

Subsequent to the sale of the Interlake stock on May 29, 1950, the defendants refused to lend Lahman any more money. They suggested that Lahman organize a corporation, J. H. Lahman, Inc., which he did. The apparent purpose for organizing this corporation was to avoid the effect of the usury law. Lahman had pledged 55.2 shares of Frantz Manufacturing Company stock with the First National Bank of Chicago as security for a loan of $21,000. The Frantz stock had been the basis of Lahman’s financial power; the company was a family-owned manufacturing company in which Lahman was not only a substantial stockholder but was also an officer drawing a salary of $40,000 per year. In July 1950, Lahman borrowed $21,000 through J. H. Lahman, Inc. from the defendants to pay off the First National Bank loan. Lahman, Inc. was charged a commission of $5,000 on this transaction by the defendants who took as collateral security the 55.2 shares of Frantz that had been held by the First National Bank. In November of the same year Lahman faced a substantially similar problem involving a loan from the National Bank of Sterling, where he had pledged 55 shares of the Frantz stock as security for a loan of $22,000. Once again the defendants loaned him money and took as security the Frantz stock and charged a commission of $4,400. Lahman, through his company, J. H. Lahman, Inc., continued to borrow money from the defendants, not from any coercion by the defendants, but as a result of Lahman’s indebtedness to persons other than the defendants.

Shortly prior to June 26, 1951, Lahman approached Gould for a loan of $15,000 to $20,000 and was turned down by Gould who said he could not loan any more money “because your collateral is used up.” On June 26, 1951 the parties signed an agreement which recited that Lahman in consideration of the cancellation of the notes totaling $104,000 and the payment to him of $15,000 in cash, sold his 117.2 shares of Frantz stock to Gould. As he did in connection with the sale of the Interlake stock, Lahman claimed that the sale was not an absolute sale, but was merely a new collateral agreement to secure loans already made with Gould and Company. By the very terms of the agreement which Lahman signed on June 26, 1951, however, it is conceded that the transaction was a sale of the Frantz stock, “This stock is definitely and absolutely sold to us as of this day. Should we desire to sell this stock we will first offer it to you.”

As we have already noted, plaintiff raises four issues on this appeal, the first of which is that the trial court erred in denying plaintiff Lahman leave to file an amended and supplemental complaint in excess of eighty pages, following the filing of the master’s report. In denying the petition the trial court found: (1) The sufficiency of the evidence contained in the master’s report, the transcript and supporting documentary matter, is not challenged by any of the parties to these proceedings as not representing all the evidence respectively offered in support of the merits or substantive issues involved; (2) the proffered complaint was not of sufficient substance or relevance to reopen the hearings on the merits or to have the cause to be reheard on the merits; and (3) the filing of the motion by the plaintiff after the master’s report had been filed (some nine years after the filing of the original complaint) came too late to allow the filing of the amended and supplemental complaint.

It is clearly the law in this state that the granting or denying of an amendment to the pleadings is a matter for the discretion of the trial court whose ruling will not be disturbed on review, absent a clear showing of abuse of that discretion. Deasey v. City of Chicago, 412 Ill 151, 105 NE2d 727; Old Salem Chautauqua Ass’n v. Illinois Dist. Council of Assembly of God, 13 Ill2d 258, 148 NE2d 777; Hall v. Gerdes, 68 Ill App2d 119, 215 NE2d 8. The test to be applied in determining whether the exercise of discretion with respect to the allowance of an amendment of the pleadings was proper, is whether it furthers the ends of justice. Bowman v. County of Lake, 29 Ill2d 268, 193 NE2d 833.

Plaintiff’s rationale in filing the amended and supplemental complaint is that he was distraught and in financial straits and did not have accurate or adequate information, with the result that his original and amended complaints contained some “improvident, inaccurate or inept allegations”; that over a three and one-half year period the defendants stated and represented that this cause should be decided on the basis of the “extended evidence, both oral and documentary” which “was offered before the master”; but that notwithstanding the above, the master devoted thirty pages of his report to an analysis of the pleadings. This procedure the plaintiff claims was extremely inequitable and unfair because an extended analysis of the pleadings was unnecessary and because the incorrect allegations on which the master relied were corrected or superseded by accurate statements in the statements of facts and other documents filed by the plaintiff with the master.

It was manifestly not an abuse of discretion for the trial court to have denied plaintiff’s petition to file his amended and supplemental complaint. This complaint came very late in the day of an already expensive and lengthy proceeding, during which time plaintiff had already had two opportunities to assert his claims. We see no abuse of discretion in denying him a third attempt. Moreover, on the basis of plaintiff’s allegations it would be necessary for this court to find both that an analysis of the pleadings was crucial to the validity of the master’s report and that, that analysis was faulty because of the alleged inaccuracies in the original and amended complaint. It is not apparent, either from the plaintiff’s brief or from the record or from a reading of the master’s report, that the master’s analysis of the pleadings included therein, was critical to the sufficiency of that report. As pointed out by the trial court, no attack was made on the sufficiency of the evidence contained in the report. Moreover, if there were inadequacies in the original and amended complaints, there is no showing of what these inadequacies are or in what way the amended and supplemental complaint would cure these defects. In short, we are of the opinion that the amended and supplemental complaint was of little substance or relevance.

Plaintiff next contends that the trial court should have granted his petition to suppress the master’s report and for certain other relief.

Plaintiff cites three items in support of his allegation that the master’s report is biased in favor of the defendant and should have been suppressed: (1) the master ignored the testimony that the value of the Interlake stock, whose sole asset was the Rockdale property, as of May 29, 1950, was $1,541,920; (2) the master ignored testimony that the value of the 117.2 shares in Frantz was $1,500 per share on June 26, 1951; and (3) the master assumed, without evidence, that the Korean War which began in June 1950, inflated the value of the Rock-dale property and consequently post-Korean War values were irrelevant as to the pre-Korean War values.

As already noted, Lahman and one of his associates, Henry J. Brubaker, bought the Rockdale property from the War Assets Administration for the sum of $875,000, and took title on behalf of Interlake. When the plaintiff ran into financial difficulties in this venture attempts were made to dispose of the Interlake stock before the eventual sale to Gould. On March 27, 1950, the stock was offered to H. A. Karsten for $1,150,000 which offer was not accepted. In May 1950, the stock again was offered for sale to Arnold Hartman for $1,000,-000 out of which sum Lahman was to pay $100,000 in notes payable, for a total selling price of $900,000. This offer was also not accepted. There was also testimony by one of defendants’ expert witnesses that the value of Interlake’s Rockdale property was $885,000 on the date of the sale to Gould. In view of considerable evidence that the Interlake stock was worth not more than $1,000,000, it cannot be said that the failure of the master to cite the considerably larger figure offered by plaintiff’s expert witness is indicative of any prejudice on the part of the master.

Plaintiff’s allegation in regard to the Frantz stock is likewise lacking in substance. Lahman, himself, testified that the highest price ever paid for Frantz stock was $600 per share. Plaintiff also testified that the stock had a book value of $1,000 per share in 1949, and that it was increasing in value by approximately $100 per year. Gould paid nearly $1,000 per share when he bought the stock in 1951. The master’s failure to include the estimate of plaintiff’s witness who was also a personal friend and officer in Frantz does not support an inference of prejudice.

0 Plaintiff’s third claim of prejudice, that the master prejudiced the plaintiff by taking into account the economic effects of the Korean War is similarly lacking in merit. As a matter of law, it is clear that our courts will take judicial notice, and will not require proof, of periods of inflation and deflation. Central Illinois Public Service v. Thompson, 1 Ill2d 468, 115 NE2d 888; People ex rel. Schmulbach v. City of St. Louis, Mo., 408 Ill 491, 97 NE2d 252.

In view of the utter paucity of the evidence on the issue of the prejudice of the master, and, the overall fairness of his report, we hold that the trial court was not in error when it denied the plaintiff’s motion to suppress.

Lahman’s next contention is that he is entitled to recover the Interlake stock and the shares in Frantz byway of redemption, restitution or constructive trust. The gist of the plaintiff’s argument is that, (1) there was no sale, but (2) if there was a sale, he has a right of redemption because of the existence of a fiduciary relationship or because of the existence of an oral understanding, (3) or the sale is void because the sales price was unconscionable.

Plaintiff, in effect, is asking this court to substitute our judgment in place of the findings of the master and of the trial court. That is something that this court should not do unless the findings of the master are manifestly against the weight of the evidence. Rose v. Dolejs, 1 Ill2d 280, 116 NE2d 402; Punzak v. Delano, 11 Ill2d 117, 142 NE2d 64; Gallagher v. Girote, 23 Ill2d 170, 177 NE2d 103.

The evidence establishes that the transactions of May 29, 1950, and of June 26, 1951, were unconditional sales of Interlake and Frantz stock. In a supplementary letter to the May 29, 1950, agreement, it is stated that:

“These notes (held by Gould and Company) are considered as part payment on the purchase price of all the outstanding and issued shares both common and preferred of Interlake Industries Corporation as more fully described in a purchase contract dated May 29,1950.”

In the letter embodying the June 26, 1951 agreement it is stated :

“This stock is definitely and absolutely sold to us as of this day. Should we desire to sell this stock we will first offer it to you.”

Moreover, there is testimony (later recanted) that Lahman treated the May 29, 1950, and June 26, 1951, transactions as sales for federal income tax purposes. As we noted earlier, attempts to sell the Interlake property had been made before the sale to Gould. Finally, plaintiff’s claim that the agreements were modified oral agreements made at the time the written agreements were made is not credible. The only evidence that there was such an agreement is plaintiff’s own testimony, which is contradicted by the fact that plaintiff had previously testified under oath on different occasions (Brubaker v. Gould, 34 Ill App2d 421, 180 NE2d 873) that the transactions were outright sales.

We have already considered the value of the Inter-lake stock and the shares in Frantz. In view of that finding we cannot say that the defendants paid an unfair price for the stock.

Plaintiff also contends that a confidential relationship existed between him and the defendants, that the defendants violated the confidential relationship for which reason the Interlake and Frantz transactions should be voided. Equity will raise a trust by construction where there is a fiduciary or confidential relationship and a subsequent abuse of the relation and where actual fraud makes it necessary to protect the rights of the defrauded party and promote the interests of society. Kapraun v. Kapraun, 12 Ill2d 348, 146 NE2d 7; Carroll v. Caldwell, 12 Ill2d 487, 147 NE2d 69; Kochorimbus v. Maggos, 323 Ill 510, 154 NE 235. Plaintiff in this case has produced no evidence of any specific acts which would lead this court to believe that a relationship other than debtor and creditor existed. Where such a relation does not exist as a matter of law and is sought to be established by parol evidence, the proof must be clear and convincing, and so strong as to lead to but one conclusion. Mortell v. Beckman, 16 Ill2d 209, 157 NE2d 63; Lux v. Lelija, 14 Ill2d 540, 152 NE2d 853; Lawrence v. Muter, 171 F2d 380. That is not the case in this situation.

Plaintiff’s last point on this appeal is that the master’s fees should be reduced or disallowed and that the master’s report should be suppressed because of irregularities in the making of deposits with the master.

Beginning on June 7, 1961, about six years after this cause of action was referred to the master, a series of four payments of $5,000 each was deposited with the master without the knowledge or order of the court. Defendants contend that the payments were made pursuant to an agreement between the parties whereby the defendants agreed to guarantee the master’s fees and to make deposits on demand of the master. The evidence on the existence of this oral agreement is conflicting.

Whether the alleged agreement actually existed or not, the plaintiff is quite correct in his assertion that the payments to the master violated both chapter 53, section 38, Ill Rev Stats 1963, and Rule 9.3, Rules of the Circuit Court, which are as follows: chapter 53, section 38, supra.

“. . . Upon reference of any matter to the master in chancery the court may, in its discretion, at the time of such reference or at any subsequent time, order any party seeking to offer evidence before the master to deposit with the clerk of the court such sum or sums as may be fixed by the court to secure the payment of any part or all of the costs of such reference; . . . .”

Rule 9.3 (a), supra.

“DEPOSITS AND STIPULATIONS. Before the disposition of all objections to his report, the master shall not request or accept from a party or attorney any stipulation as to the amount of the master’s fees. Before the taxation of his fees, the master shall not request or receive any deposit or payment for his services upon the reference except
“ (i) upon approval by the court; or
“(ii) for accrued fees for the taking and reporting of testimony at the statutory rate and for taxable stenographer’s fees.”

Rule 9.3(d) Ibid., further provides that:

“The court in its discretion (emphasis added) may disallow master’s fees in whole or in part in respect to any improper proceedings occasioned by the fault of the master.”

From a reading of the above provisions it is clear that they do not provide for the suppression of the report because of irregularities in the making of payments to the master. The most that could have been done under the circumstances and provisions of the rules of the Circuit Court was the taking away of all fees earned by the master and that was a remedy available to the court in all cases. The remedy of suppression is not given. There was not the slightest evidence of any prejudice to the plaintiff which would warrant the fixing of the fees by anyone other than the court which heard the matter, and no prejudice in the receipt of any deposits in advance of the court’s fixing of the fees.

The chancellor found:

“1. That the court has jurisdiction of the parties hereto and the subject matter hereof, and that said decree should contain the following findings:
“(a) The said master’s report contains a proper and accurate summation of the facts; and, the master’s analysis of the facts therein and his application of the law thereto reflects a high degree of competency in conducting the hearings before him as well as a full comprehension of the issues involved.
“ (b) The findings of fact, the conclusions of law and the recommendations contained in said master’s report represent a fair and reasonable result derived from the hearings before him, as revealed from the transcript of such proceedings.
“(c) Said master’s report should be approved by this Court.
“ (d) The Certificate of Fees and Charges of the master attached to his report, which was submitted for the consideration of this court, without objection thereto, should be approved and his said fees and charges should be assessed and charged as costs of these proceedings.
“(e) The defendants, as a unit, voluntarily deposited with the master, during the course of the hearings, the sum of $20,000.00 as an assurance for payment to the master their share of his fees and charges and, with the additional consideration that certain equities on the question of dividends were found by the master in favor of the plaintiff, it is reasonable to assess the costs of the proceedings equally against the plaintiff and the defendant W. E. GOULD & COMPANY. It is the opinion of the court that the deposit for master’s fees made by the defendants in no way influenced the judgment or opinion of the master, as the master’s report, in no respect, indicates a prejudiced determination of the facts, based upon the evidence submitted.”

This was a clear expression of opinion by the chancellor who dealt with this case and knew more about it than any other person, and should be controlling in the fixing of the master’s fees. Hereinbefore we found that the report of the master was fair and accurate.

The only remedy provided by the statute is for a reduction or disallowance of the master’s fees. It is clear that the making of the payments had no effect on the fairness of the report. While we do not approve of or condone the practice of making deposits with the master without the knowledge or approval of the court, we feel that the exercise of discretion by the chancellor should not be disturbed absent any showing of wrongdoing on the part of the master or the defendants.

Plaintiff also claims that the trial court erred in approving the $40,956.70 master’s fee. The basis of the plaintiff’s complaint on this point is that the master’s report failed to contain a request for an order taxing fees as required by Rule 9.2 of the Circuit Court. While the plaintiff filed a petition to suppress the master’s report he at no time attacked the amount of the fees or the manner of certification, nor did he make any objection to the trial court on this matter. Plaintiff’s failure to preserve as an issue the propriety of the master’s fees precludes our consideration thereof. Mitchell v. Art Institute of Chicago, 269 Ill 381, 109 NE 1008.

For the above reasons the decree is affirmed.

Decree affirmed.

LYONS, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: TRAPP, J. CRAVEN, P. J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Nelson, Defendant-Appellant.
    Gen. No. 10,793.
    Fourth District.
    April 20, 1967.

      J. Waldo Ackerman, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, Richard H. Hollis, First Assistant State’s Attorney, and D. Bradley Blodgett, Assistant State’s Attorney, for appellee.
   TRAPP, J.

Defendant appeals from a judgment of conviction and a sentence of one to three years upon two counts of an indictment, each charging acquisition of drugs by fraud and deceit in violation of the Criminal Code of 1961, c 38, § 22-39 (Ill Rev Stats, 1965).

It is defendant’s theory that the denial of his motion to suppress evidence violated his constitutional rights and that the prosecution failed to prove the purchase of any narcotic as alleged in the indictment. Upon the motiop to suppress, it is defendant’s theory that evidence and witnesses to the offense were discovered through identification of the defendant at a police “lineup” at a time when no warrant was outstanding, or charge pending on the offenses at issue.

On March 30, 1965, defendant was in jail, having been unable to post bond while awaiting prosecution on other charges. On April 15, 1965, officers of the Illinois Narcotics Bureau discovered defendant’s name on the exempt narcotics registers of the Oseo Drug Store and of the Watt Brothers Drugs, both in Springfield, Illinois, showing the purchase of two exempt medicinal preparations within 48 hours, i. e., on March 4, 1965. The narcotics officers procured members of the Sheriff’s department to take the defendant with four other negro youths of comparable age and stature to the city police station to be placed in a “lineup.” Defendant refused to go and stated that he wanted to talk with his counsel, appointed to represent him on other pending charges. At the police station defendant called his appointed attorney, who advised him to refuse to appear in the “lineup,” and defendant persisted in his refusal to participate in the procedure. The record is not clear as to whether the other prisoners were to be in the “lineup” in connection with their offenses, but there appears to be a reasonable inference that they were only to be viewed for purposes of comparison with the defendant. Upon defendant’s refusal to go into the “lineup” room, clerks and employes of the respective drug stores walked through a corridor where defendant was waiting, at which time there was some opportunity for them to observe him. Defendant testified to his strenuous efforts to conceal his face. The testimony of the officers conflicts with that of the defendant as to whether defendant was jerked to his feet in such a manner as to disclose his features. It is not clear from the record as to whether or not any of the witnesses did, in fact, identify the defendant in the corridor of the police station, but there is no question that they did make such identifications at the trial, and there is, in fact, no evidence which questions the identity of the defendant as making the purchases and signing the exempt narcotics register and writing his then address.

At a hearing upon the motion to suppress, the trial court found that there was, in fact, a complaint filed and an unserved warrant outstanding upon these charges at the time of the aborted “lineup.” No evidence contradicts this conclusion.

The witnesses identifying the defendant at the trial as making the several purchases were employes of the respective pharmacies who made the sales in evidence. The investigation of the respective exempt narcotic registers disclosed their several identities, and the fact that they were requested to view the defendant for purposes of identification contradicts the contention that they were discovered through the questioned “lineup” procedures. Such circumstances do not come within the ambit of People v. Albea, 2 Ill2d 317, 118 NE2d 277, wherein a witness was discovered, and his identity ascertained, during the course of, and as a result of an illegal search. This person was suppressed in the sense that his testimony was ruled inadmissible.

Defendant urges that he was deprived of the equal protection of the law by being compelled to participate in the “lineup.” He relies upon Butler v. Crumlish, 229 F Supp 565 (1964), wherein the District Court for the Eastern District of Pennsylvania issued a temporary injunction restraining police officers from placing an indigent prisoner in a “lineup” upon the statement that the procedure produced a material distinction between defendants who could make bail and those who could not, so that while in custody they could be required to participate in the “lineup.” It was stated that the “lineup” procedures made the defendant an active participant in police investigation. The court’s opinion conceded, however, that the police could permit witnesses to view the accused in his cell, or in jailhouse activities. This opinion stressed the fact that in the “lineup” procedure the prisoner was required to stand upon a brightly lighted stage, and to speak and move as instructed for purposes of identification.

This conclusion was expressly repudiated by the Court of Appeals for that District in United States v. Evans, 359 F2d 776 (1966), where defendants appeal their conviction. While being held upon another charge, defendants were placed in a “lineup” and identified as bank robbers. Upon appeal of the conviction, that court held that the process of identification did not deprive them of any constitutional rights. In Rigney v. Hendrick, 355 F2d 710 (1965), petitioners sought to enjoin officers from placing them in a “lineup” as being a violation of the Civil Rights Act. Finding that there was neither denial of due process, equal protection of the law by reason of discrimination against indigents without bail, nor violation of the privilege against self-incrimination, the court held that identification was a permissible police activity. The Supreme Court denied certiorari. 384 US 975.

Apart from the practical aspects as to whether or not the best interests of an accused are better served when witnesses are required to pick out and identify him from a group of similar individuals, the evidence upon the hearing discloses that the “lineup” planned by the narcotics officers was, in fact, aborted when the defendant, as advised by counsel, refused to proceed in the “lineup” room.

Upon the contention that defendant was deprived of the right to counsel by reason of this “lineup,” the record discloses that no “lineup” procedures were, in fact, employed after counsel had advised the defendant to refuse to appear therein, but, in fact, counsel’s advice was honored. Again, under the facts of this case, we doubt that the claim of deprivation of right to counsel is an issue as a matter of law. Such right to counsel is related to accused’s privilege against self-incrimination. As noted in Schmerber v. California, 348 US 757, 16 L Ed2d 908, 86 S Ct 1826, such privilege against self-incrimination does not insulate against fingerprinting, photographing or performing acts incident to identification. The Supreme Court distinguished evidence of the physical characteristics of the defendant from his testimonial privilege against self-incrimination, and held that there was no issue presented with respect to the ability of counsel to assist the defendant in any rights which he did possess, so that the claim of being deprived of the right of counsel must be rejected. Such conclusion is equally applicable here. See also Rigney v. Hendrick, 355 F2d 710.

Defendant urges that since no chemical analysis of the items purchased was placed in evidence, there was a failure to prove that the preparations obtained were narcotics. It seems more correct to say that the issue is whether or not defendant obtained exempt medicinal preparations described in the Uniform Narcotic Drug Act, chap 38, § 22-12 (Ill Rev Stats, 1965). The courts have recognized the distinction between narcotics as such, and the exempt medicinal preparations. People v. Bowlby, 51 Ill App2d 51, 201 NE2d 136; People v. Williams, 23 Ill2d 549, 179 NE2d 639; People v. Hines, 30 Ill2d 152, 195 NE2d 712 and Folenius v. Eckle, 109 Ohio App 152, 164 NE2d 458.

The requirements of a chemical analysis in the case of an unidentified substance of unspecified origin without evidence of its nature and content is patent. The record in this case, however, discloses without contradiction, the following: (1) the defendant made the purchases using the trade name of the medicinal preparations; (2) that reputable pharmaceutical companies manufactured and distributed the preparations; (3) that the preparations were sold in the original container distributed by the manufacturer; (4) that the respective preparations have accepted standards or formulas specifying narcotics coming within the statutory concentration; (5) that the statute, chap 38, §22-21 (Ill Rev Stats, 1965) requires the manufacturer to label each package or container showing the kind, quantity and form of narcotic drug contained in the medicinal preparation; (6) that the containers obtained by the defendant were, in fact, labelled by the manufacturers pursuant to such statutory requirement. The Supreme Court has recognized that reputable pharmaceutical manufacturers have established standards for the manufacture of medicinal preparations. People v. Williams, 23 Ill2d 549, 179 NE2d 639.

In People v. Robinson, 14 Ill2d 325, 153 NE2d 65, the Supreme Court stated that circumstantial evidence may support a conviction under the Uniform Narcotic Drug Act. To prove a violation in that case, it was necessary to identify an unknown substance as a narcotic drug. The three users of heroin testified that the taste of the substance and the reaction induced by it was that of heroin. Similarly, the evidence was that the defendant had sought to purchase heroin. We believe that the chain of circumstantial evidence establishing the violation of the statute is stronger in this case than that in People v. Robinson.

A court must consider the purpose of the statute with regard to the medicinal preparations at issue, and the fact that they are the subject of immediate consumption. To announce the evidential requirement of chemical analysis of each preparation sold as an exempt medicinal preparation would not only render the legislative determinations for naught, but would compound fatuity with the ridiculous. We believe that the circumstantial evidence is sufficient to satisfy the trier of fact of the guilt of the defendant, and that the prosecution has sustained its burden of proof under the evidence. People v. Robinson, 14 Ill2d 325, 153 NE2d 65.

Count III of the indictment charges that the defendant committed an offense by obtaining an exempt medicinal preparation at Osco’s Drug Store by the concealment of a material fact, to-wit, the obtaining of an exempt medicinal preparation at the Watt Brothers Pharmacy, within 48 consecutive hours. The evidence discloses that the purchase at the Oseo Drug Store was made between 6:00 and 8:00 p. m. on March 4, 1965. Count IV of the indictment alleges an offense in that the defendant obtained an exempt medicinal preparation from Watt Brothers Pharmacy by the concealment of a material fact, to-wit, a failure to disclose that he obtained an exempt medicinal preparation at the Oseo Drug Store within 48 consecutive hours. The evidence is that such purchase was made between 8:00 and 8:30 p. m. on March 4, 1965. It seems apparent as a matter of reason and logic that the purchase alleged in Count III of the indictment could not be made through concealment of the material fact of the subsequent purchase alleged in Count IV. We must conclude that the prosecution has failed to prove the allegation of Count III of the indictment, and that the conviction upon such count must be reversed. The conviction upon Count IV of the indictment is affirmed.

Affirmed in part.

Reversed in part.

SMITH, J., concurs.

CRAVEN, P. J.,

dissenting:

The indictment in this case has four counts. Count I charged a violation of section 22-12(6) (e) of the Criminal Code (Ill Rev Stats 1965, c 38, § 22-12(6) (e)), alleging the purchase of paregoric and the subsequent purchase of an exempt narcotic within 48 hours. Count n, likewise, alleged the same offense of two purchases of exempt narcotics within 48 hours. Under this section of the Criminal Code both Counts I and n, therefore, charged unlawful possession of narcotic drugs, which is what the statute makes the offense of two purchases of exempt narcotics within 48 hours. The evidence in this case relates to those two counts.

The judgment of the court, however, makes no reference to either Count I or Count II but the judgment of conviction is based upon Counts in and IV, each of which charges the offense of unlawful acquisition of drugs by fraud and deceit or material misrepresentation in violation of section 22-39 of the Criminal Code (Ill Rev Stats 1965, c 38, § 22-39). I agree with the majority opinion that Counts III and IV are mutually exclusive as a matter of reason and logic. The evidence in this case, in my view, makes no showing of anything sufficient to convict under section 22-39. The judgment of conviction, therefore, was entered upon the wrong counts of the indictment. Counts I and n were undisposed of by the trial court. Those counts are not before us. People v. Randall, 25 Ill2d 431, 185 NE2d 146 (1962).

Section 121-9 of chapter 38, Ill Rev Stats 1965, provides that, on appeal, “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Such is the fact here. This court should not affirm a judgment of conviction entered upon the wrong counts of an indictment. I must, therefore, dissent, although I have no disagreement with the language and opinion of the majority as to the issues determined. The omission of the above-related defect is the sole basis for this dissent.


author: MR. JUSTICE ATTEN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John William Davidson, Defendant-Appellant.
    Gen. No. 66-113.
    Second District.
    April 17, 1967.

      Ernest R. Akemann, Assistant Public Defender, of Elgin, for appellant.
    William R. Ketcham, State’s Attorney, and W. Ben Morgan, Assistant State’s Attorney, both of Elgin, for appellee.
   MR. JUSTICE ATTEN

delivered the opinion of the court.

The defendant-appellant, John William Davidson, was convicted of the crime of manslaughter for the killing of his wife and sentenced to a term of a minimum of 5 years and a maximum of 15 years in the State Penitentiary. This appeal is from that judgment and sentence. In his appeal appellant alleges four separate errors, which we will consider in the order they appear in appellant’s brief.

At the outset, however, we must comment on the representation afforded the defendant in this case. He was represented by the Public Defender and a specially appointed counsel in the trial court and a specially appointed counsel to handle this appeal. We have read the abstract, briefs and arguments which were filed in this case and it was necessary for us to go to the record to determine just what took place at the trial.

The People, in their brief and argument, raised several technical defenses based on the insufficiency of the abstract with reference to its substance and form. If this were a civil case or even perhaps a criminal case where the appellant was represented by counsel of his choice, such technical defenses would be well taken. However, in view of the circumstances in this case, we find that we cannot accept the technical defenses alone as sufficient basis for the affirmation of this judgment. People v. Miller, 33 Ill2d 439, 444, 211 NE2d 708; People v. Robinson, 27 Ill2d 289, 292, 189 NE2d 243.

At the trial, defendant’s counsel made a valiant effort to frame hypothetical questions for an answer by Doctor Harold Hadley Nelson, a psychiatrist, in an attempt to substantiate his theory of temporary insanity at the time of the commission of the offense. And, after including all of the testimony in the record favorable to the defendant in such questions, Doctor Nelson stated that he did not have sufficient facts upon which to base an opinion on this issue.

After the doctor was excused, the defendant’s counsel made an offer of proof based on what purported to be the doctor’s conclusion concerning the defendant’s sanity, which conclusion was grounded on an interview with the defendant on February 22, 1965, for the purpose of determining the defendant’s competency to stand trial. The State’s attorney objected to this offer of proof and his objections were sustained. This offer of proof was made without the doctor being present and was an unsubstantiated statement of what counsel said the doctor could testify to. Even this offer of proof did not indicate that the doctor could testify to more than that the defendant had a psychosis which proof falls short of establishing a mental disease or defect with the requirements of section 6-2 of the Criminal Code. (Ill Rev Stats 1965, c 38, par 6-2.)

The defendant also contends the court’s rulings in sustaining objections to evidence which he offered relative to past events in his life and the court’s rulings on defendant’s counsel’s offer of proof thereon constituted reversible error.

We have read defendant’s testimony and his counsel’s offers of proof. If his testimony and offers of proof in conjunction with all the other evidence in the case created a reasonable doubt and overcame the presumption of sanity, it was error for the trial court to exclude such evidence since such facts were relevant and should have been admitted in evidence. However, we do not believe that the excluded testimony, together with the offers of proof, when considered in conjunction with all the evidence in the record, were sufficient to warrant the submission of the issue of temporary insanity to the jury or justify a temporary insanity instruction. Nor do we believe that there was sufficient basis for an opinion by the psychiatrist that defendant, by reason of mental defect or mental disease, lacked the capacity to appreciate or control the criminality of any conduct he might have engaged in on October 27th and 28th, 1964.

Proof that he was a patient in the Naval Psychiatric Ward in 1960, and various mental hospitals between 1960 and 1963, wherein he received care, including psychotherapy, medication, and electric shock treatments, was not sufficient to create a reasonable doubt as to his sanity on the date of the act and to overcome the presumption of sanity. People v. Miller, 33 Ill2d 439, 443, 211 NE2d 708; People v. DeSimone, 67 Ill App2d 249, 259, 260, 214 NE2d 305. In addition there was no authentication of the records of prior hospitalizations of the defendant and these records were not properly before the court. Defendant’s offer of proof on this point, consisted merely of his statement that he had been a patient at such hospitals.

On the facts in the record including the offers of proof, there was no evidence upon which the psychiatrist could have based an opinion that the stress on the date of the homicide could have “triggered” the response because of an “underlying mental disease or defect.” This was the theory which defendant’s counsel sought to establish. The examination by the psychiatrist on February 22, 1965, — long after the homicide— by itself could not be a proper basis for an opinion as to defendant’s condition on October 27th and 28th, 1964. Under the circumstances, we do not consider the refusal of the court to permit the defendant to testify in accordance with his counsel’s offer of proof or the court’s striking of certain testimony of the defendant, to be reversible error.

Defendant next alleges that there was no competent evidence in the records either that deceased was in fact dead or that she was strangled. It was stipulated by the parties that the coroner, if called to testify, would testify that Sandra K. Davidson was dead on October 28, 1964. Although the corpus delicti cannot be established by the extrajudicial statements of the defendant alone amounting to a confession, admissions of a defendant on the witness stand, taken with other circumstances establishing an illegal criminal agency causing the death of the defendant’s wife, Sandra K. Davidson, are sufficient to sustain the jury’s verdict. People v. Manske, 399 Ill 176, 185-186, 77 NE2d 164. The rule in Illinois is that medical testimony is not required to prove the cause of death where the facts proved are such that every person of average intelligence would learn from his own knowledge or experience, that a wound was mortal. Waller v. People, 209 Ill 284, 288, 70 NE 681. The stipulation and the lay testimony introduced in this record were amply sufficient to prove the cause of death in this instance.

The defendant also objects to certain errors in instructions. We have examined the instructions in conjunction with the testimony in this case and find no error in instructions given and refused by the trial court.

The judgment of the trial court is affirmed.

Affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    Oak Park Trust & Savings Bank, as Trustee Under Trust Agreement Dated October 8, 1964, Identified as Trust No. 4731, Plaintiff-Appellee, v. Bertha Gae Fisher, Defendant, John H. Vierow, Third-Party Defendant-Appellant.
    Gen. No. 51,253.
    First District, First Division.
    February 20, 1967.

      Fleck & Pollack, of Chicago (Charles J. Fleck and William E. Pollack, of counsel), for appellant, John H. Vierow.
    Herrick, Vette, McNeill & McElroy, of Chicago (William T. McNeill and Ray W. Fick, Jr., of counsel), for appellee, Oak Park Trust & Savings Bank.
    Emanuel Morris, pro se, of Chicago, guardian ad litem for appellee, Bertha Gae Fisher.
    Samuel Deutsch, of Chicago, for certain intervenorsappellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal by a third-party defendant from a decree which found that defendant, Bertha Gae Fisher, was competent when she executed a trust agreement on October 8, 1964, and that “at any time after December 9, 1964,” she was not competent to revoke the trust agreement. Purported acts of revocation were found to be void because of defendant’s incompetency, and the trust agreement was decreed to be valid and effective. The determinative issue is whether the decree is against the manifest weight of the evidence.

The proceedings were initiated by a complaint for instructions filed on April 27,1965, by the Oak Park Trust & Savings Bank, as trustee under a living trust. The complaint named Dr. Bertha Gae Fisher as sole defendant and alleged that Dr. Fisher, 80 years of age, “a spinster residing alone, and [who] has been personally acquainted with officers of the Trustee [Oak Park] for a number of years,” executed “a revocable living trust agreement” under date of October 8, 1964, and assigned to plaintiff Oak Park, as trustee, securities of a market value of approximately $180,000. On December 30, 1964, Dr. Fisher delivered to the plaintiff an instrument revoking the trust, and in the middle of March, 1965, “Dr. Fisher verbally withdrew her revocation and informed the Trustee that she wished the trust agreement to remain in full force and effect.” On March 19, 1965, Dr. Fisher delivered a further instrument of revocation to plaintiff, and on March 22, 1965, Dr. Fisher “informed the Trustee that she did not desire to revoke the trust.” On April 15, 1965, Dr. Fisher “demanded that the trust be revoked.”

The complaint further alleges that during the period commencing with the month of December 1964, plaintiff had become aware that Dr. Fisher’s memory had failed greatly, and “the Trustee is not certain that her direction that the trust be revoked has been made with the requisite condition in mind as to constitute an act on her part which has binding effect as a matter of law; and the Trustee is likewise uncertain as to her ability to responsibly manage her estate, and is concerned that if it is delivered to her it may be subjected to danger of waste and dissipation.” Plaintiff, as trustee, prayed for instructions and “such other and further relief as equity may require.”

The trust agreement, made a part of the complaint, directs the distribution of the income to Dr. Fisher during her lifetime, and at her death provides for the distribution of the corpus of the trust estate. After directing that specific amounts totalling $79,000 be paid various relatives, including a brother and a sister, a church and a clergyman, the remainder of the trust estate is to be paid to the West Suburban Hospital of Oak Park.

Summons was served on Dr. Fisher, and an appearance and jury demand were filed by her attorney, John H. Hanson. A motion to dismiss the complaint was set for hearing, and the court appointed Emanuel Morris guardian ad litem. On June 9, 1965, the court held a preliminary hearing and examination of the defendant as to her competency, and at that time appointed Dr. Harry Hoffman to examine defendant. A report of proceedings of the hearing of June 9, 1965, shows that defendant was questioned by the court, Mr. Morris and Dr. Hoffman. The report contains sixteen exhibits submitted by the guardian ad litem, including a letter by Dr. Hoffman, in which he outlines his examination of defendant and his conclusion “that the subject at this time (June 9, 1965) is incapable of handling her affairs.”

On July 13, 1965, defendant answered and counterclaimed, asking (1) that the court find the revocation of December 30, 1964, fully terminated the trust, and (2) that her property be returned to her with an accounting.

On July 23, 1965, leave to intervene was granted to a brother, sister, nephew and nieces of Dr. Fisher, and they filed answers to the complaint and counterclaim and their own counterclaim. On the same day, an order was entered granting leave to John H. Hanson to withdraw as attorney for defendant — “the said Dr. Fisher representing in open court that she did not wish John H. Hanson to represent her as attorney herein . . . .”

On July 28, 1965, at the request of the guardian ad litem, the “jury demand, answer and counterclaim filed by John H. Hanson, on behalf of Dr. Bertha Gae Fisher, defendant,” were struck from the files. A further order was entered, finding that Dr. Fisher was “mentally incapable of having the care, custody, and management of her property, affairs and estate and does not know her exact bounty and does not know the exact objects of her bounty,” and directed Samuel Deutsch, attorney for the intervening members of the family, to proceed with a petition for the appointment of a conservator of the estate of Dr. Fisher.

On August 31, 1965, the guardian ad litem filed a petition which related the proceedings up to that time. It alleged that the counterclaim filed by Samuel Deutsch for the intervenors, the nearest relatives of the defendant, stated that they had been informed that Dr. Fisher, “due to her advanced years, is incapable of managing her estate, and that she was mentally incompetent at the time she executed the revocable trust agreement identified as Trust No. 4731, a copy of which is attached to the original complaint filed herein as Exhibit ‘A’; that on January 9, 1965, the said Bertha Gae Fisher executed a last will and testament whereby she bequeathed the residue of her estate to John H. Vierow, the value of which is approximately $70,000, and appointed him as executor thereof; that a copy of said last will and testament is attached hereto marked Exhibit 1 and is made a part of this counterclaim; that they have been informed and believe and upon such information and belief state the fact to be that the said Bertha Gae Fisher did not have testamentary capacity to make a will on said date of January 9, 1965, and that said John H. Vierow, residuary legatee, exercised undue influence over her in having her make said last will and testament wherein he is the principal beneficiary; . . .

The petition further set forth the names of the legatees of the will of January 9, 1965, and the beneficiaries under the trust agreement of October 8, 1964, and a pour-over will dated October 9, 1964, and requested that all of the legatees and beneficiaries named “should be made third-party defendants in this suit” and summonses issued against them. The petition requested that the will of January 9 “be declared null and void and destroyed in open court,” and that the court determine whether Dr. Fisher “was mentally competent at the time she executed the trust agreement of October 8, 1964, and the will of October 9, 1964.” Subsequently, on August 31, 1965, an order was entered directing that third-party summonses be issued against parties designated, including John H. Vierow.

Third-party defendant, John H. Vierow, appeared and on October 27, 1965, moved to strike parts of the answer and the petition of the guardian ad litem, “in that a Guardian ad Litem may not during the lifetime of his Ward maintain an action to compel one in lawful possession of a purported Will of his Ward to surrender it for cancellation on the ground that it was executed while the Ward was mentally incompetent.” Third-party defendant, Vierow, also answered the petition of the guardian ad litem and counterclaimed against the trustee and other third-party defendants, and prayed (1) that the will of January 9, 1965, be not declared null and void; (2) that the court release the will, which had been impounded by the court, to John H. Vierow, the named executor therein; and (3) that the court determine whether Dr. Fisher was mentally incompetent at the time she executed the trust agreement of October 8, 1964, and whether she was mentally competent at the time she revoked the trust agreement.

On November 8, 1965, leave was granted to the intervening relatives to withdraw their counterclaim. On the same day, the court entered an order granting leave to the guardian ad litem to withdraw his petition filed on August 31, 1965, but denied “the motions to strike the counterclaim and dismiss John Vierow as defendant,” and all parties were ordered to plead to the counterclaim of John Vierow. The answer of plaintiff [Oak Park] to the counterclaim of Vierow contained an affirmative defense that “John H. Vierow has not been named as a party by any pleading presently on file before this Court. . . . The instrument dated January 9, 1965 confers no rights on John H. Vierow and no standing in this litigation.” In an order dated November 29, 1965, Dr. Harry R. Hoffman was authorized to further examine Dr. Fisher.

A report of proceedings heard on November 29, 1965, includes the testimony of witnesses for the plaintiff, for the guardian ad litem, and for the third-party defendant, John H. Vierow.

A decree was entered on December 9, 1965, “upon the proofs and exhibits, oral and documentary, taken and filed in this cause, and upon argument of counsel.” Its findings show: that the intervenors, the brother, sister, nephew and nieces of Dr. Fisher, were at all times represented by Samuel Deutsch; that the “third-party defendant, John H. Vierow, has been allowed by the Court to participate herein and by order of Court his answer and counter-claim have been allowed to stand as an answer and counter-claim to the Trustee’s complaint; that third-party defendant, John H. Vierow, has since being made a party defendant at all times been represented by Fleck & Pollack throughout this proceeding”; that defendant, Bertha Gae Fisher, was competent and had capacity to manage her own affairs on October 8, 1964, and the trust agreement dated October 8, 1964, “between the Oak Park Trust & Savings Bank, as Trustee, and Defendant Bertha Gae Fisher, . . was validly created and executed; that Bertha Gae Fisher was incompetent and unable to manage her own affairs on June 9, 1965, “an existing condition for six months prior to June 9, 1965, or to December 9,1964,” and the defendant was not competent to revoke the trust agreement at any time after December 9, 1964, and “the purported acts of revocation thereafter made were void and of no force and effect because of said defendant’s incompetency.”

The court decreed that the trust agreement was “in all respects valid and in full force and effect; the Oak Park Trust & Savings Bank, as Trustee be and it hereby is instructed and directed to continue to act as Trustee thereunder and to administer such trust, and to account for and pay the proceeds thereof, pursuant to the terms of said Trust Agreement, to the conservator of the Estate of Bertha Gae Fisher.”

The instant appeal from the foregoing decree was filed by the third-party defendant, John H. Vierow, on the theory “that the evidence presented to the trial court did not justify the entry of a decree finding the defendant Bertha Gae Fisher mentally incompetent six months prior to June 9, 1965, that upon the evidence presented the court should have found the defendant Dr. Bertha Gae Fisher mentally competent on December 30, 1964, when she revoked the trust and at all relevant times thereafter; that the revocable living trust should have been ordered revoked and the securities returned to defendant Dr. Bertha Gae Fisher. It is appellant’s contention, therefore, the court erred in the entry of a decree clearly and palpably against the manifest weight of the evidence and that the court further erred in allowing the Guardian ad Intern for the defendant Dr. Bertha Gae Fisher to withdraw his Ward’s jury demand, answer and counterclaim previously placed on file and entered of record in the Ward’s behalf, and in allowing the Guardian ad Litem to assist in proving plaintiff’s case instead of protecting his ward’s interests.”

Considered first is the question of the status of the third-party defendant, John H. Vierow, both in the trial court and in this court. It is elementary that a will is ambulatory and has no effect until the death of a testator. It “has no legal existence, until it is consummated by death.” (Stetson v. Stetson, 200 Ill 601, 613, 66 NE 262 (1903).) Therefore, it follows that the petition of the guardian ad litem and the order of court which made the legatees and the executor of the will of January 9, 1965, parties defendant to the instant proceedings, were without legal basis. However, we find no prejudicial error on this point, because of the unusual circumstances presented to the trial court. The record indicates that the active participation by defendant Vie-row in these proceedings and in the examination of witnesses has been an added protection to the rights of Dr. Fisher and of assistance to the trial court. Our conclusions as to the propriety of defendant Vierow’s status in the trial court apply here.

Defendant Vierow charges “the Guardian ad Litem totally failed in his duty to the protection and defense of his Ward’s rights and interests as is required by law.” Although the record does not demonstrate this charge, the guardian ad litem did withdraw the original counterclaim and jury demand filed by the defendant herself. Defendant Vierow vigorously asserts this was a waiver of the ward’s rights and error. (Schrader v. Schrader, 280 Ill App 561, 564 (1935); Kroot v. Liberty Bank of Chicago, 307 Ill App 209, 30 NE2d 92 (1940).) If this may be conceded, arguendo, the court’s action in affirmatively permitting defendant Vierow’s answer and counterclaim to stand and allowing him to participate in all the proceedings, effectively offset any prejudice to Dr. Fisher that might have resulted from the actions of the guardian ad litem. The record reflects that no jury demand was made by defendant Vierow and that he did not object in the trial court to the withdrawal of the jury demand. While, as asserted by defendant Vierow, it might have been better practice in this case to submit the issue of competency to a jury, the trial court had the jurisdiction to hear and determine the question without a jury. (Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43 (1944); see, also, § 117, Administration of Estates, HI Rev Stats, c 3.) We conclude that in this case it was within the sound discretion of the court to proceed with the trial of the issue of incompetency without a jury.

We consider next the contention that “the decree is clearly and palpably against the manifest weight of the evidence.” As asserted by defendant Vierow, the general rule of law is that a court of review “will not disturb the findings of fact of the chancellor who heard and saw the witnesses unless such findings are manifestly against the evidence,” but if they are, it becomes the duty of the reviewing court to set aside such findings. Shlensky v. Shlensky, 369 Ill 179, 182, 15 NE2d 694 (1938).

In sum, the testimony offered by two of plaintiff’s officers indicated some indecision and slight confusion on the part of Dr. Fisher during the six-month period prior to June 9, 1965. The third-party defendant offered three witnesses who, on the basis of their contact with Dr. Fisher, testified that they thought her to be competent during this period. The guardian ad litem offered the testimony of Dr. Hoffman, who had initially been appointed by the court to examine Dr. Fisher. Dr. Hoffman testified that he was a physician licensed in the State of Illinois since 1910. His specialty was nervous and mental diseases, and he had been an associate clinical professor of psychiatry. He saw Dr. Fisher on June 9, 1965, and conducted a 2-hour examination. He conducted another 2-hour examination on November 20, 1965. “I made a diagnosis as of November 20, 1965. I made a diagnosis of cerebral arteriosclerosis; .... It’s a chronic affair. She was not competent to handle her own affairs on June 9, 1965. My opinion is based on the disorientation. By that I mean disorientation for time, place and person. She did not know her counsel in the room, she did not know where she was; she did not know how she came down to the building where she was, this building. She did not know her bounty. . . . On [November 22, 1965] my opinion is that she was unable to handle her affairs. . . . She did not know the date, the day of the year. That was November 20, 1965.”

Over objection, the witness was permitted to answer a question as to his opinion, “based upon a reasonable degree of medical certainty as to whether Doctor Bertha Gae Fisher was incompetent and incapable of handling her own affairs for six months prior to June 9, 1965.” The answer given was, “I base my opinion that I’m going to give, upon my experience in handling, treating individuals, from the literature and teaching, I should say that this disorder, cerebral arteriosclerosis, existed to such an extent that she was incompetent at least six months prior to June 9,1965.”

After extended and detailed cross-examination by counsel for defendant Vierow, the witness stated, “I think she was incompetent for at least six months prior to June the 9th, 1965.”

Defendant Vierow, contending that the findings of the trial court that Dr. Fisher was mentally incompetent six months prior to June 9, 1965, and thereafter, was clearly and palpably against the manifest weight of the evidence, argues, “The total sum and effect of all the testimony and evidence in the entire record overwhelmingly and preponderantly establishes that Dr. Fisher was mentally competent on October 8, 1964, when she executed the trust, was mentally competent on December 30, 1964, when she revoked the trust, and was mentally competent at all relevant times thereafter. . . . All of the witnesses, with the exception of Dr. Hoffman, had direct personal contact with Dr. Fisher, and had the opportunity to observe her daily conduct and handling of her business affairs. Their opinions were based on overt actions. . . . Dr. Hoffman, in our judgment, gave a pure guess and conjecture, and not an opinion. In any event, his opinion was in direct conflict with all the witnesses who testified and had direct personal contact with Dr. Fisher, and had the opportunity to observe Dr. Fisher handling her business affairs.”

Defendant Vierow argues, “The Courts of this State have continually refused to give greater weight to the testimony of a physician, even though an expert, as to the mental capacity of an individual than to the testimony of laymen. The rule of law in this regard is clearly and firmly established in Illinois. Yet the Court in the case at bar decreed contrary to the rule of law. The Court accepted fully and completely the testimony of Dr. Hoffman alone, and gave greater weight to it, than the testimony of all the laymen witnesses.” Cases cited include Wharton v. Meyers, 371 Ill 546, 21 NE2d 772 (1939), where it is said (p 552):

“Physicians are better qualified to testify as to a diseased condition than are lay witnesses, but the testimony of physicians upon the subject of mental capacity is entitled to no greater weight than that of laymen of good common sense and good judgment. Sharkey v. Sisson, 310 Ill 98.”

Plaintiff contends that the decree was amply supported by the evidence and should not be disturbed. The standard to be applied is set forth in Wharton v. Meyers, 371 Ill 546, 21 NE2d 772 (1939), where the court said (p 555):

“The chancellor saw the witnesses, and heard their testimony. He had a better opportunity to judge their credibility than has this court. Where a case is heard by the chancellor and the evidence is all, or partly, oral, it must appear that the decree is against the manifest weight of the evidence or that there is clear and palpable error before a reversal will be had. (Dowie v. Driscoll, 208 Ill 480; Biggerstaff v. Biggerstaff, 180 id. 407.”

The plaintiff argues that it “presented no evidence on the question of competency of Dr. Fisher except to introduce through the testimony of Mrs. Gladys Finkle and Mr. Ellis H. Denney, officers of the Trustee, the series of revocations, affirmances, re-revocations and reaffirmances that prompted the Trustee to seek the instructions of the Court. The Trustee’s only purpose in so doing was to establish that a reasonable doubt existed justifying judicial instructions as to Dr. Fisher’s true wishes concerning the continuation of the Trust and whether Dr. Fisher was competent to determine responsibly if her Trust was to continue. The Trustee introduced no further evidence on the question of competency but in its pleadings, throughout the pre-trial proceedings and the trial, took the position that it was ready, willing and able to comply with whatever determination the Court made concerning the competency of Dr. Fisher and, if competent, what her true wishes were concerning the revocation of the Trust. . . . The Trustee believes that it is entitled to comment upon that evidence and argue in favor of the findings of the Trial Court which it believes is manifestly supported by the credible evidence presented in the Trial Court. The Trustee believes the only credible evidence on Dr. Fisher’s competency at the time of the purported revocation is the testimony of Dr. Harry Hoffman.”

The plaintiff further argues, “. . . it was the Trustee, after the mystifying changes in Dr. Fisher’s attitude over a relatively short period of time, who thought it necessary to raise the question of Dr. Fisher’s competency by a suit for instructions in the Circuit Court of Cook County. ... we submit that the trial court was eminently correct in apparently ruling that Dr. Hoffman’s testimony was the only credible evidence on the question of Dr. Fisher’s competency on or about December 30, 1964 and thereafter.” The plaintiff further asserts “that the Guardian ad Litem made a full and careful investigation into Dr. Fisher’s situation; determined what pleadings and defenses her interest demanded and protected her interest in a manner that was a credit to the office of Guardian ad Litem.”

The intervening relatives state they “became intervenors by leave of court for the purpose of protecting and conserving the estate of defendant. . . . The Chancellor held a full hearing, lasting several days. The only competent medical testimony adduced at the hearing was by Dr. Harry R. Hoffman who gave his opinion that the defendant was incompetent on June 9,1965, and based upon a reasonable degree of medical certainty, she was incompetent for six months prior thereto. No contradictory medical testimony was presented or offered. . . . These appellees, the intervenors who are the closest relatives of the defendant and the natural objects of her bounty and certainly most anxious to protect and preserve her estate, are of the considered opinion that the Guardian ad Litem performed his duties admirably well. The record does not show that any one, including the appellant, found any fault with his actions or the manner in which he performed his duties.”

The guardian ad litem contends that the evidence was sufficient to establish that the incompetency of Dr. Fisher and her inability to manage her own affairs had existed for six months prior to June 9, 1965, or December 9, 1964, and the decree is fully justified by the evidence in the record presented to the court, and it “is not clearly and palpably against the manifest weight of the evidence. . . . The conflict in the testimony as to the competency of Dr. Fisher, only presents an issue of credibility of the witnesses testifying in regard thereto and the court’s resolution of that issue is not grounds for reversal in this court, and the reviewing court will not substitute its judgment for that of the trier of facts.” The guardian ad litem asserts that his “actions at all times were under the direction, supervision and orders of the trial court and denies that he was remiss in any of his duties or failed to protect the rights and interests of Dr. Fisher at all times or waived any of her rights.”

After a review of this entire record, the testimony of the witnesses, including that of Dr. Hoffman, and the exhibits, which include the series of trust revocations, affirmances, re-revocations and reaffirmances by Dr. Fisher, we conclude that this record does not show that the decree here is contrary to the manifest weight of the evidence. The trial court saw and heard all witnesses offered and examined Dr. Fisher; it was in a better position to determine the question of the duration of the incompetency of Dr. Fisher than a reviewing court. The testimony of Dr. Hoffman included a diagnosis of “cerebral arteriosclerosis . . . hardening of the arteries of the brain. It’s a chronic affair.” It was his professional opinion that this disorder existed to such an extent that she was incompetent at least six months prior to June 9, 1965. Although it is difficult to pinpoint the time such a disorder may render a person incompetent and incapable of managing his or her estate, the opinion of an experienced psychiatrist as to the length of time such a disorder had existed with “a reasonable degree of medical certainty,” and not contradicted by medical testimony, is evidence entitled to due weight and consideration by the trier of the fact.

As we are not convinced that the findings here are against the manifest weight of the evidence, or that there has been palpable error committed, the trial court’s decree must be affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Lester Sola, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,637.
    First District, Third Division.
    March 9, 1967.
    Rehearing denied June 8,1967.

      George C. Rabens, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Assistant Corporation Counsel, and Harry H. Pollack, Special Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment in favor of defendant in a common-law action for personal injuries based upon negligence and under the Structural Work Act of Illinois (commonly called the Scaffold Act). (Ill Rev Stats 1963, c 48, par 60 et seq.)

The plaintiff, Lester Sola, was in the employ of Fitzsimons & Connell Dredge & Dock Company on June 17, 1957. At the time he was twenty-five years of age and in good physical condition. He was employed as a member of a pile driving crew which was then engaged on a job at the City of Chicago filtration plant under construction just east of the Outer Drive and north of Grand Avenue and Navy Pier in Chicago.

Relevant parts of the contract between the City and the contractor, as read in evidence, included the following:

“ ‘Definition of Terms.’ Engineer means Commissioner of Public Works of the City of Chicago, or Chief Engineer of the Bureau of Engineering of the Department of Public Works of the City of Chicago, or any other person designated by either of them to be the Engineer in charge of all or any part of the work.
“Precautions and Safety. The Contractor shall take any precautions that may be necessary to render all portions of the work secure in every respect or to decrease the liability of accidents from any cause, or to avoid contingencies which are liable to delay the completion of the work. The Contractor shall furnish and install, facilities to provide safe means of access to all points where work is being performed and make all necessary provisions to insure the safety of workmen and of engineers and inspectors during the performance of said work.
“Precautions shall be exercised at all times for the protection of persons (including employees) and property. The safety provisions of applicable laws, building and constructions codes shall be observed.
“The Contractor shall employ and assign to work on this contract only, a qualified technical engineer satisfactory to the Chief Engineer, to act as contact man with the Engineer and to set and maintain the lines and grades necessary for the proper performance of the work under this contract.
“As the work progresses, changes or modifications in such procedure and construction schedule, or in such methods, structures and equipment maybe required by the Engineer.
“The Engineer may disapprove and reject or require modification of any proposed or previously approved order of procedure, method, structure, or equipment, which he considers to be unsafe for the work hereunder, or for other work being carried on in the vicinity, etc.”

The mechanical equipment used in the pile driving operation consisted of a crane, a boiler for steam, a steam driven hammer, and a bulldozer to move the piles to the crane. The crane lifted the piles into position where they were to be driven. Attached to the crane was the pile driver. Basically, the piles were put into leads which were the tracks which the piles were to follow. The pile driving hammer consisted of a head and a ram. The ram exerted steam driven pressure on the head which then struck the pile to drive it down. Upon completion of this phase of the operation, the head was steam driven up to meet the ram and thus again be in the driving position. All of this equipment was controlled by a crane operator seated in the cab of the crane. It was his job to perform the actual driving operation. This man was a Fitzsimons’ employee and under the general supervision of a Fitzsimons’ foreman.

The city of Chicago, the owner of the construction site, had an engineer on the job who was to see that the piles were driven in accordance with plans and specifications, and that they were properly driven and installed so as to adequately perform their functions. The engineer determined the bearing capacity of the piling by counting the number of times the hammer struck for each foot the pile was driven into the ground. Chalk marks that he placed on the leads allowed him to determine the number of strikes per foot.

On June 17, 1957, while the crane operator was away from his cab, Morgan, the City engineer, began to mark the leads on which prior marks had been obliterated. After placing markings as high as he was able, he asked Sola to reach up and make the higher markings, because the latter was a taller man. Marking the leads was not a part of Sola’s regular job.

After he had placed the markings as high as he could reach, he put his foot between the hammerhead and the ram so as to reach another three feet. Sola testified that he told Morgan he did not want to do it because the hammer might fall, and that Morgan told him (Sola) to go ahead. Morgan testified that he did not tell Sola to get on the hammer, and that he did not recall whether Sola told of his fear of the hammer falling. While Sola had his foot on top of the hammer head, the cab man returned to the-cab and set the machinery in motion; the hammer went up; the ram came down to meet it; and Sola’s foot was jammed between the two parts.

Sola and Morgan both testified that they were on the left side of the leads during the marking, that the cab operator sat on the right side of the cab and therefore would not be able to see them, that the operator’s vision of them would be obstructed by the pile driving equipment, and that Morgan could not and did not see the cab operator when he returned to the cab. Morgan testified that there were no safety aspects to his job as engineer. Testimony showed that the system of signals for operation of the crane involved only manual signals by the foreman and the cab man.

As a result of the accident Sola suffered the loss of several toes and the crippling of his right foot. After convalescence he returned to work with the same company, but was engaged in lighter work. A few weeks thereafter he was permanently separated from Fitzsimons.

Plaintiff brought suit against the City claiming rights under common-law negligence and under the Scaffold Act. The court labelled the allegations under the Scaffold Act (plaintiff’s amended complaint) as Count II and granted a motion by defendant, at the close of all the evidence, to strike said count on the ground that it was inconsistent with the facts of the case. The common law negligence count went to the jury, which returned a verdict in favor of defendant.

Plaintiff contends on appeal that the order striking his “Count II” was erroneous in that the Scaffold Act is applicable to the case; that the court improperly instructed the jury on the allegations under common law negligence; and that the court made prejudicial and inflammatory remarks in the presence of the jury during plaintiff’s counsel’s final argument.

Plaintiff first urges that the Scaffold Act does apply to this case and the complaint, insofar as it related to the Act, should not have been stricken. The sections of the Act as would pertain to this case are sections 7a and 9. They read in part as follows:

“If elevating machines or hoisting apparatus, operated or controlled by other than hand power, are used in the construction ... of any building or other structure, a complete and adequate system of communication by means of signals shall be provided and maintained by the owner, contractor or subcontractor, during the use and operation of such elevating machines or hoisting apparatus, in order that prompt and effective communication may be had at all times between the operator of engine or motor power of such elevating machine and hoisting apparatus, and the employees or persons engaged thereon, or in using or operating the same.
“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, ... of any building . . . within the provisions of this act, shall comply with all the terms thereof, ....
“For any injury to person or property occasioned by any wilful violations of this act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby. . . .”

It is contended that the machinery involved was within the scope of the Act, and that whether the City was in charge of the work so as to be liable under the Act was at least a question of fact for the jury. Defendant agrees that the apparatus involved is within the purview of the Act, but argues that the order was proper because the City was in no way in charge of the work.

Defendant cites several cases which hold that mere ownership is insufficient to establish liability under the Act. Valley v. United States, 230 F Supp 674; Campione v. Henry C. Lytton & Co., 57 Ill App2d 147, 206 NE2d 780; Melvin v. Thompson, 39 Ill App2d 413, 188 NE2d 497. In these cases the owner exercised no supervision of the progress of the job, on the work site, whereas in the instant case the City had an engineer on the job at all times who worked closely with the contractor’s men involved in the pile driving operation. The question of whether one is in charge of an operation arises with some frequency and the Supreme Court has discussed it at great length. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, involved some inspection of work at the construction site by the owner, although the work directly involved in the accident was performed by the plaintiff’s employer. The court said at page 323:

“Under the circumstances, it was at most a disputed question of fact whether the owner could be deemed to be in charge of the construction within the meaning of the act, and it would be the province of the jury, under proper instructions, to make that determination.”

In Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247, a workman was injured when he fell from a scaffold erected by his employer on a job site at defendant’s plant. The court indicated that “having charge of” could be inferred from various factors and was a matter of factual determination in each case. The court in that case said at page 321:

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. . . . Thus while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either a sine qua non for liability under the statute.”

In a very recent case, Kobus v. Formfit Co., 35 Ill2d 533, 221 NE2d 633, the trial court granted a summary judgment for defendant owner of the premises. In that case, the contractor on the job had erected the scaffold. The owner acted as his own general contractor. The court ruled on page 538 that it was error to grant a summary judgment where the “case clearly disclosed a question of fact as to whether defendant, under the facts present, was ‘in charge of’ the construction within the meaning of the Scaffold Act.”

In this case the contract for construction gave defendant the right to approve all safety facilities and the right to require changes or modifications in scheduling, methods, structures, and equipment used (these may be changed for safety purposes). Defendant had an engineer on the job at all times who worked closely with the contractor’s crew, and who could alter the procedures by communicating with the crew foreman, although the engineer could not direct the workers himself. In light of the foregoing cases, these circumstances are sufficient to require a jury determination of whether defendant was in charge of the work involved in the accident. The City contends that the accident occurred in the operation of the crane, run by a contractor’s employee at the direction of the crew foreman. In light of a recent Supreme Court decision, Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, decided January 19, 1967, that fact would not necessarily rule out defendant’s liability. In the Miller case an architect was held liable under the Scaffold Act although the contractor’s men were injured in the course of their work directly under the contractor’s supervision. By contract the architect had retained the right of general supervision and direction of the work, but he was not to specify the methods to be used in the first instance. However, he had the right to stop the work when necessary to insure proper execution of a contract calling for the provision of adequate safety measures.

We therefore feel that whether the City in the instant case can be said to have been “in charge of” the work should have been decided by the jury.

Plaintiff next contends that the court, as to the common-law negligence count, should not have given defendant’s instruction number nine, which dealt with inferences to be drawn from the failure to produce a witness. We are unable to find an instruction by that number pertaining to the foregoing. In examining defendant’s instruction number six, however, we find it to have properly set out the conditions precedent to the drawing of a conclusion, adverse to a party, for his failure to produce a missing witness. In this instance plaintiff says that it was the foreman and crane operator who were not called. Plaintiff also claims (and argued this in his closing argument), that these witnesses were equally available to both parties. It is therefore difficult to see how the instruction could have been more detrimental to one party than to the other, if, in fact, it could have harmed either. This was not error on the part of the trial court.

Plaintiff also complains of defendant’s instructions numbers nine and thirteen, which dealt with contributory negligence. A search of the record shows the only instructions which mention contributory negligence are plaintiff’s instructions numbers nine and sixteen. In People v. Riley, 31 Ill2d 490, 202 NE2d 531, the court said at page 496: “It is axiomatic that an accused cannot complain of error acquiesced in or invited by him, and to this end we have held that a defendant may not complain of defects in instructions which were given at his request.” This rule is equally valid in a civil case. We therefore shall not discuss these instructions.

Plaintiff further contends that the court erred in refusing his instruction on prior inconsistent testimony of a witness. It is claimed that the trial testimony of Morgan, the City engineer, was inconsistent with his pretrial deposition testimony. The earlier deposition was not introduced into evidence and we find no proof in the record of any inconsistency. Therefore, there was no necessity for the instruction tendered by plaintiff.

Lastly, plaintiff contends that the court made prejudicial, inflammatory and incurable remarks in the presence of the jury regarding “assurance,” by Morgan to plaintiff, of safety while marking the leads. When plaintiff’s counsel, during the final argument to the jury, said that plaintiff had been given full assurance of safety, the court interrupted to say that the word “assurance” had not been used and was therefore not proper for the argument. The court said it remembered that plaintiff had been persuaded, but not assured. The court also offered counsel the opportunity to show where in the record the word “assurance” appeared. Counsel replied, “I will be content with that your Honor.” Plaintiff was at the time offered the opportunity to prove his point but instead accepted the court’s distinction of language. He cannot now complain of that decision. The remarks of the court only asked for clarification and could not be described as prejudicial and inflammatory.

For the reasons expressed above the judgment on the common-law negligence action is affirmed, and the order at the close of the evidence dismissing the Scaffold Act theory of plaintiff as set forth in the amended complaint is reversed, and the cause is remanded for a new trial only on the Scaffold Act theory.

Affirmed in part and reversed and remanded in part.

SCHWAETZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Bowling, Defendant-Appellant.
    Gen. No. 51,042.
    First District, First Division.
    April 10, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Walter Bowling, was charged with the crime of robbery and after a waiver of a jury trial was found guilty by the trial court and sentenced to the Illinois State Penitentiary for a term of one to three years. On appeal the defendant’s sole contention is that the evidence is insufficient to support his conviction because the identity of the defendant was not proved beyond a reasonable doubt.

The evidence establishes that on July 7, 1965, Arnold Schreiber was employed at Arne’s Men’s Shop at 3154 West Cermak Road and at about 5:00 p. m. was showing a man some shirts when the man drew a gun. He said he was ordered to show him where the cash was if he didn’t want to be killed, and the man took about $300. He also testified that the lighting in the store was good, that the man was in the store for approximately four to seven minutes during which time he spoke to him while waiting on him and was close to him all the time. Initially, at police headquarters, he described the robber as a man with “very sparse hair along the sides” and from a group of 75 to 100 pictures, selected a picture of Arthur Bowling, the defendant’s twin brother. He said at that time that this was a picture of the man except that the robber had thinner hair than the picture had shown. The police then had a warrant issued for Arthur Bowling. Subsequently, he identified the defendant, Walter Bowling, as the robber at the time of the trial and had previously identified him from a group of four men in a police lineup.

Detective Thomas Morley testified he interviewed Schreiber who gave him a description of the robber and selected the picture of Arthur Bowling from the police files. He said he placed the picture in the police bulletin and made inquiries at different addresses. Subsequently, on July 25th, Walter Bowling, the defendant, came to police headquarters and told him that his twin brother, Arthur, was dead and consequently could not have committed the robbery. Morley said “and I told him that I was aware of that and I thought that he committed the robbery as he fitted the description properly and he is his brother’s twin and he has a little less hair than his brother,” and he placed Walter Bowling under arrest. On cross-examination he testified that prior to July 25th he had left a message for the defendant at the home of Patricia Malina. On redirect he testified that the picture of Arthur Bowling which Schreiber identified was the exact likeness of the defendant except that Arthur had more hair.

Patricia Malina testified for the defense that the defendant had lunch with her on July 7th, in her apartment, when her sister was present and that her father, Harry Buchanan, also came there at 3:30 p. m. She said the defendant and she left the apartment together between 5:30 and 6:00 p. in., walked to a store and upon their return, a half hour later, had dinner with her father at the apartment. She said that when she and her father left to visit a sick uncle, at about 7:30 p. m., the defendant was still in her apartment. Her father, Harry Buchanan, also testified and corroborated this portion of Patricia’s testimony. On cross-examination she further testified that she and the defendant had been friends for over three years. She said Detective Morley had been to her apartment prior to defendant’s arrest and told her he “wanted to see Walter about . . . something about his dead brother’s papers.” She denied she told him that she hadn’t seen the defendant for a couple of months and she didn’t know where he was.

The defendant denied he committed the robbery. He testified that someone told him his brother was wanted for armed robbery so he went to the police and told them his brother had been dead for three years and “I showed them the paper where he was dead and he said O.K. that is all.” He said he told the police he could be reached at Miss Malina’s and later received a call from her that the police were looking for him. When he went to police headquarters he said Detective Morley said, “you and your brother are alike except the nose has been broken.” He said they put him in a lineup with four other men and they were told to say “This is a holdup, you give me your money or I’ll kill you” and then Schreiber identified him. He said he was at Miss Malina’s home on the day in question from 11:00 a. m. to about 6:00 p. m. when they left to go to a store and he returned with her to the apartment in about one-half hour. He said Mr. Buchanan came to the apartment about 3:00 p. m. and left about 7:30 p. m. On cross-examination he testified that he and his brother resembled each other identically until he got his nose broken. He denied he told Detective Morley that he worked at the Burlington Railroad all day on July 7th and slept there.

Detective Morley was called as a rebuttal witness by the State and testified that when he interviewed Patricia Malina she told him she hadn’t seen the defendant for many months and that they weren’t seeing each other anymore. He also had questioned Harry Buchanan who told him that on July 7th he visited his brother from 2:00 to 2:30 p. m. and then drove to his sister’s house where he spent the rest of the night. He also testified that on the day when Schreiber identified the defendant at the lineup, the defendant said he couldn’t have committed the crime because he worked for the Burlington Railroad on the date in question. He said the defendant related to him in detail what he ate for breakfast, lunch and dinner and said he slept there.

The defendant contends the evidence is insufficient to support an identification beyond all reasonable doubt. We do not agree. It is true, as defendant states, that Schreiber first identified the picture of defendant’s brother. It is argued that the State cannot obtain any solace from the fact that Schreiber said his assailant had less hair and the defendant had less hair. He stresses that there was no evidence of his brother’s age at the time the picture was taken and suggests that if the picture was a few years old at the time of the robbery he also would have less hair. He also argues that evidence is lacking to show that his brother is in fact dead. Here we note that the defendant by his own testimony produced a paper at the police station to prove the death of his twin brother. Defendant further argues that his voluntary appearance at the police station was the action of an honest man, not a guilty one, all of which he insists raises a reasonable doubt of his guilt.

In support of the argument that there exists a grave doubt of his guilt, defendant cites People v. Gooden, 403 Ill 455, 86 NE2d 198. There, unlike here, the defendant for a good part of the time was out of the presence of the prosecuting witness who told police that the principal distinguishing feature of the robber was his mustache, which he described as peculiarly thin and extending the width of his mouth, yet when he selected a picture it was that of a man without a mustache.

We have carefully examined the record and it shows when Schreiber selected the picture of the defendant’s twin brother he immediately qualified his answer by stating that his assailant had less hair. By defendant’s own testimony, he and his brother were identical twins. When Schreiber made a positive identification of the defendant at the lineup, he also made a voice identification and a positive identification at the trial. Schreiber testified that he discussed various merchandise with the defendant for four to seven minutes and he observed him under very good light.

The defendant further contends that the court disregarded the evidence of defendant’s alibi. He emphasizes that his testimony that he was with Patricia Malina during the time of the robbery is corroborated by her and her father. Viewed in totality, the defendant’s alibi witnesses create nothing more than conflicting evidence and it is well settled that this court will not weigh conflicting evidence nor judge the credibility of witnesses. In People v. Ellis, 26 Ill2d 331, 333, 186 NE2d 269, the Court said:

While it is urged that Dumbrys had some doubts about the defendant’s, identity, the record discloses to the contrary that the complaining witness, who had ample opportunity to observe the robbers, made a positive identification of defendant from a picture, at the lineup and in the courtroom. And as to the contention that the alibi testimony should have been accepted over the testimony of the prosecution’s witnesses, it was the function of the trial court, as the trier of fact, to determine the credibility of the opposing witnesses and the weight to be afforded their testimony. . . .

The manner in which a suspect is identified goes to the weight to be given the identification testimony. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892. Detective Morley testified that the statements made to him by the defendant’s girl friend and her father were contradictory to their testimony. The trial judge saw and heard the witnesses and chose to believe the State’s witnesses rather than the alibi evidence. This is within the province of the court and we find there was ample evidence to support his conclusions and therefore we find no reason to disturb the finding of guilty. People v. Ellis, 26 Ill2d 331, 186 NE2d 269.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.