text:
      In re Estate of Hattie Phillips, Deceased—(William I. Hynds, Exr. et al., Plaintiff-Appellees, v. Jennie Quigley, Defendant-Appellant.)
    (No. 71-19;
    Third District
    November 17, 1971.

      Root and Adcock, of Morris, for appellant.
    Hynds & Hynds and Dunn & Hayes, both of Moms, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

A complaint for a declaratory judgment was filed by the executor of the will of Hattie Phillips, deceased, asking for a determination as to whether federal estate tax and costs of administration were payable from the decedent’s residuary estate or were to be apportioned among the various beneficiaries under her will.

The decedent died March 15, 1969, a resident of Grundy County, Illinois, leaving a will dated July 23, 1964, and a codicil dated July 1, 1965. The will directed that all debts and funeral expenses be paid by the executor. It did not specifically mention death taxes or administration expenses, nor indicate the source of their payment. The will then made certain relatively small bequests, devised certain real estate to Leonard Phillips, her stepson, and gave the residue to Jennie Quigley, her sister. The real estate devised to the stepson was appraised at $235,200.00. The value of the residuary estate given the sister was approximately $95,000.00. The federal estate tax return showed a tax due of $58,746.15.

The trial court held that the federal estate tax and costs of administration were payable from the residuary gift to the sister. She has appealed.

The appellant contends that the lower court should have adopted a rule of equitable contribution, and should have charged every beneficiary with a proportionate share of the federal estate tax; that the various Illinois cases supporting a contrary rule proceeded from an early case in which a mistaken interpretation was given to a federal case; that all subsequent statements of the Illinois courts that a decedent’s residuary estate is burdened with the federal estate tax, absent a contrary direction in his will, can be classed as dicta; that in some situations involving non-probate assets, Illinois courts have required contribution; that in a number of other states the principle of equitable contribution has been adopted by legislation or by judicial decision; that the rule of equitable contribution is a more enlightened rule; that the decedent in this case would not have wanted her own sister’s share to be charged with payment of the entire estate tax and the stepson’s share to be free of the tax, the sister being her closest heir; that the 1965 amendment of Section 207 of the Probate Act indicates a legislative intent with respect to spreading the burden of the federal estate tax; and that it is for the courts to change an inequitable rule where they created the rule originally.

The executor and the stepson, appellees, take the position that it is a well established rule in Illinois, whether based on dictum or not, that the burden of debts, administration expenses, and federal estate tax falls on the residuary estate in the absence of an expression of an intent to the contrary in the decedent’s will; that the legislation directed toward abolishing the distinction between personal and real property does not by implication require apportionment of federal estate tax; that if the courts were now to change the Illinois rule, many existing wills would require redrafting; that any such change should be made by the legislature, which could address itself to the various problems which would need consideration; that decisions in Illinois and in other jurisdictions which deal with apportionment between probate and non-probate assets are not pertinent; that a settled rule should not be changed unless seriously detrimental to public interests; and that in the present case the stepson was a mutually acknowledged child who had been raised by the decedent from the time he was a small boy, he was therefore a natural object of the decedent’s bounty, and she might very well have wanted the real estate devised to him to be exonerated from estate tax and administration expenses.

We believe that it is clearly the rule in Illinois that the burden of federal estate tax and administration expenses falls on a decedent’s residuary estate if his will does not provide otherwise. Whether this rule originated through a misunderstanding of federal law and was perpetuated through dicta alone need not detract from its validity as a rule of law. We believe that this rule has been assumed for many years to be the law by members of the legal profession in this State, and that countless wills have been drafted on this assumption. See, for example, People v. Pasfield (1918), 284 Ill. 450; First Nat. Bank of Chicago v. Hart (1943), 383 Ill. 489; Lawless v. Lawless (1958), 17 Ill.App.2d 481; Jinnette v. Guest (1962), 35 Ill.App.2d 434; 42 Am.Jur.2d, Inheritance, Estate, and Gift Taxes, sec. 344; 1970 Illinois Inheritance Tax Manual, issued by William J. Scott, Attorney General, at page 42; Flynn, “Estate Tax Apportionment and the Marital Share in Illinois — A Modest Proposal” (1970), 58 Ill. Bar Journal 996.

In many other states, provision is made by statute for apportionment of estate taxes in the absence of specific testamentary direction to the contrary. (Commerce Clearing House, Inc., Federal Estate and Gift Tax Reporter, par. 2490.16.) A statute on the subject could deal at one time with the many problems involved. See Flynn, supra. The legislature could also specify an effective date for a change with such widespread effects as an apportionment statute might have on wills now in existence. We do not think that the Illinois legislature has indicated any intent with respect to apportionment of federal estate taxes by its amendment of Section 207 of the Probate Act. If a change is to be made in what we regard as a well established rule in this State on allocation of the burden of estate taxes, we believe it is for the legislature, and not for the courts, to do so.

In this case we assume that the decedent’s will was prepared by one who was aware of the Illinois rule placing the burden of the federal estate tax on the residuary estate unless the testator provides otherwise. The relationship of the various beneficiaries to the decedent does not necessarily indicate that she had a contrary intent; her first concern might have been for the stepson she had raised as a member of her own family. The argument for equitable apportionment appears to have little weight here, where there are no trust assets or jointly owned assets which do not form a part of the probate estate but increase the total amount of estate tax due. It seems to us more important to have rules of construction remain stable and certain, so far as possible, in order that wills do not have to be redrafted from time to time to accomplish their purposes. A rule of construction which prefers specific over general bequests and devises in the allocation of the burden of debts and taxes, which in substance is the residue rule which Illinois courts have long followed, is not manifestly unfair or a great distance apart from what a decedents desires might ordinarily be assumed to be if the matter had been given full and adequate consideration. We therefore believe the trial court was entirely correct in following the established rule in this case and requiring payment of federal estate tax and administration expenses from the residuary estate.

Accordingly the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    Joliet Currency Exchange, Inc., et al., Plaintiffs-Appellants, v. First National Bank of Joliet, Defendant-Appellee.
    (No. 70-196;
    Third District
    November 17, 1971.

      David Boston, of Chicago, and Robson, Masters, Ryan, Brumund & Belom, of Ottawa, for appellants.
    Gray, Thomas, Wallace, Feehan & Baron, of Joliet, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This action was commenced by the Joliet Currency Exchange, Inc. and three other currency exchanges located in the Joliet area against the First National Bank of Joliet. In the first count of then complaint as amended plaintiffs sought an injunction, an accounting and damages on account of the defendant’s alleged violation of section 6 of the Illinois Banking Act (Ill. Rev. Stat. 1969, ch. 16%, par. 106) by issuing license plates from a store neither adjacent to nor connected with its banking premises. Defendant answered this count of the complaint and moved for summary judgment. During the pendency thereof plaintiffs amended their complaint further by adding an additional count seeking the same relief based on the defendant’s alleged violation of section 3 — 410 of the Ill. Vehicle Law of 1957 (Ill. Rev. Stat. 1969, ch. 95%, par. 3 — 410.) Defendant moved to strike the additional count alleging that it failed to state a cause of action. The circuit court of Will County granted each of the defendant’s motions and the plaintiffs have appealed from the judgments against them.

Plaintiffs are four Illinois corporations licensed to conduct a currency exchange business in Illinois. Defendant is a national banking institution conducting its business at 78 N. Chicago Street, Joliet, Illinois. Plaintiffs all conduct currency exchange businesses, including a license plate service, in the Joliet area.

On September 5, 1967, defendant entered into a contract with the Secretary of State of Illinois under which defendant was authorized to issue passenger car renewal license plates.

Beginning on or about December 1, 1967, and continuing through February 17, 1968, defendant issued 1968 automobile license plates for a fee of $1.00 from premises located at 67 N. Scott, Joliet, Illinois. The Scott Street address is located in the Corlett Building which is owned by defendant and which is adjacent to the bank building. The locations had separate entrances and it does not appear that there was internal access from one location to the other. On February 18, 1968, the defendant discontinued the license plate service in the Scott Street location and thereafter continued such service in its main bank building.

According to the plaintiffs’ complaint license plate service was one of the services which they had provided for a number of years. The income from such service constituted a significant part of their profit and after the license plate service was instituted by defendant in the Scott Street location the number of customers seeking license plate service from them and consequently the profits therefrom were diminished resulting in special damage to them. The gist of this count of the complaint as amended was that such special damage was caused by defendant’s violation of the statutory prohibition against branch banking. Ill. Rev. Stat. 1969, ch. 16%, par. 106.

In its added count the plaintiffs additionally allege that their special damage resulted from defendant’s alleged violation of that part of the Motor Vehicle Code prohibiting any charges for license plates other than those specified in the statute. (Ill. Rev. Stat. 1969, ch. 95½, par. 3—410.) This count of the complaint refers to the charge of one dollar made by the defendant in addition to the amount received for the renewal of license plates in accord with the statutory schedule.

On this appeal plaintiffs urge that they have standing to maintain the actions alleged and that the allegations of statutory violation and the facts in support thereof as alleged in the complaint sufficiently state causes of action.

We shall first dispose of the issue relating to the added or second count of the complaint alleging the violation of the Ill. Vehicle Law of 1957, Ill. Rev. Stat. 1969, ch. 95½, par. 3—410. In our opinion Illinois Association of Remittance Agents v. Powell, 122 Ill.App.2d 322, N.E.2d 827, is dispositive of this issue contrary to the position of plaintiffs. The aforementioned case deals squarely with this issue and although plaintiffs attempt to distinguish the case from the one at bar an analysis of such argument reveals that plaintiffs believe that the case should not be followed. The principal distinctions referred to by plaintiffs are that the Remittance Agents case was decided after the presentation of evidence and according to the proposed state of the pleadings in this case the allegation that the defendant was at all times an agent of the Secretary of State is admitted. We believe it sufficient to say that the allegations of the complaint substantially embody the same facts which the court in the Remittance Agents case found were insufficient as a matter of law to sustain the claim of plaintiffs in that case. In this connection it should be observed that the second count was added by the plaintiffs in this case in January, 1969, over one year after that complaint had been filed, and it well may be inferred that the count was added after the Remittance Agents case was decided in favor of the Association by the trial court. The final decision on this case was entered by the trial court in August, 1970, after the Appellate Court had reversed the decision in the trial court in the Remittance Agents case. We believe it unnecessary to consider the facts and reasoning in the Remittance Agents case at length but believe it sufficient to say that we agree with the reasoning and result which completely supports the trial court’s action in this case regarding the second count of the complaint.

This brings us to a consideration of count one of the complaint and in particular the initial issue of whether plaintiffs have standing to seek damages for the alleged violation of prohibition against branch banking.

Section 6 of the Illinois Banking Act (Ill. Rev. Stat. 1969, ch. 16½, par. 106) provides, “No Bank shall establish or maintain more than one banking house, or receive deposits or pay checks at any other place than such banking house, and no bank shall establish or maintain in this or any other state or country any branch bank, nor shall it establish or maintain in this State any branch office or additional office or agency for the purpose of conducting any of its business”. The statute provides neither penalties nor civil damages for its breach. Furthermore it does not either by statement of policy or by particular provision indicate any group or class intended to be benefited or any specific interests to be protected. Where a statute fails to disclose either the method of its enforcement or the persons entitled to enforce its provisions the standing of a party to seek redress of a violation by way of a specific remedy is not always clear.

As observed in Brunnworth v. Kerens Coal Co., 260 Ill. 202, 103 N.E. 178, “When the statute is silent as to the class of person designed to be protected and who may be damnified by a failure to observe the duties imposed, the application of the statute to one invoking its protection must be determined from a careful consideration of the various provisions of the statute and of the end it was manifestly intended to accomplish.” (See also 28 I.L.P., sec. 31.) Special injury or damage not shared by members of the public generally is an essential element in determining the issue of standing. Such injury is not however conclusive. In Joseph v. Wieland Dairy Co. 297 Ill. 574, 131 N.E. 94, one of the principal cases cited by plaintiffs, adjoining property owners were held to have sufficient standing to enjoin defendant’s maintenance of horses on his premises in violation of a city ordinance. Of the Joseph case it may not only be said that the adjoining owners sustained special damage but it also may be said that the adjoining property owners were a class designed to be benefited by abatement of a public nuisance as well as an appropriate class to seek such abatement.

Plaintiff’s claim of standing is based on its status of an injured competitor. There are few Illinois decisions dealing with the branch bank prohibition and there are no decisions either approving or denying that the class to which plaintiffs belong is the intended beneficiary of tiie statute or their interest is intended to be protected. As dicta, the court in Central Republic Trust Co. v. Evans, 378 Ill. 58, 37 N.E.2d 745, states, “The restraint against branch banking like other banking regulations is based upon a public policy to further the interest of the depositor and the public.” In O’Malley v. Bank of Montreal, 349 Ill.App. 224, 110 N.E. 2d 473, the court concluded that the plaintiff’s status as a depositor was insufficient absent any injury to him to support an action based on violation of the branch banking prohibition.

In Northtown Bank v. Becker, 31 Ill.2d 529, 202 N.E.2d 540, a case in which the court held that equitable relief was inappropriate to restrain the Director of Financial Institutions from issuing permits to organize banks for the reason that such proposed banks violated the branch banking prohibition, the court indicated that the appropriate remedy would be mandamus against the Director to institute the appropriate proceedings if the bank after fully organized did violate such prohibition. This holding although dicta, is in accord with cases cited by plaintiffs such as Data Processing Services v. Camp, 397 U.S. 150, wherein the plaintiffs were considered to have standing to question agency action. While such cases as the Camp case resolve the question of standing to review Federal agency actions favorable to the plaintiffs, neither the statutory duty sought to be enforced nor the remedy for such enforcement are analogous to those in the case at bar. It is our conclusion that the branch banking prohibition is a general policy provision which when considered with the general plan for regulating banking institutions does not authorize competitors to enforce such prohibition by actions seeking recovery of civil damages.

Not only do we believe that injured competitors lack standing to seek civil damages for violation of the statutory prohibition but in the case at bar it is also our conclusion that the alleged violation was not the cause of plaintiffs’ injury. As indicated by the pleadings it was the alleged license plate service which caused the injury if any to the plaintiffs and not the maintenance of a branch office. See State v. Illinois Central RR. Co., 246 Ill. 188, 92 N.E. 814.

Finding no error in the judgments of the circuit court of Will County the judgments are affirmed.

Judgments affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: PER CURIAM.

text:
    Ellsworth-Stewart, Inc., Plaintiff-Counterdefendant-Appellee, v. M. Fuat Tigrak, Defendant-Counterplaintiff-Appellant.
    (No. 11425;
    Fourth District
    November 23, 1971.
    Winkehnan & Winkelman, of Urbana, for appellant.
    Thomas J. Logue, of Mattoon, and Robert N. Corley, of Urbana, for appellee.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    United Mine Workers of America Union Hospital, a Not for Profit Corporation, Plaintiff-Appellee, v. United Mine Workers of America District No. 50, et al., Defendants-Appellants.
    (No. 70-24;
    Fifth District
    October 12, 1971.

      Rehearing denied November 12,1971.

    J. C. Mitchell and W. A. Armstrong, of Marion, for appellants.

      Robert S. Hill, of Benton, and Don R. Lucas, of West Frankfort, for appeHee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This action was first brought for rule to show cause why the defendants, the appeUants herein, should not be held in contempt of Court for violation of a temporary restraining order filed November 1, 1969. The temporary restraining order was issued as a result of a verified complaint of the plaintiffs, the appellees herein, for a temporary restraining order and permanent injunction enjoining the defendants from engaging in a strike and picketing at the plaintiff’s hospital in West Frankfort, Illinois. Upon hearing on rule to show cause, the circuit court of Franklin County found the defendants in civil contempt of Court and levied fines against them. This appeal is taken from the Contempt Order of the Court.

The plaintiff herein is an Illinois not-for-profit corporation operating a hospital in West Frankfort, Illinois. Hereinafter the plaintiff-appellee shall be referred to as the Hospital.

The defendants are the United Mine Workers of America District No. 50, Local Union No. 12640 of United Mine Workers of America No. 50 and individuals Art Hodgson, Lee Arnold, Jennette Brown, Georgina Eldridge, Cordelia Owens, Bob Kemp and Frank Crise.

On October 31, 1969, defendants, United Mine Workers of America, District No. 50 and Local Union No. 12640 of the Union were parties to a collective bargaining agreement with the Hospital. Defendant Frank Crise was the regional Director of the Union and Defendant Bob Kemp was a special representative of the Union. The remaining individual defendants were officers of the local and employees of the Hospital.

The collective bargaining agreement in effect on October 31, 1969, expired at midnight on that date. The defendants elected not to work without a contract and the 11:00 P.M. shift reported to work and worked through 7:00 A.M. on November 1. Plaintiff made arrangements to close the hospital. All ambulatory patients were transferred to other hospitals on the evening of October 31, and bed patients were removed by ambulance on November 1.

At 12:02 A.M. November 1, 1969, defendants established pickets on the public sidewalks adjacent to the hospital. Some of the pickets were carrying signs which stated “on strike” or “unfair to employees” or “no contract, no work”, or reflected defendants’ attitude that plaintiffs were unfair or that defendants wanted decent wages. There is no contention that the pickets engaged in violence, threats or intimidation, and the complaint failed to allege such acts other than by slight inference and conclusions of the pleader of the purpose of the pickets and that their acts were unlawful and illegal.

On the morning of November 1, 1969, before 5:33 A.M., plaintiff filed a complaint for temporary restraining order, temporary injunction and permanent injunction restraining defendants from engaging in a strike and picketing the hospital. At 5:33 A.M. a temporary restraining order was signed and issued by the Circuit Court Judge.

The temporary restraining order was served on defendants at 7:00 A.M. in front of the hospital. Picketing then ceased and recommenced at about 1:00 P.M. continuing through 10:30 A.M., November 2, 1969.

On November 3, 1969, upon plaintiffs petition the court issued a rule to show cause. After a hearing on the rule the court found defendants to have violated the temporary restraining order and held them in contempt of court for having established picket lines and pickets at the hospital from the time of service of the order until 10:30 A.M., November 2, 1969. Fines were levied on defendants.

The thrust of defendants’ argument on appeal is that the court was without jurisdiction to issue the temporary restraining order and therefore its violation is not grounds for contempt. We agree.

Ill. Rev. Stat. 1969, ch. 48, par. 2a, (commonly known as the Anti-Injunction Act) provides:

“No restraining order or injunction shall be granted by any Court of this state, or by a Judge or Judges thereof in any case involving or growing out of a dispute concerning the terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, from terminating any relation of employment or from ceasing to perform any work or labor, or from peaceably and without threats or intimidation recommending, advising, or persuading others so to do; or from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise or persuade others so to do.”

The Anti-Injunction Act was attacked in Fenske Bros. v. Upholsterers International Union (1935), 358 Ill. 239, 193 N.E. 112 on the ground that the law deprived the circuit court of its jurisdiction granted by the Constitution and that the legislature was in essence amending the Constitution. Fenske held that such was not the case. It was there held that “So far as the statute is concerned, circuit courts have the same jurisdiction in labor disputes they have always had, for it cannot be said that they ever had the power, by the Constitution or otherwise to prevent or penalize the performance of lawful acts concerning which no cause of action existed ” * *. The act does not abridge or invade the jurisdiction of the Courts, and consequently does not contravene, the constitutional provisions relating thereto.” That language is equally applicable to the provision of section 9, article 6, of the constitution of 1970 which provides:

“circuit courts shall have original jurisdiction of aU justiciable matters * *

It is clear in this State that:

“A party may refuse to obey an order where the Court had no authority to make it and where it is absolutely void for want of power in the Court, but he cannot refuse to obey it on the ground that it was improvidently or erroneously made.” Christian Hospital v The The People, 223 Ill. 244, 250, 79 N.E. 72 (1906).

The Supreme Court stated in Paris v. Paris, 35 Ill.2d 305, 220 N.E.2d 210, 212 (1966) that:

“One is justified in refusing to comply with a Court order only if such order is utterly void, but it is no defense in a contempt proceeding to show the order was merely erroneous. (Cummings-Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368, 54 N.E.2d 462; 12 I.L.P., Contempt, § 31.) If the Court had jurisdiction of the subject matter and of the parties to the proceeding, then its order must be obeyed until such time as it is set aside by the issuing or reviewing court. (People ex rel. Tizel v. Hill, 344 Ill. 246, 176 N.E. 360.) Jurisdiction of the subject matter means the power of that particular court to hear the type of case that is then before it. (Baker v. Brown, 372 Ill. 336, 23 N.E.2d 710; Rabbit v. Frank C. Weber & Co., 297 Ill. 491, 130 N.E. 787.)”

The Anti-Injunction Act is clear and no exception exists where hospitals are the employers (Peters v. South Chicago Community Hospital (1969), 44 Ill.2d 22, 253 N.E.2d 375.) There our Supreme Court held that the public policy of this State does not prohibit employees of a hospital from striking and members of a hospital union from peacefully picketing a hospital. Thus defendants were engaging in a lawful act which could not be restrained. But more importantly, the courts of this state under the Anti-Injunction Act have no power to restrain these lawful activities.

The factual situations distinguish this case from Board of Education v. Kankakee Federation of Teachers Local 886, 46 Ill.2d 439, 264 N.E.2d 18, in which employees of a school district were striking and the restraining order issued restrained an unlawful act. In County of Peoria v. Benedict, 47 Ill.2d 172, 265 N.E.2d 141, the pleadings and evidence showed that during the period of November 30 to December 6 acts of violence by striking employees and pickets actually occurred. Here, no violence or other illegal acts were charged or proved and none appear of record. As stated in Fenske Brothers v. Upholsterer s Union, 358 Ill. at page 257, “Whenever the doing of an act is unlawful it gives rise to a cause of action, but it is inconceivable that any cause of action, legal or equitable, as contemplated by the constitutional provision, exists to restrain the performance of a lawful act”. Emphasis supplied.

In County of Peoria, supra, the Supreme Court held that an injunction, while in force cannot be disregarded citing numerous United States and Illinois Supreme Court cases all of which were based on different circumstances than this case. In Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, both the majority and dissenting opinion recognize an exception to the rule relating to the penalty of contempt for the violation of a preliminary injunction or restraining order. Such exception is that where an injunction or restraining order is transparently upon its face invalid, it may be ignored without suffering the penalty of contempt. (87 Sup. Ct. 1829, 1838, 1840, 1845 and 1846.) The same point is made in United States v. United Mine Workers of America, 330 U.S. 258, 67 Sup. Ct. 677 at 695-696. Furthermore, the U.S. Supreme Court decision, upon which all the cases basically rely, Howat v. State of Kansas, 258 U.S. 181, at 189-190, 42 S.Ct. at 280 agrees, stating, “* * * an injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, * * * must be obeyed * * * however erroneous * * In Board of Education v. Kankakee, etc., supra., our Supreme Court recognized this exception, at 46 Ill.2d 45, 264 N.E.2d 22, when it said, “The simple and logical rationale of these decisions is that where a court of equity issues an injunction, with jurisdiction of the subject matter and the persons and upon pleadings properly invoking its action, the injunction must be obeyed * * Emphasis supplied. The exception was likewise recognized in County of Peoria, supra, by quotation from the Kankakee case. Here there were no pleadings properly invoking the action of a court of equity.

Here, too, defendants, contending the temporary restraining order was constitutionally transparently invalid upon its face, reason they were then privileged to disregard it, and if charged with violation, to raise such constitutional defense. In support of this position they cite Carroll v. President and Commissioners of Princess Ann, 393 U.S. 175, 89 S.Ct. 347, where it was held that an ex parte temporary restraining order issued without notice, where no showing is made that it is impossible to serve or notify the opposing party and to give them an opportunity to participate, is in clear violation of those basic freedoms guaranteed by the first amendment. Here, no notice of a hearing for temporary restraining order was given to defendants, and there was a prior restraint within the rule of Carroll. In Board of Education v. Kankakee, supra, notice was unnecessary because upon the face of the complaint, the teachers were engaged in an unlawful act. In County of Peoria, supra, “there was full compliance with the procedure safeguard” in that even though the November 29 hearing was ex parte, it was ex parte because the defendants chose not to appear, and not because of arbitrary action by the court or the plaintiffs.

In the case of Fortenbury v. Superior Court (1940), 16 Cal. 405, 106 P.2d 411 the California Supreme Comt discussed the meaning of jurisdiction. In that case the petitioner had been held in contempt for violating temporary restraining order prohibiting him from picketing in support of a secondary boycott. In that jurisdiction such conduct was lawful and the petitioner claimed the Court lacked jurisdiction to restrain him. At page 412 the Court stated:

“The term jurisdiction originally included only the right to hear and determine concerning the subject matter in a particular case. But the modem tendency has been to broaden that meaning, * * *. A Comt may have jurisdiction of the cause of action and of the parties, but it may lack the authority or power to act in the case except in a particular way. Under such circumstances, it is now generally held that the Court had no jurisdiction.”

At page 413, the Court stated:

“More recently, this Court again recognized the confusion which exists in determining whether, in a given situation, there was a lack of jurisdiction or mere error in the exercise of jurisdiction * * * when a statute authorizes prescribed procedure, and the Comt acts contrary to the authority thus conferred, it has exceeded its jurisdiction * *

The restraining order issued in this case restrains defendants from “engaging in or authorizing picketing or a strike of the hospital premises involved herein”. Under the Statute this conduct cannot be restrained and the trial court had no power to enjoin such an act, the restraining order was void and the failure to obey such an order is not grounds for contempt.

Judgment reversed.

CREBS and MORAN, JJ., concur.

       At the date of this order the Supreme Court opinion in Peters v. South Chicago Community Hospital reversing, 107 Ill.App.2d 460, had not been filed.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Hugley, Defendant-Appellant.
    (No. 70-177;
    Fifth District
    October 13, 1971.
    Theodore Gottfried, of Defender Project, of Chicago, (Kenneth L. Gillis, of Defender Project, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (C. H. Stegmeyer, Assistant State’s Atorney, of counsel,) for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant John Hugley was found guilty of robbery after a jury trial in the circuit court of St. Clair County. He contends that the trial court erred in overruling his motion for discharge made pursuant to Ill. Rev. Stat. 1967, ch. 38, par. 103—5, which provides:

“(a) Every person in custody in this State for an alleged offense shaU be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, * * *
(d) Every person not tried in accordance with subsections (a) 8 * 8 of this Section shall be discharged from custody * *

The record reveals that defendant was arrested on December 19, 1967, and remained continuously in custody without being admitted to bail until his trial on June 12, 1968. The chronological order of events occurring during the interim is as follows:

February 21, 1968 — Transferred to Security Hospital in the Illinois State Penitentiary at Menard.
March 7, 1968 — He was returned from Menard with a finding “not in need of mental treatment.”
March 11,1968 — Arraigned and pleaded not guilty.
April 16, 1968 — A petition suggesting incompetency was filed by the State which alleged:
“That subsequent to the arrest to said defendant for the crimes for which he was indicted it was brought to the attention of the Petitioner that the defendant was in need of mental treatment as defined in Section 1 — 11 of the Mental Health Code and that while incarcerated in the St. Clair County Jail awaiting trial, the defendant attempted to do violence to himself and others and was on the 21st day of February, 1968 admitted to the Security Hospital at Menard under an Order whereby the defendant was declared to be a person in need of mental treatment. And therefore this Petition is filed suggesting to the Court that the defendant may be incompetent to stand trial within the meaning of Chapter 38 Article 104 Illinois Revised Statutes, 1967.”

No notice of the filing of this petition was given to defendant or his lawyer and on April 16, 1969, the same date as the petition was filed, the trial court entered an order appointing two psychiatrists to examine him and also ordered a jury to be impaneled prior to his trial to determine his competency to stand trial.

On April 30, 1968 defendant, through his counsel, made a motion to discharge defendant pursuant to Ill. Rev. Stat. 1967, ch. 38, par. 103—5.

Appellant first contends that the record discloses that the motion made by the state for an examination to determine his competency to stand trial was not made in good faith, but was made only for the purpose of depriving the defendant of his right to a speedy trial within 120 days as required by Ill. Rev. Stat. 1967, ch. 38, par. 103—5. The law in this regard is succinctly stated in People v. Benson, 19 Ill.2d 50 at 55:

“Considering the demands of due process, as outlined in People v. Burson, 11 Ill.2d 360, it is our opinion that, in a proper case, a delay necessitated for the purpose of ascertaining a defendant’s sanity and mental capacity to be subjected to criminal prosecution is a permissible delay which does not impair or infringe upon the constitutional right to a speedy trial, or violate the statute enacted to implement the constitutional provision. However, a mere arbitrary suggestion of insanity will not suffice, and whether such ground constitutes a good cause for delay in a given case must be a matter resting within the discretion of the trial court, to be resolved from tire particular facts and circumstances before it. On review, the ruling will not be disturbed unless the record shows a clear abuse of discretion. People v. Kendall, 7 Ill.2d 570.”

We note that the petition suggesting incompetency filed by the state suggested to the court that the defendant might be incompetent to stand trial solely on the ground that he was in need of mental treatment as defined in Ill. Rev. Stat. 1967, ch. 91—½, par. 1—11, which reads:

“ ‘Person In Need of Mental Treatment’, when used in this Act means any person afflicted with mental illness, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental illness, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs.”

The Security Hospital in the Illinois State Penitentiary at Menard returned the defendant as “not in need of mental treatment”. While the Security Hospital has not been asked to determine if the defendant was able to stand trial, if not able, he would have been retained in the Security Hospital. Thus the very act of returning defendant without mentioning his ability to stand trial implied that he was able to stand trial.

If the State questioned the accuracy of the findings made at the Security Hospital (or the implications arising therefrom), the State should have proceeded with reasonable dispatch after defendant’s return on March 7 to have a new examination.

Under the circumstances of this case, where the actions of the defendant which form the basis for questioning his ability to stand trial occurred prior to his treatment at the Security Hospital in February and no valid reason is given for waiting until April 16 to file the petition, we find the petition was not filed in good faith.

While we recognize that considerable latitude is required in these matters, the record here indicates that this petition was filed merely for purposes of delay. Hence, to allow it to toU the statute would violate defendant’s right to a speedy trial.

For the foregoing reasons the judgment of the circuit court of St. Clair County is reversed.

Judgment reversed.

CREBS and JONES, JJ., concur.


author: Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Appellee, v. James A. Hyde, Appellant.
    (No. 70-67;
    Fifth District
    October 13, 1971.

      Rehearing denied November 11, 1971.

      John O. Vogel, of Glen Ellyn, for appellant.
    Robert H. Rice, State’s Attorney, of Relleville, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

In a trial before a jury the defendant and Kascell Jennings were convicted of murder, armed robbery and unlawful restraint. Although the jury recommended the death penalty upon the murder conviction the court declined to impose it and sentenced defendants to concurrent terms of 99 to 100 years on the convictions for murder and armed robbery. The record does not disclose that any sentence was imposed upon the conviction of unlawful restraint, the maximum penalty for which is set by Ill. Rev. Stat., ch. 38, par. 10 — 3(b) at two years imprisonment and a fine of $500. Upon defendant’s motion the attorney representing him in this appeal was discharged and leave granted to proceed pro se.

The armed robbery and murder in question occurred at Lee’s Wash Rack on North First Street in East St. Louis. The location is near the National City stockyards and the establishment is a facility used by truckers of livestock to the National City stockyards to clean out their trucks after delivery of livestock. There is a building on the premises containing an office, a bunkhouse and a small restaurant. The wash racks are no more than a portion of the lot where the trucks are swept out and washed with hoses and other equipment. The wash rack operates at all hours of the day and night. The wash rack is well lighted by a system of lights arranged to illuminate the area for work conducted during the night time.

Defendant initially argues that the evidence was insufficient to convict him because of the confusion, uncertainty and contradiction of the identification witnesses. In this same regard he contends that the testimony of his alibi witnesses was more probable and believable than that of the State’s witnesses and that this court should so find and reverse his conviction.

We will briefly summarize the occurrence testimony of the State’s witnesses. Ollie Johnson was the night foreman at Lee’s Wash Rack. He testified that at about 3:00 A.M. he was outside the bunkhouse talking with two truck drivers when two men walked onto the lot and approached him and asked directions to a particular address. The two men were characterized as one taller and one shorter. The shorter of tire two men put a gun in his face and said, “This is it.” The taller man walked around the corner of the building. The shorter man was right upon the witness when he pointed die gun, within a hands reach. The witness and the other two robbery victims were made to he on the ground while the short man went through their pockets taking their billfolds and money; The victims were then made to crawl under a truck at the side of the building. Other men were later brought to the track and made to crawl under. Shots were heard. The short man then came to the track, bent over and told a man by the name of Kelly one of the fellows was hurt, to count to 50 and call the police and an ambulance. The voice was the same as that of the short man. The witness did not see the second man involved in the holdup and was unable to identify defendant Hyde as a participant in the holdup. After the witness crawled from under the truck he saw a man lying on his back by the bunkhouse door. He had been shot in the head and was bleeding from the wound. The witness then made a positive in court identification of the defendant Jennings. He had testified that there were lights all over the place.

Danny Hatcher was a 19-year-old truck driver who had made a delivery of cattle to the National City stockyards and brought his track to Lee’s Wash Rack for cleaning before his return home. He was accompanied on his trip by his wife. When he arrived at the wash rack other trucks were being cleaned and washed. He got out of his truck and gave instructions to witness Johnson regarding the cleaning of his truck and got back into the truck to talk to his wife. After ten or fifteen minutes his wife got into the sleeper portion of the cab to sleep and the witness again left his truck and went to talk with the witness Johnson and another track driver. The two truck drivers and Johnson were there together with Johnson in the middle. As the three were talking a man walked up and asked directions of Johnson. Johnson started giving the directions and when he turned around the other fellow walked right up to his face and pointed a gun. The man said “This is a stickup, lie face down on the ground.” The three laid down and the man went through their pockets taking money and wallets. Hie three were then told to crawl under a track behind the bunkhouse by the same man who asked for directions. He heard three shots. After the shots the shorter of the two men came to the track, kneeled down and said, “I have shot him, count to 50 and then call the police.” While he was lying on the ground he looked towards his truck off to the left and the taller of the two men was walking up to the side of his truck. The witness made a courtroom identification of Kascell Jennings as the man who kneeled down and said, “I have shot him, call the police.” He then identified defendant Hyde as the other man who had walked over to his truck. When he got up from under the truck he ran around the building and discovered the man lying on his back at the bunkhouse door. He had a bullet wound on the right side of his head and was bleeding. He went to his truck to see about his wife and discovered she was gone. He next saw her at the police station between 3:30 and 4:00 A.M. She was scared and nervous and had a cut on her foot but was otherwise uninjured. The witness further testified that he had previously identified both defendants at the police station, that at the time of the incident the hah of defendant Jennings was long but at the time of the identification at the police station it was short. He further testified that he was not close enough to the taller to see what color clothes he had on, that he saw him only once when he was walking up along side his truck. On cross-examination he stated that he was basing his description of the taller man upon his height. At the time defendant Jennings first approached to ask directions he was within about two and one-half feet of the witness.

Genise Hatcher testified that she was 18 years of age and the wife of Danny Hatcher. At about 2:00 A.M. on the evening in question she was in the truck with her husband and got into the sleeper portion of the truck to sleep. She heard a loud noise like a firecracker. Shortly a Negro man came up and opened the door. When she told him her husband was outside he got down from the cab and left. A few minutes later another man came up and made her get out of the truck. He sort of bent over so he could see her. His face was about three feet from hers. He was also a Negro. Both of the men had guns. When told to get out of the truck she asked the man if she could get her shoes but he told her she didn’t need them, just to get out. Neither of the men were covered or wearing anything on their heads. She was made to stand over by the bunkhouse and saw her husband and some other men under a truck. At that time the shorter man was standing beside her and the taller man behind her. She turned around and the man they had shot was lying there. She saw the man lying on the ground and heard the shot fired but did not see who fired the shot. The victim was lying near the bunkhouse door. The taller of the two men took her and put her by the building. He then went back and got her and put her on the floor boards of the car. The tall man told her to he down and keep her face down on the floor boards. The car was a 1963 red Chevrolet convertible with the top down. She was taken to the National City dump, made to remove her blouse and put it over her head, was walked down a path by the men and told to stay there until they left. She shortly made her way to a plant where the night watchman called the National City police. The witness pointed out defendant Hyde as the man who first came to the truck when she was in the cab and the defendant Jennings as the man who came to the truck later. She stated that she did not see the defendants shoot the man but that the shorter man of the two was about two or three feet from the man who was shot at the time she heard the shot.

Ernest Campbell testified that he was a part-time employee at the wash rack. On the day in question he worked the day shift but he returned about 12:00 to get something to eat. He came out the restaurant about 2:00 A.M. walked toward the east end of the bunkhouse. Just as he got around the corner a man with a gun halted him and made him crawl under the truck. He only saw one man with a gun. He was four or five feet away. It was in the dark and he didn’t know how the man was dressed. He crawled through to the other side of the truck and went in the back part of the building and stopped and waited about midway of the building and heard a gunshot. He stood there a few minutes and walked toward First Street and saw two fellows running up the street with a girl by the hand. Each one of them had her by a hand. The car they left in was a maroon convertible. On cross-examination he testified that he saw nothing that happened and could not identify either of the men.

George Woolridge testified that he was a truck driver hauling livestock, that he was at Lee’s Wash Rack at the time of the robbery and murder, arriving there about 12:30, that he was finished with the clean out at about 2:00 o’clock. He was with Hatcher and Johnson near the bunkhouse door when two boys came up to ask about an address and one boy who walked up said “all right, this is a holdup.” He had a gun. The three were made to lie on the ground and their billfolds were taken. The three were then told to get under the truck at the end of the bunkhouse. After that he heard a shot fired. Then one of them came back and told them to count to 50 before we got up. He did not recognize the voice that said that. There were some other trucks there but no drivers. The man who came up had dark glasses on. He didn’t notice if he had anything else on his head. The witness made an in court identification of defendant Jennings as being the man. When he got out from under the truck he saw a white man lying there by the north door of the bunkhouse with a hole in his head. It was bleeding. The witness did not identify defendant Hyde.

James E. Kelly was employed at Lee’s Wash Rack as a washman. He was present during the event in question, seated on a bench facing the wash rack grounds near the door to the kitchen. Two fellows came up, one passed by and the other stopped and asked for an address. The men were colored, one little and one tall. The little one went to the end of the buhkhouse and around to the back. The tall one stopped there between him and his friend and asked for an address. Upon being told that they did not know they were then told to look around to see where the other fellow went. The witness and his friend were then told by the tall man to get over and lay under a truck. He had a gun in his hand. After they were under the truck they heard three shots — not too far apart. They came from around the front of the building. Another man was brought back to the truck and made to crawl under. After the robbery a woman was brought from out of a truck parked in the rear and made to stand about five feet from where the men were under the truck. The tall guy put a gun to his head and told him to count to 50 and call the police and an ambulance. The two men then got the woman by the arm and put her in the convertible. After the witness got up he saw a man lying there shot. The witness then identified defendant and Kascell Jennings as the two men who came to the wash rack and did the robbery.

Defendant asserts that the testimony of the People’s identification witnesses is unworthy of belief because (1) Danny Hatcher informed police that both assailants were clean shaven when in fact he, the defendant, had a moustache, and that Danny Hatcher based his description of defendant on his height: (2) Genise Hatcher was blindfolded and could not see anything and had stated to police that both her abductors were clean shaven; (3) James Kelly based his identification of defendant only upon his size.

These contentions are simply not borne out by the record. We have been unable to find any statement by any witness that both assailants were clean shaven. Nor do any of the police reports which defendant has included in the record reflect that any witness had described the assailants as clean shaven. The only place the “clean shaven” allusion appears is in a bulletin or arrest notice issued by the Madison, Illinois Police Department. It does not appear that that police department was ever involved in any way with the investigation of the crimes and the statement in their bulletin that the suspects were clean shaven, being otherwise unsupported, must be considered spurious and unavailing as an impeachment of the identification testimony. While it is true that on cross-examination Danny Hatcher and James Kelly stated they were basing their identification of defendant on his size it is readily apparent from a reading of their testimony that by no means was size their only criterion for identification. Each of the three identification witnesses, Danny Hatcher, Genise Hatcher and James Kelly, were in a good position to observe, and did observe, the assailants under conditions that lend veracity to their observations. All three identified both defendants in lineups and at the trial. They asserted their positiveness and remained unshaken on cross-examination.

The defendant testified in his own behalf, denied the robbery and shooting, offered an alibi and produced three witnesses in its corroboration. He stated he worked as a laborer until 4:30 P.M. on July 22, 1969. He then went home, cleaned up and went to the home of his sister-in-law, arriving there at about 5:30. From there he left with Mary Alice Lewis and went to the Dunbar School to pick up his sister-in-law. He then traced his whereabouts throughout the evening in the company of Mary Alice Lewis, his sister-in-law and others until he finally left then-home, walking, at about 2:30 A.M. on July 23, 1969. Defendant’s ststerin-law, her sister (Mary Alice Lewis) and her mother testified to substantially the same events and times as those told by defendant.

Our reading of the testimony of the witnesses for both the People and the defendant leads us to the conclusion, as its hearing did the jury, that the guilt of defendant was firmly grounded on sufficient evidence to convict and that defendant’s guilt was proven beyond a reasonable doubt. That the jury chose to disbelieve defendant and his alibi witnesses is unavailing to defendant as error since it is within the province of the jury to choose whom to believe or disbelieve.

We turn, then, to the consideration of alleged errors which occurred during the trial which defendant contends were prejudicial and served, singularly and in the aggregate, to deprive him of a faff trial and therefore require reversal of his conviction.

Defendant strenuously urges that prejudicial error occurred when the prosecutor elicited evidence that the deceased victim was married and supporting a family and compounded the error by introducing photographs of the deceased showing some of his children on his lap and commenting on deceased’s family in final argument.

The widow of the victim was called as a witness by the People for the purpose of identification. In response to questions she stated that she was the widow, that she and deceased had six girls, two of which were still at home. She identified four photographs of deceased two of which were taken approximately ten to twelve years prior and two of which were taken approximately two years prior. One of the two or more recent pictures showed deceased holding a child and the other showed him sitting with a child in his home. In support of the admission of the photographs the People argues that they were a necessary link in the chain of tracing the body of the man shot at Lee’s Wash Rack to the man who was identified at Desloge Hospital by his widow and were therefore a necessary part of the State’s case. When the court asked defendant’s attorneys if they would stipulate that the earlier photographs of deceased were a reasonable likeness of him at the time of death even though taken some years ago the stipulation was refused, whereupon all four photographs were admitted into evidence. Hie widow testified that she identified the body of her husband at Desloge Hospital. There was no objection from either of the attorneys for the defendants to the testimony of the widow regarding the family of deceased.

In the first portion of the closing argument one of the prosecutors made this remark: "What happens to this man who is doing his best, who has a wife and family and trying to earn a living? All he does is try to have his truck cleaned out, and the end result is, two men like this, two hardened criminals, snuff his life out.” In the second portion of the closing argument another prosecutor made this remark: “They snuff out the life of an innocent man. A man who had no way of defending himself. A man just trying to do his job, to support a wife and children.”

It is well established that it is improper for a prosecutor to refer to the family of a murder victim, whether such reference be by evidence or in argument. (People v. Dukes, 12 Ill.2d 334, 146 N.E.2d 14; People v. Gregory, 22 Ill.2d 601, 177 N.E.2d 120; People v. Bernette, 30 Ill.2d 359, 19 N.E.2d 436; People v. Brown, 30 Ill.2d 297, 196 N.E.2d 664; People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68; People v. Vasquez, 118 Ill. App.2d 68, 254 N.E.2d 617.) Such evidence has no relation to guilt or innocence of the accused or the punishment to be accorded him atid is originarily calculated only to prejudice the defendant with the jury. In People v. Bernette, supra, the Supreme Court observed that the rule has devolved.

“* * * that where testimony in a murder case respecting the fact the deceased has left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence.”

Thus, the mere fact that evidence of a victims wife and family appears incidentally in the trial or is the subject of comment by the prosecutor in his argument does not automatically require reversal. The materiality of the testimony or comments, and the manner of its presentation must be considered. As stated by the Supreme Court in People v. Golson, supra:

“We have reversed judgments of conviction of murder where undue prominence was given to the fact that the deceased had left a family, where it appeared that this evidence and argument was used solely for the purpose of prejudicing and inflaming the jury. (People v. Dukes, 12 Ill.2d 334; People v. Bernette, 30 Ill.2d 359.) However, we have also refused to reverse convictions where objection has been made to testimony and argument concerning the deceased’s family. In the recent case of People v. Brown, 30 Ill.2d 297, the prosecutor referred to the fact that the deceased’s wife was now a widow and that his children were orphans. We held that the statement was not reversible error and pointed out that tire widow had testified solely for the purpose of identifying the deceased. We also pointed out that the first reference to the decedent’s children was made by defense counsel who expressed his sympathy to the widow and her children. In our opinion the testimony and argument were not of such a nature as to require reversal of the judgment of conviction * *

Our review of the cases considering the question of whether testimony and argument concerning the deceased’s family leads us to conclude that it is an unnecessary component of a decision to seek to align the testimony and comments we are considering in this case with cases which on the one hand require reversal and those which on the other hand do not. We find, rather, that the cases disclose a practical consideration of the effect of such improper evidence and argument upon the conviction of a defendant. Such view makes relevant all cases dealing with the matter and permits a consistency in their application. It is proper to inquire to what extent, for what reason and to what effect testimony or comments regarding the deceased’s family are advanced. Here we note that the prosecutor made no attempt to dwell upon or draw out the testimony regarding deceased’s family. No attempt was made to present it as an issue in the case or a matter proper to be proven and considered. Its materiality was in no way suggested. Its presentation was incidental to the matter of identification of deceased and its effect upon the outcome of the trial minimal. Any effect resulting would be mollified by the testimony of the parents of the co-defendant Kascell Jennings when they testified to his alibi defense and termed him a good son and a religious boy. There are cases where the conduct of the victim is brought into question in determining the guilt of an accused. There, evidence of the fact that the victim was a family man might tip the scales against the accused. Here, clearly unjustified conduct is involved, the victim was wholly innocent. Whether he has a family is a small consequence as to whether a crime was committed. The victim’s family status could not add aggravation to a crime which by its very nature is the ultimate aggravation.

The conviction here is not based upon circumstantial evidence but upon eyewitness testimony and positive identification. Under this circumstance we are led to conclude that the conviction of defendant was the result of the strong evidence of guilt and did not result from any passion or prejudice that may have been engendered by improper evidence and argument regarding deceaseds family. We view the evidence and argument here as no worse than those in the Brown, Golson and Vasquez cases where a similar result was reached.

Defendant next urges that prejudicial error occurred when the State knowingly suppressed a police report containing evidence favorable to him, citing Brady v. State of Maryland, 373 U.S. 85, 83 S.Ct. 1194. Although defendant never made a request that he be furnished with copies of police reports either before or during trial as required by Brady we have nevertheless elected to consider the matter. The argument alludes to two police reports, one relating to witness Genise Hatcher and one to a Willie Boyd Whitney. Included in the record is a police report by Sgt. Brooks of the National City Police Department which recites that when Mrs. Hatcher was picked up by them following the incident in question she related a robbery and shooting and her abduction. The report contains a recital that Mrs. Hatcher stated that she was blindfolded all the time. Two other police reports of interviews by officers of the East St. Louis Police Department with Mrs. Hatcher report her as saying, as she testified, that she was made to cover her head with her blouse when she was released at the National City dump. We note that the report of the National City Police Department also relates that Mrs. Hatcher gave a description of the two men involved in the robbery and shooting and a description of the automobile in which she was abducted, observations which she clearly could not have made had she been blindfolded “all the time” as suggested in the police report. The report is thus intrinsically inconsistent. And when it is compared with the testimony and in context with the two police reports of the East St. Louis Police Department there is no inconsistency and nothing that could be considered as evidence favorable to the defendant or impeaching of Mrs. Hatcher’s testimony.

Also in the record is a police report of the East St. Louis Police Department which relates that on July 23 a Mr. Willie Boyd Whitney of a given address and phone number called the police department and stated that he had witnessed the shooting and that at the time he noticed a Negro was standing and pointing a gun at deceased, that the Negro held a gun in his left hand and after hearing about four or five shots he observed deceased fall to the ground and the man with the gun reached over deceased’s right shoulder and removed something from his pocket. He also is reported to have stated he would not be able to identify the man if he were apprehended. He gave a description of the gunman as a Negro male, six foot tall, 200 pounds or more, dark complected, wearing a white cap or hat with a very short or small brim pulled close down on his face, wearing a dark shirt and trousers. While the report does remark that a caller stated he witnessed the shooting and that the gunman wore a cap it still cannot be considered that evidence favorable to defendant has been suppressed. Nowhere in the record is it suggested by any witness, or is it to be inferred from the evidence, that the gunman was the defendant. Accordingly, the caller’s description of the assailant has no relevance to defendant. The statement makes no reference to a second man being involved nor any attempt to describe him. Furthermore, the police report in question is not a report of an investigation by the police nor does it reflect any action taken or information discovered upon their part. It is merely the report of a telephone conversation with a person who identified himself as Willie Boyd Whitney. Defendant made a demand for a list of witnesses and it was furnished by the People and Willie Boyd Whitney was listed together with his address. The name of Willie Boyd Whitney was not mentioned by any of the witnesses as being present at the time of the crime or as having any knowledge of the occurrence. Whitney did not testify in the case. Under this circumstance it cannot be said that the State has withheld or attempted to suppress anything favorable to the defendant. The State met any burden of fairness that the situation might impose upon them when they disclosed the name and address of Willie Boyd Whitney in the list of witnesses.

Defendant also assigns as error the failure of the court to give an instruction to the jury as to the essential elements of the offense of murder. Defendant admits that his attorneys did not offer such instruction but contends, under the authority of People v. Davis, 74 Ill.App.2d 450, 221 N.E.2d 63, that the trial judge was obligated to give the instruction on his own motion.

Examination of the transcript shows that the court gave I.P.I., Criminal, number 2.01 which informed the jury that defendant was charged with the crimes of murder, unlawful restraint and armed robbery. I.P.I., Criminal, number 7.02 was also given. This instruction, which informed the jury of the burden of proof which must be met by the State in proving the defendant guilty of murder, necessarily contained all the elements of the crime of murder. It should be noted here that the common law record contains I.P.I., Criminal, number 7.01 which defines the crime of murder. It is shown with the other instructions given in the case and contains the file stamp of the court clerk showing it to have been filed on the same date as the other instructions. However, the transcript does not reflect that 7.01 was in fact given. In this state of the record we cannot determine whether or not 7.01 was read to the jury with the other instructions. We believe that even though 7.01 was in fact omitted that no prejudicial error resulted since 7.02, which was given, sufficiently advised the jury of the elements of the crime of murder so there could have been no confusion or uncertainty resulting. Where the instructions, as a whole, inform the jury of the facts which are essential to the proof of the commission of a specific crime, an error in giving an instruction will not be considered so prejudicial as to warrant a reversal. People v. Knox, 116 Ill.App.2d 427, 252 N.E.2d 549.

Defendant also argues that error was committed when his prior criminal record was initially brought to the attention of the jury by testimony rather than by the record of the prior conviction. The contention arises from the fact that when defendant’s co-defendant, Kascell Jennings, was being cross-examined by the prosecutor he told of having met defendant on prior occasions in the county jail in Belleville and in the penitentiary at Menard, facts from which the jury could naturally infer that defendant had a prior criminal record. As we have noted, defendant testified in his own behalf in support of his defense of alibi. In rebuttal the State called as a witness the Chief Deputy Circuit Clerk of St. Clair County and had her identify as part of the files of her office the record of two previous felony convictions, one for burglary and one for theft. At the request of the prosecutor the clerk read the two records into evidence but neither the files nor authenticated copies thereof were then physically offered into evidence. Defendant also contends this was an improper method of proof of his prior felony convictions and cannot be thus considered for impeachment purposes. The contentions are not well taken. It is now established rule that cross-examination of a defendant concerning former convictions is improper except where an authenticated copy of the record is also admitted. (People v. Neukom, 16 Ill.2d 340, 158 N.E.2d 53; People v. Squires, 27 Ill.2d 518, 190 N.E.2d 361; People v. Smith, 63 Ill.App.2d 369, 211 N.E.2d 456.) And it is of no consequence that the record of prior convictions is presented by having the keeper of the records, the court clerk, read the record into evidence rather than introduce the physical record itself as an exhibit. (People v. Smith, supra, People v. McCrimmon, 37 Ill.2d 40, 224 N.E.2d 822.) Since the testimony of defendant’s prior convictions came from his co-defendant rather than from defendant himself his argument has even less force than those advanced and rejected in Neukom, Squires, Smith and McCrimmon.

With further regard to the record of his prior convictions the defendant contends that it was error to present them to the jury in whatever manner. Subsequent to the decision of the Supreme Court in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, defendant’s argument would be well taken if the prior convictions of defendant were judicially determined to have no relation to his credibility as a witness. However, defendant’s trial was prior to the Montgomery decision which notes that its application shall be prospective only. Defendant’s impeachment by presenting evidence of a prior conviction of a felony was proper at the time of his trial and no error was committed by presentation of the record of his prior convictions to the jury for impeachment purposes.

Defendant also contends that a fatal variance has occurred in that he was charged with murder in the indictment but the proof was that Kascell Jennings, not defendant, had done the shooting. But this contention is unavailing for under the evidence presented here the defendant was properly charged, tried and convicted as a principal. We quote from People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425:

“A ready answer to defendant’s contention is found in the report of the committee which drafted the 1961 Code, a source to which we may properly look in determining the legislative intent. (Moran v. Bowley, 347 Ill. 148; Ernhart v. Elgin, Joliet and Eastern Railway Co. 405 Ill. 577.) In that report, which was titled “Tentative Final Draft of the Proposed Illinois Revised Criminal Code of 1961,” it was commented at page 292 with reference to section 18-2: ‘The reference to confederates is eliminated as unnecessary. The principles of accountability stated in Section 5-2(c) of this Code are deemed to cover such accessoryship situations adequately.’ Section 5-2(c), referred to, supplanted section 2 of division II of the prior law, (Ill. Rev. Stat. 1959, chap. 38, par. 582,) and provides the following: ‘A person is legally accountable for the conduct of another when: * * *(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.’ (Ill. Rev. Stat. 1961, chap. 38, par. 5-2 (c).) Further, it is provided in section 5-1 of the new Code: ‘A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.’ ”

Defendant has also contended that reversible error was committed by reason of his arrest without a warrant contending that there was no probable cause for such an arrest, and has argued that Whiteley v. Warden (1971), 91 S.Ct. 1031 is applicable. Since there was no evidence seized at the time of defendant’s arrest for later use at the trial, any issue that may have arisen out of the warrantless arrest was rendered moot when the defendant was indicted by the grand jury.

Defendant finally contends that his counsel was incompetent to the extent that he was so inadequately represented that he had been deprived of the constitutional requirement of due process of law.

In People v. Georgev, 38 Ill.2d 165, 230 N.E.2d 851, a similar contention was made and the court set forth what is necessary to establish inadequacy of representation by counsel so as to require a new trial. The court stated:

“What is necessary to establish inadequacy of representation by counsel so as to require a new trial, where the attorney has been appointed by the court, has been described by this court in People v. Morris, 3 Ill.2d 437, at 449. ‘(B)ased both on precedent and reason, we believe that in order to sustain his position here the defendant must clearly establish: (1) actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.’ We said, too, in People v. Cox, 22 Ill.2d 534, at 537, 538: ‘The defendant next contends that appointed counsel was incompetent. This contention is based on decisions recognizing that the incompetence of counsel may be such as to deny a defendant the fair trial that is contemplated by provisions of the State and Federal constitutions. The question of whether a defendant was adequately represented by competent counsel must be answered solely from the circumstances of each particiular case (People v. Francis, 356 Ill. 74); and in order to sustain his position the defendant must clearly establish actual incompetency of counsel and substantial prejudice resulting therefrom, without which the outcome would probably have been different. People v. Morris, 3 Ill.2d 437.’ ”

Here, as in the case of most trials, the conduct of the trial may be viewed in retrospect and errors of both omission and commission detected and a more effective trial strategy evolved. Defendant charges his attorney with incompetence because of his alleged failure to prevent those errors in the trial which defendant has advanced in this appeal. But, as we have seen, most of the alleged errors were not errors and as to the remainder it cannot be said that there was any failure or shortcoming upon the part of the attorney, but rather that it was a matter of weighed and conscious choice to proceed as he did. We think the record shows a skillful defense of a case difficult to defend. Defendant was implicated and identified by several eyewitnesses. An alibi defense was advanced and thoroughly presented to the jury for their consideration. Cross-examination of the State’s witnesses by both defendants’ attorneys was vigorous. Counsel’s final argument fairly and adequately presented defendant’s case to the jury. When considered in the light of the task which faced him, defendant’s attorney’s representation must be termed effective. That he did not prevail is understandable but this cannot be the measure of his merit in defendant’s behalf. We think, therefore, that defendant’s charges of incompetency of his attorney are not well taken.

In sum, we feel the record discloses that although defendant did not receive a trial entirely free from errors he nevertheless received a fair trial and his conviction resulted from the strong evidence of guilt and not from passion or prejudice and the jury returned the only verdict that could reasonably be returned. Other arguments made by defendant have been considered and deemed without substance and no purpose would be served by discussing them in this opinion. Accordingly, the verdict of guilty will be affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Appellee, v. Ernest “Ned” Higgins, Appellant.
    (No. 70-187;
    Fifth District
    October 14, 1971.

      Paul Bradley, of Defender Project, of Mt. Vernon, (Kenneth L. Jones, of Defender Project, of counsel,) for appellant.
    Richard E. Richman, State’s Attorney, of Murphysboro, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant appeals his conviction after a jury trial of the crime of attempted robbery.

The complaining witness testified that he had worked as a carpenter at a tavern in Carbondale until sometime between 8:30 and 9:00 P.M. on the day of the alleged incident. Afterward he sat down and had a couple of drinks at a table where others were seated but none of their names were remembered. When he left the tavern he went out the back door to his truck but before he reached it someone grabbed him from behind and demanded money. His attacker then pinned him to the ground and turned his pockets out. At this point a merchant policeman, known to the witness, arrived and he called for help. He further testified that his attacker, identified as defendant, told the merchant policeman that they were arguing over a bottle of whiskey. The complaining witness was five feet six inches tall and weighed 135 pounds. The merchant policeman testified that he saw defendant and complaining witness behind tire tavern and heard the complaining witness yell for help. When he stopped his car and turned the lights on he saw defendant with a streamer of photographs in his hand but when he came around the parked truck his hands were empty. The pictures were later found on a trash pile. He further testified that when he first saw the complaining witness he was getting up from the ground. Three of his pockets were turned out and his face was bruised and bleeding. No bottles or broken glass were found but there was a lot of change on the ground. The defendant testified in his own behalf stating that the complaining witness came up to a table where defendant and some friends were sitting and bought a round of drinks and then offered to buy another but only put up half the price and he, the defendant, put up the other half. The complaining witness asked defendant if he could procure any clean cut young girls. When defendant said he could not the defendant put a jointly purchased bottle of liquor in his pocket and began to walk out of the tavern. The defendant followed. When they got out back the merchant policeman drove up. Defendant denied making bodily contact with complaining witness and did not know what happened to the bottle nor how complaining witness’ face got skinned. He denied any intention of robbery or ever making a demand for money. Defendant’s height was six feet three inches tall and his weight was 190 pounds. Defendant’s story was corroborated by two witnesses, a companion who was sitting at the table with him and the bartender.

On appeal defendant contends his oral motion for change of venue from Jackson County was improperly denied and that his guilt was not proven beyond a reasonable doubt.

The oral motion for change of venue from the county was founded on three factors:

(1) Defendant had recently been convicted in Jackson County of another offense;
(2) He had been repeatedly arrested for offenses he did not commit in Jackson County; and
(3) The time he had spent in jail denied him the opportunity to secure the attendance of his witnesses.

Ill. Rev. Stat., ch. 38, par. 114—6, provides as follows regarding change of venue:

“(a) A defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.
(b) The motion shall be in writing and supported by affidavit which shall state facts showing the nature of the prejudice alleged. The State may file counter affidavits. The court shall conduct a hearing and determine the merits of the motion.
(c) If the court determines that there exists in the county where the prosecution is pending such prejudice against the defendant that he cannot receive a fair trial it shall transfer the cause to any other court of competent jurisdiction in any county where a fair trial may be had.”

The grounds for defendant’s motion, however, were not those set forth in article 114—6, namely, that the inhabitants of the county where his trial was set were so prejudiced against him that he could not receive a fair trial. Rather, defendant based his motion on his recent conviction in Jackson County for another offense, his arrest for various other offenses in Jackson County which, according to him, he did not commit, and his allegation that the time he had spent in jail denied him the opportunity to secure the attendance of defense witnesses. Defendant’s motion for change of venue was not made until the day of his trial and immediately prior to the commencement thereof, notwithstanding the fact that the charge against him had been pending for approximately six months.

Defendant did not contend at the trial, nor does he now contend on appeal, that an inference of prejudice on the part of inhabitants of the county could reasonably be drawn from the assigned basis of his request for change of venue. Since defendant did not allege prejudice of the inhabitants of Jackson County as the basis of his motion for change of venue, there was no issue for the trial court to explore and it was not an abuse of discretion for the court to refuse to conduct a formal hearing. People v. Watts, 81 Ill.App.2d 283, 225 N.E.2d 147.

Change of venue, long recognized in our system of law, is a basic tool of the courts in insuring and protecting the right of an accused to a fair trial untainted by the passions of the community in which the crime occurred. A defendant may not, however, frivolously demand removal of his trial to another county at his whim, assigning as grounds any reasons which to him seem proper. The requirement is that prejudice of the local citizenry must be alleged and demonstrated. As stated in People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645:

“The rule is that an accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice aUeged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. (People v. Meyers, 381 Ill. 156, 44 N.E.2d 870; People v. Berry, 37 Ill.2d 329, 226 N.E.2d 591.)”

In this case defendant did not allege or endeavor to show that the citizens of Jackson County were prejudiced against him. It is also to be noted that there is nothing in the record to indicate that the voir dire examination of the jurors disclosed any prejudices against the defendant or any matters whatsoever that would tend to support the defendant’s allegations of local prejudice. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s oral motion for change of venue.

We are likewise persuaded that defendant’s contention that the evidence is insufficient to support his conviction of the crime charged beyond a reasonable doubt is not well taken. We need not detail the evidence adduced at the trial but will observe that it was the function of the jury to hear and observe the witnesses and consider the probability or improbability of their testimony. Their verdict of guilty indicates that they chose to believe the witnesses for the State rather than those on behalf of defendant. We believe the record furnishes ample support for their verdict, not only in the testimony of the witnesses, but in the physical circumstances they described as well.

For the foregoing reasons the judgment and sentence of the trial court will be affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: Mr. JUSTICE CREES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy Dale Lowery, Defendant-Appellant.
    (No. 70-167;
    Fifth District
    October 21, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appeHartt.
    Joe Harrison, State’s Attorney, of Fairfield, for the People.
   Mr. JUSTICE CREES

delivered the opinion of the court:

The defendant, Jimmy Dale Lowery, was tried by jury in the Circuit Court of Wayne County on an indictment charging him with the crime of aggravated battery. The jury found him guilty of battery and he was sentenced to six months at the State Farm and fined $500 and costs.

On appeal defendant does not challenge the sufficiency of the evidence and it is therefore unnecessary to summarize the testimony. His first claim is that the court erred in admitting in evidence the record of defendant’s prior conviction of an infamous crime. Defendant testified in his own behalf and this record was introduced in rebuttal for impeachment purposes. Prior to the decision of the Supreme Court in People v. Montgomery, 47 Ill.2d 510, it was the settled rule that proof of conviction of an infamous crime was always admissible for the purpose of affecting the credibñity of a witness. (People v. Buford, 396 Ill. 158.) In Montgomery, it was held that the trial court should exercise discretion in admitting such evidence and should be guided by certain standards. However, the ruling in Montgomery applies only to cases tried after the date of the decision. The present case was tried before the date of the Montgomery decision.

Defendant also argues that the prosecutor was guüty of unfair cross-examination and argument. It is not necessary to discuss this argument at length, for we find from an examination of the record that no objection was made to the conduct now complained of. The contention of defendant wifi therefore not be considered on appeal (People v. Hudson, 46 Ill.2d 177.) The conduct of the prosecutor was not of such a character as to require consideration under the exception to the general rule set forth in People v. Romero, 36 Ill.2d 315 and similar cases.

It is also urged that the court erred in admitting into evidence photographs of the victim, Defendant admitted striking the victim but claimed that he was protecting himself from a deviate sexual assault and that he acted in self-defense. In our opinion the photographs were properly admitted to show the degree of force used by the defendant.

Defendant’s final claims relate to the sentence. The court provided that the fine was payable after defendant’s release from confinement and that he would have a period of one year from that time to pay it. Dedendant claims that the extension of time prejudices him because he is subject to the continuing jurisdiction of the court for one year. We cannot agree. In our opinion the extended period for payment was a liberal and humane provision which took into account defendant’s limited financial resources. In imposing this sentence the court stated that if defendant could not pay the fine within that period, the court would be reasonable if it appeared that defendant was trying to pay. We find no error in this portion of the sentence.

The final contention is that the sentence was excessive. The victim suffered severe injuries, requiring hospitalization for more than three weeks and defendant had a prior felony and misdemeanor record. Defendant said that he did not want an extended probation because he and his wife liked to go out and enjoy themselves and he didn’t think probation would work out. We see no basis for reducing the sentence.

The judgment of the Circuit Court of Wayne County is affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Prince, Defendant,Appellant.
    (No. 70-143;
    Fifth District
    October 22, 1971.

      Paul Bradley, of Defender Project, of Mount Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of BeUeviUe, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In a jury trial in the circuit court of St. Clair County Ronald Prince was convicted of armed robbery and sentenced to the penitentiary for not less than 15 nor more than 45 years. On this appeal he contends that he was not proven guilty beyond a reasonable doubt; that the trial court erred in admitting certain testimony and in allowing unsworn testimony by the State’s Attorney. He also contends that his sentence was excessive and asks that it be reduced.

The crime occurred on December 30, 1068, about 2:15 P.M. in the Archway Tavern in East St. Louis. John Coates, manager of the tavern, testified that he was talking to Fred Halwachs, a liquor salesman, when three men and a girl entered the tavern. One of the men, whom he identified as defendant, asked him where the rest room was and when he returned he pulled a gun and announced that it was a stick-up. Each of the other men also had a gun and the girl carried a paper bag. He stated the defendant did all the talking, demanded and took $80 or $90 from him, and a wrist watch and brief case from Mr. Halwachs. The robbery took about ten minutes and when the robbers left he immediately called the police. On cross-examination Mr. Coates stated that he could not remember how defendant was dressed, and in answer to a question as to whether defendant was wearing a mustache he stated that he believed he was but he could not now be certain. He stated further that he identified defendant in a police line-up but that his in-court identification was based on his view of defendant at the time of the robbery and that he was positive of his identification.

Mr. Halwachs testified that his first knowledge of the robbery was when someone stuck a gun in his ribs, that he did not see the gunman face-on and could not identify the defendant, that he was ordered to put his wrist watch into a paper bag held by the girl and then the gunman went through his pockets and took his wallet in which he had over $400. His brief case and pen case were also taken, and these, together with his wallet, were identified by him and admitted into evidence at the trial. In addition, he described two identification cards from the Illinois Police Association and the St. Clair County Peace Officers which were in his wallet but which were not offered in evidence for reasons which will appear later herein.

A St. Louis police officer testified that he arrested the defendant and another man about 25 minutes after the robbery. He had no knowledge of the robbery but while parked at a stop light he saw a car pass through the intersection, checked his “hot sheet", decided it might be stolen, and pursued it. In an effort to elude him the car drove into an alley and three men jumped out and ran. The officer continued his pursuit and about four blocks away he recognized two of them walking and arrested them. At the trial the officer identified the defendant as the driver of the car and testified that the brief case and pen case, identified by Halwachs as belonging to him, were found on the seat of the car and the two identification cards with Halwachs’ name on them were removed from the person of the other man in the search made at the time of the arrest.

The defendant did not testify and offered no evidence in his own behalf. In fact he failed to appear on the last day of his trial and it was not until approximately five months later that he was reapprehended and sentenced.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt is based in part on a number of alleged discrepancies in the testimony of the witnesses. He points out that Halwachs could not identify defendant whereas Coates was positive in his identification. But this is understandable for the defendant talked directly to Coates and Halwachs was looking straight ahead with a gun in his ribs and did not see the robber. Defendant cites as incredible the fact that Coates could not remember how the robber was dressed or whether he wore a mustache, and as equally incredible the fact that tire arresting officer, with only a brief glance from his squad car, was able to observe the yellow beany type cap, black leather coat, and yellow shirt which defendant was wearing at the time of his arrest. We cannot agree that the testimony of either witness was incredible. It occurs to us, as it probably did to the jury, that the observations of the officer were made by one trained in the field of investigations, who, at the time, was performing an act of efficient police work, whereas Coates, a layman, was under the stress of facing three guns in the hands of three unpredictable men. Furthermore, there was no evidence as to how defendant was dressed at the actual time of the robbery, nor was there any evidence as to whether he wore a mustache either at the time of the robbery or at the time of his arrest. These points, and others raised by defendant but not specifically discussed herein, are directed solely to the weight of the evidence and the credibility of the witnesses and, as such, are within the province of the jury to determine and not this comt to review. A jury’s verdict should be set aside when the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Peto, 38 Ill.2d 45.) Such is not the case here. To the contrary, we find the verdict of the jury justified.

Next, defendant contends that some relevance should be attached to the fact that no one of the nine or ten customers sitting at the bar was called as a witness. This was brought out at the trial and a police witness testified that they had declined to testify because they did not want to get involved. In any event, it has been often held that the testimony of a single witness, if it is positive and the witness is credible, is sufficient to support a conviction. (People v. Tribbett, 41 Ill.2d 267.) Here we find the identification of a defendant was sufficient, for not only was there a positive identification by a credible witness but his testimony was corroborated by the discovery of some of the fruits of the robbery in the car driven by defendant and on the person of a passenger in the car shortly after the robbery.

Defendant contends further that it was error to aEow Halwachs to describe the two identification cards contained in his waEet and to aEow other witnesses to describe the cards which were taken from the companion of defendant at the time of his arrest. It is also argued that the comt improperly permitted the State’s Attorney to explain in an unsworn statement that the cards had been misplaced on the morning of the trial and were unavailable to be examined and offered in evidence. He contends that the admission of testimony that the victim’s name was on the cards is a violation of the best evidence mle, citing People v. Wells, 380 Ill. 347. This was a forgery case in which the comt refused to aEow the introduction of facsimfie reproductions of aEegedly forged checks without introducing prefiminary proof accounting for the originals and laying the foundation for secondary evidence. Such rule is inapplicable here. The obvious purpose of the best evidence rule is the prevention of fraud, requiring that the document in issue be produced in its original form, or, if proven to be unavailable, that its substitute be a true and correct reproduction. Under an indictment for robbery it is not necessary to prove the particular identity of the property taken, further than to show it was the property of the victim. (People v. Craig, 75 Ill.App.2d 29.) It has also been held in a narcotics case that the best evidence rule was obviously inapplicable where testimony was admitted as to the presence of empty capsules in the defendant’s apartment over the objection that “the best evidence of the capsules are the capsules.” (People v. Brengettsy, 25 Ill.2d 228.) Here the cards, one of the fruits of the robbery, were adequately described by the victim and identified as the same cards by the officer who eventually recovered them at the time of the arrest. Admittedly it was irregular to permit the State’s Attorney to explain the absence of the cards in an unsworn statement, but such fact could not reasonably have affected the resultant guilty verdict and, there being no evidence to indicate anything other than defendant’s guilt, we find such error harmless. See People v. Bridges, 28 Ill.2d 165 and People v. Berry, 18 Ill.2d 453.

Finally, defendant contends that his sentence was excessive, arguing that since the record shows no evidence presented in aggravation the sentence was too severe on its face. The State answers this argument by stating that there actually was a hearing in mitigation at which hearing defendant admitted his prior record making it unnecessary to present evidence in aggravation. We agree with defendant that this volunteered information does not appear in the record and is not before us. However, neither is there anything in the record showing any mitigating circumstances which would justify a reduction in sentence and the burden is on the defendant to present such facts. (People v. Nelson, 41 Ill.2d 364; People v. Russo, 119 Ill.App.2d 237.) The sentence imposed by the trial court was within the limits prescribed by the legislature for the crime charged (Ill. Rev. Stat. 1969, ch. 38, par. 19 — 1), and to reduce it without a showing of mitigating circumstances would be arbitrary and in contravention of the principle that our authority to do so should be exercised only with considerable caution and circumspection. (People v. Taylor, 33 Ill.2d 417.) Under the circumstances we decline to take such action.

We find that the defendant received a fair trial free from prejudicial error and the judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.

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