author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Sylvester Biocic, Defendant-Appellee.
    Gen. No. 50,988.
    First District, Second Division.
    February 23, 1967.
    Rehearing denied March 22, 1967.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Kenneth L. Gillis and James

      B. Zagel, Assistant State’s Attorneys, of counsel), for appellant.
    George J. Cotsirilos, of Chicago, and Stanley Fleish-man, of Hollywood, California, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was indicted for the crime of obscenity under two indictments charging him with the sale of two nudist magazines. The trial judge found that the magazines were not obscene as a matter of law and that they were entitled to the protection afforded by the First Amendment of the United States Constitution. Both indictments were dismissed on motion of defendant. The People appealed under Supreme Court Rule 17(4) then in effect.

One indictment charged that defendant “committed the offense of obscenity, in that he, with knowledge of the nature or content thereof, sold an obscene book, to wit: utopia (sic) Issue Number 2, to Stratford Peterson, in violation of chapter 38, section 11-20, of the Illinois Revised Statutes 1963, . . .” Another indictment was identically worded, except that it described the magazine sold as “Nudist Colorama Number 3.”

Nudist Colorama is an 80-page magazine containing 117 color photographs of nude persons of both sexes, young and old. The magazine is described as a “cultural and sociological publication, produced and distributed to illuminate the conviction that the unclothed human body is worthy of respect and increased acceptance in our culture.” Utopia is a 64-page magazine containing 56 photographs of male and female nudes, young and old. Fifteen of the photographs are in color and the balance are black-and-white prints. The stated purpose of the magazine is similar to that of Nudist Colorama.

Both magazines contain photographs of nude men, women and children engaged in nudist living. Some photographs show the genitalia of the nudes completely-exposed. In some instances the photographs depict the nudes posed in such a manner as to accentuate the private parts of the body. Other photographs show groups of, persons, some of whom are completely nude and others partially or fully clothed in street attire. Throughout the magazines are numerous articles and commentaries relating to the various activities engaged in by nudes and relating to the glorification, principles and philosophy of nudist living. The Utopia magazine contains nine articles dealing with various aspects of and benefits allegedly derived from nudist living. On the inside cover of the magazine is a short editorial describing nudism and its relationship to “ultimate humanness and human happiness.” Nudist Colorama contains eight articles on nudist or naturist living which discuss its alleged advantages. Interspersed throughout the publication are reproductions of classical art protraying nudes. An article in one of the magazines expounds the theory that nudism should be practiced on a family basis rather than on an individual level.

The trial court found that the magazines were sold by defendant to Chicago Police Officer Stratford Peterson at defendant’s place of business, an off-the-street arcade in the 400 block of South State Street in Chicago. It was further found that the magazines were displayed among other “nudist and girlie-type magazines,” that the defendant’s shop contained numerous bookracks from which books of a “nudist and girlie-type” nature were sold, and that defendant exhibited movies of nude women in the arcade. The trial court took judicial notice of the fact that defendant’s arcade is located in an area containing department stores of nationwide reputation and places of entertainment ranging from cheap restaurants to burlesque theaters frequented by service men on leave and adults of all ages for entertainment and recreation.

The People first maintain that the trial judge erred as a matter of fact in determining that the publications involved herein were not obscene. We disagree.

Obscenity is not entitled to the protection afforded by the First Amendment to the United States Constitution. Roth v. United States, 354 US 476. Whether a given publication is obscene or whether it is entitled to the protection of the First Amendment is a question of law which must, in the first instance, be determined by a court. It is only when such determination has been made in the affirmative that the trier of fact may be called upon to decide whether the publication is in fact obscene. Parmelee v. United States, 113 F2d 729, 731. The test upon which such determination must be based is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Roth v. United States, 354 US 476, 489. A publication is obscene if, considered as a whole, its predominant appeal is to a shameful or morbid interest in nudity, sex or excretion and if it goes beyond the customary limits of candor in description or representation of such matters. Jacobellis v. Ohio, 378 US 184,191.

The section of the Criminal Code of 1961, under which the two indictments were brought defines “obscenity” in the same language as the test for obscenity declared in the Roth case; it is therefore clear that the test of obscenity under the Criminal Code is the same as that declared in the Roth case. See People v. Sikora, 32 Ill 2d 260, 204 NE2d 768; Roth v. United States, 345 US 476; Ill Rev Stats 1965, c 38, par 11-20.

No attempt is made in the magazines to portray sex in a morbid or shameful manner. The nudity is frank and revealing. The material, including the photographs, cannot be said to be “dirty” or “lewd,” nor can it be said to appeal to the prurient interest. Nudity without lewdness is not obscene. See Parmelee v. United States, 113 F2d 729; Matter of Excelsior Pictures Corp. v. Regents of the University of New York, 3 NY2d 237, 165 NYS2d 42.

As stated by the trial judge, the photographs in the magazines range “from the beautiful to the vulgar by any esthetic standard.” Some of the photographs portray nudes, of both sexes and of all ages, in deliberately posed positions, much as a fully clothed person would pose for an ordinary photograph. Other photographs depict nudes engaged in normal activity and entertainment, such as swimming, volley ball, tennis, boating, lounging, in which any clothed person would normally engage. Some photographs are of family units, some of individuals, and some of large and small groups. A number of photographs depict persons entirely nude and others show persons both nude and partially or fully clothed in street attire. No attempt is made to be suggestive or seductive. Considered as a whole, each magazine is dedicated to depicting and expounding through photographs and articles the virtues of nudist living and to advancing the theory that nudism has a place in our culture. It cannot be said that the magazines are totally without any socially redeeming characteristics. Roth v. United States, 354 US 476; Chicago v. Universal Publishing & Distributing Corp., 34 IU2d 250, 215 NE2d 251.

The People next contend that the trial judge committed error by taking judicial notice of the nature of the South State Street area where defendant’s arcade is located, for the reason that it was an opinion based upon the judge’s personal knowledge. The trial court had a right to take judicial notice of the nature of the area. A court may take judicial notice of whatever may be known by common observation; courts are presumed to be as well informed as the public generally and may take judicial notice of that which everyone knows to be true. Chicago & Alton R. Co. v. Joliet, L. & A. R. Co., 105 Ill 388; Owens v. Green, 400 Ill 380, 81 NE2d 149. The case of People v. Wallenberg, 24 M2d 350, 181 NE2d 143, cited by the People in support of this position is not controlling. The court in People v. Jeffries, 26 Ill2d 248, 186 NE2d 242, distinguished the Wallenberg case on the ground that the personal knowledge of the judge was used to contradict important testimony offered by the defense. This is not true in the case at bar.

The People further maintain that the trial judge failed to consider the purpose of the defendant in selling the magazines in question as evidenced by the fact that they were sold in a place where “girlie-type” magazines were sold and nudist movies shown. While the Statute does provide a list of evidence which may be considered in determining obscenity, the list serves only as a guide to the types of evidence which may be considered. SHA, 1964 ed, chap 38, par 11-20, pp 689-690. However, the record clearly shows that the trial judge did consider this evidence because he found “obscenity is not a literary contagion which one book can get from another. If a book or publication is within the protection of the First Amendment of the Constitution of the United States it attains that attribute at the time of publication.”

It does not appear that the trial judge failed to consider the appeal of the publication to the “ordinary adult,” as the People maintain. In his conclusions of law, the trial judge stated the test of obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole, appeals to prurient interest.” It appears that the trial court did consider the publications in the eyes of the “ordinary adult.”

The People finally maintain that under the recent authority of Ginzburg v. United States, 383 US 463, defendant’s purpose in selling the magazines as evidenced by the environment in which they were sold and the area in which the defendant’s arcade was located renders defendant guilty of the crime of obscenity. The indictments did not charge defendant with committing obscenity by having held the magazines out to be obscene, but charged that he sold obscene material. The People’s theory was based upon the publications being obscene per se and not upon their being obscene through the form and method of sale engaged in by defendant.

For these reasons the order dismissing the indictments is affirmed.

Order affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. James Concil, Plaintiff in Error. People of the State of Illinois, Defendant in Error, v. Thomas Herod, Plaintiff in Error.
    Gen. Nos. 51,435 and 51,437.
    First District, First Division.
    February 27, 1967.

      Walter D. Jacobs, of Chicago, for plaintiff in error, James Concil.
    Angelo Ruggiero, of Chicago, for plaintiff in error, Thomas Herod.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Candler, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendants, James Concil and Thomas Herod, were jointly indicted on the charge of attempted robbery. They waived a jury trial and on a finding of guilty by the trial judge, James Concil was sentenced to a term of one to five years and Thomas Herod to a term of two to eight years. The defendants filed separate appeals which we have consolidated for opinion because these causes turn upon the same questions of fact and involve common questions of law.

The defendants contend (a) that the evidence relating to material facts in issue were conflicting, unreconcilable and did not establish the guilt of the defendants beyond a reasonable doubt; and (b) that the cumulative effect of the trial court’s examination of witnesses and its comments during the trial were prejudicial and deprived the defendants of a fair and impartial trial.

The evidence reveals that on June 27, 1962, at about 11:30 p. m., a Chicago Police task force consisting of officers Gomez, Dan Antzoulatos, James Dolan, John Neary and William Struke, were investigating robberies in the vicinity of Morgan and Monroe Streets. All of them were dressed in ordinary street clothes and were in direct communication with each other by walkie-talkie radios.

Officer Antzoulatos who was acting as a decoy, dressed in a pair of slacks, sport shirt and sport jacket, testified he walked alone on Madison Street while two officers were in an unmarked automobile, another across the street, and one was behind him. He said as he turned south on Peoria Street, near Monroe, the two defendants passed him and kept looking back at him. He turned west at Monroe Street and as he crossed Morgan Street he observed Concil on his left and Herod behind him. He heard Concil say “[h]it him in the back of the head and I’ll get his money,” and Herod struck him on the back of his head with his fist. He said he immediately announced he was a police officer and that they were under arrest. He apprehended Herod, and Con-cil was pursued and apprehended by Officer Struke.

Officer Struke testified he was in a vacant lot about thirty feet from Antzoulatos when he saw one of the men strike him from the rear and that while Antzoulatos held Herod he and the other officers apprehended Con-cil. Officer Gomez did not testify, and Officers Dolan and Neary testified that they were in an automobile across the street when they saw Herod strike Antzoula-tos and they assisted in the apprehension of Concil. None of the officers were able to hear anything said by the defendants to Antzoulatos.

The defendant, James Concil, testified that he and Herod saw Antzoulatos staggering, as if drunk, and when they attempted to pass by he said Antzoulatos turned around, grabbed Herod and swung at him. “At the same time this happened men begun to come out of doorways, gangways, and I was frightened, I ran.” He said he didn’t know they were police officers so he ran in the street where there was more light “where I was subdued and beaten by these officers.” He denied having said “[h]it him on the head, we’ll take his money,” and denied he intended robbing the officer. He testified further that Herod didn’t hit the officer before the officer struck him. The defendant Herod testified that they were walking single file past Antzoulatos when the latter grabbed him by the collar and swung at him. He denied that either he or Concil struck the officer or said anything to him at the time. Officer Neary who was recalled as a State’s witness testified, in rebuttal, that when they apprehended Concil there was a struggle when Concil swung at him. He said he did not run in the middle of the street, but instead he ran in and out between cars before they caught him.

The respective counsel for the defendants separately contend that the testimony of all the officers was incredible. “The inference in the testimony of all of these officers is that there was communication between all of them and yet only Officer Antzoulatos testified to the magic words, ‘Hit him in the back of the head and I’ll get his money.’ ” Also that the only person who identified the defendants as having seen them, prior to the incident, was Antzoulatos who identified them by their clothing. The defendants argue that although the street was dark the other officers at a distance of thirty feet were able to testify emphatically and relate precisely what occurred and when you take the cumulative effect of all the testimony, the testimony of the police officers at once becomes improbable.

The defendants rely heavily on People v. Coulson, 13 IU2d 290, 149 NE2d 96. There, the victim of the alleged robbery was serving a jail sentence for striking a man on the head with a pistol at the time of the trial. The court there found many discrepancies, improbabilities and inconsistencies in both his supporting witness and his own testimony and when coupled with his reluctance to testify as to his activities during the evening and the amount of liquor which he consumed prior to the robbery, the court found that the evidence was completely unsatisfactory to establish the guilt of the defendants beyond a reasonable doubt.

In the instant case it is undisputed that the defendants were apprehended at or near the scene of the occurrence and were immediately charged with attempted robbery. We have examined the record, and while there were discrepancies in the testimony of one of the police officers from that given at a preliminary hearing, we find them to be very minor and of no consequence. People v. Thomas, 20 Ill2d 603,170 NE2d 543.

It is true that Officer Antzoulatos, who was on a special and dangerous assignment, was the only person who testified that Concil told Herod to hit him and he would take his money. However, the testimony of one person alone, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 195 NE2d 694. In addition, his testimony is corroborated by the other police officers who saw Herod, without any provocation, strike him with his fist from the rear. Concil who had run while Antzoulatos held Herod was apprehended by the other officers. This occurred about midnight on a dark street. We are satisfied that the evidence established the attempt to rob, by the defendants, beyond a reasonable doubt.

It is further contended that the trial court’s attitude and conduct and its examination of witnesses and its comments during the course of the trial deprived the defendants of a fair and impartial trial. We disagree. It is true the court questioned witnesses. From our examination it clearly appears that the trial judge tried to clarify the evidence to establish preliminary matters in his own mind and did not assume the role of an advocate in derogation of the rights of the defendants as charged. See People v. Hopkins, 29 Ill2d 260, 194 NE2d 213; People v. Palmer, 27 Ill2d 311, 189 NE2d 265. It is also claimed that the remarks of the trial judge showed he did not understand the charge of attempted robbery. This argument stems from remarks of the court after the close of the evidence. We find no merit to this contention.

For the reasons stated, the judgment of the Criminal Division of the Circuit Court is 'affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Defendant in Error, v. Chester Armstrong, Plaintiff in Error.
    Gen. No. 50,939.
    First District, Third Division.
    February 2, 1967.

      Theodore Richter, of Chicago, for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

After a trial without a jury, defendant was convicted of aggravated incest and sentenced to the penitentiary for a term of three to ten years. He contends that he was not proved guilty beyond a reasonable doubt, that various rulings by the court as to the admissibility of evidence were erroneous, and that he was unduly restricted in the cross-examination of certain witnesses. The facts follow.

Defendant was indicted for having intercourse with his 12-year-old daughter Emily on February 7, 1963. The matter was brought to the attention of the police on Tuesday, February 20, 1963, by Rosie Lee Armstrong, the wife of the defendant and mother of the complaining witness, and the police questioned Emily about the incident on the same day. Rosie Lee testified that following the police questioning, Emily revealed to her that defendant kept a supply of prophylactics in an unused kitchen cabinet over the grocery pantry; that she (Rosie Lee) had not discovered the presence of these prophylactics and that she took them to the State’s Attorney’s office the following day and showed them to Police Officer James Jack. She stated that she had asked the defendant to use a contraceptive when engaging in sexual relations with her, but that he had always refused.

On cross-examination, she said that while her husband was in jail, she received ADC payments. Counsel for defendant then asserted that as long as defendant remained in jail, such payments would continue. The State’s Attorney objected to that question as argumentative and the objection was sustained.

Emily testified that she had sexual intercourse with her father on February 7, 1963. Over objection of defense counsel, she stated that she had been forced to submit to him for a period of more than 3 years; that in this time she had intercourse with him on an average of twice a week; and that she never told her mother about it because defendant had threatened to kill her. She testified that defendant first molested her sexually in December, 1959, when “he stuck a spoon into my privates,” that she bled; that the defendant took her to the hospital and forced her to tell the police detectives, hospital authorities and her mother that she had been attacked by school boys; and that after she returned home from the hospital, defendant began to have sexual relations with her on a regular basis. During the course of her testimony, Emily described the first act of intercourse with her father and his use of a prophylactic as follows:

“Q. And what, if anything, happened between yourself and your father in December, 1959, at your . . .
“A. He asked me to come into his bedroom. He said he wanted me to do him a favor.
“Q. Mr. Malek: So what did you do?
“A. He told me to pull my skirt and slip off and lay down on the bed, and he unzipped his pants and pulled out his penis.
“Q. And what, if anything, did your father do with his penis ?
“A. He put on something white, and then he laid down on the bed and stuck his penis into my privates.
“Q. Now, this something white, would you describe it, please, if you can ?
“A. It came in a small gold package, and it had Silvertex on the cover of the box, and when he took one out and it was white, it seemed like paper — felt—seemed like it was rubber.”

Emily also testified that she and the defendant assumed various positions while engaged in intercourse, and she described them in detail.

Emily was asked whether anyone had seen defendant engage in sexual relations with her, and she testified over the objection of defense counsel that during one act of intercourse she had seen her sister Shirley “peeping through the crack of a door.” On cross-examination Emily stated that both Shirley and another sister, Jacqueline, had told her that they witnessed acts of intercourse involving Emily and the defendant. Defense counsel moved that this testimony be stricken, and the court ruled that the testimony as to Jacqueline was inadmissible, but as to Shirley, it might stand.

Dr. Janina Yoksha testified on behalf of the State that she had examined Emily on February 21, 1968, and that she found the girl’s hymen to be “distendable and irregular,” and that she interpreted this as meaning that the girl had experienced “several intercourse relations.”

Officer James Jack of the Chicago Police Department Homicide and Sex Detail testified that he was assigned to the case on February 20, 1963; that he went to the Armstrong home the following day to investigate the matter; that Rosie Lee showed him the package of prophylactics, and that he subsequently placed the defendant under arrest.

Defendant testified on his own behalf, denying that he had ever engaged in sexual relations with his daughter or that he had molested or threatened her. He admitted purchasing the prophylactics, but corroborated his wife’s testimony that he had never used a contraceptive with her. He stated that his wife had had him arrested previously, “just like she did this time.” Upon cross-examination it was ascertained that defendant had discharged a gun in the home and shot his daughter Shirley in the foot. He claimed that the shooting was accidental, but admitted that Emily was aware he possessed a firearm.

Regarding the incident alleged to have occurred in December, 1959, defendant maintained that his daughter had come home from school bleeding and had told him that she had been raped by two boys on her way home from school.

Defendant contends that he was not proved guilty beyond a reasonable doubt, arguing that where a conviction for sexual misconduct is based solely on the testimony of the complaining witness, who is a child, and the defendant denies the charge, the testimony of that witness must be clear and convincing or must be corroborated by other substantial evidence. The cases relied upon by defendant support the proposition he has advanced. People v. Kolden, 25 Ill2d 327, 185 NE2d 170; People v. Parker, 15 Ill2d 508, 155 NE2d 588; People v. Martin, 380 Ill 328, 44 NE2d 49. These decisions, however, are distinguishable from the instant case. In People v. Kolden, supra, a conviction for indecent liberties with a child was reversed where the prosecuting witness, a 9-year-old girl, testified on cross-examination that she did not know what “privates” meant; did not know where the defendant put his finger; and that she had merely repeated on the witness stand what had been told to her. In People v. Parker, supra, a case also involving a conviction for indecent liberties, the court reversed the judgment because the facts related by the prosecutrix were not borne out by the medical evidence and “could not be an accurate recital of the story.” In People v. Martin, supra, the prosecuting witness, who was 6 years old, was the only witness to testify to the alleged offense, and the conviction was reversed on the basis of insubstantial identification of the defendant, whom the girl did not recognize until coached by her mother.

In the instant case, the trial judge was impressed by the testimony of the prosecuting witness and based his finding on her narration. This testimony appears to us to be lucid and credible insofar as her description of the sexual relations with her father are concerned. We conclude that the evidence overwhelmingly supports the trial court’s finding, and it is therefore not necessary to examine the evidence offered in corroboration by the State. We note, however, that the testimony of both Rosie Lee and the defendant with respect to the prophylactics and that of Dr. Yoksha as to Emily’s physical condition constitute substantial independent corroboration, as defined in People v. Pazell, 399 Ill 462, 78 NE2d 212.

Defendant’s second contention is that it was error for the court to allow the complaining witness to testify to prior sexual relations between herself and defendant. It is the law in Illinois that in cases involving sexual relations, evidence of prior offenses between the defendant and the complaining witness is admissible for the purpose of showing the relation of the parties and to corroborate the testimony of the complaining witness concerning the particular act. People v. Crane, 168 Ill 395, 48 NE 54; People v. Gray, 251 Ill 431, 96 NE 268; People v. Kraus, 395 Ill 233, 69 NE2d 885. This principle was declared applicable specifically to cases involving incest. People v. Turner, 260 Ill 84, 102 NE 1036.

In People v. Turner, supra, objection to such evidence was also made on the ground that the former conduct occurred beyond the statutory period in which the defendant could have been tried for such offense. The court observed that the purpose of this testimony was not to secure a conviction for former acts, but to show their relationship to the offense for which the defendant was tried. The court in the instant case did not err in permitting Emily to testify to the acts of incest and other sexual misconduct occurring over the three and one-half year period prior to defendant’s arrest.

Defendant argues that the testimony of the complaining witness concerning her sisters Shirley and Jacqueline was inadmissible and that the court relied on that evidence in making its determination. This contention is without merit. Emily testified that during one act of intercourse with defendant, she observed Shirley watching them through a hole in the door. Insofar as she was testifying as to what she saw, this testimony was admissible. With respect to Jacqueline, Emily testified to a conversation Jacqueline had with her, and the court properly ruled that this testimony was inadmissible and ordered it stricken from the record. The remarks made by the judge at the time he pronounced judgment are incorporated in the record and indicate that he based his finding on the testimony dealing with the sexual relations between defendant and Emily, and not on that portion of the testimony held to be inadmissible. It is well settled that where a judge sits without a jury, he is presumed to consider only competent evidence, and error cannot be predicated on the improper admission of evidence, absent a showing that this evidence influenced the decision. People v. Robinson, 30 Ill2d 437, 197 NE2d 45; People v. Alexander, 21 Ill2d 347, 172 NE2d 785. In the present case it is clear that the trial judge was not influenced by improper evidence.

Defendant alleges that it was error to sustain an objection by the prosecutor to a question asked Rosie Lee, the intent of which was to show bias on her part by demonstrating that she had had defendant arrested before. This evidence was admissible, and it was error to sustain the State’s Attorney’s objection to its introduction. The matter was fully examined, however, on the direct and cross-examination of the defendant, and he was not prejudiced by the exclusion of evidence which was in fact admitted at another point in the trial. People v. Speice, 28 Ill2d 40, 177 NE2d 233; People v. Moretti, 6 Ill2d 494, 129 NE2d 709.

Defendant asserts a similar claim with respect to the limitation of certain questioning also intended to prove that his wife was biased. The testimony here in question dealt with defendant’s relationship with another woman and was objected to by defendant. He now contends that Rosie Lee should have been permitted to complete her testimony. The defendant cannot take advantage of an error induced by his own motion. People v. Musinski, 22 Ill2d 518, 177 NE2d 142; People v. Clements, 316 Ill 282, 147 NE 99. We need not therefore consider whether this line of questioning was proper.

Defendant argues that the court improperly limited his cross-examination of Rosie Lee with respect to payments she received for the support of her family while defendant was in jail and thus had an interest in keeping him there. As we have hereinbefore pointed out, defense counsel had established that Rosie Lee was receiving ADC payments, and the court merely sustained objection to the argumentative form of the statement by defense counsel, which did not seek to elicit any new information. Counsel did not attempt to rephrase the question, but abandoned the line of questioning. The latitude permitted on cross-examination to show bias is within the discretion of the trial court. People v. Moretti, supra; People v. Derrico, 409 Ill 453, 100 NE2d 607. The trial court did not err in his ruling.

Defendant has had a fair trial, his guilt was established beyond a reasonable doubt, and the judgment must be affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       Ill Rev Stats, ch 38, § 11-10 (1963).
      “Aggravated Incest.] (a) Any male person who shall perform any of the following acts with a person he knows is his daughter commits aggravated incest:
      “(1) Has sexual intercourse; or
      “(2) An act of deviate sexual conduct.”


author: PRESIDING JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Defendant in Error, v. Ronald L. Williams, Plaintiff in Error.
    Gen. No. 51,274.
    First District, Third Division.
    February 2, 1967.
    Norman J. Smyth, of Tinley Park, for plaintiff in error; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry Thomas, Defendant-Appellant.
    Gen. No. 51, 457.
    First District, Fourth Division.
    February 3, 1967.

      Sherwin M. Winer, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney in Charge of Appeals, Criminal Division and Theodore M. Swain, Assistant State’s Attorney, of counsel) for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Charge: Voluntary manslaughter.

Defense at Trial; Justifiable use of force in defense of person.

Judgment: After a finding of guilty in a trial before a jury the court imposed a sentence of eight to twenty years in the Illinois State Penitentiary.

Point Raised on Appeal: The charge was not proved beyond a reasonable doubt inasmuch as the State did not prove beyond a reasonable doubt that the defendant was not acting in self-defense.

Evidence: The deceased and the defendant were employed at a restaurant.

Testimony of State Witnesses: Henry Ray Jones, an employee in the same restaurant, testified that on July 28, 1963, they were all at work, and that Lorinza Spight, deceased, had sold Larry Thomas, defendant, a watch for $10; that after examining the watch Thomas decided he didn’t want it and asked for his money back; that Spight said he was not going to return the money, and a tussle then resulted in the back kitchen, but no one was hurt. The witness stated that he later entered the front kitchen and heard a bumping noise; that when he went around the wall he saw the two men tussling, and when he tried to stop them the defendant “pulled a knife and started cutting.”

Stella Thacker testified that while she was in the pantry she heard a noise of bumping against the wall; that she did not go out at that time to look, but that subsequently she saw the defendant cutting Spight on the neck; and that she did not know whether or not Spight had anything in his hand.

Edward Cermak, another employee of the restaurant, testified that he heard a crash; that when he went into the kitchen to see what had happened he saw the two men, Spight and the defendant, tussling; and that the defendant had a knife in his hand, which the witness thought was a razor. He further stated that there was only one meat cleaver which was kept in the back kitchen in the chef’s drawer, where it was found when the police arrived about 45 minutes later. On cross-examination Cermak was questioned as to whether someone could have taken the cleaver out and put it back in the drawer; he answered that it would have been impossible because when the drawer was opened the cleaver was down under the other knives, and that the cleaver was actually used only about once in two weeks.

Charles Dacox, another employee of the restaurant, testified that Spight and the defendant were in the front kitchen behind a partition; that “the deceased was backing out from behind the partition, with the defendant following him, slashing”; that the defendant had a weapon in his hand, but the witness could not tell if it was a razor or what; and that there was nothing in Spight’s hands. The witness’ testimony continued: “after they came out from behind the partition, the deceased grabbed a tray or rack in which we kept glasses in, to protect himself. At this point I don’t know if the glass rack fell out of his hands or if it was knocked out of his hands.” He stated that the defendant had a weapon in his hands and was slashing at Spight, “but at this time I observed a gash, and blood streaming down his shirt”; that the gash was on the back of his neck. The witness further testified that Spight had a gash on the face line somewhere around the nose, over the cheek line; that there was blood streaming down his face, and that his clothing was covered with blood. He added that when Spight started to slump down the defendant used profane language and said “I will kill you,” then stabbed Spight “somewhere along the chest line, or the belly line.” The witness testified that he called a policeman, reported the incident and that he and the police officer pursued the defendant; that the officer arrested the defendant, at which time he recovered a knife from the defendant’s possession.

Testimony of Defendant: Larry Thomas testified concerning the dispute over the watch and stated that he had paid the deceased $10 for it, found the crystal was broken, and demanded his money back, at which time the deceased told him he would not refund his money; that the deceased then grabbed him and slammed him against the wall; that following the incident he, the defendant, went about his work. He stated that when he was leaving the restaurant at 8 o’clock he met the deceased going into the front; that the deceased knocked him down, kicked him, got a meat cleaver, and when the defendant tried to get away, threw the meat cleaver at him. He stated that the deceased then grabbed a big rack which was used for holding glasses, swung the rack and hit the defendant with it; that the defendant then took out his knife because he was scared, and swung a couple of times at the deceased.

Opinion: The defendant relies on People v. Smith, 404 Ill 350, 88 NE2d 834, where the court held that a conviction must be reversed if there is insufficient credible evidence to create an abiding conviction that the defendant is guilty beyond a reasonable doubt, and that if the defendant is not the first assailant in a place where he has a lawful right to be and is put in apparent danger of his life or of suffering great bodily harm, he need not attempt to escape but may lawfully stand his ground and meet force with .force even to the taking of his assailant’s life. There is no question that the court in that case properly laid down the law. However, it is not applicable in the instant case where the facts do not fall within the scope of the rule stated in the cited case.

The evidence in the instant case is contradictory. The defendant claims that the deceased attacked him with a meat cleaver. In answer to that the State puts on evidence that there was only one meat cleaver in the restaurant; that it was kept in a drawer under a number of other knives because it was seldom used, and that shortly after the death of the deceased and the arrival of the police, the cleaver was found in the same drawer under several other knives.

The defendant testified that the deceased attacked him first with a glass rack, swinging with it and hitting the defendant; that the defendant then took out his knife. On the other hand, the State’s witness, Dacox, testified that he saw the deceased backing out from behind the partition with the defendant following him, slashing at him, and that after they came out the deceased grabbed the glass rack to protect himself. He further stated that at that time the defendant was slashing at Spight with a knife and had gashed Spight on the back of his neck and on his face, and that blood was streaming down his shirt. He stated that Spight started to slump down and the defendant said, “I will kill you,” and stabbed Spight somewhere on the chest or the belly line.

No point is raised with reference to any improper ruling or any matter except the question as to whether or not the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. It is a well understood rule of law that where in a criminal case there is direct conflict of testimony, the trier of the fact is the sole judge of credibility. People v. Thornton, 26 Ill2d 218, 222, 186 NE2d 239. In the instant case the jury, properly instructed, heard the evidence and found the defendant guilty. The court, an experienced trial judge, also heard the evidence and denied defendant’s motion for a new trial. It is the law that the State must prove the defendant guilty beyond a reasonable doubt. From the record before us it is obvious that there was sufficient evidence to support the conviction of the defendant.

Decision : The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Ill Rev Stats 1963, c 38, § 9-2 (b): A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

       Ill Rev Stats 1963, c 38, §7-1: A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

       The question of the availability of the cleaver is important when we consider the defendant’s testimony that the deceased threw a meat cleaver at him.

       Most of the evidence of Dacox was taken from the record. It does not appear in the abstract. An elementary principle in appellate practice is that the appellant shall prepare a fair abstract. An abstract which omits important evidence against the appellant-defendant is not a fair abstract.


text:
    Harold Ableman, et al., Plaintiffs-Appellees, v. Daniel A. Slader, Defendant-Appellant, and Chicago Title and Trust Company, etc., et al., Defendants.
    Gen No. 51,627.
    First District, Second Division.
    February 7, 1967.

      Hoffman & Davis, of Chicago, for appellant.
    Stone, Bolotin & Pogrund, of Chicago (Bertram A. Stone, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a temporary injunction order restraining the Chicago Title and Trust Company from releasing funds or documents on deposit with it as es-crowee.

On February 28, 1966, plaintiffs entered a written contract with defendant Daniel A. Slader, whereby the latter agreed to purchase from plaintiffs certain improved real estate in Chicago. The printed form real estate contract contained a portion inserted by the parties which provided that Slader was to take title subject to “(Violations, if any, of the Building, Fire and Housing Codes of the City of Chicago.” On March 7th the parties entered into an escrow agreement with the Chicago Title and Trust Company whereby the Title Company was directed to receive deposits of documents and funds from the parties and to distribute these to the entitled parties at the consummation of the transaction. The escrow agreement further directed that, in the event it was unable to issue its owner’s title guarantee policy within 30 days from the date of recording of the deed, the Title Company would continue to comply with the escrow instructions unless a demand was made upon it by any party to the agreement for a return of the respective deposits.

On March 30th the City of Chicago filed a lawsuit against plaintiffs to abate a nuisance arising out of building, fire and housing code violations on the building in question. No lis pendens notice was filed with the Cook County Recorder of Deeds. The Title Company set up the lawsuit as an objection on its preliminary report of title, dated April 25th, and thereafter refused to waive the objection. The Title Company also recorded the deed to the property from plaintiffs to Slader on the same day. Although requested to do so by plaintiffs, Slader refused to order the Title Company to issue its policy on the ground that plaintiffs were not in a position to give him such title to the premises as was contemplated by the real estate contract because of the existence of the City’s lawsuit. On June 13th Slader requested the Title Company to return his deposits and also tendered a deed of reconveyance for recording.

Plaintiffs filed their verified complaint on June 27, 1966, alleging most of the foregoing facts and further alleging that plaintiffs offered in writing to indemnify defendant for costs, attorney’s fees and expenses arising out of the City’s lawsuit; that defendant’s refusal to authorize the Title Company to complete the sale was unjustified in view of his agreement in the real estate contract to accept title subject to the building, fire and housing code violations; that the mortgagee was threatening to withdraw his mortgage and note from the escrow and to proceed with a foreclosure action against the premises which he had theretofore agreed to discontinue due to the proposed sale; and that the Chicago Title and Trust Company was threatening to return all deposits to their respective depositors.

The complaint requested, inter alia, that the court declare the City’s lawsuit not to constitute an objection to title under the terms of the real estate contract, and that the Chicago Title and Trust Company be restrained from delivering any of the deposits in the escrow to any person or persons. Attached as exhibits to the complaint were the real estate contract and the escrow agreement. No affidavit of facts was filed in support of the complaint.

On July 11, 1966, the Chicago Title and Trust Company filed its verified answer admitting that the City’s lawsuit appeared as an objection on its preliminary report of title and that a demand was made by Slader upon it for a return of his deposits.

Slader also filed his verified answer on July 11th, wherein he maintained that “plaintiffs may not require this defendant to accept title to the premises described in the complaint, in performance of the agreement of sale, where the evidence of title (through the preliminary report on title of Chicago Title and Trust Company) shows title subject to the said suit brought by the City of Chicago. . . .” Slader further alleged that plaintiffs failed to comply with the provisions of the real estate contract and the escrow agreement, and that they have no cause for injunctive relief against him. Attached as exhibits to the complaint were copies of his demand upon the Chicago Title and Trust Company for a return of his deposits and of the relief requested in the City’s lawsuit for the code violations. No affidavit of facts was filed in support of the answer.

After noting that “no proofs are offered” and that “defendant Daniel A. Slader opposes the allowance of such injunction,” the Chancellor allowed plaintiffs’ motion for a temporary injunction and ordered that the Chicago Title and Trust Company be restrained from releasing any deposits from the escrow account, subject to plaintiffs filing bond. It is from this order that defendant Slader appeals.

In deciding whether the Chancellor properly issued the temporary injunction it must first be determined whether, on the posture of this record, it was correctly found that an agreement to take title subject to “ (Violations, if any, of the Building, Fire and Housing Codes of the City of Chicago” constitutes an agreement to take title subject to a pending legal action for abatement of a nuisance arising out of those violations.

It appears that the existence of a building code violation does not of itself constitute a cloud on title where the real estate sale contract calls only for the passing of “good title,” (such as the contract here calls for,) as opposed to a contract calling for title “free of violations,” which renders the title nonmarketable. See Woodenbury v. Spier, 122 App Div 396, 106 NYS 817; Harlank Realty Corp. v. Rosenstock, 154 NYS2d 95. The incorporation of the provision in the contract, that Slader would take title subject to “ (V)iolations, if any, of the Building, Fire and Housing Codes of the City of Chicago,” therefore subjects him to no more than he would have otherwise been subject.

A marketable title is one free from a reasonable probability of litigation. Farmers & Merchants Bank of Vandalia v. Holland, 309 Ill App 193, 32 NE2d 987; ILP, Vendor and Purchaser, § 93. The pendency of litigation renders a title nonmarketable, Hayne v. Fenton, 321 Ill 442, 151 NE 877; a party cannot be required to purchase a lawsuit. Winters v. Polin, 309 Ill App 458, 33 NE2d 497. The pendency of the City’s lawsuit for the code violations subjects Slader to accepting a nonmarketable title.

A temporary injunction should not be granted on the pleadings alone where the answer controverts material allegations of the complaint. McFetridge v. First Commercial Bank, 28 Ill App2d 512, 171 NE2d 791; see also Centennial Laundry Co. v. West Side Organization, 55 Ill App2d 406, 204 NE2d 589, affd 34 Ill2d 257, 215 NE2d 443. Evidence must be taken to resolve the issues so created. Lipkin v. Burnstine, 18 Ill App 2d 509, 152 NE2d 745.

In the instant case defendant’s verified answer controverted the allegation in the complaint that defendant had agreed to take title subject to the City’s lawsuit. The pleadings and exhibits on file and considered by the Chancellor in arriving at his decision do not resolve this issue. It was incumbent upon the Chancellor to hear proofs as to what was contemplated by the parties when the code violations provision was incorporated into the contract. This is especially true in light of the fact that one of the printed portions of the real estate contract provides that title was to be taken subject to “zoning and building laws and ordinances.” On the record the Chancellor could not have found defendant to have agreed to take title subject to the City’s lawsuit; consequently it was error to have issued the temporary injunction.

The order is reversed and the injunction is dissolved.

Order reversed and injunction dissolved.

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


author: JUSTICE DEMPSEY.

text:
    Coca Cola Bottling Company of Chicago, Inc., a Corporation, Plaintiff-Appellant, v. Richard A. Lange, Defendant-Appellee.
    Gen. No. M-51,268.
    First District, Third Division.
    February 9, 1967.
    Rehearing denied March 6, 1967.
    Richard C. Bleloch and Robert A. Wiacek, of Chicago, for appellant; Van Duzer, Gershon & Jordan, of Chicago, for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Lewis (Impleaded), Defendant-Appellant.
    Gen, No. 50,704.
    First District, Third Division.
    February 9, 1967.

      E. Paul Lanphier, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

After a non jury trial the defendant was found guilty of robbery and sentenced to serve from 2 to 5 years in the penitentiary. On appeal he contends that the property in question was taken with the consent of the complaining witness and hence the State failed to prove an essential element of the crime of robbery. The facts follow.

Police Officer Daniel Scanlan was assigned to an undercover unit of the Chicago Police Department. On December 30, 1964, he was on duty in the vicinity of 811 West Madison Street, Chicago, dressed in plain clothes. He was standing in the doorway of a store front feigning drunkenness when he was attacked by defendant Lewis and one Samuel Gallegos, who was found guilty in a separate trial and on whose appeal, 80 Ill App2d 105, 224 NE2d 631, an opinion has also been rendered this day. Lewis grabbed the officer from behind, pinning his arms to his sides, while Gallegos took $20 from his coat pocket. The officer called for help by means of a transistorized radio. Several other members of the police task force thereupon converged on the scene and apprehended Gallegos and Lewis. Defendant now admits that the foregoing facts are substantially correct. At the trial, however, he testified that he did not assault or touch Scanlan or otherwise participate in the robbery.

Defendant did not raise the affirmative defense of entrapment during his trial, and he insists that entrapment is not involved in the defense he now raises. He contends rather that the State failed to prove an essential element of the crime, that is, that the property was taken by force or threat of violence. It is well established that to constitute robbery, force must be used sufficient to overcome power of the owner to retain his property, either by actual physical force or by putting him in such fear as to overpower his will. People v. Ohle, 408 Ill 288, 96 NE2d 476; People v. Flaherty, 396 Ill 304, 71 NE2d 779. Defendant argues that a police decoy under the circumstances here present expects to be attacked; that the money was placed in the officer’s coat pocket, where it was easily accessible to robbers, and hence he concludes that the officer wanted the money to be taken and therefore it was not taken by force.

The purpose of a police detail such as the one here involved is to identify and capture the perpetrators of violent crimes. It is also intended to serve as a deterrent to crime by instilling fear in the potential criminal that robbery victims may not be as helpless as they appear. A police decoy operating in certain sections of a large city may well expect to be attacked, but expectation is not consent. Any citizen walking on the streets of a dangerous area on business or out of sheer curiosity or adventure or under the influence of liquor might well expect to be attacked and robbed, but it cannot be contended that this amounts to consent. Neither can it be said that a police officer consents to an attack by casually pretending to be an intoxicated citizen.

In People v. Jones, 290 Ill 603, 125 NE 256 (1919) and in Hall v. People, 171 Ill 540, 49 NE 495 (1898), cited by defendant, the court distinguished theft from robbery and held that when property is taken by stealth from a person who is unaware of the taking, the essential elements of robbery are not established. These authorities are clearly inapplicable. In the instant case force was applied.

The fact that the police officer here had reason to believe he might be attacked and robbed does not mean that he consented to the attack. Essentially the defendant is not arguing consent at all. He is obliquely raising the issue of entrapment under the guise of consent. The three principal elements of entrapment are: (1) the concept of committing the offense originates with the authorities (2) who actively encourage the suspect to commit the offense (3) for the purpose of obtaining evidence for his prosecution. It is an affirmative defense and may not be raised for the first time on appeal. People v. Outten, 13 Ill2d 21, 147 NE2d 284; People v. Redding, 28 Ill2d 305, 192 NE2d 341. Nor may it be raised when the defendant denies the facts constituting the offense. People v. Anthony, 28 Ill2d 65, 190 NE 2d 837; People v. Realmo, 28 Ill2d 510, 192 NE2d 918; People v. Johnson, 24 Ill2d 195, 181 NE2d 164.

We find no error in the trial of this case. The judgment is affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. Samuel Gallegos (Impleaded), Appellant.
    Gen. No. 50,705.
    First District, Third Division.
    February 9, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Samuel Gallegos and Arthur Lewis waived a jury and were tried by the court for the robbery of Daniel Scan-lan. They were found guilty and Gallegos, who prosecutes this appeal, was sentenced to the penitentiary for a term of one to four years. He contends that he was intoxicated at the time of the robbery and that the State failed to prove beyond all reasonable doubt that he acted with conscious awareness of his acts.

Scanlan, a member of the Chicago Police Force, was assigned to undercover duty on December 30, 1964. He worked with seven other officers in the same special task force and their job was to catch criminals who prey upon drunken men, lone women or other persons obviously weak or disabled. At 9:15 p. m. on that date Scanlan, pretending to be intoxicated, acted as a decoy for his undercover unit. As he stood in front of a store on Madison Street just west of Halsted Street, Chicago, he was approached, according to his testimony, by Gallegos who asked him what he was doing there and where he lived. Lewis then stepped up and told Gallegos that Scanlan was drunk. The two men walked to the curb and engaged in a brief conversation which Scanlan could not hear. After talking together they reapproached him, Lewis grabbed him from behind, pinned his arms down and pulled him into the store front. Gallegos stood in front of him, went through his pockets and took $20 (a ten-dollar bill, a five-dollar bill and five singles) which had been initialed previously.

Scanlan was equipped with a two-way radio and a transmitting device was attached to the lapel of his outer coat. As his money was taken he communicated with his brother officers who were deployed nearby. When the robbers heard him call for help they started to run away. Scanlan seized Gallegos, and one of the other officers, who had observed what was going on from across the street, captured Lewis as he fled from the scene. The marked money was found on Gallegos.

Lewis who lived on Halsted Street, north of Madison, testified that he saw Scanlan bending over in a doorway and thought that he was hurt; that Gallegos came up and talked to Scanlan; Scanlan took money from his pocket, offered it to Gallegos and told him to buy Lewis a drink; Lewis told them they were both drunk and should “get off the street”; he turned to walk away and as he did so he was knocked to the ground. He denied talking privately to Gallegos or participating in the robbery.

Gallegos testified that he started to drink at noontime on the 30th and had consumed three bottles of wine, ten shots of whiskey and seven or eight beers by the time he was arrested. He said he was on the way to visit a friend when he was beat up and arrested. He denied talking to Lewis or Scanlan, or going through Scan-lan’s pocket. He said he was drunk at the time he was arrested. On cross-examination he said that his drunkenness was voluntary and that he did not rob Scanlan.

Although his defense at his trial was both a denial that he committed the alleged robbery and an assertion that he was intoxicated, his sole defense on appeal is that his intoxication, even though voluntary, is a complete defense to the crime of robbery because it precluded his having the mental state requisite to the commission of this offense. This defense is founded on the provisions of the Criminal Code of 1961 (Ill Rev Stats 1963, c 38) which, it is argued, changed the prior law of this State which prevented the defense of voluntary intoxication to a crime not requiring a specific intent. The statutory provisions relied upon are section 6-3 (a) pertaining to intoxication; section 4-3 (a) and (b) prescribing the requirement of a mental state for criminal offenses, and sections 4-4 to 4-6 defining the applicable mental states.

The argument proceeds that intoxication is an affirmative defense and since the defendant raised this defense it became the State’s burden to prove the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense of robbery. The argument concludes with the assertion that the State did not meet this burden but, in effect, stipulated to the defendant’s intoxicated condition because the sole purpose of the State’s cross-examination was to show that his intoxication was voluntary and thus it did not dispute his drunken condition.

The State replies that the Criminal Code of 1961 does not permit the defense of voluntary intoxication to a crime not requiring specific intent, and since robbery does not require such an intent only involuntary intoxication could be a defense to this crime.

It is unnecessary for us to settle the interesting argument waged between the defendant and the State because it is really academic. The court, as the trier of the facts, found that the defendant was not intoxicated. The court found that the defendant’s claims of drunkenness were self-serving declarations, that he knew what he was doing, that his conscious objective was to rob Scanlan and that he intentionally accomplished that purpose. The court specifically found that the defendant was sober enough to go through Scanlan’s pockets — while Scanlan’s arms were pinned back of him by Lewis; that he was sober enough to pick out of Scanlan’s pockets all the money Scanlan had on him, and that he was sober enough to run away when Scanlan called for help. In the face of these factual findings, the argument as to the degree of the defendant’s drunkenness and its effect on his mental state is superfluous.

The trial court was the judge of the credibility of the witnesses and, if Officer Scanlan’s testimony was believed (as it obviously was) the evidence established beyond all reasonable doubt that the defendant conspired with Lewis and that he and Lewis robbed Scanlan.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE ENGLISH

text:
    Estate of Marvin L. Isaacson, Deceased, General Federal Savings & Loan Association, Claimant-Appellee, v. Alan J. Hertz, Successor Executor of Estate of Marvin L. Isaacson, Deceased, Respondent-Appellant.
    Gen. No. 50,994.
    First District, Fourth Division.
    February 15, 1967.
    Bernard Kleinman and Frank J. Belline, of Chicago, for appellant.
    Kriebel & Jorgenson, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

This appeal has been taken from an order allowing the claim of General Federal Savings & Loan Association in the amount of $72,051.57 against the Estate of Marvin L. Isaacson, deceased. The basis for the claim was a non-recourse mortgage note made to claimant by Chicago National Bank, as Trustee. The payments required by the note were guaranteed by three individuals, including the decedent, Marvin L. Isaacson.

In the trial court there was no defense raised to the merits of the claim, but respondent contended there, as here, that the obligation of the three guarantors was joint and not several, and that the claim could therefore not properly be allowed since the other guarantors had not been joined.

We find no validity in respondent’s argument. The language of the note, when considered in its entirety, seems to create a joint and several liability on the part of the guarantors. However, even if respondent were correct in his contention that the wording of the note should be construed to create a joint guaranty obligation, no relief could be afforded him in that situation. By statutory enactment, in effect since 1874, it has been provided that “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants.” Ill Rev Stats 1963, c 76, § 3.

Furthermore, the Civil Practice Act applies to this type of probate proceeding (Ill Rev Stats 1963, c 3, § 5) and section 27 thereof provides:

All parties to a joint obligation, including a partnership obligation, may be sued jointly, or separate actions may be brought against one or more of them. A judgment against fewer than all the parties to a joint or partnership obligation does not bar an action against those not included in the judgment or not sued. Nothing herein permits more than one satisfaction.

Ill Rev Stats 1963, c 110, § 27.

These statutes are so clearly determinative of the kind of contention raised in this case that, understandably, there have been very few decisions on the subject. See, however, Northeastern Coal Co. v. Tyrrell, 133 Ill App 472, 477; Poiset v. Townsend, 166 Ill App 384, 388-389; Albers v. Holsman, 289 Ill App 239, 244, 7 NE2d 161; Gage v. Mechanics’ Nat. Bank of Chicago, 79 Ill 62, 63; all of which support the conclusion reached by the trial judge in the case now before us.

The authorities cited by respondent do not appear to us to be relevant to the instant issue. Those cases are: Sinnickson v. Richter, 140 Ill App 212, 214; Vilter Mfg. Co. v. Boring, 136 F2d 466, 468-470; Kesner v. Faroll, 268 Ill App 531, 540; Castle v. Powell, 261 Ill App 132, 144; Phoenix Mfg. Co. v. Bogardus, 231 Ill 528, 531, 83 NE 284.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and MCCORMICK, JJ., concur.

       The pertinent paragraphs provide:
      12. This Note is executed by the aforementioned Trustee, not personally, but as Trustee as aforesaid in the exercise of the power and authority conferred upon and vested in it as such Trustee, and is payable only out of the property specifically described in said Mortgage securing the payment hereof, by the enforcement of the provisions contained in said Mortgage. No individual liability shall be asserted or be enforceable against the promisor or any person interested beneficially or otherwise in said property specifically described in said Mortgage given to secure the payment hereof, or in the property or funds at any time subject to said Trust Agreement, because or in respect of this Note or the execution, issue or transfer hereof, all such liability, if any, being expressly waived by each taker and holder hereof, but nothing herein contained shall modify or discharge the individual liability expressly assumed by any guarantor hereof, and each original and successive holder of this Note accepts the same upon the express condition that no duty shall rest upon the undersigned to sequester the rents, issues and profits arising from the property described in said Mortgage, or the proceeds arising from the sale or other disposition thereof, but that in case of default in the payment of this Note or of any installment hereof the sole remedy of the holder hereof shall be by foreclosure of the said Mortgage given to secure the indebtedness evidenced by this Note, in accordance with the terms and provisions in said Mortgage set forth or by action to enforce the personal liability of any guarantor of the payment hereof, or both.
      18. We, the undersigned, hereby guarantee the performance of the payments and conditions herein contained, and hereby waive notice of and consent to any and all extensions of this Note or any part thereof, without notice, and each hereby waive demand, presentment for payment, notice of nonpayment and protest, and any and all notice of whatever kind or nature and the exhaustion of legal remedies hereon. To further secure the payment of this Note, we hereby authorize, irrevocably, any attorney of any court of record to appear for us, in any court, in term time or vacation, at any time after default and confess a judgment jointly and severally, without process, in favor of the Mortgagee, its successors or assigns, for the unpaid balance of principal and interest exclusive or [sic] other advances, together with costs and reasonable attorney’s fees and to waive and release all errors which may intervene in any such proceeding and consent to immediate execution on such judgment, hereby ratifying and confirming all that our said attorney may do by virtue hereof. (Emphasis supplied.)


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Raymond Thomas, Defendant-Appellant.
    Gen. No. 50,971.
    First District, Third Division.
    February 16, 1967.

      Warren D. Wolfson, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John William Crilly, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was tried by jury and found guilty of rape and burglary. He was sentenced to serve from 5 to 15 years in the penitentiary on each count, the sentences to run concurrently. On appeal he raises the following points: (1) the State did not prove the charge alleged in the indictment, since there was a material variance between the date of the crime as charged and the date proved; (2) prejudicial error was committed in the giving of certain instructions to the jury; and (3) the evidence did not prove defendant guilty beyond a reasonable doubt.

The evidence shows that the rape occurred during the early morning hours of July 25, 1964. The complaining witness Mrs. Susan Weist was asleep in her apartment while her husband was working on a night shift. The Weist children were sleeping in another room. At about 2:00 a. m. she was awakened by a man putting his hands on her, choking her, and saying, “Don’t scream, Dorothy, or your life will be in your hands.” She testified that the attacker kept choking her with one hand while he held her arm down with his other hand; that he forced her to remove her undergarment and that he then proceeded to have intercourse with her. Her assailant then tied her hands, gagged her and had intercourse with her twice more. After that he took $8 from her purse and while preparing to leave, turned on a light. This enabled Mrs. Weist to get “a good look” at him. After he left, she worked the gag from her mouth and screamed for help. Mrs. Josephine O’Conner, an upstairs neighbor, came down and found the complaining witness naked, with her hands tied behind her back and a belt around her throat. Mrs. O’Conner testified that shortly after returning from work at about 1:00 a. m., she saw a man walk across the backyard and start up the stairs. The yard was illuminated by a floodlight enabling the witness to observe the man’s features. Police officers brought defendant to the apartment building the next day, at which time Mrs. Weist identified him as the rapist and Mrs. O’Conner identified him as the person she had seen in the backyard. They later selected the defendant from a lineup at police headquarters.

On Point 1, defendant relies on an alibi. He called three alibi witnesses who testified to being with him in a restaurant a half block from the scene of the crime during the early morning of July 25th. One of the three witnesses, Lawrence O’Conner, was the brother-in-law of Mrs. Josephine O’Conner, the State’s witness. In addition to testifying that he was at the restaurant with defendant on the night in question, he said that he went to Mrs. O’Conner’s home to deliver a message and at that time observed a man outside the Weist apartment and that the man was not the defendant. Mrs. O’Conner was called in rebuttal and testified that she did indeed see her brother-in-law at about 1:15 a. m., but that he did not mention anything to her about seeing a prowler near the Weist apartment.

The first contention is that the Assistant State’s Attorney mistakenly referred to the time of the crime as the “evening of July 25th” at least six times while questioning the complaining witness and that the jury must have been confused by this discrepancy, particularly since the defense was an alibi and the alibi witnesses testified to events of the early morning of July 25th. Defendant does not contend that the crime occurred at a time other than that alleged in the indictment. The issue is solely whether the inadvertent errors in the questions asked by the prosecutor misled the jurors as to the time of the crime and destroyed the value of the alibi testimony. Such inconsistencies or mistakes in dates occur in almost every trial and do not warrant reversal. There was no doubt or dispute as to the date on which the offense occurred, and the jurors could not have been confused on that point. The alibi witnesses testified to events of the early morning of July 25th and both attorneys concurred in the closing argument, placing the event at 2:00 a. m. on July 25th. We are of the opinion that the error was not material.

In his second point defendant challenges two instructions given to the jury. He contends that defense counsel was not apprised of the State’s instruction No. 15, dealing with the amount of resistance expected of a person threatened with bodily harm, until it was read to the jury. The instruction appears in the record and bears the notation, “obj. overruled. Given.” Defendant contends that, contrary to the notation on the instruction, counsel was not given an opportunity to object to the instruction, nor was the question considered during the conference on instructions. The record reveals, however, that defendant submitted an instruction covering the same issue, defense instruction No. 10, which was given over objection, and the dialogue concerning the defense’s instruction indicates that the issue of resistance was fully discussed and considered.

Defendant further contends that State’s instruction No. 3 was prejudicial in that it covered matters not alleged in the indictment. He failed, however, to object to the instruction during the trial. Where the defendant fails to object to an instruction and upon review no substantial defect appears, the issue is not preserved for appeal. People v. Cavaness, 21 Ill2d 46, 171 NE2d 56; People v. Minor, 20 Ill2d 496, 170 NE2d 555. The criticism of this instruction is hypertechnical, and if error was committed, it is harmless.

We proceed to the final point, that the evidence did not prove defendant guilty beyond a reasonable doubt. The victim was found naked and bound. There is no question but that the crime of rape was committed. The complainant identified defendant as her attacker and Josephine O’Conner identified him as the man she observed from her rear window prior to the crime. The testimony of the alibi witnesses located defendant one half block from Mrs. Weist’s apartment during the early morning hours of July 25, 1964. The evidence discloses ample basis for the finding of guilty beyond a reasonable doubt.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard L. Mars (Impleaded), Defendant-Appellant.
    Gen. No. 51,745.
    First District, Second Division.
    February 10, 1967.
    Arthur A. Malinowski, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    In the Matter of Clarence M. Dunagan, Contemnor-Appellant.
    Gen. No. 50,320.
    First District, Fourth Division.
    February 17, 1967.

      James P. Chapman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James B. Zagel, Louis B. Garippo and William J. Martin, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from an order that Clarence M. Dunagan, an attorney, be found guilty of contempt of court and fined $1,000. In its order the court found that “the actions of the Respondent [appellant] were designed to and did, in fact, mislead this Court and jury”; and that “the actions of the Respondent [appellant] were calculated to and did embarrass, hinder and obstruct this Court in the administration of justice.”

Appellant was the attorney of record for three persons (all employed by the Cook County Sheriff’s Office), including one John Chaconas, who were defendants in a perjury proceeding. The perjury allegedly was committed before a Grand Jury investigating the theft of drugs from the Zahn Drug Company warehouse. The contempt order arose from appellant’s alleged deceptive maneuvers in attempting to discredit important evidence of the prosecution, People’s Exhibit 2, which was a duplicate registration card from the Caravelle Motel allegedly executed in the name of John Matheos by John Chaconas, and bearing the number 6927. Its purpose was to show that Chaconas had registered at the motel for Room 31 under an assumed name prior to a raid conducted at the motel by the Cook County Sheriff’s Office.

The prosecutor, in his opening statement to the jury, described the registration system of the motel:

The Caravelle Motel has a rather unusual way of registering their clients and people who come in to rent rooms. They have a white registration card, and it’s attached to a blue or greenish blue duplicate, and when you write on the original you automatically make a carbon on the duplicate. Most motels don’t bother with this duplicate, but the Car-avelle did have such a system. They put the white card in the slot and the blue card goes back in the office and they keep that with the day’s records and they leave the white card out in front.

Appellant, in his opening statement, asserted' that the motel actually had two registration systems:

I expect, further, to show that they had a duplicate registration method in that motel. That the elaborate method by which Mr. Garippo explained Giancanna’s method of registering guests was only one of the methods they had. That was a card with a carbon. Another was loose cards that, if you wanted the room only for a short period of time, you registered in on that card and it was subsequently destroyed. That those cards, the original cards, the one they kept for their own records or for somebody’s records, were numbered in numerical order, and that the ones they used for the hasty guests all carried the same number [6927]. And when Brackenbury [of the State’s Attorney’s police] went to the Caravelle and talked to Romeo Torsiello or Frank Kozie, the operators of that motel, he obtained a carbon copy not an original, of card number 6927, which was this affluent card that was used if you wish to rent the room temporarily.

Appellant further asserted that Chaconas was sent to the motel office to copy down the name of the registration for Room 31; that he copied it on another of the white cards bearing the number 6927, which allegedly was People’s Exhibit 2.

During the course of the trial appellant had marked as Defendants’ Exhibits 2, 3 and 4 for identification three white cards containing information identical to the information contained on People’s Exhibit 2 and all bearing the number 6927. In his cross-examination of various witnesses for the prosecution appellant showed one or more of the aforesaid defendants’ exhibits to the witnesses and inquired of them as to whether, or not they were the same as or identical to the cards used at the Caravelle Motel. Mrs. Sanders, the day desk clerk at the motel, testified that the registration cards on the desk were in numerical sequence and there was only one card bearing the number 6927. She further testified that Defendants’ Exhibits 2, 3 and 4 were all numbered 6927 and were identical to People’s Exhibit 2. Appellant then turned to the prosecutor and asked the number written on People’s Exhibit 2. After being told it was 6927, appellant replied: “I’m not surprised.” On cross-examination of Romeo Torsiello, manager of the motel, appellant elicited testimony as to extra registration cards which were kept on the desk. Also during cross-examination by appellant Anthony Kozie, a part-time desk clerk, was shown Defendants’ Exhibit 4 and stated that the number was identical to that on People’s Exhibit 2. Appellant then asked the witness detailed questions as to the difference between Defendants’ Exhibits 4 and 11, the latter being a card used in the registration system installed long subsequent to the day of the raid.

Subsequently, the prosecution called as a witness one James Leahy, president of the American Hotel Registry Company, who stated that at appellant’s request he printed six cards similar to those used by the Caravelle Motel but refused appellant’s request to print the number 6927 thereon. Only after this testimony was elicited did appellant tell the court outside the presence of the jury that at his direction the number 6927 was placed upon the cards, and that it was his intention to show how easy it was to print the number on the cards (a point which he never made to the jury). Sergeant Moran, of the Sheriff’s Police, was called as a court’s witness and testified that he picked up six cards from Leahy and delivered them to appellant.

The trial judge was led to believe that Defendants’ Exhibits 2, 3 and 4 were those cards referred to by appellant in his opening argument, stating:

That the purpose of this was to attempt to show this jury, in line with the Opening Statement made by Mr. Dunagan, that cards No. 6927 was a card, a large supply of which were kept at the motel and used by various guests and to leave this jury and this court with the impression that there were numbers of cards 6927 in this place. At no time did Mr. Dunagan make known to the court or to anyone else, to my knowledge, that Defendants’ Exhibits 2, 3 and 4 were, in fact, evidence which he had manufactured for use in this case. And the sole purpose, so far as the court is concerned, for the use of these cards, was to leave this jury and this court with the impression that 6927 was a card of one of a number of cards which were used by the motel of which there is no proof in this case.
That People’s Exhibit No. 2, which the State alleges is a card actually used by the motel and identified by the witness Leahy as such, is somewhat different from Defendants’ Exhibit 11, which is also, evidently, a card used by the motel. That the number on People’s Exhibit 2 is “6927” and that the number on Defendants’ Exhibit 11 is “26002”; and, according to the testimony of the witness Leahy, is one of a batch of cards which was printed some time long after the events in this case had come about. That the only difference in the cards appears to be that the numbering machine used on People’s Exhibit 2 and Defendants’ Exhibit 11 is different.

In his order the trial judge stated that over objection he allowed the line of cross-examination followed by appellant because he was “under the impression that the cards were legitimate items of evidence which were designed to assist the Court and the jury in the determination of this cause.”

Appellant contends that: (1) the facts stated in the court’s order are insufficient to support the finding of contempt; (2) the record in the case cannot be examined by the reviewing court to supply additional facts; (3) even if the record could be reviewed, the facts are insufficient to prove him guilty beyond a reasonable doubt; and (4) the trial judge improperly considered matters which did not occur in his presence.

We will not consider the question as to wheher the facts specified in the contempt order alone are sufficient to support a finding of contempt, since the reviewing court may examine the report of proceedings which is incorporated into the record on review. Although defendant relies upon People v. Loughran, 2 Ill2d 258, 118 NE2d 310, in support of his contention that the court of review is not empowered to examine the record, the Supreme Court in that case stated at page 265:

We have read the record of plaintiff in error’s argument to the jury [referring to the contemnor’s argument] .... [W]e see nothing in the record indicating that the court was embarrassed ....

In People ex rel. Morgan v. Mulliken, 41 Ill App2d 282, 283,190 NE2d 502, the court stated:

A report of proceedings as to what actually occurred in open court upon the trial of these cases in connection with the subject matter of the contempt order is incorporated in the record on appeal. We therefore look to the report of proceedings rather than the contempt order to determine whether the contempt order was correct. People v. White, 8 Ill App2d 428,131 NE2d 803.

It was within the discretion of the trial judge to reject the explanation proffered by appellant for his conduct. People v. Hodge, 23 Ill2d 425, 178 NE2d 354. If appellant’s avowed purpose in using the cards in question was to show the ease with which the number 6927 could be printed on cards identical in form to those used by the motel, but not connected therewith, then he should have informed the judge of their lack of authenticity. This explanation, however, was not advanced until after the manufactured cards were used in the cross-examination of witnesses for the prosecution and after Leahy had testified as to their origin. Under all the evidence we find that the trial judge did not abuse his discretion in refusing to accept appellant’s belated and inconsistent explanation. The fact that appellant was not successful in his attempt to mislead the court and jury does not preclude a finding of contempt. People v. Berof, 367 Ill 454,11 NE2d 936.

Appellant also argues that the trial judge in his order of contempt improperly referred to the ordering, preparation and delivery of the cards in question since none of the aforesaid transpired in his presence. We find no error. Moreover, appellant admitted his acts in open court. People v. Berof, supra; People v. Freeman, 256 Ill App 233.

After examining the order of contempt and the report of proceedings we find that the facts are sufficient to support the finding of contempt. Therefore the order of the trial court finding appellant guilty of contempt and imposing a fine of $1,000 is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

         The prosecutor in his opening statement in the perjury trial asserted that the evidence would show that John Chaconas of the Cook County Sheriff’s Office registered for Room 81 at the Caravelle Motel, under the name of John Matheos, on January 6, 1964 (a few months after the burglary); that a raid was shortly thereafter conducted at the motel by Richard Cain, James Donnelly and William Witsman, also of the Cook County Sheriff’s Office; that some of the stolen drugs were recovered from Room 31, but no one was found in the room; that Donnelly subsequently telephoned Louis Zahn and asked if he (Zahn) wished to purchase some of the merchandise stolen from the warehouse; that subsequently a Grand Jury investigation was begun concerning the circumstances of the recovery of the merchandise from the motel; that during the investigation Chaconas testified that he was sent to the motel for surveillance and never rented the room; that Witsman testified that he was with Chaconas and corroborated the latter’s story; and then Cain, Donnelly, Witsman and Chaconas testified that Chaconas was present at the time of the recovery of the drugs.
      It was that testimony of the aforesaid persons that the prosecution in the perjury trial sought to prove as untrue.


text:
    Outdoor Theatre Caterers, Inc., Plaintiff and Counter-Defendant, Appellee, v. Springfield Drive-In Thea-tre Corp., Defendant and Counter-Plaintiff, Appellant.
    Gen. No. 51,169.
    First District, Fourth Division.
    February 17, 1967.

      Sturman, Sang & Carney, of Chicago (M. Robert Sturman and Vincent J. Carney, of counsel), for appellant.
    Coburn and Kelly, of Chicago (Edward J. Kelly, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a declaratory judgment entered in favor of the plaintiff and from a denial of a declaratory judgment sought by defendant in its counterclaim.

Plaintiff brought an action for declaratory judgment that it had the right to exercise an option to renew the term of a concession agreement for the period beginning October 31, 1962, and ending February 28, 1967. The defendant denied that plaintiff was entitled to the relief sought and in addition filed a counterclaim seeking a declaratory judgment in its favor that plaintiff had no option to extend the term of the concession agreement for the period in question. The matter was submitted to the trial court on a stipulation of facts.

Plaintiff is a concessionaire of foods and confectionery products in theatres and other public places. Defendant is the owner and operator of the Springfield Drive-In Theatre, located near Springfield, Illinois. On March 1, 1947, defendant’s predecessors, Joseph M. Sikes and wife, entered into an underlying lease with Gail N. Wanless as trustee, for two tracts of farmland for the term of fifteen years beginning March 1, 1947, and ending February 28, 1962. Sikes was granted the option to purchase the property and was also granted a second option to extend the term of the lease for an additional period of five years, that is for the period of February 28, 1962, to February 28, 1967, at a rental increase of 10% of the annual rent.

On August 27, 1947, Sikes entered into a concession agreement with plaintiff’s predecessor, Illinois Sportser-vice, Inc., and this company transferred its interest in said concession agreement to plaintiff. No issue is raised respecting said transfer and therefore, in this opinion, plaintiff will be treated as the original concessionaire under said agreement. The term of the agreement was for a period of ten years, that is to say from the opening of the theatre to be constructed on the two tracts covered by the underlying lease, on or about September 1, 1947, to and including October 31, 1957. Under paragraph 12 of the concession agreement plaintiff was granted two options to renew, as follows:

“(1) ... to renew this concession agreement for a period of five (5) years from October 31, 1957, upon the same terms and conditions as are herein set forth. . . .
“(2) ... a second option to renew this concession agreement for a further period of five (5) years from October 31, 1962, upon the same terms and conditions as are herein set forth, excepting that with reference to said second option of renewal the same shall be conditioned upon Theatre Operators [the defendant herein] in turn exercising their similar option under the terms and provisions of their lease with Gail N. Wanless, Trustee; and further conditioned upon said period embraced within the second renewal option terminating February 28.1967. ”

The underlying lease gave Sikes the right to transfer their interest in the underlying lease to a corporation. On July 28, 1948, this was accomplished by the execution of a new lease between Wanless and defendant corporation, of which Sikes was president. No issue is raised respecting this transfer and in this opinion defendant will be treated as the original lessee.

The term of the new lease was exactly the same as under the original lease, that is, from March 1, 1947, to February 28, 1962; defendant was granted the same options granted it in the first lease, that is the option to purchase the property and the option to renew the term for five years from February 28, 1962, to February 28.1967.

On February 19,1952, defendant entered into an agreement with Wanless whereunder it borrowed $30,000 from him and agreed to purchase the real estate for $68,500. The total indebtedness of $98,500 was payable as follows: $600 per month beginning March 1, 1952, and continuing each month thereafter until the principal amount was reduced to $68,500, plus interest at the rate of 6%% per annum on the balance of said $30,000 remaining unpaid, payable semiannually, plus $1,580 a year as interest on the purchase price of $68,500. The balance of $68,500 became due and payable on or before February 28, 1962. Concurrently, defendant and Wan-less cancelled the underlying lease, but defendant reserved the right to reinstate the lease and cancel the contract of purchase when it had paid off the loan of $30,000.

On December 1, 1958, the $30,000 loan having been repaid, defendant and Wanless entered into a contract of purchase in the form of a contract for warranty deed, whereunder defendant agreed to buy the real estate for $68,500 and Wanless retained title for security purposes only until the purchase price was paid in full. The parties have stipulated that payments under this contract are current and that the contract remains in full force and effect.

Plaintiff exercised' its first option to renew for the five-year term from October 31, 1957, and remained in possession until October 31, 1962. No question is raised about this point. On March 1, 1962, plaintiff sent defendant a notice of its election to renew the concession agreement “for a period of five years, commencing from October 31, 1962.” Defendant denied that plaintiff had the right to renew the concession agreement for said period and this appeal is concerned only with plaintiff’s attempt to exercise its option to renew for the period after October 31,1962.

Opinion

The availability to plaintiff of an option in 1962 to renew its concession agreement for an additional five years was expressly “conditioned upon Theatre Operators in turn exercising their similar option under the terms and provisions of their lease with Gail N. Wanless, Trustee.” It is clear that defendant did not exercise its option to renew the lease in 1962 for an additional period since it entered into a contract to purchase the land.

Plaintiff argues that it was the intention of the parties that the exercise by defendant of its option to renew was not a condition precedent to the right of plaintiff to exercise its option. In support thereof plaintiff relies upon a letter written by Joseph Sikes in 1952 in which he allegedly implied that plaintiff’s lease had another fifteen years to run. The purpose of the letter (though unsuccessful) was to convince plaintiff to invest $20,000 in a new concession stand, and in the letter Sikes stated that by apportioning the $20,000 over the term of plaintiff’s lease the amount would be approximately $1,300 per year (this amounts to a fifteen-year period). The intention of the parties is determined as of the date of the execution of the concession agreement in 1947. Since the letter in question was written five years later and consisted of a plea for a substantial sum of money, its weight in ascertaining the intention of the parties in 1947 is nebulous.

We would also point out that plaintiff itself negates the weight to be given its argument since in its own brief plaintiff’s right of tenancy is referred to as a “sublease.” Obviously there can be no sublease unless there is a main lease.

We find that defendant’s renewal of its lease was a condition precedent to the existence of plaintiff’s option and, therefore, plaintiff had no option to renew. Plaintiff relies principally upon Jordan v. Busch, 285 Ill App 217, 1 NE2d 745, and argues that defendant placed an obstacle to the happening of a condition precedent and cannot rely on such condition to defeat his liability. In that case, as well as in the other cases cited by plaintiff, liability was imposed upon the defendant because his wrongful act prevented the occurrence of a condition precedent. The authorities relied upon by plaintiff are inapposite, since the defendant herein committed no wrongful act but instead merely exercised its specific contractual right (of which plaintiff was aware) to purchase the property. Nor is there any evidence whatsoever that defendant’s contract to purchase was a sham to prevent the exercise of plaintiff’s option. According to the stipulation of facts, the payments under the contract to purchase are current and the contract remains in full force and effect.

We find that plaintiff had no right to exercise the option in question and therefore the trial court should have entered a declaratory judgment in favor of the defendant and against plaintiff. The judgment of the trial court is reversed and the cause remanded with directions to enter a declaratory judgment denying the relief sought by plaintiff in its complaint and granting the relief sought by defendant in its counterclaim.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.

       The purchase price under the agreement dated July 28, 1948, was $68,500. The purchase price under the original agreement was $1,500 per acre for tract I and $1,000 per acre for tract II.