author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Williamson, Defendant-Appellant.
    Gen. No. 50,894.
    First District, Third Division.
    December 15, 1966.

      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 Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was found guilty of robbery and sentenced to serve a prison term of five to ten years. The robbery occurred in Fritz’s Tavern in Bellwood, Illinois, and the sole witness testifying in the case was the bartender John Marcus. Neither the State nor the defendant presented any other witnesses. We will quote the three points made by defendant on appeal, so that the essence of his argument may be understood.

“1. An uncorroborated and unsupported identification, even though positive in nature, which is vague and general as to specific details of identification shows an inadequate observation which warrants reversal of a conviction resting solely on that identification, it being a mere unsupported opinion of the identifying witness who did not use the opportunity presented.
“2. The testimony of a solitary witness may be sufficient to establish the fact that a crime was committed, but it is not sufficient to establish the identity of the perpetrator beyond a reasonable doubt, where there is a valid question as to the accuracy of the identification.
“3. In order to overcome the presumption of innocence the strength of the prosecution’s case for the identification must produce an abiding conviction of guilt no matter how weak the defense.”

The substance of this defense appears to be that identification is in the nature of an opinion and that testimony with respect thereto is not entitled to the same weight as testimony relating to other factual occurrences. The facts follow:

The bartender was on duty during the evening of May 3, 1964, when at about 11:00 p. m., two armed men entered the bar. One man carrying a shotgun entered the side door; the other, armed with a pistol, entered through the front door, announcing, "This is a holdup, don’t move.” After a minute or two, the bandits forced Marcus and two patrons into the washroom. They later ordered Marcus to leave the washroom and to let them into another room of the tavern where the rest of the receipts were kept. Marcus remained with the robbers for about five minutes before they ordered him back to the washroom. Shortly thereafter the robbers left with about $350 in cash. Ten days after the holdup, Marcus was taken to the Criminal Court Building, where he identified the defendant Williamson and another man from a police lineup. At the trial Marcus once again identified the defendant as a participant in the robbery.

Following the direct testimony, the witness was subjected to an exhaustive cross-examination, comprising 36 pages of evidence. He testified that the two robbers entered the tavern at the same time. When asked how he knew this, he explained that he heard the side door slam just at the moment he saw the man with the pistol enter the front door. The witness’s attention was drawn to the side door by the noise and when he turned in that direction, he observed the defendant holding a shotgun and watching him from a point near a telephone 15 feet away. During that time the defendant held the weapon in his left hand with the muzzle pointed toward the floor. The witness described the weapon as a single barreled, pump operated shotgun, somewhat larger than an M-l rifle. He was familiar with an M-l rifle from his experience in the service. With respect to the physical appearance of the robber, the witness stated that the man v/as slender, 5 feet 11 inches to 6 feet tall, and light complexioned. He was asked a number of times on cross-examination to estimate the weight of the robber, but explained that the robber was wearing a brown leather jacket which covered his body midway to the knees and that under those circumstances he could not accurately estimate the man’s weight in pounds. He testified that in addition to the jacket the robber was wearing a hat with a medium sized brim and sunglasses with thick black rims.

Defense counsel asked numerous questions about the lineup in which the witness identified the defendant and about the police procedures associated with it. The witness was asked to describe the clothing of the members of the lineup panel, particularly that of the defendant, to which the witness replied, “Is it necessary that I answer that question?” The court directed him to do so, and he answered by saying that he did not remember. The cross-examiner then inquired as to defendant’s weight at the time of the lineup.

“Q. How much did he weigh at this time, sir?
“A. I don’t know, I told you that before. I don’t know, and I still don’t know.”
“Q. But do you have an idea to help this jury out, as to how much this man weighed?
“A. No, I don’t, I can’t judge a man, how much he weighs with a coat on or a jacket, I cannot judge it.”

Counsel for defendant argues that this reveals that the witness’s testimony is not credible. We cannot agree. The witness was thoroughly cross-examined in regard to both the weight of the robber and the description of his clothing. The responses before set out came at the conclusion of a long cross-examination, and the jury and court could well have viewed them as the testimony of an honest but weary witness. It is our conclusion that the witness gave a conscientious and credible description of the event and that his identification of the robber was convincing.

The testimony of one witness may be sufficient to support a conviction even though the accused testified and denied complicity in the crime. People v. Tunstall, 17 Ill2d 160, 161 NE2d 300; People v. Mack, 25 Ill2d 416, 185 NE2d 154; People v. Webb, 76 Ill App2d 333, 222 NE2d 190. As the court said in People v. Tunstall, supra, at 164:

“The testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused.”

The witness in this case positively identified the defendant and did not qualify his testimony throughout his long cross-examination.

Defendant contends that identification testimony is in the nature of an opinion or conclusion and that therefore it should be corroborated or should be in sufficient detail so as to distinguish the defendant from other possible suspects. In his brief he submits that the members of this court could look out on any busy street and observe many men who would fit the description given by the witness. This argument confuses the issue. The witness saw the robber and identified the defendant. The observation is the basis of his identification, and the specific characteristics contained in the testimony do not embrace the totality of the visual observation. Witnesses cannot be expected to testify to all the details which form the basis of their identification, but this does not make their testimony a conclusion or opinion in any legal sense. It is still testimony based on observation. Witnesses may be impeded by a limited vocabulary from articulating their recollection of an event, but this does not mean that they are unable to recognize and point out an individual in a courtroom.

The testimony of the witness in the instant case was uncontradicted and unequivocal. He had ample opportunity to observe the robbers from a distance of only 15 feet, and he positively identified them from a lineup, from police photographs, and again in open court.

Defendant argues that the State should have called as witnesses the man and wife who were in the tavern when the holdup occurred and that in view of the failure to call those witnesses, we should infer that their testimony would have contradicted the testimony of Marcus. When a case turns upon a disputed issue of fact which an available witness could resolve from his unique knowledge of the event and the State chooses not to call that witness to testify, then the trier of fact may infer that the testimony would have been unfavorable to the State. People v. Strong, 21 Ill2d 320, 172 NE2d 765; People v. DiVito, 66 Ill App2d 282, 214 NE2d 320; Morei v. United States, 127 F2d 827 (6th Cir); Cf. People v. Guido, 25 Ill2d 204, 184 NE2d 858; People v. Morrison, 23 Ill2d 201, 177 NE2d 833. The instant case may be distinguished from these authorities. Pour of the cases hereinbefore cited involved controlled purchases of narcotics arranged through the cooperation of informers paid by the State and in those cases the informers could have refuted the testimony for the defense.

People v. DiVito, supra, cited by defendant, involved a different factual situation. In that case the accused was linked with a robbery only by the presence of his thumbprint at the scene of the crime. He was not identified by any witness. The defendant explained the thumbprint by stating that he had been a guest in the apartment prior to the robbery; that the complainant offered to assist him in a tax matter; that he left the apartment after the complainant made immoral advances to him. At the close of the defendant’s testimony the prosecutor said, “All right, judge, if I could have about three minutes I will have some rebuttal.” The court declared the recess, but the State did not come forward with the rebuttal, even though the complaining witness was the only person who could refute the defendant’s testimony.

The implicit first premise for the negative inference against the State is that the available witness must have such knowledge of the disputed event as to demand an explanation for his absence. In the instant case the two patrons of the tavern were in no better position to identify the defendant than was the bartender. The witness’s testimony was neither impeached nor discredited, and there is no suggestion of any motive on the part of the State to suppress evidence relating to the identification of the defendant.

It is only realistic to observe that many citizens are reluctant to testify in court, particularly in criminal cases. It is time consuming and often frightening for the ordinary man or woman. It may entail absence from work and the attendant loss of wages, and it also entails the disagreeable experience of cross-examination as often depicted in television and motion pictures. New people are immune from such apprehension. It is related of David Garrick, the famous actor, that when called as a witness in a civil case involving nothing more than the nature of a free benefit, his testimony was so incoherent as not to be understood.

There is some testimony, elicited by defendant’s attorney, which reveals that the other witnesses had this apprehension. Marcus testified that on one occasion he was taken to the police station to view photographs of the defendant. The cross-examiner then asked:

“Q. Now, this was after you supposedly identified Ray Williamson, isn’t that right ?
“A. And he wanted to show the pictures to the other couple that didn’t want to appear in the courtroom.” (Emphasis ours.)

There was ample evidence in the record to support the finding of guilty, and the judgment is accordingly affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. John Beoh (Impleaded), Plaintiff in Error.
    Gen. No. 51,046.
    First District, Third Division.
    December 15, 1966.

      Richard D. Smith and James B. Sloan, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from two convictions of burglary for which defendant was sentenced to five to ten years in the penitentiary on each charge, sentences to run concurrently. The indictments, each charging defendant with burglary and theft, arose out of two separate burglaries, but the cases were consolidated for trial before the court sitting without a jury.

The burglaries involved were of Rever Watkins’ and Donald Dunlap’s respective abodes. Defendant raises several points on appeal regarding each case. In the Watkins case defendant contends (1) the evidence was the fruit of an unlawful search and seizure; (2) the evidence, even if admissible, was insufficient to support the verdict, and (3) the court erred in failing to render a verdict on the charge of theft. As to the Dunlap case defendant’s contentions are (1) the concealment by defendant’s alleged accomplice of a promise of probation in return for his testimony vitiates the conviction; (2) the evidence is insufficient to support a burglary conviction, and (3) the court erred in failing to render a verdict on the charge of theft.

As there were two burglaries the facts surrounding each must be stated separately. On May 20, 1963, Kever Watkins returned home to find his apartment ransacked. Clothes were strewn about the room and five suits were stuffed into a hat box and left on the floor. A transistor radio was missing.

Earlier that day the owner of the building, Warren Ward, had observed defendant approaching and entering the building. According to Ward, defendant knocked on his (Ward’s) door, tried the doorknob, then went upstairs, knocked on a door and walked across the upstairs floor. At that point Ward called the police.

John Wilkerson, a police officer, testified that he had been summoned to the building in question on May 20, 1963. He stated that upon arrival he stopped to talk with Ward and then went to the second floor and there found defendant on the landing. Defendant told the officer that he was looking for a girl friend. A search of Beoh produced the transistor radio which was put into evidence. Defendant at trial denied that he had had possession of the radio. This radio was identified by Watkins as the Japanese two-transistor model taken from his apartment. His identification was based on appearance, manufacturer and a loose aerial.

Donald Dunlap, the other burglary victim, testified that his house at 7929 S. State Street had been impermissibly entered by damage to a locked door and ransacked on May 14, 1963. A Philco television set, six suits, two pairs of shoes, six sweaters, and some loose change were missing thereafter. Dunlap next saw the television at a police station two days later. He identified the set there, and fitted to it a piece of the antenna which had been broken off and left behind during the burglary. The set had been found at the home of Charles Sajna, a cousin of defendant. Sajna, when arrested in possession of the television, had implicated Sherman Evans who later implicated Beoh. Evans testified that he and Beoh had burglarized the Dunlap home taking the items mentioned above. They then went to Sajna’s home with the purpose of selling him the goods. The testimony is conflicting as to whether all of the items or only the television was left at Sajna’s. Sajna denied having purchased the television but both Evans and Beoh said that he did buy it.

Defendant first contends that the radio introduced into evidence in the Watkins case is the fruit of an illegal search and seizure. Defense counsel objected to that introduction only on the ground of incomplete or improper identification. No mention was made at that time of the possibility of illegality of the search. Since that issue was at no time presented to the trial judge for determination the point was not preserved for appeal. In People v. Harris, 33 Ill2d 389, 211 NE2d 693, the court said at page 390: “It is well settled that this court will not consider the question of illegal search and seizure, even though pursuant to an illegal arrest, where it has not been raised before the trial court.”

The defendant next contends that the evidence was insufficient to support a verdict of guilty. Beoh was found just outside the burglarized apartment and was unable to explain his presence there. At trial Beoh said he had lied to the officer when questioned outside of Watkins’ apartment, and stated that he had really been there to sell stolen goods to the occupant of the apartment. However, on May 20, 1963, he did not know the name of the tenant in that apartment.

Beoh also claims that there was an insufficient time lapse between the time Ward saw him and the arrival of the police officers for him to have been able to ransack the apartment. However, the times involved were not exact in the record, nor was it imperative to prove that Beoh had done the ransacking at that particular time. Furthermore, defendant was found in possession of a radio identified as having come from the burglarized place. This is recent possession, and it has been held that recent, exclusive, and unexplained possession of the fruits of a burglary gives rise to an inference of guilt sufficient to sustain a conviction of that burglary. People v. Pride, 16 Ill2d 82, 156 NE2d 551; People v. Rogers, 16 Ill2d 175, 157 NE2d 28; People v. Owens, 23 Ill2d 534, 179 NE2d 630.

Because we find no inconsistency between the evidence offered and defendant’s guilt we cannot say the evidence was insufficient to sustain his conviction.

Defendant next contends that the court erred by failing to render a verdict on the charge of theft. In People v. Schrader, 2 Ill2d 212, 117 NE2d 786, defendant was indicted for burglary and larceny. He was found guilty of burglary, and when, upon appeal, he argued that he had been prejudiced by the failure to render a finding on the larceny charge, the court said at page 215: “We need not pursue the interesting ramifications of defendant’s argument . . . because the finding of guilty upon the charge of burglary was, in legal contemplation, a finding of not guilty of the charge of larceny. . . .” On the other hand, assuming that the burglary was proved by means of theft in these cases, there is authority for the proposition that where separate counts arise from a single crime, a finding of guilty on one count amounts to a finding of guilty on the other. People v. Berry, 17 Ill2d 247, 161 NE2d 315; People v. Bybee, 9 Ill2d 214, 137 NE2d 251. Be it a finding of guilt or acquittal, therefore, the verdicts have been completely and properly rendered and sentence entered thereupon. Beoh has in no way been prejudiced by these verdicts in that he could not be retried on the theft charges.

Regarding the Dunlap case, defendant contends the conviction was vitiated by a concealment of a promise of leniency to Evans, Beoh’s alleged accomplice. Defendant relies on People v. Coddington, 31 Ill2d 468, 202 NE2d 509, in which the conviction was reversed because of the failure to present evidence of a promise of leniency to the accomplice to the trier of fact. In that case the state’s attorney later said that there had been such a promise. Since the instant case has no evidence of any promise whatsoever, the Coddington case, supra, does not control. The other cases cited by defendant similarly say only that if there is evidence of a promise of leniency to one testifying, this must be presented to the trier of fact. People v. Mullins, 28 Ill2d 412, 192 NE2d 840, which supports the State’s argument, involved a conviction for murder. There the accomplices had testified against defendant, and on appeal he argued that the evidence must be disregarded and the case retried because the accomplices had been promised leniency in return for testimony. In response to this the court said on page 415: “There is no positive statement in this record that the testimony of Gray or Cook (the accomplices) was induced by promises or expectations of leniency . . . and any such conclusions must rest on inferences.” In the case at hand Evans denied any expectation of leniency or promises to that effect, and the record is barren of any evidence thereof. The fact that he was given probation for his part in the burglary is insufficient to give rise to an inference of perjury, although the defendant urges this conclusion upon us. Because we find no evidence of a promise of leniency we cannot say there was any prejudicial concealment thereof.

Defendant next contends that the evidence in the Dunlap case is insufficient, as a matter of law, to support the verdict. We cannot agree. The television set traced to Beoh was identified by the victim shortly after the burglary. Although the set was not introduced into evidence Dunlap said that he had seen the set at the police station and had further identified it by fitting to it a piece of the aerial which had been broken off during the burglary. Defendant urges that the testimony of Evans is uncorroborated and not to be believed. We find his narration to be consistent with other testimony and to be supported by that of the victim and Sajna, who received the goods. The fact that Evans was an accomplice does not go to the admissibility of his testimony, although it may weigh on his credibility. But that determination is for the trier of fact, not for the reviewing court. Even the uncorroborated testimony of an accomplice will support a conviction if it satisfies the trier of fact of defendant’s guilt beyond a reasonable doubt. The court in the Mullins case, supra, said at page 415: “Although the testimony of an accomplice must be scrutinized with extreme care and acted upon with the utmost caution, a conviction based upon it ‘should not be set aside unless it is plainly apparent to the reviewing court that the defendant was not proved guilty beyond a reasonable doubt.’ People v. Nitti, 8 Ill2d at 139.”

Defendant’s final contention in the Dunlap case, that of error by the trial court in failing to render a proper verdict on the charge of larceny has been answered above in our ruling on the Watkins case. Because we find defendant’s contentions to be without merit, the convictions are affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gordon Kent Goad, Defendant-Appellant.
    Gen. No. 66-43.
    Second District.
    December 27, 1966.

      LeRoy J. Tornquist, of Rockford, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Alfred W. Cowan, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant Gordon Kent Goad was tried before a jury, found guilty of burglary, and sentenced to the penitentiary for a term of not less than two years, nor more than ten years. In this appeal he contends that the trial court erred in denying his motion to suppress an oral confession; and that the State failed to prove him guilty beyond a reasonable doubt.

Defendant’s Motion to Suppress his oral confession alleged under oath that he was arrested at 9:00 o’clock in the morning of September 14, 1965; that shortly after his arrival at the Winnebago County jail he asked Officers Iasparro, Ebens and Graham for permission to call an attorney and they denied such request; that the officers began interrogation and during that time he repeated his request for permission to call an attorney and that his request was denied; that he was taken to his cell and enroute again asked permission of the desk officer to call an attorney and was denied his request; that on the morning of September 15th, he was again called to the interrogation room and enroute, asked and again was denied the permission by head jailer Banks; that he was taken to the interrogation room and renewed his request to Officers Iasparro, Ebens, Graham and Wales and was again denied the permission; that during interrogation he was promised that if he confessed to an alleged burglary in Ogle County, the officers would try to have that offense tried with this case; that if he admitted the commission of three alleged burglaries, the officers would let him call an attorney; and that he made an oral statement September 15th and was then given permission to call an attorney.

At the hearing on the Motion to Suppress defendant Goad testified generally to the same effect as related in his sworn affidavit except that he then said he had asked the jailer, Banks, for permission to call an attorney prior to being questioned on September 14th, rather than on the way to the interrogation room on September 15th; and, also contrary to his affidavit, he testified that two additional officers, Wales and Brown, were present on September 15th.

Defendant testified on cross-examination that when he was asked by the officers if they should bring the impleaded codefendants down, he answered:

“A. I admitted doing it.
“Q. Well, are those your words ?
“A. I never told any words. I admitted doing the burglary. He asked me did I do it or not, and I said yes, that was it.”

He further testified that after one of the codefendants was brought down, “When I was leaving the interrogation room that day, I told them, Yes, I did it.”

At the hearing on the motion, Officers Iasparro, Ebens and Brown testified that they interrogated defendant on September 14th, within 15 or 20 minutes of his arrival at the jail, and that no other officer was present. Officer Iasparro testified that Sanner came into the interrogation room on the 14th at Goad’s request to see him “before he said anything”; that Goad and Sanner had a conversation at which Sanner told Goad the other codefendants “have copped out on us” and that Goad “might as well tell him your story”; that Goad said substantially what was in the typed statement but refused to sign it when it was brought to him. He testified that he asked Goad if he wanted an attorney and Goad said, “No, he didn’t have any money, he didn’t need an attorney.” He explained his rights to him as they were posted and Goad did not request to see or call an attorney in his presence. Goad said that he went into the building with the co-defendants, they busted open a safe and split the money. No threats or promises were made. The entire interrogation took only an hour. He testified that there was no subsequent statement taken.

Officer Ebens also testified that Goad did not request an attorney; that Goad stated “he knew his rights”; and that when asked if he wanted to call an attorney, Goad said he had no money, he didn’t wish to call; and that Goad never asked to call an attorney.

Officer Brown testified at the hearing on the motion substantially as did the other two officers as to the circumstances of the interrogation, except that he believed that the interrogation took an hour and 15 or 20 minutes. He also testified that he was Captain of detectives and did not assign any other officers to interrogate the defendant at any time.

Defendant Goad did not testify before the jury.

The defendant contends that the statement should have been suppressed because he was denied counsel, and because all material witnesses to the statement were not called or their absence explained.

Refusal of a request to consult with counsel coupled with a failure to warn an accused of his right to remain silent contravenes the Sixth Amendment to the United States Constitution under Escobedo v. Illinois, 378 US 478, 84 S Ct 1758 (1964), interpreted in The People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964). These cases are controlling here and apply to this trial which took place before the effective date of Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966). The burden was on the State to prove by a preponderance of the evidence that the confession was voluntary when tested by a Motion to Suppress and the State must produce or satisfactorily explain the absence of all material witnesses connected with the controverted confession to discharge this burden. The People v. Wright, 24 Ill2d 88, 180 NE2d 689 (1962).

The trial court properly applied these rules in ruling on the conflicting evidence. There is neither evidence or claim of any physical or mental abuse or coercion in the obtaining of the statement. The preponderance of the evidence supports the finding that there was a single interrogation, that of September 14, 1965; that three officers, Iasparro, Ebens and Brown were the only officers present; that defendant was warned of his right to remain silent and that what he said could be used against him; that he did not request and therefore was not refused, the assistance of counsel before giving his statement; and that the confession was not induced by any physical or mental coercion. As in Hartgraves (supra) the overwhelming weight of the evidence shows that defendant voluntarily confessed after being confronted by the codefendant Sanner, who testified that the other codefendants had confessed.

The defendant’s argument that he had been denied his request for counsel prior to his interrogation as well as during interrogation relates to a claim of denial of protection under the Sixth Amendment to the United States Constitution. The court properly held, on the conflict in the evidence as to whom and when he made the alleged requests, that his rights were not violated.

Defendant’s urging as error that all persons to whom the prior requests were allegedly made were not called at the hearing on his Motion to Suppress, confuses the rulings relating to the right to counsel with those relating to proof of voluntariness of a confession. All witnesses who could have testified on the issue of the voluntariness of the confession were called. The officers whom defendant alleged he talked to prior to the interrogation were not alleged to have participated in any conduct which amounted to a chain of physical or mental coercion culminating in the confession. This clearly distinguishes the case of The People v. Wright, supra, upon which defendant has relied.

The court is further of the opinion that, on the whole record there was credible evidence sufficient to prove beyond any reasonable doubt that the defendant was guilty of the crime of burglary as charged. The specific grounds for reversal are that there was not sufficient proof of defendant’s presence within the building.

Officer Ebens testified to the defendant’s oral statement: that defendant, together with codefendants Over-turf and Sanner drove to the Kishwaukee Auto Parts building in Overturf’s car; that Overturf and Sanner went on the roof and cut a hole and the defendant stayed below. He was inside watching by the door so if anyone came he could give warning. They got the money from the safe and drove to an alley where they parked until morning, splitting up the money.

Officer Iasparro in testifying to the same oral statement related similar testimony with the exception that he testified that defendant said he stayed outside the building as a lookout.

Officer Brown testified that defendant talked primarily to Iasparro and Ebens on the other side of the interrogation room and could not recall what defendant said was his part in the burglary.

Overturf, the codefendant, testified that he had pleaded guilty to violation of his probation the morning of the trial, based on his participation in the burglary. He had known defendant for a year previously. He, driving his car, and with Sanner as a passenger picked up defendant at 9:00 p. m. on the night of the burglary. They drove to about two blocks of the building and Sanner watched the building with binoculars. He dropped the defendant off a block from the building with a walkie-talkie radio, proceeded to the building, keeping in radio communication with the defendant. He and Sanner then cut the hole in the roof and he dropped into the building. The burglar alarm was disconnected. The door was opened for Sanner and defendant and they came into the building. Defendant stood watch at a window inside the building; he then testified that he carried the money, Sanner carried the burglary tools, and defendant carried the radios out of the building. He further testified to the division of the money taken.

On cross-examination Overturf testified that he had been in trouble with the law before as a felon; that his lawyer had advised him that if he didn’t plead guilty, he would have a possibility of a prison term with no recommendations for probation; but if he did, he would have a much better chance of a lesser sentence and a recommendation for parole.

The rule is well established that while accomplice testimony is viewed with suspicion, it may be sufficient to convict even though uncorroborated and even though the witness testifies that he expects leniency. The People v. Nastasio, 30 Ill2d 51, 55, 195 NE2d 144 (1963); The People v. Flaherty, 396 Ill 304, 314, 71 NE2d 779 (1947). Here it was corroborated by defendant’s statement and the rule follows that material corroboration lends the testimony of a witness great weight even though the witness is an accomplice. The People v. Baker, 16 Ill2d 364, 370, 158 NE2d 1. Under the evidence, the proof was adequate to hold the defendant accountable for the burglary under chap 38, sec 5-2 (c) of Ill Rev Stats (1965).

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

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Douglas R. Crittendon, Plaintiff-Appellee, v. State Oil Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 66-59M.
    Second District.
    December 27, 1966.

      McDonald, Schmidt & Baker, and Vincent D. McConnell, all of Chicago, for appellant.

      Joslyn, Kell & Conerty, of Woodstock, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant, State Oil Company (herein called State), from a judgment rendered against it by the trial court in a matter heard without a jury. The plaintiff, Douglas R. Crittendon, brought this suit for the recovery of damages to his automobile caused by Gary Mendenhall (herein called Mendenhall), the operator of a service station owned by State.

The plaintiff took his Chevrolet car to the service station operated by Mendenhall and, while there, discussed the problem of its faulty wheel bearings with Mendenhall. Apparently, he asked Mendenhall if he had repaired Chevrolets; Mendenhall answered affirmatively, and stated that he had previously worked at a Chevrolet garage.

Plaintiff left his car with Mendenhall to have the necessary repair work done. Several days later, Mendenhall — after completing repair work on another car — had his wife deliver such car to the owner in a nearby town and, in order to bring her back to the service station, he followed her in plaintiff’s car to her destination. While en route to the other town, plaintiff’s car, which Mendenhall was driving, slid on some ice, went off the road, and was thereby extensively damaged.

The service station was owned by State and displayed two identifying signs, each containing only the word “State.” One sign was located at the corner of the premises and the other on the building. No other signs were on the premises, and in this respect there was no identification of Mendenhall or any indication of his relationship with State in the operation of the station.

The trial court found that the presence of the two signs containing the word “State,” the absence of any signs identifying Mendenhall, the visibility of tools, a grease rack, and a place on the premises where cars could be repaired, justified plaintiff’s assumption that Mendenhall was the agent of State and that State was estopped to deny such agency.

The written agreement entered into between State and Mendenhall was introduced in evidence. Proof of various transactions between State and Mendenhall, pertaining to the issue of whether Mendenhall was an actual agent of State or an independent contractor, were admitted in evidence. However, in his brief and argument, plaintiff no longer contends that Mendenhall was an actual agent of State, but rather, urges that under the existing facts there was an agency by estoppel. Thus, the terms of the written agreement between Mendenhall and State and the various transactions between them — all of which were unknown to plaintiff — become irrelevant.

In Morse v. Illinois Power & Light Corp., 294 Ill App 498, 14 NE2d 259 (1938), at pages 503 and 504, the court stated that:

“The rule is that one who holds out another as his agent to act for him in a given capacity, and by his habits and course of dealing, justifies the inference that such other is authorized to act as his agent, whether it be in a single transaction or in a series of transactions, will not be heard to deny the agency to the prejudice of an innocent party, who has been led to rely upon the appearance of authority in the agent. Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill 554. This rule arises out of the application of the principle of estoppel and may be applied in favor of a third person even though as between the persons charged with the consequences of the relation, it does not in fact exist. 2 CJS Agency Sec 29.”

Also see: 1 ILP, Agency, §§ 14 and 128.

The conduct relied upon as the basis for the estoppel must be such that an ordinarily prudent person would consider it as consistent only with the fact that a designated person is the agent of another and has authority to perform a particular act. Such conduct is that which is calculated to mislead in event the principal so holding out such person as an agent were permitted to deny the existence of the agency. Faber-Musser Co. v. William E. Dee Clay Mfg. Co., 291 Ill 240, 244, 245, 126 NE 186 (1920); 1 ILP, Agency, § 128.

It is essential to the application of the doctrine of estoppel that such conduct or representations be relied and acted upon; and it must appear that there was reliance and action thereon, in good faith, by the innocent third party to his injury. Tri-City Transp. Co. v. Bituminous Cas. Corp., 311 Ill App 610, 615, 616, 37 NE2d 441 (1941); Morse v. Illinois Power & Light Corp., supra, 507.

In the case at bar, in order to constitute estoppel against State, the conduct or representations relied upon by plaintiff must have come from State. Thus, in order to recover, plaintiff had to prove that he had knowledge of and, in good faith, relied upon representations and conduct of State, which indicated that Mendenhall was in fact acting as agent for State in repairing plaintiff’s car and in driving it at the time of the accident. Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill 41, 50, 79 NE 38 (1906); Bailey v. Walters, et al., 202 Ill App 422, 425, 426 (1916).

The sole representations or acts urged as the basis for the application of estoppel against State consist of its act of placing two signs containing the word “State” on the filling station premises; and the visibility of tools, a grease rack and a place on the premises where cars could be repaired. There is no evidence that State prohibited Mendenhall from placing other signs on the station designating his capacity or position in the operation of the station. His failure to so identify himself is not conduct that can be attributed to State. It is only the conduct or representation of the alleged principal— not the supposed agent — which can be set up as a basis for estoppel.

Under the circumstances of this case, we do not believe the conduct of the defendant was sufficient to justify the assumption by plaintiff that Mendenhall was acting as State’s agent. The evidence indicates that plaintiff made purchases of oil and gasoline for cash at this particular station on prior occasions. However, he neither carried a credit card of nor a charge account with State, and he received no statements or receipts bearing State’s name.

The signs alone might indicate that this service station sold State products, either to the exclusion of, or in preference to, other competitive brands. There may be service stations which carry on their premises only the name of a particular line of gasoline and oil products which they sell. However, we do not believe that the prominent display of such brand name or symbol alone, would necessarily warrant the assumption that such service station was being operated as an agency of the owner of the brand name or symbol. See: Trust Co. of Chicago v. Sutherland Hotel Co., 389 Ill 67, 72, 73, 54 NE2d 771 (1945).

The plaintiff relies upon Burke v. Piper’s Super Service Stations, 312 Ill App 656, 38 NE2d 785 (1942) as supporting his contention that State’s signs were sufficient to give rise to an agency by estoppel. In Burke, the defendant, Piper’s Super Service Stations, sought to avoid liability for injury suffered by the plaintiff who fell on its gas station premises, by asserting that it neither owned nor operated the station in question. The defendant contended that the attendant operating the station was an agent of a Mr. Pittel, who allegedly leased the station from Silver Flyer Petroleum Company. Defendant thus contended that it had no connection with the operation of the station.

The court noted that the alleged lease between Pittel and Silver Flyer Petroleum Company was lost; that the main office of the last mentioned company was the same as that of the defendant; that the same person was president of each corporation; that the evidence showed that the defendant, itself, did in fact operate many of its stations under the name of “Piper’s Super Service Station”; that the name Silver Flyer Petroleum Company did not appear on the station; and that the station in question was known as Piper’s Super Service Station No. 12. The court also observed that Pittel was neither present at the station at the time of the injury, nor did he appear in court at the trial.

This is a brief synopsis of the factual background of the Burke ease which led the reviewing court to the conclusion that “upon the facts of this case,” the signs were a sufficient holding out to warrant the judgment against the defendant. We believe that the court reached its decision because of the bizarre factual background we have noted; and that Burke is not authority for the proposition that, standing alone, a sign containing only the words “Piper’s Super Service Station” was sufficient representation to give rise to the doctrine of agency by estoppel. Further, the question of plaintiff’s actual knowledge of and reliance upon the representation — essential to the application of the doctrine of estoppel — apparently was not considered in Burke.

In the case at bar, we do not believe that the evidence proved that the plaintiff relied on the signs as evidencing that Mendenhall was the agent of State. It is true that the plaintiff testified that he believed he was leaving his car with a representative of State, but he did not testify that this conclusion was based upon the inference he drew from the signs. There is no evidence that he had otherwise dealt with State or relied upon the reputation of State. Plaintiff had purchased products from the station only within the previous period of two months — the same period of time that Mendenhall had operated the station — and he conversed with Mendenhall concerning his experience in the repair of Chevrolets. No inquiry was made concerning Mendenhall’s business relationship with State.

The evidence is consistent with the conclusion that the plaintiff was relying upon his dealings with Mendenhall and the latter’s representations relative to his qualifications to repair Chevrolet automobiles, rather than any holding out by State that the repair work to be done on his car would be done by an agent of State. We do not believe that the evidence justifies the conclusion that the plaintiff had the repair work done, or dealt with the station in question, in reliance upon a holding out that he was dealing with State’s agent. Thus, even if the presence of the two signs and the visibility of a grease rack, tools, and a place on the premises where cars could be repaired, could be said to be a holding out sufficient to give rise to an agency by estoppel — which we do not believe to be the case — the record before us does not support the conclusion that the plaintiff acted in reliance thereon.

We are not unmindful that the trial court, as the trier of facts, found that State had held itself out as the principal operating the station and that the plaintiff relied upon such holding out. However, the facts relied upon as constituting the holding out are not in dispute, and we do not believe, as a matter of law, that they were sufficient to support the doctrine of agency by estoppel. Thus, the rule that we may set aside the factual findings of the trial court only when contrary to the manifest weight of the evidence, has no application. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 309, 175 NE2d 785 (1961); Ill Rev Stats 1965, c 110, par 92(3) (a). As to the question of whether the plaintiff relied upon the signs as indicating that he was dealing with State, we believe that the trial court’s finding of such reliance is unwarranted from the manifest weight of the evidence. To us, the opposite conclusion is clearly evident. See: Isham v. Cudlip, 33 Ill App2d 254, 272, 179 NE2d 25 (1962); Rude v. Seibert, 22 Ill App2d 477, 483, 161 NE2d 39 (1959) and Tri-City Transp. Co. v. Bituminous Cas. Corp., supra, 617.

For the reasons indicated, the judgment of the trial court is hereby reversed and judgment is entered herein for the defendant.

Judgment reversed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: JUSTICE ATTEN.

text:
    Opal C. Casner, Plaintiff-Appellee, v. Estate of Evie L. Hawkins, Deceased, Defendant-Appellant.
    Gen. No. 66-102.
    Second District.
    December 27, 1966.
    Neuendorf and Nickels, of Sandwich, for appellant; no brief filed for appellee.
   Opinion by

JUSTICE ATTEN.

Not to be published in full.


author: STOUDER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Joe Post, Defendant-Appellant.
    Gen. No. 65-50.
    Third District.
    December 29, 1966.
    Rehearing denied February 16, 1967.

      James D. Reynolds, of Peoria, for appellant.
    Bernard L. Oltman, State’s Attorney, of Pekin, for appellee.
   STOUDER, J.

This is an appeal by Defendant-Appellant, Larry Joe Post, from a judgment of conviction for involuntary manslaughter entered by the Circuit Court of Tazewell County pursuant to the verdict of a jury and for which Defendant was sentenced to a term of 5-10 years in the state penitentiary.

Defendant’s version of the incident giving rise to this action, as presented by his voluntary statement admitted as evidence, and his testimony given at the trial, is that on September 18, 1964, the Defendant resided at 816% State Street, Pekin, Illinois. Defendant’s house is located on the rear of the lot facing east toward North 9th Street directly behind the Hundt house which likewise faces on North 9th Street between State and Catherine Streets. An east-west alley runs along the south side of both the Hundt and Defendant’s houses. On the night of September 18, 1964, Defendant and his wife were seated in their living room watching television. Defendant noticed that a car turned into the alley from North 9th Street, stopped, turned off its lights and then backed onto North 9th Street and parked. Shortly thereafter Defendant noticed a person walking along the alley “in a suspicious manner.” Defendant became alarmed because prowlers and strange noises had been prevalent in the area. Defendant told his wife he was going outside to investigate, first securing from a bureau drawer a loaded 22 pistol. His wife indicated her desire to go along and they then went out of their front door. Seeing no one in the alley to the south they proceeded along the north side of their house to the rear area at which place Defendant’s wife exclaimed that someone was on the fence. Defendant observed a person climbing on the fence leaning on the house near the bathroom window. He shouted for the person to stop and advanced toward him. The person climbed down from the fence, and ran around the corner of the house back into the alley and then ran east in the alley toward North 9th Street. Defendant then ran around the north side of his house running east toward his front yard. When he reached the front yard he ran to the fence along the south side of the property at the same time observing the person running east in the alley. He again shouted for the person to stop which command was disregarded and he continued to observe the intruder running east until his view was obscured by the Hundt house. Defendant testified that although he did not see a person get into a car he heard a door slam, engine start and a car start north with a screeching of tires. Defendant ran back to the north side of the front yard hoping to see the car as it proceeded north. Defendant’s view of the car was through the six-foot space between the Hundt house and the garage located on the next lot to the north. As the car sped north and while viewed by Defendant through the space between the Hundt house and garage, Defendant claimed that he discharged his pistol into the ground to scare the prowler away. After a few moments Defendant and his wife returned to the house, Defendant returning his pistol to the drawer. Defendant and his wife went to bed at 10:30.

Dennis Hundt, a boy 13 years of age who resides in the house directly in front of Defendant’s house, testified that he was watching television at the time of the incident. He stated that his dog started barking on the porch, that he heard footsteps in the alley, that he saw no one in the alley but did see a car parked across the street. He resumed his television watching and several minutes later the dog again started barking and he saw a person running down the alley toward the car. As the person started to get into the car he heard a sharp noise which he thought could have been a shot being fired. The automobile started north on North 9th Street very fast with tires squealing. It went north past the first intersection for some distance and then went into reverse and came to rest at the intersection with its motor running. In cross-examination Defendant attempted to show that the noise which this witness heard might have been a noise other than a shot or might have occurred after the automobile had started north.

A passing motorist discovered Gary Nall, age 17, dead in his car at the intersection. Neither Defendant nor his wife knew Nall nor was any explanation of Nall’s presence in the neighborhood offered.

At about 1 o’clock in the early morning hours of September 19 Pekin police officers called at the house of Defendant arousing him from bed. They asked him whether he had heard any unusual disturbances in the neighborhood, to which Defendant replied, “no.” Inquiries were also made concerning any guns which the Defendant might have. Two rifles hanging on the wall were discussed, the Defendant commenting that they had not been fired for a long time. It does not appear that during this conversation the death of anyone in the neighborhood was revealed nor did Defendant reveal his possession of the pistol. Defendant explained his failure to mention his firing of the pistol because of his fear of being charged with the discharge of a weapon within the city. After the officers left the house Defendant removed the remaining shells from the pistol and transferred them to one of the rifles.

The police officers returned to the house the next morning after Defendant had gone to work and secured possession of the two rifles for investigation. It was discovered that one of these rifles contained five hollow-nosed 22 caliber shells. Later on the morning of September 19, after the coroner had removed the bullet which caused Nall’s death finding it to be a hollow-nosed slug of small caliber, the investigating officers asked the Defendant to come to the police station for further questioning. At that time they advised Defendant that Gary Nall had been killed and that it was either an accident, manslaughter or murder. Defendant then stated that it was an accident, related the details of his conduct on the previous night and took the police officers to his house where he showed them the 22 caliber pistol. Thereafter Defendant signed a statement relating the details of the incident.

The bullet which was removed from Gary Nall’s body was slightly flattened on the nose and one side. Ballistics tests were inconclusive, there being insufficient microscopic markings to make test comparisons. At the trial a pathologist testified that the bullet so removed entered Nall’s back, severed the aorta causing massive hemorrhaging into both cavities surrounding the lungs thereby causing death. The pathologist also testified that the trajectory of the bullet was more or less parallel to the ground and that the flattening of the bullet might have been caused by contact with bony structures in Nall’s body. According to the witness, death occurred very shortly after the wound was inflicted probably within a period of five or ten minutes at most.

Defendant’s wife testified, pursuant to a subpeona by the prosecution, corroborating Defendant’s account of the circumstances leading up to the firing of the pistol. In her testimony she indicated that the discharge of the weapon occurred as the motor vehicle was proceeding north and while the car could be viewed through the six-foot space between the house and garage. Momentarily after the discharge she observed the gun in her husband’s hand pointing in a downward direction. She also indicated that the night was dark but did not testify precisely as to the direction the weapon was pointing prior to or at the moment of discharge.

Defendant was indicted on three counts charging murder and two counts charging involuntary manslaughter. He was found guilty by the jury on one count of involuntary manslaughter and not guilty on all other counts.

Defendant relies on two assignments of error in seeking reversal of the judgment of the trial court. First, that the evidence is insufficient to sustain the conviction for involuntary manslaughter. Second, that the court erred in submitting the murder counts of the indictment to the jury along with the counts charging involuntary manslaughter, there being insufficient evidence to sustain the murder counts.

Defendant argues that the evidence is insufficient to support his conviction of involuntary manslaughter in that there is no evidence that Defendant shot deceased and that in any event Defendant’s conduct constituted ordinary negligence only.

It is true the ballistics evidence relating the bullet removed from Nall’s body to the pistol owned by Defendant is inconclusive. However the absence of technical ballistics evidence does not warrant the conclusion of Defendant that evidence is lacking that Defendant shot the deceased. 'From the testimony of persons involved in and having knowledge of the incident giving rise to this action the record discloses ample circumstances related in time and place from which the jury could have concluded that the Defendant shot the deceased.

In asserting that his conduct at most amounted to ordinary negligence Defendant argues that said conduct did not constitute involuntary manslaughter according to the principles announced in the decisions of the Supreme Court applicable prior to the adoption of the present statutory provisions in 1961. Chap 38, sec 9-3, Ill Rev Stats (1961) provides, “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Chap 38, sec 4-6, Ill Rev Stats (1961) provides, “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .”

In the committee comments to chap 38, sec 9-3, Ill Rev Stats 1961, defining the crime of involuntary manslaughter, together with chap 38, sec 4-6, Ill Rev Stats 1961, further defining the term “recklessly,” it is indicated that it was the intention and purpose of the revision to include the principles of the crime of involuntary manslaughter as established in prior decisions. The term “recklessly,” as so defined, was intended to describe the requisite mental state theretofore characterized in the decisions as “gross negligence,” “wanton negligence” and the like. Decisions prior to 1961 are properly considered in the application of the present statutory provisions. Insofar as the decisions describe the requisite mental state, such decisions are important in their relation to the present definition of “recklessly,” but they cannot be deemed to require a mental state different from that required in the present definition.

The gist of the offense of involuntary manslaughter is the reckless performance of an act likely to cause death. Defendant argues that the discharge of a pistol into the ground in an effort to scare away an intruder is an act neither of a character likely to cause death nor is such an act performed recklessly. We find no support for Defendant’s contention that the discharge of a pistol is an act not likely to cause death. On the contrary the deliberate and voluntary discharge of a pistol is by its nature inherently dangerous and the possible serious consequences to life and limb are apparent. In People v. Mulcahy, 818 Ill 332, 149 NE 266, an off duty police officer was convicted of involuntary manslaughter, the evidence tending to show that the accidental and unintentional discharge of the Defendant’s pistol caused the death of his companion. Although the conviction in the Mulcahy case was reversed because of errors in instructions and in the introduction of evidence, the court held that the determination of the legal consequences of Defendant’s conduct was properly within the province of the jury. In People v. Buzan, 351 Ill 610, 184 NE 890, it appears that a railway agent while on top of a moving freight train was trying to drive off a crowd of trespassers. Buzan fired one shot into the air but his second shot caused the death of one of the trespassers. The court affirmed Defendant’s conviction of involuntary manslaughter, the evidence being conflicting as to whether or not Defendant’s pistol was discharged unintentionally as he fell to his knees on top of the moving train. In cases where there is a conflict in the evidence the jury has a right to conclude, as it obviously did in the Buzan case and in this case, that the discharge of the gun occurred in a manner other than that described by Defendant.

Likewise we find no support in the record for Defendant’s contention that the evidence cannot and does not justify the jury’s verdict that he acted recklessly. We have reviewed People v. Sikes, 328 Ill 64, 159 NE 293, People v. Adams, 289 Ill 339, 124 NE 575, People v. Falkovitch, 280 Ill 321, 117 NE 398 and People v. Hansen, 378 Ill 491, 38 NE2d 738, relied upon by Defendant. These cases are illustrative of the application of the general principles concerning involuntary manslaughter and are harmonious with the definition of “recklessly” in chap 38, sec 4-6, Ill Rev Stats (1961). Furthermore, in these cases the deaths were caused by the operation of motor vehicles and in none of these cases was the Defendant’s act determined to be merely careless or merely negligent as a matter of law. Hence these cases do not directly support Defendant’s contention that his conduct was merely careless or negligent and therefore not reckless.

Defendant in seeking to apply the principles of the foregoing cases insists it is uncontroverted that Defendant discharged his pistol into the ground in an effort to scare away an intruder. If we consider the conflicting inferences which can be drawn from the testimony of Virginia Post, wife of Defendant, the testimony of Hundt, the testimony of the officers concerning the conduct of Defendant after the investigation had begun, and in particular the testimony of the pathologist to the effect that the bullet which caused Nall’s death entered his body from the back travelling in a direction more or less parallel with the ground, it is clear that the Defendant’s version of the incident is controverted by the evidence. We believe it is consistent with the evidence and the inferences which could have been drawn therefrom that the jury could have concluded that at the time Defendant discharged his pistol it was not aimed at the ground but was aimed in the general direction of or directly at deceased. The evidence, although conflicting, is sufficient to support the verdict of the jury and we do not find that such verdict is palpably erroneous.

Lastly we consider Defendant’s contention that the trial court erred in denying his motions for directed verdict on the murder counts of the indictment and that the submission of such counts to the jury in the absence of evidence in support thereof constituted prejudicial error. In this connection it should be noted that it is not claimed that the jury was improperly instructed on any of the charges in the indictment. We are likewise not concerned with the propriety of the verdicts of the jury finding Defendant not guilty on the murder charges. On this subject the jury has spoken and its word is final.

The proper purpose of a motion of Defendant for directed verdict is to present a question of law whether or not the evidence which has been presented is sufficient to sustain a conviction for the crime charged. People v. Chiafreddo, 381 Ill 214, 44 NE2d 888. The resolution of conflicting evidence or of different inferences which may be drawn from the evidence as well as the assessment of the credibility of the witnesses is the function of the jury. A verdict in favor of Defendant does not necessarily mean that insufficient evidence to sustain a conviction had been presented but may mean that after viewing the conflicting evidence the jury adopted a view favorable to Defendant. The common-law distinctions between murder and manslaughter have always involved considerations of degree. People v. Davis, 35 Ill2d 55, 219 NE2d 468. What we have already said in large measure disposes of Defendant’s present contention since its major premise is the assertion that evidence concerning the discharge of the pistol into the ground is uncontroverted. As we have said earlier in this opinion this assertion is inconsistent with other evidence including the physical evidence of the cause of death of deceased. In People v. Slaughter, 29 Ill2d 384, 194 NE2d 193, in the absence of eyewitnesses, the court sustained a conviction of murder although Defendant claimed the discharge of his shotgun was accidental and unintentional. The court concluding that the mental state with which the act is committed can be inferred from the act itself. In view of the conflicting evidence no error was committed by the trial court in submitting all issues to the jury.

Finding no error in the judgment of the Circuit Court of Tazewell County judgment is affirmed.

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


text:
    People of the State of Illinois, Appellee, v. Lyle P. Osborne, Appellant.
    Gen. No. 65-78M.
    Third District.
    December 29, 1966.
    Rehearing denied February 16, 1967.

      Robert H. Jones, of Peoria, for appellant.
    Bernard L. Oltman, State’s Attorney of Tazewell County, of Pekin, for appellee.
   STOUDER, J.

Defendant Appellant, Lyle P. Osborne, was charged in a criminal complaint with a violation of chap 95½, sec 6-303(a), Ill Rev Stats (1963), the offense of operating a motor vehicle after and while his privilege so to do had been suspended. Defendant was found guilty by the jury and this appeal follows from the judgment and sentence of the Circuit Court of Tazewell County.

Illinois State Trooper, John Kelsey testified that on July 11, 1964, between 7 and 7:30 p. m. he was traveling east on old state route 150. He observed an Oldsmobile, upon which there was no front Illinois license plate, traveling in the opposite direction. He made a 180-degree turn and followed such Oldsmobile and at a point about 350 feet from where the witness made his turn, the Oldsmobile made a left-hand turn from the highway into the parking lot of the B & H Welding Company. The witness followed such car into the parking lot stopping next to it and as Defendant was alighting from the car the witness honked his horn and requested the Defendant to come over to his car, there being no other person present on the parking lot at the time. During the ensuing conversation Defendant was asked for his Illinois Operator’s License but instead of exhibiting such license the Defendant exhibited an application for a Missouri license, claiming that his Illinois license was somewhere in his Cadillac. Defendant accompanied the witness to the residence of Trooper Burns who lived nearby, the three of them then returning to the plant parking lot, stopping on the way to deposit the ticket and cash bail in a mailbox for transmission to the Clerk of the Circuit Court. On their return to the plant parking lot, Defendant searched through the trunk of his Cadillac for his Illinois license which he did not find. Upon their return to the plant parking lot, the witness observed Robert Osborne, brother of the Defendant, coming out of the plant. The Officer also testified that he had known Robert Osborne, brother of the Defendant, prior to this incident but had not known Lyle Osborne and further that during the conversations which he had with Defendant, the latter did not at any time deny that he had been driving the Oldsmobile. Sometime later Trooper Kelsey learned, after inquiry through the office of the Secretary of State, that Defendant’s license had been suspended and thereafter filed this criminal complaint. Trooper Burns, who also testified, corroborated Kelsey’s testimony concerning that part of the occurrence during which he was present.

Defendant, in his own behalf, testified that he had been brought to work by his sister in a Chrysler at about noon on the day in question. He had not driven the Oldsmobile and the Oldsmobile had been driven on that day by his brother Robert, who at the time of the hearing was in a penitentiary. He had come out of the plant with a fellow employee to inspect the latter’s new car when he was called over to the Trooper’s car and was asked for his operator’s license. He exhibited an application for a Missouri license and did state to the officer that he thought he had an Illinois license somewhere. He had gone with Trooper Kelsey to the residence of Trooper Burns and returned with them to the plant parking lot failing to deny his driving of the Oldsmobile because no one had asked and he did not know what the matter was about. Defendant also in his testimony admitted that his Illinois operator’s license had been suspended and that the suspension was in effect on the day in question. He further testified that he was a resident of Missouri.

Several of Defendant’s fellow employees, as well as other persons who claimed to have been at the welding plant at the time, testified in Defendant’s behalf. Their testimony tended in part to corroborate Defendant’s claim and tended to indicate that Lyle Osborne looked very much like his brother, Robert.

The People introduced three documentary exhibits, the first being a certification by the Illinois Secretary of State as to the records in his office as of August 14,1964, the second being the order of the Secretary of State suspending Defendant’s license for a period of three months as a result of Defendant’s conviction of three moving violations within a 12-month period, and the third being the notice of suspension sent to Defendant.

Defendant argues that incompetent prejudicial evidence was admitted in behalf of the prosecution and that the Assistant State’s Attorney committed reversible error in the cross-examination of Defendant. The incompetent evidence referred to is the admission into evidence of the documentary exhibits relating to the suspension of Defendant’s license by the Secretary of State. Defendant argues that because the order of suspension recited his conviction of three moving violations within a period of twelve months his right to a trial limited to the offense charged was violated. Defendant, in arguing that the exhibits were improperly admitted, relies on the general rule that evidence is incompetent where it tends to show the commission of other offenses unrelated to the offense with which Defendant is charged. People v. Donaldson, 8 Ill2d 510, 134 NE2d 776. That such general rule is not necessarily applicable to this case is apparent from a consideration of the nature of the offense charged herein. The offense charged is not merely the driving of a motor vehicle in the absence of a license to do so but the driving of such vehicle while and after such license has been suspended. The fact of suspension is one of the essential elements of the offense as charged and must be proved by the People. It is a matter of common knowledge that suspension of a license to operate a motor vehicle must depend upon previous misconduct in the operation of a motor vehicle and we are not prepared to hold that spelling out the details of such previous misconduct in the proof of suspension should in and of itself constitute reversible error. In People v. White, 24 Ill App2d 324, 164 NE2d 823, the court in upholding the conviction of the Defendant for driving a motor vehicle after his license had been revoked, approved the admission into evidence of the authenticated copy of the order of the Secretary of State revoking Defendant’s license, said order reciting that the license had been revoked on account of Defendant’s conviction of driving while intoxicated. While the decision in the White case was predicated upon the type of evidence necessary to prove a suspension, the fact that the evidence approved contained a recital of the grounds for suspension by implication found no error in such inclusion.

The Defendant testified in his own behalf. During his cross-examination by the Assistant State’s Attorney the Defendant was asked “Q. Mr. Osborne, have you ever been in a penal institution in this state ?” Defense counsel immediately objected and after a conference outside the presence of the jury the question was withdrawn and the judge instructed the jury to disregard it. The matter was not thereafter mentioned either in argument or by way of illusion or insinuation. It is a well settled rule that the testimony of the Defendant may be impeached by evidence of his prior conviction of an infamous crime. Introduction of the record of conviction is the proper method of impeaching the testimony of a Defendant and such fact cannot be established by cross-examination. People v. Halkens, 386 Ill 167, 53 NE2d 923. The People concede that the question was improper but argue that the prompt objection to the question, its withdrawal and the court’s order to disregard the question obviated any resulting prejudice to the Defendant. The question before us is not whether or not error was committed but rather whether or not under the circumstances the error warrants reversal of the conviction. We have considered such cases as People v. Halkens, 386 Ill 167, 53 NE2d 923, People v. Decker, 310 Ill 234, 141 NE 710, People v. Kosearas, 408 Ill 179, 96 NE2d 539, People v. Black, 317 Ill 603, 148 NE 281 and People v. Garines, 314 Ill 413, 145 NE 699, wherein convictions were reversed for errors including those relating to improper impeachment of the testimony of the Defendants. Such cases are of little assistance since the method of impeachment employed was substantially different than the problem created in the instant case and because other substantial errors existed. The only cases we have been able to find in which improper impeachment of the Defendant’s testimony was the sole basis for reversing a conviction are People v. Flynn, 8 Ill2d 116, 133 NE2d 257 and People v. Flynn, 8 Ill2d 133, 133 NE2d 259. In the first case a conviction for armed robbery was reversed wherein it appeared that the Defendant was asked on cross-examination whether he had ever been convicted of a felony. After his affirmative reply defense counsel’s objection was overruled and the State’s Attorney was then permitted to inquire into the prior offense. In the second case a conviction for larceny was reversed wherein it appeared that the Defendant was asked on cross-examination whether he had ever told a police officer he had been in a penitentiary, to which Defendant replied that it didn’t matter. Defendant was also asked whether he had in fact been in the penitentiary, and whether the conviction had been for robbery or larceny, to which question Defendant did not respond. No objections were interposed by defense counsel to this line of questioning and the trial court made no rulings thereon. It is evident from the opinions in the two Flynn cases that the evidence or improper suggestion of prior criminal misconduct was significant and its only possible effect was to improperly and prejudicially inform the jury of prior criminal offenses. In the instant case the jury was not so informed and although we condemn the practice of even asking such a question we believe from a consideration of the incident itself as well as from the record as a whole, that the jury’s verdict could not have been and was not affected by such question.

Defendant next contends that the trial judge exhibited a hostile attitude thereby depriving Defendant of a fair and impartial trial. Defendant relies upon a single incident which took place during the cross-examination of one of Defendant’s witnesses. In response to an objection by counsel for Defendant to a question which had been asked several times and to which question the witness’ answer had not been responsive the court said, “Mr. Jones, the question is simple. The court believes the witness is being evasive about answering it.” Defense counsel then moved for a mistrial which motion was denied. Defendant now contends that this remark of the judge had the effect of discrediting the entire testimony of the witness thereby prejudicing Defendant, relying on People v. Melnick, 263 Ill 24, 104 NE 1111, People v. Marino, 414 Ill 445, Ill NE2d 534, and People v. Tyner, 30 Ill2d 101, 195 NE2d 675. We do not believe that the cases relied upon by Defendant are applicable to the instant case since in each of them the voluntary declaration of the judge in effect accused the witness of lying. A judge should refrain from suggesting his opinion on the credibility of the testimony presented. The single remark of the judge was mildly admonitory rather than hostile in character and was justified by the previous unresponsive answers of the witness. People v. Kukulski, 358 Ill 601, 193 NE 504. Such a remark is not susceptible of the interpretation insisted upon by the Defendant that the court sought to discredit the witness before the jury. People v. Bartz, 342 Ill 56, 173 NE 779.

Lastly we consider Defendant’s contention that the court erred in giving certain of the People’s instructions. People’s instruction 7 informed the jury in the statutory language of sec 6-209, chap 95½, Ill Rev Stats (1963) concerning the duty of the Secretary of State to notify a licensee of the suspension or revocation of privileges to operate a motor vehicle and the duty of the licensee to surrender his license. People’s instruction 9 informed the jury in the language of sec 6-122, chap 95%, Ill Rev Stats (1968) that it was the duty of a licensee to notify the Secretary of State of any change in address. Defendant’s principal objection to People’s instructions 7 and 9 is that they refer to offenses other than the offense charged in the complaint. From the evidence the issue which the jury was called upon to decide was whether or not the Defendant was driving the Oldsmobile at the time and place in question, Defendant having conceded the suspension of his Illinois license. We do not believe that the instructions in any way confused the jury or prevented appropriate consideration of the issue involved there being ample evidence to support the instructions. Defendant has objected to other instructions given in behalf of the People but we find no merit in such objections and they do not require discussion.

Finding no error in the judgment of the Circuit Court of Tazewell County judgment affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


author: MR. JUSTICE ATTEN

text:
    The Department of Public Works and Buildings of the State of Illinois, Plaintiff-Appellee, v. Herbert M. Rogers, et al., Defendants-Appellants.
    Gen. No. 66-4.
    Second District.
    December 29, 1966.
    Rehearing denied February 15, 1967.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellants.
    Donald T. Morrison, of Waukegan, and William G. Clark, Attorney General of the State of Illinois, of Chicago, for appellee.
   MR. JUSTICE ATTEN

delivered the opinion of the court.

This is a condemnation proceeding under the Eminent Domain Act of Illinois, (c 47, § 1 et seq., Ill Rev Stats, 1965) to acquire a one-acre tract of vacant land at the corner of Berkeley Road and Skokie Highway in the City of Highland Park, Lake County, Illinois, for the purpose of constructing a separated grade intersection at Deer-field Road and Skokie Highway (US Route 41), wherein the jury awarded appellant $17,500.

A jury trial was held on the issue of compensation. The jury viewed the premises. The subject property was taken in its entirety. The low testimony as to value was $13,350 and the high testimony was $82,500. The low value was applied to the property as zoned for residential purposes and the high value was placed on the property, if said property could have been used for a gasoline service station, which would have required a change in zoning. Appellant’s theory was that there was a strong probability that the property could be zoned for gasoline service station purposes.

The sole issues presented to this court by the appellants is the propriety of the rulings of the trial court in (1) excluding the testimony of one Paul Behanna, an attorney with 35 years’ experience, who in the offer of proof taken out of the presence of the jury, would have testified that from his experience there was a strong probability of obtaining a rezoning of the property in question, and (2) a special ordinance passed by the City of Highland Park evidencing a variance from the residential zoning classification to a shopping center classification of approximately 50 acres of land located some 1,000 feet north of the property in question on Skokie Highway and on the same side of said highway.

The law of eminent domain allows the owner of property condemned for public use to be compensated by valuing his property at the highest and best use to which the property is presently adapted. Housing Authority of City of East St. Louis v. Kosydor, 17 Ill2d 602, 162 NE2d 357 (1959); City of Chicago v. Equitable Life Assur. Soc. of United States, 8 Ill2d 341, 345, 134 NE2d 296 (1956). We held in the case of Park Dist. of Highland Park v. Becker, 60 Ill App2d, pages 463, 468, 208 NE2d 621 (1965), that the reasonable probability of rezoning in the near future can be taken into consideration in a determination of just compensation.

With reference to the first assignment of error, the evidence shows that the witness, Paul C. Behanna, was a lawyer with some 35 years of practice dealing in main with litigation involving zoning, eminent domain, and real estate. He had drafted the ordinance involved in this litigation as Corporation Counsel for the City of Highland Park. He served for 16 years as a Corporation Counsel of that city, handling all zoning variations and amendments to the zoning code, as well as all litigation resulting from it. In addition he was fully familiar with all zoning on both sides of US 41 and on property across the highway from the property taken, as well as other property on the highway including a filling station on the east side of US 41, three-quarters of a mile north of the property taken. After being qualified as an expert on zoning, appellants offered to prove by this witness that in his opinion there was a strong probability that the property would be zoned for a gasoline station. We believe that the court did not abuse its discretion in excluding this witness’ opinion testimony as to the probability of rezoning. Appellant has cited numerous cases and authorities as evidence for the general proposition that expert testimony is admissible where the witnesses offered as expert have “peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the jury in determining question at issue.” Thompson v. Hughes, 286 Ill 128, 132, 121 NE 387 (1918). In the case recently decided by us, Park Dist. of Highland Park v. Becker, supra, at page 469, we in deciding this very issue observed that, “The difficulty of anticipating what any legislative body is going to do is obvious, and the practice of permitting prognostication on legislative policy . . . should not be encouraged.” We further observed that the admission of expert testimony and the qualification of expert witnesses should be left to the trial judge. We held in that case that the trial judge did not abuse his discretion by excluding the expert testimony. We do not feel that the decision should be different here.

The appellants also offered in evidence in support of their theory of the probability of rezoning, an ordinance of the City of Highland Park which was passed a short time before the taking of the property in question. The court not only refused to permit the introduction of this ordinance in evidence but also refused any testimony with reference to the subject of the ordinance on the theory that (1) said ordinance as evidence may be compared somewhat to testimony by an alleged expert witness as to the probability of rezoning; (2) that the inference sought to be raised by admission of the ordinance is that the rezoning of neighboring property enhances the probability of rezoning of the property in question, and (3) that the question of admissibility of a said ordinance granting a special use to a neighboring property owner is analogous to admissibility of a current sale of similar property in the vicinity of the condemned land. The object of admissibility of the ordinance is to impress the jury with the probability of rezoning for the purpose of securing the highest compensation for the condemned property. Similarly, the purpose of admissibility of the sale is to fix the compensation for the property in question. The trial court held that evidence of an ordinance granted under special circumstances for land dissimilar in character to the instant land is a proper subject for exclusion in the discretion of the trial judge for reasons of incompetency. The ordinance in question was granted for 50 acres of land, whereas the subject property in this proceeding amounts to approximately one acre. The trial court further held that the considerations and requirements which might induce the granting of an ordinance to develop a shopping center are completely dissimilar to a determination of whether a one-acre corner of land should be rezoned for use as a gasoline service station.

We believe that the court committed error in refusing to admit into evidence this ordinance. The purpose for the introduction of this ordinance was to enlighten the jury as to changes in zoning and the use of lands by the City of Highland Park in the vicinity of the subject property.

The reasonable probability of rezoning relates to the flexibility of a zoning ordinance. The zoning ordinance here involved was shown to be flexible by the rezoning of the property on this road just north of appellants’ property within a year of the taking by the ordinance in question. The jury was entitled to know that flexibility. Appellants were seriously prejudiced by the trial court’s refusal to admit the ordinance in evidence, striking from the record reference to this rezoning and directing the jury to disregard such reference. We, therefore, believe that the judgment of the Circuit Court must be reversed and that upon a new trial of the matter, the trial judge be required to admit the ordinance in question into evidence.

For the reasons stated the judgment of the Circuit Court is reversed and the case remanded for a new trial in conformity with the views expressed herein.

Reversed and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.


text:
    Darlene Lembeck, Plaintiff-Appellee, v. Juanita Hundemer Brady, d/b/a Nita’s Place, Defendant-Appellant.
    Gen. No. 66-21.
    Third District.
    December 29, 1966.
    Rehearing denied January 24, 1967.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago, and Kavanagh, Scully & White, of Peoria, for appellant.
    Knoblock & Ott, of Peoria, for appellee.
   STOUDER, J.

This is an appeal from a judgment for $82,500 entered by the Circuit Court of Peoria County on a jury verdict in favor of Plaintiff-Appellee, Darlene Lembeck, on her claim for personal injuries against Juanita Hundemer Brady, d/b/a Nita’s Place, Defendant-Appellant.

On Saturday afternoon, July 13, 1963, at about 3:30 p. in. Plaintiff met Joseph Klepfer, a friend. The latter invited Plaintiff to have a drink and for that purpose they went to Nita’s Place, a tavern operated by Defendant. Defendant was tending bar at the time of the incident. Plaintiff and her companion seated themselves at the bar, Plaintiff ordering beer. During the absence of her companion, Klepfer, from the bar, Robert Petzing, who was seated several stools away, passed a note to Plaintiff. Shortly after Plaintiff had commenced her second beer she left the bar to go to the ladies’ room, her companion testifying that she had asked Defendant for directions although the Defendant did not recall such request. To get to the ladies’ rest room Plaintiff went through an archway with double louvered doors into a room where a stairwell was located. The room was about 14 feet by 15 feet and contained a pool table, two lounges, two tables for customers and several chairs. The ladies’ rest room was partitioned off to the rear or north. The stairhead was at the east side of the room toward the rear. On the partition for the entrance to the ladies’ room toward the rear was a sign saying.“ladies” with direction arrows pointing in two different directions and on the lattice work over the west, waist-high wall of the stairwell, was a sign “Watch your step — Stairway.” There were lights in the ladies’ room, a bare, 100-watt bulb in the ceiling over the areaway in front of the stairhead, a 100-watt bulb in the conical-flared shade over the pool table, a fluorescent tube running north and south up against the ceiling and a light in the basement that would light up the bottom of the stairway. There were no outside windows in the room. Shortly after Plaintiff had left the bar, the Defendant heard a peculiar sound coming from the direction of the ladies’ rest room and going to the top of the stairs discovered Plaintiff lying at the bottom of the stairs.

Defendant testified that when she opened her establishment at about 2 p. m. she had turned on the lights over the pool table and the lights at the top and bottom of the stairway, the same being operated on the same switch. Defendant testified that these lights were on at the time she discovered Plaintiff. Witnesses Klepfer, Petzing and a deputy sheriff, who arrived somewhat later, testified that the room was dark although they had no difficulty going through the room and that there was a light on at the bottom of the stairs. Plaintiff testified that she had not previously been in Defendant’s establishment and that she had no memory of anything that occurred after she left the bar.

Three physicians testified to Plaintiff’s injuries. She sustained a broken collar bone and skull fracture causing aphasia and loss of sense of taste and smell. Since the incident she has had convulsions or seizures resulting in dizziness, headaches, unconsciousness and loss of speech which symptoms are controllable by anticonvulsants.

Defendant in seeking a reversal of the judgment argues that the evidence is insufficient to support the verdict of the jury and that prejudicial misconduct of Plaintiff’s counsel resulted in the denial of a fair trial to Defendant.

Defendant argues the evidence shows as a matter of law, that Plaintiff was contributorily negligent or that Defendant was not negligent. Defendant asserts that if the room was dark Plaintiff was contributorily negligent by entering such room and that if the room was well lighted Plaintiff was negligent in failing to heed the warning of the posted signs. Defendant relies on cases such as Hudson et al. v. Church of the Holy Trinity, 250 NY 513, 166 NE 306 and Dunn v. White Plains Housing Authority, 7 NY2d 944, 165 NE2d 878, in which cases the court held that the Plaintiff’s entry into darkened premises constituted negligence as a matter of law. However, in such cases the dark condition of the premises was not controverted. In the instant case there is no question that the ladies’ rest room was maintained for the convenience of patrons and the lighting conditions in the room as well as at the top of the stairs were controverted. It is also apparent from the evidence that the clarity and visibility of the signs indicating the rest room and stairway were controverted facts. Under such circumstances the issue of Plaintiff’s contributory negligence was an issue properly submitted to and resolved by the jury. Geraghty v. Burr Oak Lanes, 5 Ill2d 153, 125 NE2d 47, Burke v. Piper’s Super Service Station, 312 Ill App 656, 38 NE2d 785. The conflict in the evidence concerning the adequacy of the lighting and the visibility of the signs, made such facts also matters for the jury’s determination and there was sufficient evidence to support its conclusions of Defendant’s negligence.

At a pretrial conference, Plaintiff’s counsel informed the court he had learned from a pretrial deposition that Defendant, in the course of her duties of tending bar, had overheard a conversation between Plaintiff and another party in which Plaintiff had made a statement to such party which could be interpreted as either immoral or frivolous. At the pretrial conference, Plaintiff’s counsel requested that such conversation be excluded from the trial as being immaterial to the issues in the case. The court ruled “I will permit them to state that a note was passed, what she did with it, anything that occurred from the time she left this stool prior to the accident, but I will not permit any reference to what was said in that conversation because I don’t think it has any bearing on the accident, and, as I understand the law, a woman is supposed to be considered chaste until it is proven different, and such a remark as that I can’t believe is such as would justify my permitting it to go before the jury.” Defendant initially argues that the court should not have excluded the conversation in that it tended to show Plaintiff’s state of mind to be such that she would, of necessity, have acted in heedless disregard for her own safety. We find no merit in such argument. There is no evidence concerning Plaintiff’s conduct or behavior from which it might be concluded that such conduct or behavior was affected by the conversation. On the contrary Defendant’s own testimony was to the effect that she noticed no peculiar behavior on Plaintiff’s part as the latter left the bar. In the absence of any proof that Plaintiff displayed mental stress, agitation or excitement, the conversation is not material to the issues involved.

Defendant also argues that in view of the court’s order concerning the note and conversation it was highly prejudicial for Plaintiff’s counsel in his final argument to refer to the possible effect of the note. In this connection we find from the record that the note was not admitted into evidence and that the only reference to it was by witness, Petzing, called by the Defendant. Petzing did not testify as to the contents of the note and was vague in any identification as to the recipient of the note. Defendant next argues that the restrictive order of the court made the note and its contents inadmissible, thereby precluding any reference to the note or its contents in argument under the rule announced in Ravenscraft v. Stull, 280 Ill 406, 117 NE 602 and Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476. Furthermore Defendant contends that the highly prejudicial remarks of Plaintiff’s counsel in his final argument concerning the note or its possible relevancy were such that they constituted reversible error even though not objected to at the time, relying on such cases as Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. As pointed out by Plaintiff and as sustained by the record, Plaintiff’s counsel in his first closing argument to the jury made no reference to the note or its contents. Defendant’s counsel in his closing argument referred to the note when he argued “. . . and he (Mr. Petzing) was there during the greatest portion of the time that Mrs. Lembeek was there, and he had enough time while he was seated there and while Mr. Klepfer was gone to pass a note to Mrs. Lembeek. — Was she going to the rest room or was she going to read the note? I wonder what it was? — I think that we can logically suppose that while Mrs. Lembeek was in there she was reading that note or she was thinking about it.” Plaintiff’s counsel in his second closing argument stated there had been no attempt to say what was in the note or to explain why the note was important and concluded that the note passing incident should be disregarded. Under such circumstances we do not believe it necessary to consider the effect of the court’s restrictive order. The matter of the note or its possible effect on the Plaintiff was first introduced into the arguments by Defendant’s counsel. Defendant cannot now complain of argument which he originally interjected into the proceeding and to which he invited rebuttal. Darling v. Charleston Hospital, 50 Ill App2d 253, 211 NE2d 253.

Defendant contends that the court erred in refusing to give her instructions 15 and 16 dealing with intoxication of Plaintiff as related to the presence or absence of contributory negligence. The record discloses that there was no evidence of intoxication. There is no evidence that Plaintiff was in the tavern for an extended period of time, that she consumed other than a nominal quantity of beer or that her behavior as described by the witnesses, including the Defendant herself, indicated lack of sobriety. The court properly refused Defendant’s instructions in the absence of any evidentiary basis therefor. Shore v. Turman, 63 Ill App2d 315, 210 NE2d 232.

What we have already said disposes of Defendant’s argument that the amount of the verdict is excessive. Her argument is not that the verdict is beyond the range of the serious injuries proved but only that the amount was influenced by the prejudicial conduct of Plaintiff’s counsel. Since we have already found that such conduct of Plaintiff’s counsel was not prejudicial it follows that the jury was not improperly influenced thereby.

We find no merit in Defendant’s other assignments of error and do not believe that they require discussion. Finding no error in the judgment of the Circuit Court of Peoria County, judgment affirmed.

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.