author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert George Sanders, Defendant-Appellant.
    Gen. No. 66-21.
    Second District.
    October 11, 1966.

      Charles L. Hughes, of Aurora, for appellant.

      William R Ketcham, State’s Attorney of Kane County, of Geneva (Gene Armentrout, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Kane County. On October 6, 1965, a jury returned a verdict finding the defendant guilty of theft of property having a value of $8,239.03. On November 8, 1965, judgment on the verdict was entered and defendant was sentenced to a term of not less than one nor more than three years in the Illinois State Penitentiary. All post-trial motions of defendant were denied and his plea for probation was denied.

Defendant perfected his appeal and filed with this court the record and abstract of record and brief. The State did not file an appellee’s brief. The question arises as to whether the State’s failure to file a brief requires reversal of the judgment or whether this court may proceed and consider the case on its merits. From a review of the cases, both civil and criminal, it appears that it is within the discretion of the Appellate Court to either reverse the judgment without consideration of the merits or to proceed and consider the case on its merits. People v. Riggs, 296 Ill App 136, 138, 15 NE 2d 914. In The People v. Thomas, 7 Ill2d 278, 131 NE2d 35, at pages 282 and 283 the Supreme Court said:

“In his reply brief, defendant asks that the People’s brief be stricken because it was not filed within an extended period of time fixed by order of this court. We find, however, that for good cause shown, a further order was entered allowing the People’s unopposed motion for leave to file briefs instanter. Such action is within the discretion reserved to this court under Rule 41, (Ill Rev Stats 1953, chap 110, par 259.41,) and will not be disturbed in the absence of any showing that defendant was prejudiced thereby. Furthermore, we are constrained to remark that even the complete failure of the People to file a brief in this cause could not, and would not, have resulted in a reversal of the judgment of conviction.” (Emphasis added.)

While we condemn the laxity of the State in failing to file a brief herein, we do not consider that the ends of justice would be served by reversing the jury’s verdict and the judge’s sentence merely because of such circumstances in the case at bar.

Defendant was charged in the indictment with theft in that he “knowingly obtained unauthorized control over stolen property, to-wit: 21 television sets and two stereo sets having a value in excess of $10,000.00, knowing said property to have been stolen by another, and knowingly concealed said property in a manner and with the intent to deprive the owner . . . permanently of the use and benefit of such property.”

The State’s case rests largely on the testimony of one Charles Mosely. Mosely had been an employee of the defendant, who operated a television antenna service in Aurora. Early in June, Mosely ceased working as a full-time employee of the defendant and started working at the warehouse which he subsequently burglarized.

It appears that on June 12, 1965, Charles Mosely and Robert Huett burglarized a warehouse in Aurora and stole two television sets. On the following evening the same two individuals returned to the warehouse with a truck stolen by them and again burglarized the same warehouse. This time they took 21 television sets and two stereo sets. The fruits of the second burglary were stored in the garage of Edward Mosely, the brother of Charles Mosely.

The following day Charles Mosely testified he met the defendant at a restaurant in Aurora. Defendant was sitting at the bar when Mosely came in and the two moved to a table where Mosely testified the defendant said he had heard of the burglary and wanted to know if Mosely wished to sell the sets. On June 16, 1965, Mosely called the defendant and told him that his brother insisted that he move the television sets and inquired if he could store them in a barn on defendant’s farm. Mosely said that John Rost, a friend of the defendant’s, rented a trailer which he turned over to Mosely for the purpose of transporting the television sets to defendant’s farm. On that night Mosely made two trips to defendant’s farm transporting the stolen merchandise. The first trip was made with his brother, Edward, and the second with Robert Huett.

They arrived at the farm on the second trip after midnight on the morning of June 17, 1965. Because of the darkness, the defendant, who was at the farm, arranged an extension cord and held a light while Mosely and Huett unloaded the merchandise and stored it in the barn. After the trailer was unloaded, Sanders secured some canvas to cover the crates. The three then discussed whether or not it would be feasible to move the crates up into the loft of the barn. It was agreed that the opening was sufficient and they would do it the next day. Later that morning John Rost stopped at defendant’s farm and the two drove to downtown Aurora where a policeman started to approach the car. Sanders got out of the car and started to walk away, but the policeman apprehended him and he was placed under arrest.

The defendant’s version of what occurred is that on June 16, 1965, Mosely called him and asked if he could store “some stuff” in his barn, to which request he assented. It was not until Mosely and Huett were unloading the stolen merchandise that he realized what it was. He claims after finding out what Mosely was storing, he spent a wakeful, fitful night, and that when his friend, John Rost, picked him up on the morning of June 17, they were on their way to the Aurora Police Station to advise the police of the circumstances; that on the way he was arrested. Defendant never explained why he did not call the police from his home, nor was there any satisfactory explanation of why, upon the approach of a policeman, he left the car and started walking away. Defendant also denies the substance of the conversations which took place in Aurora and at his farm while the merchandise was being placed there.

Defendant has been convicted of knowingly obtaining unauthorized control over 21 stolen television sets and two stereo sets having a value of excess of $8,000. It is undisputed that the stolen merchandise was found stored in a barn on the farm where defendant lived. Defendant admits that he was present when part of the merchandise was stored there, that he knew the merchandise was stolen and he assisted the two men who had stolen it as they stored it in his barn. Defendant contends that this evidence was not sufficient to sustain a conviction.

We have examined the cases cited by the defendant in his brief and find them to be clearly distinguishable from the facts before us. Defendant in permitting the stolen merchandise to be stored in his barn and assisting the original thieves in storing the stolen merchandise committed all the essential acts necessary to constitute violation of section 16-1 (d) of the Illinois Criminal Code of 1961. There is ample evidence in the record to justify finding the defendant guilty. The People v. Todaro, 14 Ill2d 594, 153 NE2d 563; The People v. Jurek, 357 Ill 626, 630, 631, 192 NE 686; People v. Nunn, 63 Ill App2d 465, 472, 473, 212 NE2d 342.

The next question is as to the sufficiency of this evidence inasmuch as the State’s case rests largely on the testimony of Charles Mosely, an admitted thief. As the defendant contends, it is uniformly held that the testimony of an accomplice must be received with grave suspicion and acted upon in great caution, and in weighing such testimony, it is necessary to consider the motives of the witness in giving such testimony. The People v. Todaro, supra, at page 602; The People v. Rendas, 366 Ill 385, 399, 9 NE2d 237.

Defendant asserts the State extended favors to Charles Mosely to induce him to testify as he did. This assertion appears negated since the record indicates Mosely has been sentenced to the penitentiary. The principal conflict in the testimony of the defendant and that of Charles Mosely is as to the subject matter of the conversations that took place between them in the restaurant in Aurora and at defendant’s farm the night he held the light so Mosely and Huett could see where to store the merchandise. As to whether Mosely or Sanders truthfully testified as to the content of these conversations was for the jury to determine. The jury found nothing in the testimony of Mosely so improbable, unsatisfactory or reasonably doubtful to cause it to believe that the State had failed to prove the case beyond a reasonable doubt. This court should not set aside this verdict unless it is apparent to us that such proof is lacking. We find no reason to disturb the finding of the trial court. The People v. Todaro, supra, page 602.

Much of the testimony of Mosely is corroborated by the testimony of the defendant himself. The weight of the evidence and credibility of the witnesses are for the jury to determine and in the light of this record we will not substitute our judgment on those questions. The People v. Todaro, supra.

As an alternative theory, the defendant argues that the sentence of not less than one nor more than three years in the penitentiary is too severe and was an abuse of the discretion of the trial court and, under the circumstances, probation should be granted by this court. There is no question but that under the powers granted the reviewing court by c 38, section 121-9 (b-4), Ill Rev Stats (1965) we have the authority to reduce the sentence in a proper case. This section of the statute does not appear to authorize this court to grant probation. However, before the Appellate Court will interfere with a sentence of the trial court which has had the opportunity to observe the witnesses and hear the testimony, it must be manifest from the record that the sentence is excessive and is not justified by any reasonable view which may be taken of the record. People v. Hobbs, 56 Ill App2d 93, 98, 99, 205 NE2d 503. Where it is contended that the punishment imposed in a certain case is excessive, though within the limits imposed by the statute, this court will not disturb that sentence unless it clearly appears that the sentence constitutes a clear departure from fundamental law and its spirit and purpose and that the punishment is manifestly excessive and disproportionate to the nature of the offense. The People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673 (1965). We find the punishment imposed upon the defendant was not manifestly excessive.

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

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH.

license: Public Domain

text:
    Perl Smith, Plaintiff-Counterdefendant-Appellant, v. Lindy L. Glover, Defendant-Counterplaintiff-Appellee.
    Gen. No. 66-25.
    Fifth District.
    October 11, 1966.
    Conger, Elliott & Feehtig, of Carmi, for appellant; Gosnell & Benecki, of Lawrenceville (Edward Benecki and Charles Quindry, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: JUSTICE EBERSPAGHER.

text:
    Southern Commercial and Savings Bank, a Corporation, v. William Porter and Rose Porter, Defendants-Appellees.
    Gen. No. 65-99.
    Fifth District.
    October 12, 1966.

      Chapman, Strawn and Pratt, of Granite City, for appellant; Joseph R. Bartylak, of Collinsville, for appellees.
   Opinion by

JUSTICE EBERSPAGHER.

Not to be pub-

lished in full.


author: JUSTICE EBERSPACHER.

text:
    Gerald M. Hampleman, et al., Plaintiffs-Appellees, v. County Board of School Trustees of Perry County, Illinois, et al., Defendants-Appellants, (Consolidated With) James G. Heiman and Ruth E. Heiman, Plaintiffs-Appellees, v. County Board of School Trustees of Perry County, Illinois, et al., Defendants-Appellants, (Consolidated With) Tamaroa Community High School, School District No. 102, Perry County and Washington County, Illinois, et al., Plaintiffs-Appellants, v. The County Board of School Trustees, et al., Defendants-Appellees.
    Gen. No. 66-41.
    Fifth District.
    October 13, 1966.

      Hodson & Pennock, of Centralia (Lloyd Middleton, of Pinckneyville, of counsel), for appellants; Hill & Hill, of Benton, for appellees.
   Opinion by

JUSTICE EBERSPACHER.

Not to be

published in full.


author: GOLDENHERSH, P. J.

text:
    Illinois Power Company, a Corporation, Petitioner-Appellant, v. Ruth M. Walter, et al., Magnolia Petroleum Company, a Corporation, Walter J. McGlasson, et al., United States of America, Egyptian Electric Cooperative Association, a Corporation, and The National Bank of Bloomington, a Corporation, as Trustee, Defendants-Appellees.
    Gen. No. 65-63.
    Fifth District.
    October 14, 1966.

      LeForgee, Samuels, Miller, Schroeder & Jackson, of Decatur, Schiff, Hardin, Waite, Dorschel & Britton, of Chicago, Conn & Clendenin, of Sparta (Thomas W. Samuels, E. Wayne Schroeder and William T. Hart, of counsel), for appellants.
    Thomas A. Graham, of Chicago, Paul H. Nehrt, of Chester, for defendant-appellee, Egyptian Electric Cooperative Association, and Nehrt and Clotfelter, of Chester (Thomas A. Graham and Paul H. Nehrt, of counsel), for defendant-appellees, Gerald L. Stork and Cecelia E. Stork.
   GOLDENHERSH, P. J.

Petitioner, Illinois Power Company, appeals from the order of the Circuit Court of Randolph County, sustaining the amended traverses of the defendants Stork and Egyptian Electric Cooperative Association, hereinafter referred to as Egyptian, and dismissing its petition for condemnation. Petitioner sought to condemn an easement over a strip of land 20 feet in width, over lands owned by defendants.

The petition for condemnation and the evidence adduced at the hearing show that petitioner, in 1929, purchased certain electrical properties of the Evansville Electric Company, hereinafter referred to as Evansville. On July 10, 1929, in Docket No. 19296, the Illinois Commerce Commission approved the purchase, and issued to petitioner a certificate of convenience and necessity, authorizing it to operate and transact an electric public utility business in the territory “now served by the electric utility of the Evansville Electric Company.” The evidence shows that on January 4,1928, in Docket No. 17608, the Illinois Commerce Commission had issued to Evansville a certificate of convenience and necessity for the construction and operation of an electrical line, beginning near Evansville, in Randolph County, and extending eastwardly through Walsh, thence northwardly, through Preston and Baldwin, and for the transaction of an electric public utility business along the route of said line, “but not to exceed a distance of one-half mile therefrom.”

Also admitted in evidence is a certificate of convenience and necessity issued to petitioner by the Illinois Commerce Commission in Docket No. 41683, authorizing construction and operation of an electric transmission line from Sparta to Ruma, both in Randolph County.

On October 7, 1963, petitioner entered into a contract with American Telephone and Telegraph Company, hereinafter referred to as A. T. & T., to supply electricity to A. T. & T.’s relay station situated in Section 27, Township 5 South, Range 7 West, in Randolph County. On October 18, 1963, petitioner filed a petition with the Illinois Commerce Commission seeking an order under section 50 of the Public Utilities Act, (c 111%, III Rev Stats 1963), directing the construction, maintenance and operation of a 2-mile extension of its line running between Evansville and Walsh. The proposed extension is described as starting at a point approximately three-fourths mile west of Walsh, on the north line of Section 22 T. 5 S., R. 7 W., thence south to the south line of section 22, thence east for one-half mile, thence south to the delivery point in section 27. The delivery point is described as being located one and one-half miles south of petitioner’s existing line. This proceeding was assigned Docket No. 49986.

After extensive hearings the Illinois Commerce Commission granted petitioner’s petition, and on December

19, 1963, entered an order pursuant to section 50 of the Public Utilities Act, directing petitioner to construct, operate, and maintain the proposed extension, over a route designated in an exhibit attached to petitioner’s petition. The subsequent history of this proceeding is reviewed in Egyptian Elec. Co-op. Ass’n v. Illinois Commerce Commission, 33 Ill2d 339, 211 NE2d 238.

The present litigation commenced with the filing of a petition for condemnation seeking to acquire an easement across defendants’ lands. Petitioner’s claim to the right of eminent domain is based upon the provisions of section 59 of the Public Utilities Act. Defendants Stork and Egyptian filed traverses, which, as amended, cover 38 pages in the record. The record contains 1665 pages, the abstract and additional abstract, 434 pages, the briefs, 160 pages, and the appendices to the briefs, 51 pages. It is not necessary to discuss the many points and issues briefed and discussed, for the reason that the determination of a single issue controls the decision of this appeal.

Petitioner contends that this issue was determined by the Supreme Court in the case of Egyptian Elec. Co-op. Ass’n v. Illinois Commerce Commission (supra) and assuming, arguendo, that the question has not been finally determined, that section 5 of the Electric Supplier Act (ch 111%, § 405 (b), Ill Rev Stats 1965), gives it the right to condemn the necessary rights-of-way to reach A. T. & TVs relay station.

Petitioner concedes that its only certificate of convenience and necessity to operate and maintain the line which it proposes to extend, is that issued in Docket No. 19296, and that the underlying certificate, issued to Evansville in Docket No. 17608, restricts the operations to business along the route, “but not to exceed a distance of one-half mile therefrom.”

Petitioner, relying upon Illinois Power & Light Corp. v. Illinois Commerce Commission, 320 Ill 427, 151 NE 236, argues that the Illinois Commerce Commission, in the Section 50 proceeding, ordered it to extend its line and render the service, and no certificate of convenience and necessity to serve the area beyond that designated in its presently held certificate, is necessary. We do not agree with petitioner’s interpretation of the holding in the Illinois Power and Light case. We interpret the opinion to hold that the fact that the certificate there involved restricted the utility to a territory one-half mile wide, did not preclude it from appealing an order granting a certificate of convenience and necessity to a competitor in adjacent territory. The Supreme Court did not hold, as contended by petitioner, that the one-half mile restriction was not applicable. The opinion holds that the existence of the restriction did not preclude the certificated utility from applying for a certificate to serve other territory, nor did it prevent the commission from entering an order upon its own motion, or upon complaint of some person desiring service, extending the territory in which the utility could render service.

Section 55 of the Public Utilities Act provides that no utility shall transact business without a certificate of convenience and necessity. In Palmyra Tel. Co. v. Modesto Tel. Co., 336 Ill 158, 167 NE 860, the Supreme Court, discussing the area which a utility was authorized to serve, said, at page 163: “It can lawfully serve no territory not embraced in its certificate of convenience and necessity.”

In view of the Supreme Court’s holding in Palmyra, if the Illinois Commerce Commission were to order, in a Section 50 proceeding, that a public utility render service in an area outside the territory for which it was certificated, the public utility may not serve such additional territory until it has been issued a certificate of convenience and necessity authorizing it to render the service.

Unless, as contended by petitioner, the proposed extension is governed solely by the provisions of Section 50, and therefore, exempt from section 55 of the Public Utilities Act, in the absence of a certificate of convenience and necessity to serve the area of A. T. & T.’s relay station, petitioner may not render the proposed service, and its condemnation action must fail.

Counsel have not cited, nor has this court found, any Illinois case that holds that the word “extension,” as used in Section 50, and the term “in extension thereof,” as used in section 55 of the Public Utilities Act, are intended to mean an extension of the territory or area which the utility is authorized to serve. In the absence of such authority, we hold that the “extension” contemplated by section 50 of the Public Utilities Act, is an extension of facilities within the territorial scope of the utility’s certificate of convenience and necessity. Because petitioner holds no certificate of convenience and necessity to-serve the territory here involved, the Section 50 order, in the absence of a certificate of convenience and necessity, is not sufficient to confer upon petitioner the right of eminent domain.

An examination of the order issued by the Illinois Commerce Commission on December 19, 1963, shows that the Illinois Commerce Commission predicated its order, in part, on the following findings:

“that by virtue of the authority granted by this Commission to the petitioner in Docket No. 19296 and pursuant to the Public Utilities Act, petitioner is authorized to build the proposed extension of its existing electric line.”

At the hearing before the Examiner for the Illinois Commerce Commission, Mr. Leigh, described as an Administrative Assistant for petitioner, was asked the following question, and made the following answer:

“Q. Does the Commission certificate in Docket No.

19296 contain what is sometimes referred to as a territorial limitation ?

“A. There is no territorial limitation.”

This answer is obviously incorrect, since there is a territorial restriction contained in the certificate of convenience and necessity issued to Evansville in Docket No. 17608, which is the basis for the certificate issued to petitioner in Docket No. 19296.

This court will not speculate, nor engage in conjecture, as to whether the Illinois Commerce Commission chose to ignore the restriction imposed by the above described certificates, or whether its order was entered under the mistaken impression that there was no such restriction. In either event, we hold that petitioner, at the time of the filing of its petition for condemnation, did not hold a certificate of convenience and necessity authorizing it to render service beyond one-half mile on either side of its Evansville-Walsh line, which it now proposes to extend.

Petitioner argues that the Supreme Court, in Egyptian Elec. Co-op. Ass’n v. Illinois Commerce Commission (supra), held that the order of the Illinois Commerce Commission is valid, and that it determined the issues here presented. The Supreme Court has repeatedly held that a judicial opinion is authority only for what is actually decided. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785; Village of Lombard v. Illinois Bell Tel. Co., 405 Ill 209, 90 NE2d 105. The opinion of the Supreme Court holds only that the Illinois Commerce Commission did not err in denying Egyptian’s successive petitions for leave to intervene, and that Egyptian had no standing to bring the appeal. The court specifically stated that any rights which the landowners might have may be asserted in the condemnation suit, and those rights are not affected simply by the conferring of a power of eminent domain upon a utility corporation.

The Supreme Court has held that the power of eminent domain can be exercised by a corporation only when such grant is specifically conferred by legislative enactment, and then only in the manner and by the agency so authorized. Department of Public Works & Buildings v. Ryan, 357 Ill 150, 191 NE 259. In this proceeding, the defendant landowners have the right to question whether the petitioner is so empowered. The defendant landowners may further question whether the taking is necessary for a public use. This latter issue is to be determined by the court, and the finding of the Illinois Commerce Commission that condemnation of the land is necessary is not conclusive. Inter-State Water Co. v. Adkins, 327 Ill 356, 158 NE 685; Chicago B. & Q. R. Co. v. Cavanagh, 278 Ill 609, 116 NE 128. Because it is apparent from the record that plaintiff does not hold a certificate of convenience and necessity authorizing it to serve the site of A. T. & T.’s relay station, it does not have the power of eminent domain, and the order of the Illinois Commerce Commission, based on Section 50 of the Public Utilities Act, standing alone, is not sufficient to confer the necessary power. In view of our holding on this issue, we do not reach the question of whether under the evidence presented, the proposed taking is for a public use.

We next consider petitioner’s contention that the provisions of section 5 of the Electric Supplier Act confer upon it the power of eminent domain to condemn the rights of way here sought. By its own terms, this legislation did not become effective until July 2, 1965, and, therefore, it does not apply to the situation here reviewed. Since we hold it to be inapplicable here, we do not consider petitioner’s contentions with regard to the effect of its contract with A. T. & T.

Much of the evidence adduced at the hearing, and many of the matters discussed in the briefs, are not relevant to the issues in this case. Many of the findings set out in the trial court’s order are unsupported by competent, relevant evidence, are repetitious, and are not material to, or necessary for, the decision of this case. Accordingly, it is ordered that the findings numbered 2, 3, 7, 8, 10, 11, 12, 13, 14 and 15 be stricken from the order.

Although not urged as error, we question the propriety of the dismissal of the petition “with prejudice.” Allen v. City of Chicago, 176 Ill 113, 52 NE 33.

In this unduly lengthy record and these needlessly extensive briefs, learned counsel, with great erudition, and an impressive display of knowledge of classical literature, have discussed sophistry as practiced in ancient Greece, and have, at length, expounded the conflicting philosophies of the proponents of electrical cooperatives and the votaries of investor-owned utilities. The court finds this edifying, and except for the time consumed in its perusal, would have found it entertaining. In the event of further litigation between these parties, it is suggested that the evidence and argument be limited to the issues necessary to the determination of the rights of the parties.

For the reasons herein set forth, the order of the Circuit Court of Randolph County dismissing the petition is modified by striking the findings therein contained numbered 2, 3, 7, 8, 10, 11, 12, 13,14 and 15, and that portion thereof that provides that the dismissal be “with prejudice.” As so modified, the order is affirmed.

Order modified, and as modified, affirmed.

MORAN and EBERSPACHER, JJ„ concur.


author: EBERSPACHER, J.

text:
    Larry McElroy, Plaintiff-Appellee, v. Dovie Force, Adm. of the Estate of Harold Duane Robison, Deceased, Defendant-Appellant.
    Gen. No. 65-44.
    Fifth District.
    October 13, 1966.
    Rehearing denied November 9, 1966.

      Burton C. Bernard and Joseph R. Davidson, of Granite City, for appellant.
    Chapman, Strawn and Pratt, of Granite City (Paul L. Pratt, of counsel), for appellee.
   EBERSPACHER, J.

Defendant administratrix appeals from a judgment for $21,000 entered against her after a trial by jury. This personal injury lawsuit arises from a one-car accident involving an automobile occupied by plaintiff and the defendant’s son, who was killed.

Defendant has raised five points in her brief and we will consider them in the order raised.

The first contention is that there is insufficient evidence to support a finding that decedent Robison was driving his car at the time of the accident. The evidence shows that both McElroy and Robison owned cars which were available. They took Robison’s car when they started out and Robison was driving at that time. They made a stop and after that Robison continued driving. There was no direct evidence as to who was driving after a second stop. The jury also had before them the evidence concerning the path of the car, the objects struck, the damage to the car and the final location of the car and the plaintiff and decedent after the crash, as well as the nature of plaintiff’s injuries. Here there is proof, which, taken with its intendments most favorable to the plaintiff, supported by a fact from which a reasonable inference of the owner’s being in control, would sustain the essential allegations that defendant’s decedent drove.

The second contention is that the giving of Plaintiff’s Instruction #14 was reversible error. This instruction reads: “The Court instructs the jury that if you find from the preponderance of the evidence that at the time of the incident in question, Harold Duane Robison, deceased, was the owner of the Chevrolet automobile involved in the collision in question, then the presumption is that he was operating same at the time of the collision in question.” The general proposition that, in the absence of any evidence to the contrary, ownership gives rise to a presumption that the owner was in control of the vehicle is correct. Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804; Anderson v. Launer, 13 Ill App2d 530, 142 NE2d 838. But neither of these cases hold that proof of ownership creates a “presumption” of law as to who was driving a car about which the jury should be instructed. When the word “presumption” was used in those two cases, it clearly meant at the most, according to the issue confronted and the language employed, that proof of ownership makes out a “prima facie” case sufficient to support the verdict and that the burden of going forward with the evidence had shifted to the defendant. In both the Anderson and Robinson cases there was substantial evidence, which, without the fact of ownership, would have supported the jury verdict. The fact that the presumption makes out a prima facie case upon which the plaintiff is entitled to recover, unless such prima facie case is overcome by testimony to the contrary, makes it incumbent upon the defendant to offer proof in opposition in the plaintiff’s case. McCarty v. O. H. Yates & Co., Inc., supra. The presumption does not have the effect of shifting the burden of proof to the defendant to prove by a preponderance of the evidence that another person was driving, but only places upon him the burden of presenting or going forward with the evidence.

We find no case where such an instruction has been given, and it is not in IPI. We note also that the instruction uses the word “presumption,” without definition, or explanation of its meaning, and that it fails to state that the “presumption” is rebuttable. An instruction in the approximate format of IPI 50.07 and IPI 50.08 would have fairly presented the issue to the jury, instructing them that they might infer from the fact of defendant’s ownership of the automobile that he was driving at the time of the occurrence, unless the inference was overcome by other believable evidence. If there is substantial evidence to the contrary, the presumption of the owner being in control, becomes the basis of an inference from which, with the circumstantial evidence, the jury could still determine that decedent was the driver. See 9 Wigmore, Evidence § 2491 et seq. It has been held that where the record contains countervailing evidence and conflicting presumptions, the presumption embraced in the instruction should not have been the subject of an instruction because the fact of decedent’s ownership became, at the most, a fact from which the jury could infer that decedent was in control. See Brill v. Davajan, 51 Ill App2d 445, 201 NE2d 253, 255; Miller v. Pettengill, 392 Ill 117, 123, 63 NE2d 735. Rule 704, Model Code of Evidence and the comment on paragraph (2); 9 Wigmore, Evidence § 2493.

Despite the fact that the presumption is not conclusive, and can be rebutted, we do not consider it to be rebutted by a mere countervailing presumption. Here appellant has argued that since there is evidence in the record that decedent was sleepy when at the last stop before the accident, that the presumption of self-preservation comes into the case, to create the inference that for his own safety and that of plaintiff, he would not have driven his vehicle, but would have consented to plaintiff’s driving, and that plaintiff’s desire for self-preservation would have caused him to drive. Appellant further contends that evidence of the condition of the car, its final resting place, and the location of the plaintiff and the decedent immediately after the accident upon or along the highway, are circumstances which indicate that plaintiff was the driver. In our opinion these circumstances are inconclusive, and a resort to them to determine which of the two was driving is highly speculative. It has been said that the presumption of the owner driving can only be overcome by clear and convincing evidence to the contrary. Blashfield, Cyclopedia of Automobile Law and Practice, Vol 9B, § 6066, citing cases from jurisdiction other than Illinois. In the Minnesota case of Sprader v. Mueller, 265 Minn 111, 121 NW2d 176, the trial court charged the jury that as a matter of law they must find Mueller, the owner of the car, was the driver of his vehicle when the collision occurred. Mueller, the owner, could not recall who was driving subsequent to getting gas, and there was testimony that he had admitted driving at the time of the collision. Both occupants were thrown from the car, and the only-evidence was that they were found immediately after the accident, on the pavement in front of the Mueller car. Mueller testified that a shoe found near the left front door of his car was not his. On previous occasions Mueller had permitted the decedent Berg to drive the car.

On appeal, Mueller contended that this was a jury question. While the case was remanded on other grounds, as to this point, the Supreme Court of Minnesota said:

“In this state of the record we hold that it was not error for the trial court to hold that Mueller was the driver as a matter of law.
“We adopt the rule supported by the great weight of authority that where the owner is an occupant of his own vehicle at the time of an accident, it is prima facie evidence that he was the driver. (Citing cases.) Such circumstances create a rebuttable presumption that the owner was in control, and he has the burden of overcoming that presumption. In the absence of direct evidence because of death or amnesia, and where, as here, the circumstantial evidence is wholly inconclusive, it is the duty of the court to hold that the owner was the driver when the accident occurred.”

In view of the lack of substantial evidence that plaintiff was driving the car in question, we do not consider the giving of Plaintiff’s Instruction 14, reversible error.

Next, defendant objects to Plaintiff’s Instruction #9. Instruction #9 is IPI 20.01. The objection is to the form of denial. The instruction states: “Defendant denies.that her intestate, Harold Duane Robison, was guilty of wanton and willful misconduct in doing the things claimed by plaintiff, and denies that the plaintiff was free of wanton or willful misconduct on his part.” Defendant contends this denial implies that Robison was driving. While the wording of the denial did not specifically advise the jury that defendant denied decedent was driving, it was as specific as the pleadings on this point. The notes on the use of this instruction in IPI state that the instruction, if tendered, must be modified to fit the allegations of the complaint and answer. The bracketed materials suggested in IPI 20.01 do not include a specific denial of decedent’s driving, and while the notes suggest innovation in the use of the instruction, the suggestion is that such additional innovations “consistent with the pleadings” should be used whenever required. The complaint alleged that plaintiff was a guest passenger in a vehicle operated by decedent and that decedent “willfully and wantonly drove” the motor vehicle; the answer simply denied each and every allegation of the complaint. An examination of the record indicates that the jury was fully advised through the opening statements and final arguments that there was a dispute as to whether plaintiff or decedent was the driver; defendant arguing that the evidence of the location of decedent’s body and the location of plaintiff, both of whom were thrown from the car, and the fact that the right front door was closed while the left front door was open, supported his position that plaintiff was driving, while plaintiff argued that this evidence, with other evidence, supported the contention that decedent was driving. Plaintiff tendered himself as a witness, but was not allowed to testify due to defendant’s objection, and there being no eyewitnesses as to which of the two was driving after the second stop, the record contains only circumstantial evidence and the presumption as to who was driving at the time of the accident. While the instruction is lacking in positiveness as to the contentions of the parties with reference to who was driving, in view of the pleadings, the giving of this instruction was not reversible error.

Defendant next contends that the trial court committed reversible error in refusing to admit careful habit evidence about defendant’s intestate while accepting it for the plaintiff. It has long been the rule that in death cases where there are no eyewitnesses evidence of careful habits of the deceased is admissible as a circumstance tending to prove due care. Casey v. Chicago Rys. Co., 269 Ill 386,109 NE 984. Admitting evidence of careful habits in death cases is a concession to the difficulty of proving due care by other means in the absence of eyewitnesses, Petro v. Hines, 299 Ill 236, 132 NE 462. The language in Campbell v. Ragel, 7 ill App2d 301, 129 NE2d 451, indicates that this rule should extend to cases where, instead of death, plaintiff suffered amnesia and hence would be unable to testify. The same logic applies to extend it to this case where the only eyewitness is the plaintiff who is barred from testifying by the defendant under section 2 of the Evidence Act.

However, the personal representative of the decedent should not be barred from presenting testimony of decedent’s careful habits, by his objecting to the only surviving eyewitness’s testimony under section 2 of the Evidence Act. An able discussion of this principle is found in Nordman v. Carlson, 291 Ill App 438, 441 to 444, 10 NE2d 53, 54, 55, and in which the court said at page 444, 291 Ill App, page 55, 10 NE2d:

“Counsel for defendant in tendering the defendant himself as an eyewitness did not, within the meaning of the authorities, tender a competent witness and when it developed upon the hearing that the defendant was the only surviving eyewitness and the plaintiff did not desire to avail herself of the privilege of using him for a witness the trial court did not err in ruling that the habits of the deceased might be shown.”

While the Nordman case was a wrongful death case, in which a plaintiff was allowed to present careful habit evidence, we consider the reasoning applicable in a case in which the plaintiff is the sole surviving eyewitness, and is barred by the Evidence Act from testifying.

Several legal authors have suggested that the Illinois rule is that careful driving habit evidence is only admissible on behalf of plaintiffs and then only in wrongful death cases. We do not agree that the cases have so limited the rule to either plaintiffs or wrongful death cases, or the combination of the two. While the difficulty in presenting evidence to maintain the burden of proof of freedom from contributory negligence is ascribed as a “hardship,” justifying the use of careful habit evidence on behalf of plaintiffs in a wrongful death case; under the facts in the case at bar there is “hardship” also on this defendant. Although she has no burden of proof, she has a burden of going forward with the evidence. There is no competent witness to prove defendant’s intestate was free from willful and wanton misconduct which involves two issues, both of which are alleged in the pleadings; whether he was driving, and if so the nature of his conduct. If defendant is to succeed, since the alleged driver is dead, and there are no competent eyewitnesses, her only defense is limited to argument that the plaintiff has failed to maintain his burden of proof. Research fails to explain why in a no-eyewitness case habit evidence should be rejected concerning the conduct of a driver if he be the defendant or the defendant’s intestate, at least when in the same case such evidence is properly admitted on behalf of the plaintiff. The law appears clear that habit evidence is not necessary to take the issue of plaintiff’s due care to the jury. The observation that the plaintiff has the burden of proof to produce evidence has been, at least in recent years, without significance in justifying the admission of habit evidence on the issue of due care in a no-eyewitness death case.

In Driessens v. Verkruyse, 46 Ill App2d 87, 196 NE2d 353, the trial court permitted the defendant whose retrograde amnesia prevented him from testifying about the accident to testify about his careful habits. The trial court also permitted four witnesses to testify about the defendant’s careful habits. The Appellate Court reversed because there were competent eyewitnesses, indicating that otherwise the habit evidence would have been properly received. A careful reading of the case discloses that the language suggesting that evidence of careful habits of the defendant might be admissible, is purely dicta. From the authorities above referred to, we conclude that in a situation such as is presented in the present case, evidence of careful habits from which it could be inferred either that decedent was not driving, or if driving, the manner in which he drove, would violate no principle established by judicial authority in this state. However, in this case, the evidence of wanton misconduct on the part of the driver regardless of whether it was plaintiff or decedent, is so conclusive, that careful habit evidence on the part of the driver, whomever the jury might determine it to be, is of the merest consequence. We therefore consider that defendant was not prejudiced by the refusal to permit careful habit evidence about decedent, while accepting such evidence for plaintiff.

The final objection is to the references to defense counsel in plaintiff’s argument. It is improper to refer to defense counsel as the defendant, and to refer to defense counsel’s wealth or control of wealth, and as the person who must respond in damages. There were numerous statements which should not have been made.

The court suggests to plaintiff’s counsel that a brief in the Appellate Court is not improved, nor does it aid the court in its deliberations, by the inclusion therein of intemperate, personal criticism of opposing counsel, and references not supported by the record, to insurance and an insurance carrier.

We do not consider this case to be particularly close on the facts and an examination of the entire record indicates that the trial was as free from error as is ordinarily the case. The verdict was well justified by the evidence, and there is no showing of actual prejudice to the defendant by reason of any errors which occurred, nor do we find that their cumulative effect leads us to the conclusion that defendant was deprived of a fair trial, and accordingly affirm the judgment of the Circuit Court of Madison County.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       Accord, Howard v. Amerson, 236 Ill App 587, 592 (1925) (1st Hist) (“a prima facie case is nevertheless made out . . . and . . . the burden of proceeding with the evidence is shifted to the defendant.”); McCarty v. O. H. Yates & Co., Inc., 294 Ill App 474, 14 NE2d 254 (1938) (4th Dist) (“prima facie” case); Watt v. Yellow Cab Co., 347 Ill App 307, 308, 106 NE2d 760 (1952) (1st Dist) (proof of ownership makes out a “prima facie” case, the opinion referring also to “presumption”).

       Gard: Ill Evidence Manual 1963, Comment under Rule 104; Illinois Pattern Jury Instructions, Notes to Use, and Comments under 10.08; Cleary, Handbook of Illinois Evidence 1963, § 12.14.

       Compare Casey v. Chicago Rys. Co., 269 Ill 386, 390, 109 NE 984 (1915) with Ruspantini v. Steffeck, 414 Ill 70, 74 (1953); Campbell v. Ragel, 7 Ill App2d 301, 304, 129 NE2d 451 (1955) (4th Dist); Bennis v. Chicago Transit Authority, 33 Ill App2d 334, 339, 179 NE2d 421 (1961) (1st Dist). See also 1 Wigmore Evidence, §§65 and 97; and Model Code of Evidence, Rule 307 (Language of rule does not limit to plaintiffs or wrongful death action, although example used is wrongful death situation).


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis French, Defendant-Appellant.
    Gen. No. 65-118.
    Second District.
    October 18, 1966.

      Corrigan and Mackay, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton (Edward Van de Houten, Jr., Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of DuPage County. On May 27, 1965, a jury returned a verdict finding the defendant, Louis French, guilty of armed robbery. The defendant was sentenced to a term of not less than 5 nor more than 15 years in the Illinois State Penitentiary.

Defendant urges three grounds for reversal. 1) That the State failed to prove beyond a reasonable doubt that the defendant and others committed an armed robbery; 2) That the testimony of a police sergeant was that of an admitted accomplice and undeserving of credibility, and 3) That the defendant was prejudiced by the unduly restrictive rulings of the trial judge.

It appears that on Friday, August 21, 1964, shortly before 2:00 p. m. a Brink’s, Inc. armored truck delivered some money to a Jewel Tea Co. store in the shopping center in Oakbrook, Illinois. Winifred Jachina, service manager for the Jewel store, had opened the safe and was about to fill the cashbox when an armed stranger entered, told her to drop the money and move over so he could get into the safe. The stranger took $500 in banded money, $250 in quarters and $50 in nickels and the cash-box, placed them in a shopping cart and left the store.

A stock boy, Craig Sayers, who was waiting outside the office, saw what happened and started to follow the stranger from the building, but as he stepped outside, another stranger in a dark topcoat made a motion indicating he had a gun and told Sayers to stop. Sayers stopped, watched the two men put the money into a car and drive away. He noted the license number of the automobile and that it was a 1964 maroon Ford Galaxy without hubcaps. Sayers returned to the store, wrote down the license number and when he went outside again saw that the police were arresting the defendant, Louis French, in the street a short distance from the store. French had not been in the store to Sayer’s knowledge, nor was he the stranger in the dark coat who had threatened Sayers with what appeared to be a gun. The two men who drove away in the Ford automobile were arrested before leaving the shopping center and were tried separately for their part in the armed robbery.

H. J. Walthers, a sergeant of the Oakbrook police department, testified that he had known Louis French for approximately 6% months prior to the crime; that they had met at the Oakbrook police station where French’s wife had been arrested on a charge involving bad checks. Between the time of this meeting and August 21, the date of the crime, Walthers testified that he had met with French on some 25 to 30 occasions, occasionally having had dinner at French’s home. He said during this time he had loaned French some money and that, after an armed robbery that occurred in Cook County, French repaid him $300. On two different occasions he had been introduced to the two other men who participated in the Jewel Tea store robbery on August 21. He stated that on one occasion he had given French six armor-piercing bullets, which unknown to French, would not fire. This was shortly prior to an armored car robbery outside DuPage County. Walthers denied giving any guns to French but stated French had given him two guns which he had not turned in to his superiors until after the August 21 robbery.

On the date in question Walthers was on leave. He testified that on the morning of August 21 French called him and stated that he wanted to see him. He met French in a restaurant and French took him into a back room and explained that he and two other men intended to rob the Jewel Tea store in the Oakbrook shopping center at about 2:00 p. m., after an armored truck delivered cash to the store. French did not disclose the identity of the two accomplices but explained that he was to arrive at the shopping center in his own 1963 Oldsmobile station wagon. He was then to take the 1964 maroon Ford Galaxy and cruise the center until the robbery took place. He was then supposed to pick up the other two accomplices and drive them to his Oldsmobile, in which car they intended to leave the area. He asked Walthers if he could get one of the squad cars normally patrolling the center away from the Jewel Tea store and over near the Sears store. Walthers testified that he promised to see if this could be accomplished and told French he would call him prior to 2:00. Walthers then testified that as he left the restaurant, he noticed a maroon 1964 Ford Galaxy but did not write down the license number as he was in a hurry to get back to the police station. He arrived back at the station about noon and immediately informed the Chief of Police, Richard T. Siudzinski, of his conversation with French. The Chief then called in Sergeant Handel and Officers Janik and McKenzie of the Oakbrook police department. He advised them of what Walthers had related to him and a course of action was planned. Walthers then made a phone call to French from the police station advising him he could have the squad car normally near the Jewel store sent to patrol near the Sears store at about 2:00 p. m.

Glenn R. Handel, a sergeant in the Oakbrook police department, testified he first saw the defendant in the shopping center prior to the robbery driving a 1963 Oldsmobile station wagon. His identification was positive. He testified he saw French park the 1963 Oldsmobile. A few minutes later he saw French driving a 1964 maroon Ford without hubcaps with the same license number as that later written down by Craig Sayers. He further stated he saw French driving toward the Jewel Tea store.

John Janik, a police officer on the Oakbrook police force, testified that shortly prior to the armed robbery he was in uniform in a marked squad car. He said he first saw Louis French on August 21 driving a maroon 1964 Ford Galaxy shortly before 2:00 p. m. He saw him drive this car in what is known as the inner circle of the shopping center toward the Jewel Tea store.

Chief Siudzinski, who had changed to civilian work clothes, testified that he had met the defendant on two prior occasions and that as he moved around the area near the Jewel he saw the defendant walking down a parking aisle and enter a maroon 1964 Ford four-door car with no hubcaps. The next time he saw the defendant he was at the wheel of the 1964 Ford parked on the north side of the Jewel Tea. He noted the license number which was the same as that noted by Craig Sayers and the other officers. The description of the Ford by all of the witnesses was the same.

It appears that the other two participants pled guilty to the charge and were sentenced. It is urged that the evidence fails to prove that the defendant participated in the commission of the crime. Contention is made that the proofs were insufficient to establish that the defendant participated in the armed robbery and that the State’s proofs merely placed the defendant at the scene at the time the offense was committed. We agree that the mere presence at the scene of a crime is insufficient to establish guilt. The People v. Boyd, 17 Ill2d 321, 327, 161 NE2d 311 (1959); People v. Gore, 64 Ill App2d 309, 316, 211 NE2d 757 (1965).

Defendant, however, was observed by various police officers driving the getaway car in the immediate vicinity minutes before the crime was committed. This evidence, together with the testimony of Sergeant Walthers, leads us to conclude that the defendant had an active part in the planning of the armed robbery and did participate to the extent of driving and parking the getaway car for the escape. The requirement that the defendant’s guilt be proved beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it. The People v. Russell, 17 Ill2d 328, 331, 161 NE2d 309 (1959). Based on the evidence we feel that there was more than sufficient evidence to find the defendant guilty.

The defendant urges that Sergeant Walthers was in fact an accomplice and as such his testimony, because of his unusual position of seeking to maintain his innocence and at the same time convict the defendant, taxes the credulity of the most gullible and is totally unworthy of belief. It is further contended that if Sergeant Walthers’ testimony is totally unworthy of belief that the defendant’s conviction should be reversed in that the only creditable evidence merely places the defendant on the scene. We deem it unnecessary to determine whether or not Sergeant Walthers was an accomplice. In People v. Zaeske, 67 Ill App2d 115, 121, 213 NE2d 577 (1966), this court stated:

“At common law the uncorroborated testimony of an accomplice was sufficient to warrant a conviction if it satisfied a jury beyond a reasonable doubt. This rule has been followed in Illinois. (Citations.) However, where, as here, it appears that the witness has hopes of reward from the prosecution, his testimony should not be accepted unless it carries with it absolute conviction of the truth.” (Citations.)

It appears to us that Sergeant Walthers’ testimony was corroborated by fellow officers in observing the defendant driving the getaway car at the scene immediately prior to the holdup. Further, corroboration appears from the fact that the armed robbery occurred at the time and place where Sergeant Walthers had informed the Chief of Police and other officers that it would occur while implicating the defendant. This series of events, unless viewed in the light of the defendant’s participation in the crime, is difficult to comprehend.

The defendant claims prejudice in that the trial judge unduly restricted the cross-examination of Sergeant Walthers. The brief contains an exhibit of the questions to which objections were sustained, 23 in number. We have not been asked to determine the propriety of the rulings but the effect thereof on the defendant’s proof to establish that Sergeant Walthers was an accomplice and therefore unworthy of belief. Liberal cross-examination of an accomplice should be permitted to show what influences a witness to testify for the State. The People v. Andrae, 295 Ill 445, 460, 137 NE 496 (1920). It is error to unduly restrict cross-examination of an accomplice as to whether he has received, been promised, expects to obtain, or hopes for leniency or immunity in consideration of his testimony. Algozino v. Welch Fruit Products Co., 345 Ill App 135, 142, 102 NE2d 555 (1951).

After a close scrutiny of the cross-examination of Sergeant Walthers, which was lengthy and extended, encompassing approximately 700 inquiries, we conclude that had the trial court permitted the answers to the 23 questions they would have added nothing to aid the jury in its determination of the credibility or weight to be given Walthers’ testimony. We feel under these circumstances that the trial judge did not unduly restrict the cross-examination of Walthers. For the reasons above stated the judgment is affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Marvin Holland, Plaintiff in Error.
    Gen. No. 65-146.
    Second District.
    October 18, 1966.

      John L. Snyder, of Chicago, for plaintiff in error.
    William G. Clark, Attorney General of the State of Elinois, of Springfield, William R. Nash, State’s Attorney, and William H. Snively, Assistant State’s Attorney, of Rockford, for defendant in error.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Marvin Holland, was convicted of murder on October 26, 1951, in the Circuit Court of Winnebago County and was sentenced to the penitentiary for a term of 99 years. The trial was before a jury and, among other evidence, a written confession was introduced into evidence.

On September 23, 1952, defendant filed a petition under the Post-Trial Conviction Hearings Act in the trial court, in which he alleged that he had been illegally arrested and held incommunicado without the right to contact counsel, that he was subjected to physical abuse and that he was coerced into signing the confession. The petition was dismissed without evidentiary hearing and defendant did not seek to review the judgment of dismissal. At that hearing defendant was represented by court appointed counsel.

In 1956, while represented by counsel of his choice, he filed a similar petition incorporating by reference all of the allegations of the 1952 petition. This petition was likewise dismissed. Again, defendant did not seek a review of the judgment of dismissal.

The instant petition for writ of error to the Circuit Court of Winnebago County was filed with the Supreme Court in November of 1964. In this action the defendant raised the constitutional claim of a coerced confession. In addition, he contended that the original trial court erred in failing to exclude certain testimony referring to the victim’s widow and five children, and that further error was committed at the hearing on the admissibility of the confession, in that a material witness to the confession was not called to testify, nor was his absence explained. On September 28, 1965, in 33 I112d 246, 211 NE2d 265, at page 248, the supreme court in its opinion in this case, stated:

“The prior denials of the post-conviction petitions are res judicata of all claims raised therein and of all constitutional claims which could have been raised and the constitutional claim now advanced cannot be considered on this writ of error, . . .”

The court thereupon transferred the cause to this court for consideration of the remaining issue.

The contention of the defendant is that the court erred in overruling objections to the testimony of the chief of police that the victim left a wife and five children.

At the trial of this case the Chief of Police of the City of Rockford testified that after the confession was secured, he and other officers took the defendant out to various places which were material to substantiating the facts recited in the confession. While being questioned as to those events, the chief stated that at one of the places visited the following occurred:

“Defendant said he wished he could beat this rap. I said, ‘Marvin,’ I said, ‘You realize the fact that you killed a man. This man left a wife and five children.’ ”
“Mr. Weston: I object to that, if the court please.”
“The Court: Motion denied.”
“The Witness: (continuing) ‘That you left a widow and five children.’ ”
“Mr. Weston: I object and move the answer be stricken.”
“The Court: Objection overruled. That is what he said to the defendant.”
“Mr. Canfield: You may proceed.”
“The Witness: ‘That you have left a widow and five children to look after. Don’t you think you should have some punishment?’ He said, ‘Yes, but I’m afraid of the electric chair. I wouldn’t mind if I got life in the penitentiary.’ We got the clothes and went back to the police station.”

This testimony was not in response to an inquiry by the State’s Attorney, but was interjected in a lengthy answer to a question relative to the occurrences of that day. There is nothing in the record to show that the State’s Attorney at any time in his argument sought to prejudice the jury by making reference to the widow and children of the victim. Defendant cites numerous cases in support of his contention that the above quoted reference to the victim’s widow and children is prejudicial error and requires a new trial. Among these cases are Filippo v. The People, 224 Ill 212, 79 NE 609 (1906); The People v. McMahon, 244 Ill 45, 55-58, 91 NE 104 (1910); The People v. Bernette, 30 Ill2d 359, 371, 372, 197 NE2d 436 (1964), and other cases. In all of these cases it appears that the evidence as to the family of the victim was introduced as evidence independent of any other admissible evidence and in each of the cases the court on appeal found that the purposes of introducing the evidence was solely to prejudice the jury. In all of the cases cited by the defendant, the decisions disclose that there were additional errors of more substantial nature involved.

Under the circumstances of this case, we do not find that the volunteered and inadvertent reference here made to the victim’s family deprived the defendant of a fair trial, nor did it constitute prejudicial error. The People v. Brown, 30 Ill2d 297, 302, 303, 196 NE2d 664 (1964). For the reasons given, the judgment of the Circuit Court of Winnebago County is affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: MR. JUSTICE RATHJE

text:
    Elmer Clavey, Inc., a Corporation, Plaintiff-Appellee, v. City of Highland Park, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 65-149.
    Second District.
    October 18, 1966.

      Thomas H. Compere, Corporation Counsel, of Highland Park, and Stanley Grosshandler, of Waukegan, for appellant.
    Russell L. Engber, of Highland Park, for appellee.
   MR. JUSTICE RATHJE

delivered the opinion of the court.

The defendant, City of Highland Park, appeals to this court from a declaratory judgment in favor of the plaintiff, Elmer Clavey, Inc., rendered by the Circuit Court of the Nineteenth Judicial Circuit, Lake County. The trial court found that the zoning ordinance of the defendant was arbitrary, capricious and unreasonable and void insofar as it applied to the subject property; that the highest and best use of a portion of plaintiff’s property would be for a gasoline service station; ordered defendant to permit such use of said parcel of land; ordered that the remainder of the property be zoned “C” 12,000 square feet single-family residential use; and ordered that the appropriate use and building permits be issued and delivered to the plaintiff.

The subject property is a triangular parcel of unimproved land containing 1.572 acres, located on the southeast corner of Clavey Road and Edens Expressway, in Highland Park, having a frontage of 525.8 feet on Edens Éxpressway and 349.7 feet on Clavey Road. It is presently zoned “B-l” 20,000 square feet single-family residential under the zoning ordinance of Highland Park.

Immediately across Clavey Road, to the north of the subject property, is a subdivision known as Clavey Acres containing .39 homes and zoned “B-l” under the defendant’s zoning ordinance. The homes range in value from $40,000 to $100,000, and most of the homes were built after the construction of Edens Expressway. The only entrance into this subdivision is Clavey Lane, which is immediately across the street from the proposed location of the gasoline service station on the subject premises.

The Seven Pines subdivision, containing 60 lots, lies immediately east of the subject property and is zoned “B-l”. This subdivision was developed within the last five years and contains homes ranging in value from $48,000 to $70,000, several of which have swimming pools; one immediately adjacent to and two at the southeastern tip of the subject property.

The west line of the subject property is adjacent to the easterly line of Edens Expressway, the right-of-way of which is three hundred feet in width and the easterly portion of this right-of-way contains an exit ramp by which northbound vehicles on Edens Expressway may turn onto Clavey Road. Edens Expressway merges with Skokie Highway just north of Clavey Road. South of Clavey Road, between these two highways, is a large triangular piece of property which has a Pancake House located on its southern tip and adjacent to the subject property. The remainder of this triangular tract is wooded and not feasible for development.

Across Skokie Highway, to the west, the property on both sides of Clavey Road is zoned “I” industrial, which is the most intensive zoning classification under the defendant’s zoning ordinance. Progressing north from Clavey Road, on the west side of Skokie Highway, are located an automobile sales and service center, a Howard Johnson restaurant, a gasoline service station and several billboards. On the southwest corner of Skokie Highway and Clavey Road is located an antique furniture sales and showroom. To the west of these commercial uses lies the Chicago and Northwestern Railroad right-of-way. These commercial uses are between four hundred and five hundred feet away; being separated by the intervening right-of-ways of Edens Expressway and Skokie Highway and the triangular strip noted above.

Zoning classifications are a legislative function of the municipality and are presumed valid. Lapkus Builders, Inc. v. Chicago, 30 Ill2d 304, 309, 196 NE2d 682 (1964). It is the burden of the plaintiff to show by clear and convincing evidence that, as applied to him, the ordinance is unreasonable and without substantial relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96 (1962). Where there is room for difference of opinion as to the reasonableness of the zoning classification, the legislative judgment must be conclusive. Urann v. Village of Hinsdale, 30 Ill2d 170, 175, 196 NE2d 643 (1964).

Although each case must be decided upon its own particular facts, (Krom v. City of Elmhurst, 8 Ill2d 104, 107, 133 NE2d 1 (1956)), the courts of this state have stressed certain factors by which the reasonableness of a zoning classification can be judged in regards to a particular parcel of land. These factors include: 1) The existing uses and zoning of surrounding property; 2) the extent to which property values are diminished by the particular zoning restrictions; 3) the extent to which the destruction of the property values of the plaintiff promotes the health, safety, morals or general welfare of the public; 4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; 5) the suitability of the subject property for the zoned purposes; and 6) the length of time the property has been vacant as zoned, considered in the context of the land development in the area and vicinity of the subject property. LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957).

One of the factors to be considered in a zoning case is the existing use and zoning of nearby property. In Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358 (1961), the Supreme Court stated at page 406: “In determining the validity of a given zoning ordinance this court considers of paramount importance the question of whether the subject property is zoned in conformity with the surrounding existing uses and whether those are uniform and established.” The existing use on the east side of Edens Expressway on both sides of Clavey Road is exclusively single-family dwellings and conforms to the existing zoning classification of the subject property. The suitability of this zoning classification is attested by the fact that eleven of the homes in Clavey Acres Subdivision abut the right-of-way of Skokie Highway north of Clavey Road, and several homes in the Seven Pines Subdivision abut Edens Expressway south of Clavey Road. Most of these homes, in both subdivisions, were built after the construction of Edens Expressway, and several of the homes in Seven Pines Subdivision have swimming pools. The subject property abuts the Seven Pines Subdivision and partakes of the character of this residential area, of which it is an integral part. The subject property is orientated to the residential area on the east side of Edens Expressway and not to the commercial area located over four hundred feet away on the west side of Skokie Highway.

All the evidence established that the subject property could be subdivided into three lots under the existing zoning classification, with an egress and ingress road onto Clavey Road. The evidence for the plaintiff was that, under the existing zoning ordinance, the subject property would have a fair cash market value of approximately $15,000, and $100,000 if zoned for commercial uses. The evidence for the defendant was that, under the existing zoning ordinance, the subject property would have a fair cash market value of $30,000.

No opinion was given by the witnesses for the plaintiff as to the depreciation of the surrounding property, if a portion of the subject property was used for a gasoline service station. One real estate broker for the defendant stated that, in his opinion, if a portion of the subject property was used for a gasoline service station, the depreciation on the properties immediately abutting the subject property would be as high as 35% of the present value, and 20 to 25% of the properties immediately across Clavey Road to the north of the subject property; and a certain smaller depreciation on the properties farther away from these properties. No finding was made by the trial court as to the deleterious effect on the surrounding properties if the subject property was rezoned for a gasoline service station.

From the facts, it is clear that the subject property would be worth more if a greater intensity classification were permitted. However, such fact alone is not sufficient to invalidate an existing zoning ordinance. LaSalle Nat. Bank v. City of Chicago, 27 Ill2d 278, 281, 189 NE2d 273 (1963); Cosmopolitan Nat. Bank v. Mt. Prospect, 22 Ill2d 463, 470, 177 NE2d 365 (1961).

A witness for the plaintiff testified that the only access to the proposed gasoline service station to be located on the subject property would be from Clavey Road, due to state law prohibiting access routes off of the exit ramp. This access to the proposed gasoline service station would be directly across the street from the only access to Clavey Road for 39 homes in Clavey Acres Subdivision. The chief of police of Highland Park testified that the intersection of Clavey Road and Edens Expressway is one of the worst intersections in Highland Park from the standpoint of accidents.

The fixing of zoning lines is a matter of legislative discretion and necessarily results in a different classification on either side of a boundary line. The fact that there is a strip of commercially zoned property on the west side of Skokie Highway, across from the subject property, does not overcome the presumption that the ordinance, as a legislative enactment, is reasonably reIated to the health, morals, safety and welfare of the community, since zoning districts, by their nature, must begin and end somewhere, and the presence of less restricted areas across the street does not make the restrictions in question unreasonable. Mundelein Estates v. Village of Mundelein, 409 Ill 291, 294, 99 NE2d 144 (1951).

The subject property is orientated to the residential area on the east side of Edens Expressway. The residential character is not changed by the zoning classification and use of land across Edens Expressway and Skokie Highway, thoroughfares having right-of-ways of 300 and 100 feet wide respectively. The two subdivisions heretofore mentioned are closer to the commercial uses than the subject property. The fact that the subject property is on a major thoroughfare does not of itself impel a change in zoning classification. As was said by the Supreme Court in Cosmopolitan Nat. Bank v. Mt. Prospect, supra, page 469, “In many cases this court has held that the fact that the property is located upon a main traffic artery does not invalidate a zoning ordinance which restricts its use to residential purposes.”

Upon an examination of the evidence, including the exhibits, it is the opinion of this court that the trial court erred in finding the defendant’s ordinance unreasonable and void as applied to the subject property.

The decree of the Circuit Court of Lake County is reversed.

Decree reversed.

ABRAHAMSON and DAVIS, JJ„ concur.


text:
    General Magnetic Corporation, a Corporation, Plaintiff-Appellant, v. Robert H. Erickson and Arnold Engineering Company, a Corporation, Defendants-Appellees.
    Gen. No. 65-154.
    Second District.
    October 18, 1966.
    Wallace, Kinzer & Dorn, of Chicago, and Eckert, Caldwell, Gleason & Berner, of Woodstock, for appellant.

      Carroll, Leali & Gitlin, of Woodstock, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of McHenry County dated August 5, 1965, dissolving a temporary injunction and dismissing the complaint of the plaintiff.

On September 4, 1964, General Magnetic Corporation filed a complaint against a former employee, Robert H. Erickson, and his new employer, Arnold Engineering Company. The complaint alleged that General Magnetic was a manufacturer of permanent magnets including a nonmetallic ceramic magnet of oriented barium ferrite. It further alleged that its particular methods used in the fabrication of barium ferrite magnets were developed under the supervision of Robert H. Erickson during the term of his employment with General Magnetic and were a trade secret and entitled to the full protection of the law normally afforded to trade secrets. The complaint charged further that Erickson was, in effect, lured from their employment by Arnold Engineering for the purpose of acquiring and using his knowledge of these secret techniques and that they believed Erickson had already disclosed some of the secrets to Arnold and would, unless restrained, disclose others.

Temporary injunctions were granted by the trial court on September 24, 1964, enjoining Erickson from disclosing those trade secrets and enjoining the Arnold Engineering Company from receiving or using such trade secrets.

On October 16, 1964, Arnold Engineering moved to require the plaintiff to amend its complaint and make the description of the alleged trade secrets more definite and certain and also asked that the temporary injunctions be dissolved. The plaintiff had, on October 13, filed its motion for Production of Documents requesting the trial court to order the two defendants to produce a long list of documents, letters, memoranda and other communications that involved the employment of Erickson by Arnold Engineering and its production of barium ferrite magnets.

On December 22,1964, an order was entered by the trial court that denied defendant’s motion for an order directing the plaintiff to particularize the complaint and continued generally the motion of defendant to dissolve the temporary injunction and plaintiff’s motion to produce. That order also provided “that the above-entitled proceedings be set for hearing ‘in camera’ and that upon said hearing, evidence shall be limited to proofs tending to show the techniques, process, etc. alleged to constitute trade secrets of the plaintiff.” The words “and whether or not such techniques and processes are in fact trade secrets” apparently followed the foregoing quotation from the order but apparently were stricken from the draft by the trial judge.

A hearing was held on February 8, 9, and 10, 1965, in compliance with that order at which the plaintiff presented the testimony of two witnesses in regard to the processes used in the production of its magnets that were allegedly secret. At the conclusion of that hearing, the defendants filed motions to dismiss the action on the grounds “that the proofs adduced failed to make out a prima facie case that plaintiff possesses protectable trade secrets.” The trial court took the matter under advisement and on July 16,1965, filed a memorandum that held that the proofs of the plaintiff did not show “a trade secret either in the aggregate process or in any particular step or combination of steps in the process.” On the basis of that memorandum of decision, the court entered its decree sustaining the motions of the defendant and dissolving the temporary injunction and dismissing the action.

The plaintiff bases this appeal on its contentions that the trial court erroneously treated a preliminary and limited hearing as a full trial on the merits of the cause; that the decree was against the manifest weight of the evidence; and that the cause was not subject to a motion to dismiss under either sections 45 or 48 of the Civil Practice Act or subject to a motion for summary judgment under section 57 of that Act.

It is evident from the language of defendants’ motions to dismiss, that they were not intended to be motions brought under sections 45, 48, or 57 of the Civil Practice Act and we will not, therefore, consider those factors in the plaintiff’s appeal. The defendants, and the trial court, obviously treated the hearings of February 8, 9, and 10, 1965, as a full trial on the merits of all matters in issue between the parties. We agree with the contention of the plaintiff that it was reversible error so to do.

It is axiomatic that all parties to a lawsuit are entitled to a full and complete trial on the merits of all matters properly in issue. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 213 NE2d 778. It is equally clear that a preliminary hearing, held for a restricted and specified purpose, cannot be considered a full trial of all matters in contention.

It is evident from the record that the order of the trial court that set the matter for a hearing “in camera” was responsive to the motion of the defendants for a more particularized complaint and to the plaintiff’s motion to produce numerous and various documents. Unrestricted discovery procedures into the production techniques of either party could well have exacerbated the conditions that gave rise to the suit through disclosure of legitimate trade secrets. It was necessary to narrow the issues between the parties and frame the discovery procedures to the essential points in dispute. For these reasons, a limited hearing to ascertain the specific techniques and processes that plaintiff contended were trade secrets was necessary.

The order of December 22, 1964, was explicitly limited “to proofs tending to show the techniques, processes, etc. alleged to constitute trade secrets . . .” The witnesses at that hearing testified that the plaintiff had developed a process of mixing the materials for the barium ferrite in wet form in a calcining kiln and then immediately crushing the hot barium as it leaves the kiln. Further processes reduced the water content before compacting the barium and provided a testing technique for the sintering furnace. These processes, and others described in detail by the witnesses, as well as the machines used with them, were, according to their testimony, unique in the industry and provided a significant advantage to the plaintiff over all competitors. The cross-examination of these witnesses was designed to show that the processes and techniques described were not, in fact, secret but were well known in the industry. However, it was not incumbent on the plaintiff at this stage in the proceeding to establish that the processes enumerated were in fact trade secrets. It was sufficient that the processes were described with reasonable precision and definition to clarify the issues involved. This it did, and the trial court could, and should, have proceeded to limit the issues to those processes and techniques described by the plaintiff’s witnesses and directed the parties to complete their pretrial discovery on those points.

In view of our decision, it is not necessary to consider the contention of the plaintiff that the decision of the trial court was against the manifest weight of the evidence.

Accordingly, the action is reversed and remanded with instructions to proceed in accordance with the views contained herein.

Reversed and remanded.

MORAN, P. J. and DAVIS, J., concur.


author: CORYN, P. J.

text:
    Geraldine Prostko, et al., Plaintiffs-Appellants, v. Lester E. Willstead, Defendant-Appellee.
    Gen. No. 66-18.
    Third District.
    October 28, 1966.

      Perona & Perona, of Spring Valley, for appellants.
    Walter D. Boyle and Linn Goldsmith, of Hennepin, for appellee.
   CORYN, P. J.

This is an appeal from a judgment entered on a verdict in favor of the defendant, Lester Willstead, and against all the plaintiffs. The controversy arises from a rear-end collision on State Highway 26 at a point one mile south of Princeton, on July 10, 1963. Plaintiff, Kathleen Prostko, was driving a three-quarter ton Chevrolet flatbed truck, 1951 model, with her mother, the plaintiff, Geraldine Prostko, as a passenger. Plaintiff, John Prostko, the father and husband of the other plaintiffs, was the owner of the vehicle driven by his daughter. The Prostkos were driving northerly on said highway to the Wiggins’ farm to get chickens, and the collision with the Willstead truck, approaching from behind them, occurred when they made a left turn from the highway to drive into the Wiggins’ driveway. There was a dispute in the evidence as to whether the driver of the Prostko vehicle signalled her intention to make a left turn, and as to whether the signal lights on that vehicle were in working order at the time, or became damaged in the mishap, and as to whether the Prostko women sustained injuries when their truck overturned. Damage to plaintiffs’ truck was estimated to be from $250 to $350. In support of their alternative prayer for judgment, or for a new trial on all issues, plaintiffs argue that the verdict and judgment are contrary to the manifest weight of the evidence and to the law. They also assert that the trial court erred, because of the absence of evidence to warrant it, in submitting defendant’s Instructions 12 and 13, which are IPI Instructions Nos. 10.03 (revised) and 11.0 respectively, as follows:

“ [12]. It was the duty of each plaintiff before and at the time of the occurrence to use ordinary care for his or her own safety and as to the plaintiff, John Prostko, before and at the time of the occurrence, to use ordinary care for the safety of his property. That means it was the duty of each plaintiff to be free from contributory negligence.”
“ [13]. When I use the expression ‘contributory negligence’ I mean negligence on the part of the plaintiffs that proximately contributed to cause the alleged injury or property damage.”

The arguments made by the plaintiffs in support of their contention that the verdict was contrary to the manifest weight of the evidence are substantially similar to the arguments in support of this issue that were considered in Turner v. Wallace, 71 Ill App2d 160, at 168, 217 NE2d 11, and we conclude that the law of that case on this issue is controlling here. We cannot substitute our judgment for the jury’s where that would require us to elect between conflicting evidence and inferences. Whether the signal light on the Prostko vehicle became damaged as a result of the collision, or whether a prior defect in it contributed as a cause, were debatable issues. The evidence is also conflicting as to whether Geraldine Prostko sustained injury. While a conclusion contrary to that of the jury might seem from the record to be more reasonable, we cannot say that the verdict is without support in the evidence.

We also conclude that no error was made in submitting defendant’s Instructions 12 and 13 to the jury. The issues presented by these instructions had already been injected into the case by plaintiffs’ Instruction 5 on the burden of proof, this being IPI Instruction 21.02. A party may not complain of instructions given by the trial court at the request of another where the court at his request has given the same kind of instructions. Borst v. Langsdale, 8 Ill App2d 88, 130 NE2d 520; Hocker v. O’Klock, 16 Ill App2d 414, 158 NE2d 7. Here defendant’s Instruction No. 12 was almost identical with the language of the first paragraph of plaintiffs’ Instruction No. 5, and defendant’s Instruction No. 13 defined the term “contributory negligence” as used in defendant’s Instruction No. 12:

The judgment of the Circuit Court is accordingly affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Percy Styles, Defendant-Appellant.
    Gen. No. 50,383.
    First District, First Division.
    October 3, 1966.
    Marshall A. Patner and Steven L. Larson, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant, George Percy Styles, was found guilty of the offenses of murder and of theft. He was sentenced to the penitentiary for 30 to 60 years on the murder conviction and for 5 to 10 years on the theft, the sentences to run consecutively.

On appeal the determinative contentions are (1) that statements given by the defendant to the police and to a polygraph operator were obtained in violation of his constitutional rights and were consequently inadmissible; and (2) that the State failed to show that defendant was guilty of theft of goods valued at over $150, the offense charged and the offense for which the defendant was sentenced.

On February 15, 1964, between 5:00 and 5:30 p. m., Leonid Neumann was found dead in his third-floor apartment. The door was ajar; the apartment was dark; the room was in disorder; the windows were open; and the body of the decedent, covered with a blanket, was lying on a cot at the far end of the room. It was a large “L”-shaped apartment with a divider, a bathroom and a small kitchen. Police officers arrived shortly after 6:00 p. m., and they found the body lying nude on a cot, covered with a sheet and an electric blanket. The electric blanket was plugged in and set at a temperature of 100 degrees. The police found a wound in the neck and a bruise on the head. Partly congealed blood was still oozing from the nose and throat. The police found fragments of a ceramic lamp lying about the head of the deceased, and in the kitchen they found a bloodstained knife.

On the morning of February 16, 1964, after 9:00 a. m., Dr. James Henry of the Cook County Coroner’s office performed an autopsy on the body. The internal examination showed that four stab wounds had penetrated the right side of the heart, and it was Dr. Henry’s opinion that the stab wounds were the immediate cause of death. He found no evidence of “any decomposition of the body,” which usually sets in somewhere around eighteen and twenty-four hours in a warm room. He had no opinion “as to how long he had been dead” prior to the autopsy. He further testified that covering a body with an electric blanket at 100 degrees temperature would hasten decomposition.

Two months after the murder, the police learned that defendant had pawned a camera that had belonged to the decedent, and they secured a warrant for defendant’s arrest for the theft of the camera. They went to defendant’s apartment on April 15, 1964, and he was arrested in the hallway outside of his apartment at about 1:00 a. m. He was taken into the apartment and there questioned by the police about items found in his room. He identified a TV set, a radio, figurines, a suitcase, a letter opener, and a pair of scissors as coming from decedent’s apartment, and said that he had been at the decedent’s apartment in Evanston on February 14, 1964. Later in the day, April 16, 1964, at about 10:00 a. m., in the Evanston police station in the presence of four persons, and after questioning, defendant said he would take full responsibility for the death of the decedent; that if he were not at decedent’s apartment decedent would be alive; and further that he had had sexual relations with the decedent.

In addition to the foregoing summarized evidence, Bert Lindgren, a witness for the State, testified that on February 15, 1964, while on duty as a cabdriver, he picked up a passenger at about 2:00 a. m. at 1310 Chicago Avenue in Evanston; that it was defendant, his hair was swept back, and he was wearing nice looking women’s clothing; that he took the defendant for a female at the time; that defendant asked him to carry a TV set downstairs for him; that they walked to the apartment on the top floor, and defendant opened the door and they walked in; that he went about five or six feet into the apartment, and the lights were off; that he picked up the TV set and carried it downstairs and put it in the cab, and that they drove to the west side of Chicago, where he carried the TV set to a gangway, and defendant paid him, and he left.

John E. Reid, a witness for the State, testified that he was the director of John E. Reid and Associates, a polygraph firm in Chicago; that he had a conversation in his office with the defendant at 5:00 p. m. on April 16, 1964; that no one else was present; that he asked defendant whether he stole a TV set from decedent’s apartment, and defendant nodded assent that he did; that he asked defendant whether he killed the decedent, and defendant replied, “Look it, I take all the responsibility for the killing of Neumann. I agree you have made your case. Send me to the electric chair. I don’t care. Two years ago the bottom dropped out of my life and I became a male prostitute. No one will care after I go to the electric chair.” Later, and before several police officers, Reid asked defendant if he killed Neumann, and defendant replied, “No, I did not but I am telling you again that I take all the responsibility for the killing of Neumann.”

On cross-examination, Mr. Reid testified that defendant never said that he killed the decedent, and that defendant was not represented by counsel and was not informed that his answers might be used against him.

Defendant testified at length: He began a relationship with decedent as a female impersonator and saw the decedent twice a month during an 18-month period, usually in decedent’s apartment. It was not on a cash- and-carry basis, and decedent sometimes bought him clothes or gave him money and advanced him money for rent. Decedent gave him the camera and the figurines and loaned him the TV set. He further testified that he had been in decedent’s apartment on the evening of February 14, and when he left the apartment between 1:15 and 1:30 in the morning of February 15, decedent was alive; that he had a key to the apartment and had not left the door open when he left; that the windows in the apartment were down because of the cold; and that he did not kill the decedent.

When questioned regarding the statements he made about his responsibility for the murder, defendant testified, “I had been up from approximately one o’clock in the morning until approximately seven o’clock next afternoon being constantly questioned without any sleep and I had only two sandwiches and only two cups of coffee, from 11th and State to Evanston and Evanston back to Chicago for the lie detector test, back to Evanston to be questioned again and I told the police department. These are the exact words. I remember them. I said if someone would take the full responsibility of Mr. Neumann’s death so that I can get some rest, I will take it, without saying I had committed the murder. These were the exact words. I would take the full responsibility for his having been killed, and probably would not have been if it had not been for me, that he would be living. I am sure that is what I said. I knew neither did I say I killed anyone.”

As to the murder conviction, defendant argues that the evidence on behalf of the State shows nothing more than that the defendant knew the decedent; that defendant was at decedent’s apartment until 2:00 a. m. on February 15, 1964; that the decedent’s body was found 16 hours later; that the defendant, two months later, had in his possession goods that had once belonged to decedent; and that after 16 hours of questioning, the defendant, while continuing to deny that he had killed the decedent, said he would take the responsibility for the decedent’s death.

Defendant further argues that Dr. Henry testified death from the stab wound to the heart was immediate and, therefore, his examination of the body of the decedent must have taken place approximately 32 hours after the alleged murder; that the body showed no evidence of decomposition; that decomposition sets in from 18 to 24 hours after death under normal circumstances; and that a body left under a heating blanket set at 100 degrees would decompose more rapidly. From this defendant asserts that the evidence of the State showed the decedent was probably murdered “at the earliest, sometime after 9:30 a. m. on the morning of February 15, 1964,” and at least seven hours after defendant left the apartment.

Defendant contends that the statements made when he was not represented by counsel and had not been advised of his right to remain silent were obtained in violation of his constitutional rights and were consequently inadmissible. (McLeod v. Ohio, 381 US 356 (1965); Massiah v. United States, 377 US 201 (1964); Escobedo v. Illinois, 378 US 478 (1964).) The State argues that the foregoing authorities are inapplicable, and that the principles announced in People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964), and People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965), should be applied here.

Considering this record in its entirety, and in view of our conclusions, a discussion of the foregoing authorities is not required. Defendant testified freely as to his association with the decedent and his presence at the apartment about 16 hours before the body was found. His testimony comes within the rule that “when a defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.” (People v. Lane, 29 Ill2d 326, 331, 194 NE2d 272 (1963).) However, the attendant circumstances under which the alleged admissions of guilt were made raise serious doubts as to whether they were voluntarily made, or whether they were procured by pressure of hope or fear or other undue means used for the purpose of producing such admissions of guilt which are sufficient to convince us that defendant’s conviction of murder should be reversed and a new trial ordered. See Watts v. Indiana, 338 US 49 (1949), and Fikes v. Alabama, 352 US 191, 197 (1957).

As to the theft conviction, the State concedes in its brief and in oral argument that the theft conviction should be reversed because the State failed to prove the value of the articles alleged to have been stolen by defendant, a material fact necessary to be proved in order to support the theft sentence. We agree. See People v. Fognini, 374 Ill 161, 165, 28 NE2d 95 (1940). However, defendant contends, “There is no evidence in this case, other than that the Defendant allegedly nodded his head when asked by Mr. Reid whether he had stolen the television set, that tends to disprove the Defendant’s story that Mr. Neumann gave him the articles he was alleged to have stolen.”

We do not agree with this contention of defendant, even though we find defendant’s alleged admission to Reid of the theft to be inadmissible. It is undisputed that all of the articles in evidence, with the exception of the suitcase and the pawned camera, had belonged to the decedent and were found in defendant’s apartment. The circumstances surrounding the taking of the television set were unusual, and defendant’s credibility was a question for the trier of the fact. We believe the facts in evidence brought the theft charge within the rule, “Evidence of recent, unexplained, exclusive possession by an accused of stolen property may, of itself, raise an inference of his guilt sufficient to warrant his conviction of burglary and larceny, in the absence of other facts and circumstances in evidence which leave in the mind of the jury a reasonable doubt as to guilt.” People v. Nixon, 414 Ill 125, 129, Ill NE2d 116 (1953).

We conclude that this trial reflects less than is to be desired of both the prosecution and the defense. The other prejudicial errors of which defendant complains are not discussed because they will Undoubtedly not reoccur in a new trial.

For the reasons given, defendant’s convictions of the offenses of murder and of theft are reversed and the cause is remanded for a new trial on both charges.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.