text:
    The County of Winnebago, Petitioner-Appellee, v. Rico Corporation, Defendant-Appellant.
    (No. 72-145;
    Second District
    May 25, 1973.
    Reno, Zahm, Folgate, Skolrood, Lindberg & Powell, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The County of Winnebago filed a petition for condemnation of property of the defendant. The defendant filed a cross petition for damages to the remainder. The County, as petitioner, moved to dismiss the cross petition. The cross petition was dismissed and the defendant appeals.

The defendant is the owner of land located at the southeast corner of Route 20 and Mulford Road. The county seeks to widen Mulford Road and install a median strip from East State Street along and several hundred feet to the south of defendant’s property. The parties agreed that the value of the land taken was $10,520. Defendant in its cross petition alleged that the value of the remaining premises was $200,000 when unaffected by the proposed widening and re-arranging of Mulford Road and that by the installation of the planned median strip on Mulford Road the value to its premises was reduced to $80,000, thus claiming a damage to the remainder of $120,000.

The premises of the defendant comprising an area of approximately 1.12 acres has a frontage of 215 feet on U.S. Highway 20 with no access, and a frontage of 250 feet on the east side of Mulford Road.

The basic contention of the defendant is that private property shall not be taken or damaged for public use without just compensation; that a defendant shall not be deprived of his property without due process; and that where private property is taken for such use, the compensation to which the owner is entitled is the amount necessary to put him in as good condition financially as he was prior to the taking. Supplementing this contention, he states that the damage to the land not taken is the difference between the fair cash market value before the property is taken and its fair cash market value after the taking. These are basic concepts that are correct. However, the fundamental question presented to this court is whether the property owner may recover for damages to his property by the placement of a median strip on a highway in front of his property.

This question has been considered by the courts of other jurisdictions in numerous instances. It is well considered and answered by the Supreme Court of Nebraska which stated:

“* * * The general rule is that an abutting landowner has no vested interest in the flow of traffic past his premises and that any damages sustained because of a diversion of traffic is not compensable. This rule applies * * #. It likewise applies to the control of turns by double lines, islands, and median strips. * # *” Painter v. State, Dept. of Roads (1964), 177 Neb. 905, 131 N.W.2d 587, 590.

Closely related to this general rule is the corollary rule that the State or governmental body may diminish the flow of traffic by the construction of median strips under the police power of the State or governmental body. The majority rule followed in the vast majority of the states, is fundamentally based on both premises: first, that the abutting property owner has no vested right in the traffic flow by his premises; secondly, that this is a proper exercise of the police power of the State, and the damages resulting therefrom to the remainder are not therefore compensable. In the following cases the courts have held that the taking of the property with no compensable remuneration for damage to the remainder is under the police power of the court: Holman v. State (1950), 97 Cal.App. 237, 217 P.2d 448; Langley Shopping Center, Inc. v. State Roads Com. (1957), 213 Md. 230, 131 A.2d 690. In Langley the court said at page 693:

“* a a [T]he construction of the median dividers does not constitute a taking of the plaintiff’s property within the constitutional meaning of the term and hence the Commission is not bound to pay damages to the abutting land owners.”

(Muse v. Mississippi State Highway Com. (1958), 233 Miss. 694, 103 So.2d 839; Springville Banking Co. v. Burton (1960), 10 Utah 100, 349 P.2d 157; Mondale v. Gannons Inc. (1966), 275 Minn. 14, 145 N.W.2d 321; Hayutin v. Colorado (Colo. 1970), 485 P.2d 896.) In State v. Fox (1958), 53 Wash. 216, 332 P.2d 943, the court found that the taking was a combination of the eminent domain power of the state and the police power of the state and that “damages resulting from the exercise of police power are non-compensable.” In State v. Ensley (1960), 240 Ind. 472, 164 N.E.2d 342, the Supreme Court of Indiana concluded that the property owner had no vested right in the free flow of traffic by his premises, and held that it was not necessary to determine the case on the police power of the state or governmental body. Likewise, the Appeals Court of Ohio adopted the same principle in In re Appropriation of Easements for Highway and Slope Purposes (1955), 101 Ohio App. 1, 137 N.E.2d 595. See also Jacobson v. State (Me. 1968), 244 A.2d 419, and People v. Sayig (1951), 101 Cal.App.890, 226 P.2d 702.

There is a minority rule relative to the construction of median strips and tire subsequent diminishment of traffic to abutting property where the courts hold that an abutting property owner is entitled to damages to the remainder due to the loss of the diminishment of access. This is decidedly a minority view and as far as this court is able to ascertain is only applicable in the states of Alabama, Kansas and Arizona. Mc Rea v. Marion County (1931), 222 Ala. 511, 133 So. 278; Riddle v. State Highway Commission (1959), 184 Kan. 603, 339 P.2d 301; State ex rel. Morrison v. Thelberg (1960), 87 Ariz. 318, 350 P.2d 988.

All of the above cases involve the taking of a portion of the premises of an abutting land owner and a subsequent claim for damages to the remainder. This court is unable to find any case involving the. construction of a median strip without the taking of the abutting land owner’s property where the issue of compensable damages was litigated.

The courts of Illinois have consistently held that damages due to loss of access are not recoverable as damage to tire remainder. Illinois has adopted both principles, i.e., that the construction of a median strip resulting in a diminishment of access to an abutting land owner is not an element of compensable damage to the remainder under both the police power and under the doctrine that an abutting land owner has no right to the free flow of traffic past his premises. As the court said in Dept. of Public Works & Bldgs, v. Maddox (1961), 21 Ill.2d 489, 494; 173 N.E.2d 448, 451:

"A corollary of the claim for damages because of loss of access is the claim for damages because of the construction of median strips. There can be no question that the construction of such strips is a proper exercise of the police power. [Citation.] As we have indicated, there was considerable testimony regarding the question of access. Examination of the record discloses that the trial court acted properly in refusing to permit unrelated testimony on the construction of median strips.”

Almost immediately following the Maddox decision we find the Supreme Court in Dept. of Public Works & Bldgs, v. Mabee (1961), 22 Ill.2d 202, 204-205, 174 N.E.2d 801, 802, stating:

“A number of States have considered this problem and concluded that an abutting property owner is not entitled to compensation for the diminished property value or loss of business caused by the diversion of traffic by a one-way traffic control device or the complete relocation of the highway. [Citations.] This conclusion is premised on the fact that an abutting owner has no property right in the continuation or maintenance of the flow of traffic past his property. We agree with the conclusion reached by these courts. The diminution in the value of land or the loss of business occasioned by a one-way traffic regulation that diverts a portion of the flow of traffic from in front of one’s premises is the result of the exercise of the police power; it is not the taking or damaging of property within the meaning of our constitution; and it is not therefore compensable. [Citation.]
* * * It is a well-established rule in this State that the right of access to an existing public street or highway is a valuable property right which cannot be taken away or materially impaired without just compensation. [Citations.] * * * The rule cannot be applied, however, where the property owner’s free and direct access to the lane of traffic abutting on his property has not been taken or impaired.”

In Mabee the issue, as herein, was the construction of a median strip which limited access to one traffic lane of the highway. While the case of Dept. of Public Works & Bldgs. v. Bloomer (1963), 28 Ill.2d 267, 273, 191 N.E.2d 245, did not consider a question of diminution of value of the remainder because of a median strip, the court nonetheless stated at page 249:

“Nor does every factor that brings above a reduction in value represent a recoverable item of damage. An owner has no vested property right in tire flow of traffic past his land, and losses produced by the alteration of traffic flow or the installation of traffic control devices confer no right to compensation.”

The defendant contends that this court should not blindly follow the Maddox, Mabee and Bloomer cases. We have no authority to change the law of Illinois which follows the almost universal principle that the construction of a median strip, as indicated herein, does not give rise to a claim for compensable damages to the remainder of an abutting property owners premises. The judgment of the trial court is affirmed.

Affirmed.

T. MORAN and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GUILD.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Austin, Defendant-Appellant.
    (No. 72-147;
    Second District
    May 25, 1973.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.

George C. Howard, of Chicago, for appellant.

Jack Hoogasian, State’s Attorney, of Waukegan, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin, (A. F. Witt, Assistant State’s Attorney, of counsel,) for the People.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Wallace Bauer, Defendant-Appellant.
    (No. 56086;
    First District (1st Division)
    May 14, 1973.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.

Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

Bernard Carey, State’s Attorney, of Chicago, (Ronald G. Maimonis and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. JUSTICE ENGLISH

text:
    Emerald Home Builders, Inc., Plaintiff-Appellee, v. Val Kolton, Jr. et al., Defendants—(The City of Chicago, Defendant-Appellant.)
    (No. 56853;
    First District (5th Division)
    May 11, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel,) for appellant.
    Edward R. Burr, of Chicago, for appellee.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

This is an appeal by the City of Chicago from a judgment ordering it to re-issue a building permit and enjoining it from interfering with plaintiff’s construction on the subject lot.

The facts are essentially undisputed. The property, located at 7002 W. Talcott, Chicago, is a 5000-square-foot portion of a larger lot from which it was severed prior to the • 1957 amendment to the Chicago Zoning Ordinance. Municipal Code of Chicago, ch. 194A.

In October, 1968, plaintiff, by its treasurer, Richard Cross, having responded to an advertisement by the seller, contracted to purchase this lot from defendant Val Kolton, Jr., for the sum of $13,000. The property was within an R-l (single-family residence) zoning district. In preparing the contract of sale, Kolton included a provision that the sale would be conditional upon plaintiff’s obtaining a permit to build a single-family residence on the lot. Cross, who did not have counsel during the negotiations of the contract, had not requested the inclusion of such a condition in the contract, and the matter of a building permit was not discussed at the time. Although unfamiliar with the zoning ordinance, Kolton was sure that it would be possible to obtain such a permit. Cross was also unfamiliar with the terms of the zoning ordinance, it being his practice merely to obtain a building permit which would then tell him what he could build.

On November 2, 1968, after signing the contract, but before closing,

Cross submitted an application for a permit to erect a single-family residence, accompanied by architectural plans, a survey, and other documents, to the Department of Buildings of the City of Chicago. Plaintiff had obtained a land loan at the cost of $856.32, and had paid $134 for the architectural plans and the survey, as well as $174.65 in fees for building and driveway permits. The Building Department followed the ordinary procedure concerning an application for a building permit, which included approval by the plumbing, electrical, and zoning departments, and on November 27, 1968, issued the requested permit to plaintiff. Thereafter, on December 3, 1968, the real-estate contract was consummated, and plaintiff delivered to Kolton the balance remaining on the $13,000 purchase price. The lot was then promptly excavated at a cost of $575, and plaintiff entered into a contract for the placement of concrete footings at a cost of $800.

The excavation work and installation of the concrete footings had been completed when, in January or early February, 1969, a city aider-man requested that plaintiff stop construction on the subject property. Plaintiff complied with this request immediately. The alderman suggested to the Department of Buildings that the lot did not meet the minimum area requirements of the zoning ordinance for the district in question. For that stated reason, the Department mailed an official notification to plaintiff, dated February 18, 1969, to stop all work at the subject lot. On May 28, 1969, the Department revoked plaintiff’s building permit because “six months elapsed,” and plaintiff was ordered to barricade the construction and refill the excavation. Thereupon, plaintiff contracted for this work to be done and the city filed suit against plaintiff asking that plaintiff be fined in addition to being required to backfill the excavation. Judgment was entered on the prayer of the complaint and plaintiff complied therewith, paying $150 for the construction of barricades and $300 for the backfill.

Plaintiff’s suit followed in which it alleged that in addition to the amounts of money set forth above, it had also paid the real estate taxes on the subject property as of the date it acquired title; and that, due to the inflation of the cost of labor and materials, its computation of the intended construction would cost, as of the time of the trial, from $2500 to $3000 more than it would have if plaintiff had been permitted to continue construction without any interference from the city.

Plaintiff’s amended complaint was in two counts against both Kolton and the city, praying for: (1) rescission of the purchase contract with Kolton and refund of the $13,000 purchase price; or (2), in the alternative, a writ of mandamus directing the city to re-issue the building permit for construction of a single-family residence on the subject property and enjoining the city from interfering with plaintiff’s right to build such a residence.

The trial court dismissed Count I of the amended complaint, but as to Count II it (1) found that the city was estopped from revoking the building permit and ordered it to rescind its previous revocation order; (2) held that the R-l lot-size requirement was inapplicable for the reason that the subject property was a “lot of record” prior to enactment of the amendment to the zoning ordinance; and (3) enjoined the city from interfering with plaintiff’s construction on the subject lot.

It is from this judgment that the city now appeals, raising two issues: (1) the subject property was not a “lot of record” within the meaning of sections 3.2 and 7.5(2) of the Chicago Zoning Ordinance, and, therefore, did not qualify for a residential building permit; and (2) the city is not estopped from revoking a building permit issued in violation of the zoning ordinance even though plaintiff, in reliance upon possession of the permit, has expended sums for purchase of the lot and has begun construction thereon.

Section 7.5 — 1 of the Chicago Zoning Ordinance provides that not less than 6250 square feet of lot area per dwelling unit is required in an R-l zoning district. Section 7.5(2) of the same zoning ordinance, however, creates an exception to the 6250-square-foot requirement by providing that a one-family dwelling may be built in any residence district on a ‘lot of record on the effective date of this comprehensive amendment (1957) regardless of the size of the lot.” The term, “lot of record,” is defined in Section 3.2 of the Zoning Ordinance as follows:

“A “lot of record” is an area of land designated as a lot on a plat of subdivision recorded or registered, pursuant to statute, with the Recorder of Deeds of Cook County and the Ex-officio Examiner of Subdivisions of the City of Chicago.”

The city argues that since there was no evidence that the 5000 square-foot parcel in question was designated as a lot on a plat of subdivision recorded or registered with the Recorder of Deeds of Cook County, there was a failure of proof that the lot qualifies as a “lot of record,” and, therefore, the lot does not come within the exception to the minimum lot size requirement.

We agree with the city that the instant property is not a ‘lot of record,” as it has not been designated as a lot on a recorded plat of subdivision. Looking to the Plat Act (Ill. Rev. Stat. 1969, ch. 109, par. 1, et seq.), the statute alluded to in the definition of “lot of record,” the owner of the single recorded lot from which the instant property was severed, was exempted from recording a new plat of subdivision on that account. However, the fact that a plat need not have been recorded does not mean that it could not have been so filed, thus rendering the subdivided lot a “lot of record” within the clear statutory definition of the Plat Act. There was no evidence of such filing. Since the property therefore does not come within the definition of “lot of record,” it cannot come within the exception to the minimum lot size requirement, and a building permit should not have been issued.

Notwithstanding this fact, we note that the building permit was never properly revoked. Although the reason cited for the stop work order was non-compliance with the zoning requirements for a single-family residence district, that order was not intended, and cannot be construed, as a revocation of the building permit. Looking to the document of revocation itself, issued on May 28, 1969, the only stated reason was that six months had elapsed (the day before) without plaintiff’s having commenced the construction authorized by the permit. It is true that Chapter 43, Section 43 — 9, of the Municipal Code of the City of Chicago provides that a building permit shall be void if operations thereunder are not begun within six months after the date of issuance. However, operations in this case were begun with the excavation and the installation of concrete footings within two months of the issuance of the permit, and were stopped only on direction of the city itself. Under this circumstance, it would be wholly unconscionable, as well as unreasonable and unlawful, for the city to revoke plaintiff’s building permit for failure to have begun operations within six months.

Nonetheless, even if the permit had been properly revoked, we could not agree with the city’s contention that estoppel is not appropriate in this case, as was held by the trial court.

The doctrine of equitable estoppel as against a city has been discussed at great length in Cities Service Oil Co. v. City of Des Blaines, 21 Ill.2d 157, 171 N.E.2d 605. In that case, a building permit was issued on August 30, 1957, for the construction of a gas station. Plaintiff had bought the property in September, 1957, and on October 16, 1957, the transfer of the permit from the seller to plaintiff was approved. Construction started in late February, 1958, and three weeks later, the police appeared and stopped the work. By a subsequent letter from the mayor, dated March 19, 1958, plaintiff was informed that his permit was being revoked because of an ordinance violation. By that time, plaintiff had paid the contractors $5,373.46 for work done and would have been obliged to pay $1,050 to restore the property to its former condition. Plaintiff brought suit against the city to enjoin it from enforcing the zoning ordinance and was granted relief. Tire city appealed, contending that the trial court erred in holding the city estopped from preventing erection of the service station. The court stated at pp. 160-161:

“The general rule is that a city cannot be estopped by an act of its agent beyond the authority conferred upon him. [Citations.] It has been stated that anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority, and that this is so even though the agent himself may have been unaware of the limitations on his authority. [Citation.] In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights. [Citation.]
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done. [Citations.]”

The court went on to hold that under the special facts and circumstances of the case, it would have been inequitable for the city to enforce removal of the improvements which had been installed in reliance upon the permit. The qualification to the general rule was held to have been met because “plaintiff had expended large sums of money in reliance upon the permit and the apparent acquiescence by the city officials.”

And this, even though plaintiff’s actions had not initially been induced by the conduct of any municipal officers. The lapse of seven months without any attempt to revoke the permit was seen by the court as “conduct on the part of city authorities from which it could reasonably be inferred that its issuance was, in effect, ratified.”

In our opinion, the factual situation of the case at bar is sufficiently similar to that in the Cities Service case to be controlled by its decision. In reliance upon the issuance of the building permit, the instant plaintiff spent a total of $15,560.97, including the cost of the real estate (the contract being contingent only upon the issuance of the permit), and excluding the $450 spent to restore the property to its former condition, plus an unknown sum for real estate taxes.

Although here, too, there was no initial inducement by the municipal authorities, there was a six-month lapse between the date the permit was issued and the date revocation was attempted, and a 2- to 21/2-month lapse between the start of tire excavation work and receipt of the stop work order. Even if reliance were to be placed upon the 2- or 2%-month period, the situation is analogous to the Cities Service case when it is noted that in that case the police stopped the construction work only three weeks after it had begun, and the permit was actually revoked one month after the construction had begun. In the case before us, the initial excavation was a type of operation sufficient to put the city on notice that its permit to build was being relied upon. In this circumstance, a delay of one month before revocation, as in the Cities Service case, or a delay of more than five months before revocation (or even 2 to 2% months before stopping work, as in the instant case, compared to three weeks in Cities Service) constituted an inducement to plaintiff to assume in good faith that the permit, valid on its face, was valid in fact and in law through ratification by the city.

The judgment of the circuit court is affirmed.

Affirmed.

LORENZ, P. J., and DRUCKER, J., concur.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Ed Harris, d/b/a Madison Decorating Company, Plaintiff-Appellee, v. Barry B. Shuman, Defendant-Appellant.
    (No. 57742;
    First District (1st Division)
    May 14, 1973.
    Weisberg, Lebold & Newman, Ltd., of Chicago, (Alfred M. Walter, of counsel,) for appellant.

      Joseph E. Fitzgerald, and Canel & Canel, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This was an action to recover the balance due on a contract by which plaintiff undertook painting and decorating work upon defendant’s home in Highland Park, Illinois. After a bench trial, judgment was entered for plaintiff and against defendant in the amount of $1,834.25. Defendant appeals, contending essentially that he was entitled to a set-off or a recoupment against the amount demanded for work improperly performed by plaintiff under the contract, in an amount greater than that awarded him by the court,

The record reveals that plaintiff was engaged by defendant to perform painting and wallpapering services in defendant’s home at a cost of $3,744.25, that $1700 was paid by defendant on account, and that by this action plaintiff claimed the balance of $2,044.25. After the paper was hung by plaintiff’s subcontractor, it began pulling away from the walls, plaintiff returned to the defendant’s home on several occasions in an effort to correct the condition and finally plaintiff, at his own cost, completely stripped the papered walls, primed them with a sealer, and rehung the paper. Since the rehanging of the paper the loosening condition still prevailed and, although demanded by plaintiff, defendant refused to pay the balance due on the contract. The reason given by plaintiff for the loosening condition of the paper was moisture in the walls created by the nature of the base of the paint previously covering the walls and the vacant condition of the house for several years. The house had been displayed by its builder as a model home for several years, accounting for its vacant condition. Plaintiff had initially decorated the interior of the building at which time he had applied a paint the base of which was not the same as that covering the walls at the time that the papering work was performed under the contract. Several decorators testified as to the cost of rectifying the work done by plaintiff, which the trial court expressly found to have been poorly performed and in an unworkmanlike manner.

Defendant filed no counterclaim with his answer to the complaint as required by Section 38 of the Civil Practice Act, although the answer affirmatively set up the defense of non-payment by reason of the poor and unworkmanlike manner in which the services were performed. (Ill. Rev. Stat. 1971, ch. 110, par. 38.) Although defense counsel at the trial twice broached the question of filing a counterclaim, his motion in that regard was not ruled upon. However, it appears from the record that the court and the parties all proceeded as though a counterclaim had in fact been filed, as evidenced by plaintiff’s counsel’s concession that defendant be allowed the sum of $210 from the balance demanded under the contract and by the court’s entry of the judgment in the amount of $210 less than demanded. Since this court has the power on its own motion to order an amendment of the pleadings to be made and further since the court and the parties proceeded at the trial of this case as if a counterclaim had been filed, it is ordered that defendant’s answer to the complaint be and it is amended to include a counterclaim for recoupment of whatever damages he suffered by reason of the faulty and unworkmanlike services performed by plaintiff under the contract. See Supreme Court Rule 362(f) (Ill. Rev. Stat. 1971, ch. 110A, par. 362); Simonson v. Simonson, 128 Ill.App.2d 39, 47-48, 262 N.E.2d 326, 331-32.

As noted, the trial court allowed the sum of $210 as recoupment for defendant’s damages under the contract for plaintiff’s faulty performance. It further appears that that sum was the amount plaintiff charged defendant for the paperhanging services of plaintiff’s subcontractor, or, in other words, the contract price for the paperhanging services. That measure of establishing damages for recoupment was improper. Rather, the proper measure should be the cost of remedying the defects and deficiencies of the work performed, such as was testified to by the three decorators. See Hanavan v. Dye, 4 Ill.App.3d 576, 281 N.E.2d 398; Rehr v. West, 333 Ill.App. 160, 76 N.E.2d 808.

For these reasons the defendant’s answer is amended to incorporate a counterclaim for recoupment of damages suffered by reason of the faulty workmanship performed under the contract, and the judgment of the circuit court of Cook County is reversed and the cause remanded for proceedings not inconsistent with the views expressed herein.

Answer amended. Judgment reversed and cause remanded with directions.

GOLDRERG and EGAN, JJ., concur.


author: Mr. JUSTICE ADESKO

text:
    Fred W. Halloran, Plaintiff-Appellee, v. Sisters of St. Joseph of the Third Order et al. Defendants—(Grundstrom Co., Inc., Defendant-Appellant.)
    (No. 56898;
    First District (4th Division)
    May 16, 1973.

      Tom L. Yates, of Chicago, (Carl E. Abrahamson, of counsel,) for appellant.
    Michael H. Postilion, of Chicago, for appellee.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Fred W. Halloran brought a personal injury action against Grundstrom Co., Inc. (hereinafter Grundstrom), Sisters of St. Joseph of the Third Order (hereinafter Sisters) and other defendants. The other defendants were dismissed from the case prior to trial. A directed verdict was entered on behalf of the Sisters at the close of plaintiff’s evidence. A jury verdict was returned for the plaintiff and against Grundstrom and damages were assessed at $61,000 plus costs. On appeal Grundstrom contends that:

(1) The trial court erred in denying defendant’s motion for a directed verdict;

(2) It was not afforded a fair trial free of prejudicial error;

(3) The trial court erred in giving jury instructions Nos. 1, 9A, 10A and 11A; and

(4) Damages awarded to plaintiff were excessive.

The relevant facts are as follows:

On August 19, 1963, plaintiff was working at the Sisters Convent job site as a construction plumbers apprentice for A. C. Oughten Co. Plaintiff and Salvatore Scopa were installing a sprinkler system. Grundstrom was in charge of landscaping work at the convent job site and had dug holes in which trees were to be planted. Scopa testified that there were tree holes in the work area. Alfred Kickel, Vice-President of Grundstrom, testified that the tree holes were left open between August 14, 1963, and August 21, 1963. Kickel also testified that the holes were not covered with-planks and no warning signs or barricades were put up. The usual landscaping practice was to dig the tree hole and then immediately fill it with black dirt or plant the tree. Plaintiff testified that when Scopa was in front and he was in the rear while carrying four or five sprinkler pipes in the work area, dirt under his left foot at the edge of a tree hole caved in and he fell into the hole. When plaintiff fell he struck his back injuring his lower back and right hip. No one saw plaintiff fall. Plaintiff waited until three days after the accident before he went to see a doctor.

Defendant’s first contention on appeal was that the trial court erred in denying its motion for a directed verdict in that plaintiff failed to prove that he was free of contributory negligence and that defendant was negligent and that such negligence proximately caused plaintiff’s injury. The law in Illinois, relative to whether a trial court has properly denied a motion to direct a verdict is set out in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 at page 510:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Applying the Pedrick standard, we find that the trial court’s denial of defendant’s motion for a directed verdict was amply supported by the evidence preserved in tire record.

Defendant’s second contention on appeal was that it was not afforded a fair trial free of prejudicial error. Defendant contends that statements, conduct and final argument by plaintiff’s counsel were prejudicial. Defendant also contends that the trial court erred in overruling its objections to evidence offered by plaintiff and in denying its motion for a mistrial. In support of these contentions, defendant cites numerous instances throughout the record which it considers exemplary of such prejudicial error. A thorough review of the record indicates that defendant’s contentions lack merit and that it was given a fair trial.

Defendant’s third contention on appeal was that the trial court erred in giving plaintiff’s jury instructions Nos. 1, 9A, 10A and 11A. Defendant objected to plaintiff’s jury instruction No. 1, stating “that it’s repetitious.” Plaintiff’s counsel adequately set out the differences among the three allegations of the instruction in the record, which defendant failed to abstract. Defendant objects to plaintiff’s jury instructions Nos. 9A, 10A and 11A, alleging that there was no basis in the evidence for giving these instructions. Defendant’s counsel admitted that plaintiff could not do heavy construction work as a plumber and Dr. Donald Miller testified as to the extent of plaintiff’s injuries. Upon reviewing the record we find that there is adequate evidence of lost earnings and of future loss of earnings upon which the jury could make a finding.

Defendant’s final contention on appeal was that the damages awarded to the plaintiff were excessive. A review of the evidence in the record reflects that plaintiff incurred medical bills of $2,330 and also lost thirteen weeks of wages which amounted to $1,820. Furthermore, plaintiff could no longer continue in the construction plumbing business due to the severity of his injuries and as a result suffered a diminution in his earning capacity. The injury to plaintiff’s back is permanent and will get worse. In view of these facts, we find that the damages awarded to the plaintiff were not excessive.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    The People ex rel. Shell Oil Co. et al., Petitioners-Appellees, v. The Town of Cicero et al., Respondents-Appellants.
    (No. 56448;
    First District (5th Division)
    May 11, 1973.

      Neistein, Richman, Hauslinger & Young, Ltd., of Chicago, (Harry A. Young, Jr., Allen C. Engerman, and Robert J. Lifton, of coxmsel,) for appellants.
    Albert E. Jenner, Jr., Thomas W. McNamara, and Russell J. Hoover, all of Chicago, (Jenner & Block, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Petitioners filed an action for a writ of mandamus asking that respondents be compelled to issue them a building permit for the construction of a gas station at the northeast corner of Central and Cermak in Cicero, Illinois. After a bench trial the court entered judgment issuing tire writ, and respondents appeal therefrom.

On appeal respondents contend that: (1) petitioners failed to show a clear legal right to the relief sought and (2) respondents are not estopped from requiring compliance with an amended zoning ordinance which makes a gas station a “special use” in the relevant zoning district although prior to the amendment a gas station was a “permitted use.”

Petitioners Don and Altona Dodge have owned the property in question since 1933. On June 9, 1967, petitioner Shell Oil Company (Shell) entered into an option agreement with the Dodges to purchase the property for $105,000; the Dodges received $500 consideration. The contract (paragraph 6 thereof) provided that if Shell was unable to procure the necessary licenses and permits to construct the gas station, all funds given to the Dodges by Shell would be refunded upon Shell’s request. The Dodges rented out the building located on tire property. It contained five commercial stores, a restaurant, a tavern and three apartments; space on a sign was also leased. During 1967 and 1968 Ken Brown, an agent for the Dodges, terminated the aforementioned leases, and the building was vacated by the end of 1968; $1500 was paid by the Dodges to terminate the lease for the sign. While the premises were being vacated, Shell made a survey, plot plan and a study to evaluate the potential profitability of the site as a gas station. Shell paid the Dodges $10,000 for two extensions of time on the option. The first extension occurred on January 15, 1968, and the second on December 10, 1968. In late 1968 Brown conferred with John Kimbark, Cicero’s Town Clerk, and told him of Shell’s option agreement with the Dodges and Shell’s intention to construct a gas station. In January 1969 Brown began soliciting bids for the demolition of the building. On March 10, 1969, Shell exercised its option to purchase. Purchase was still conditioned upon the procurement of the' proper service station permits. Brown again met with Kimbark in April 1969 at which time Kimbark informed him that the Town’s Board of Trustees objected to the construction of a gas station on the site but that Brown could take up the matter with the Board.

In May 1969 Brown met with the Board of Trustees concerning Shell’s plans. The Board members stated that they did not want a gas station on the subject site, but Kimbark ended the meeting by telling Brown to have Shell make a formal request for a construction permit. Shell then prepared a set of “stock plans” and filed them along with an application for a building permit with Glen Zelenka, Cicero Building Commissioner, on July 1, 1969. Jim Thatcher, a Shell engineer, and Zelenka testified that it was the general practice to submit “stock plans” when applying for a permit to construct a gas station.

On September 17, 1969, petitioners were advised that their application for a permit had been denied at a Town Board meeting held on September 15. In December 1969 the building on the site was demolished at a cost of $5300; at the time a lawsuit was pending wherein the Town sought to correct building code violations in the Dodges’ building. Ken Brown testified that demolition of the building had been contemplated for almost one year. Also in December 1969 the attorney for petitioners called the Town Clerk and asked why tire building permit had been denied. The Clerk told him that the Town did not want a gas station at the location.

Petitioners then filed this mandamus action on January 14, 1970. On March 9, 1970, the Town of Cicero amended its zoning ordinance so as to provide that gas stations in the relevant zoning district were to be “special uses” and that an application for a “variance in the nature of a special use” approved by the Town Board was required to construct a gas station therein.

At a deposition of Glen Zelenka on April 2, 1970, petitioners were presented with a list of 17 deficiencies in the “stock plans” submitted by Shell. Thereafter Shell’s “stock plans” were revised to allegedly correct the deficiencies, and the new set of plans and an accompanying request for a building permit were submitted to tire Building Commissioner on October 26, 1970. Petitioners made no application for “a variance in the nature of a special use” as required by the amended zoning ordinance, and the plans were returned to petitioners for this reason. Shell has never entered into any construction contracts with respect to the subject site.

Based upon the foregoing facts the court issued the writ of mandamus compelling the respondents to issue a building permit to petitioners for the construction of a gas station.

Opinion

Respondents first contend that petitioners failed to show a clear legal right to the relief sought. They argue that the amended zoning ordinance controls and that since petitioners did not comply with the provisions thereof by applying for a “variance in the nature of a special use,” the writ was improvidently granted. Petitioners counter-argue that they were not required to comply with the amended ordinance because of the established rule that any substantial change of position, expenditures or incurrence of obligations occurring in reliance upon the probability of the issuance of a building permit is sufficient to create a right in the person seeking the permit and entitles him to complete the construction and use the premises for the purposes originally authorized notwithstanding a subsequent zoning or change in zoning classification. (Fifteen Fifty State St. v. Chicago, 15 Ill.2d 408, 416, 155 N.E.2d 97.) Respondents acknowledged this rule of law but urge that it is inapplicable to this case.

For one to benefit from the rule he must show (1) that there was a “probability” that a building permit would issue and (2) that a substantial change in position was incurred based upon this probability.

From a close reading of cases dealing with the first prerequisite (Fifteen Fifty State St. v. Chicago, 15 Ill.2d 408, 416, 155 N.E.2d 97; Cos Corp. v. City of Evanston, 27 Ill.2d 570, 190 N.E.2d 364) it appears that a “probability” that a building permit will issue is present where the subject site, as in this case, is suitably zoned to permit the construction of the type of building and use thereof contemplated by the party. As stated in Cos Corp. at 577:

“Where an individual or corporation expends substantial sums relying on the then existing zoning and zoning ordinances and proceeds to seek a permit in compliance with them, it would be a grave injustice to allow municipal officials to hold up an action on issuance of a building permit until an amendatory ordinance could be passed changing the standards to be met so that a permit formerly lawful would now not be issued due to an abrupt change in the law.”

However, a substantial change in position in reliance on that probability must also be shown and we agree with respondents that no such change is evidenced by the facts presented here. The two substantial changes alleged to have been made were the expenditure of $10,500 by Shell to the Dodges for the original option to purchase and the two extensions of time thereon, and the demolition of the building by the Dodges at a cost of $5300.

As to the first expenditure, it appears that Shell has a contractual right to recover the $10,500 from the Dodges. Paragraph 6 of the option agreement referred to in the statement of facts provides:

“WITHDRAWAL. If at the expiration of Five Hundred and Sixty (560) days after the exercise date, any one or more of the conditions specified in article 5 [one of which is that Shell be able to procure the necessary license and permits from the proper public authorities] have not been fulfilled, Shell may, at any time thereafter, at its option * * *, withdraw from this transaction and be released of all liability hereunder, by giving notice to Seller and Escrow Agent; whereupon all consideration paid for this Option and any extension hereof shall be refunded by Seller to Shell, * * V

Shell has made no unconditional commitment of its funds. See Naumovich v. Howarth, 92 Ill.App.2d 134, 138, 234 N.E.2d 185.

As to the demolition of the building by the Dodges in December 1969, we believe that this action could no longer have been based upon the reasonable probability that a building permit would issue. In April 1969 Ken Brown, the Dodges’ agent, was informed by John Kimbark, the Town Clerk, that the Town’s Board of Trustees did not want a gas station constructed on the site. In May 1969 Brown met with the Board of Trustees and was again informed of its desire that a gas station not be built on the site. In September 1969 the application for a building permit was flatly denied. Petitioners do not argue that the denial of the permit was improper at this time. Respondents later informed them of 17 deficiencies in the permit application and petitioners then made corrections in an attempt to alleviate the deficiencies. Thus, when the Dodges had the building demolished in December 1969, the probability that a permit would issue was at best doubtful, and the likelihood of an amendatory ordinance seemed quite probable.

The other expenditures incurred prior to the events referred to above were $1300 to terminate the lease of a sign and the preparation of plot plans and profitability studies by Shell. These are not “substantial changes” as this phrase has developed under the case law. See People ex rel. Nat. Bank v. Cook County, 56 Ill.App.2d 436, 206 N.E.2d 441; Naumovich v. Howarth, 92 Ill.App.2d 134, 234 N.E.2d 185.

Petitioners urge two other arguments in requesting affirmance of the court’s order. First, they argue that even if they had no right to build the gas station under the principle discussed above, the respondents should nevertheless be estopped from applying its amended zoning ordinance to the subject property because of the inequities that would result therefrom. In support they cite Dato v. Village of Vernon Hills, 91 Ill.App.2d 111, 233 N.E.2d 48; Wehrmeister v. Carlman, 17 Ill.App.2d 171, 149 N.E.2d 453; and Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555, 149 N.E.2d 344. The general principle enunciated in Dato and Wehrmeister is that affirmative acts of officers of a municipality indicating the municipality’s approval of construction plans under an existing zoning ordinance will estop the municipality from relying on a subsequent amendment to the ordinance which bars the construction already condoned. This is not tire case here. At no point did the respondents indicate that they would approve the construction of a gas station on the site. Therefore they are not estopped from applying the amended ordinance to the site. The significant distinction between the instant case and Phillips is that there plaintiff submitted an application for a building permit which the defendant municipality conceded was technically correct, i.e., it was in full compliance with tire existing building code. Nevertheless the municipality invalidly suspended the existing zoning ordinance which permitted the construction of gas stations in the relevant zoning district and withheld building permits until the district was rezoned to prohibit gas stations. Here, petitioners’ initial application for a building permit was deficient in 17 respects. We therefore believe the case is inapposite.

Second, petitioners argue that requiring them to apply for a “variance in the nature of a special use” under the amended ordinance would be a futile act in light of the actions already taken by respondents. We cannot agree. The first application for a building permit submitted was deficient in many respects according to the deposition testimony of Glen Zelenka, the Building Commissioner. The second application for a building permit was revised so as to allegedly correct the cited deficiencies, but no application for a “variance in the nature of a special use” was made as required by the then existing amended ordinance. The lack of such an application was the reason given for the cursory denial of the second request for a building permit. Therefore the proper municipal authority has not been given the opportunity to consider an application made in full compliance with existing building and zoning provisions.

At any rate, we have ruled that petitioners have shown no clear legal right to a building permit under the ordinance prior to its amendment and that respondents are not estopped from applying tire amended ordinance. Therefore, even if we were to conclude that a subsequent request to the Village officials for a “variation in the nature of a special use” would be a futile act, this would not benefit petitioners. To justify the issuance of a writ of mandamus petitioners would still be required to show that the amended zoning ordinance as applied to the existing property is unconstitutional. They have never raised this issue during the course of these proceedings and it is therefore not before us to decide.

For the foregoing reasons the judgment is reversed.

Reversed.

ENGLISH and LORENZ, JJ., concur.

       These are standard plans of the company for its stations. It is not expected that they comply with the specifics in a municipality’s building code but rather that revision thereof will be made to comply.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Hinton, Defendant-Appellant.
    (No. 57761;
    First District (4th Division)
    May 9, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    No brief filed for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Edward Hinton, was charged with a series of separate criminal offenses which occurred on May 21, 1967, including armed robbery and attempt murder. Defendant was found guilty by a jury on April 25, 1968, of four counts of attempt murder and four counts of armed robbery. He was sentenced to the penitentiary to concurrent terms of 15 to 20 years and 40 to 60 years respectively.

In May, 1969, defendant was tiled on other indictments arising from a series of separate offenses defendant allegedly committed on May 21, 1967. In this trial, defendant was found not guilty by reason of insanity.

While awaiting trial on the first series of indictments, defendant, on January 15, 1968, was transported from the Cook County jail to the Criminal Courts Building in Chicago, for a court appearance when he attempted to escape from custody and injured a Cook County deputy sheriff in the attempt. Defendant was charged with the offense of attempt escape. On April 15, 1968, after being admonished as to his rights by the court, defendant pleaded guilty to the charge and was sentenced to serve not less than four nor more tiran seven years in the Illinois State Penitentiary. No appeal was taken, but a post-conviction petition was subsequently filed by defendant pro se. An amended post-conviction petition was filed by counsel for defendant. On April 26, 1972, a hearing was held on the amended petition. After the hearing the trial court denied defendant’s petition for post-conviction relief.

In the post-conviction petition defendant contended that since he was found guilty by reason of insanity on May 15, 1969, for certain offenses perpetrated on May 21, 1967, he could not be held criminally responsible for his conduct on January 15, 1968, when he attempted to escape from custody. The petition prayed for the vacation of the judgment entered on April 15, 1968, on defendant’s guilty plea to the offense.

Defendant, represented by the Public Defender, filed a notice of appeal. The Public Defender now seeks to withdraw and has filed a brief in support of his motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, stating that from a review of the record the only possible basis of appeal from the denial of the amended petition would be whether the court erred in finding that the petition did not state a constitutional claim. The Public Defender concludes that defendant’s petition does not allege a deprivation of constitutional rights and the trial court’s action in dismissing the petition does not justify an appeal.

The Public Defender served a copy of his motion for leave to withdraw upon the defendant prior to filing it. In addition, the defendant was notified by letter of the motion by this court. In it we gave the defendant until March 25, 1973, to file any additional information in support of his appeal. We informed him that after such date we would make a full examination of all the proceedings and that if we found that the appeal was frivolous, we would grant the Public Defender’s motion and affirm the court’s order without further appointment of counsel. Defendant failed to respond.

The record in the instant case reveals that defendant’s claims in his post-conviction proceedings were:

“1. That defendant’s conviction on his guilty plea of April 15, 1968, for attempt escape was unconstitutional because defendant was incompetent at the time he committed the offense. Defendant argues that the finding by a jury on May 15, 1969, that he was not guilty of certain of the offenses he committed on May 21, 1967, by reason of insanity and that he was also incompetent at the time the jury returned its verdict, demonstrated his incompetence to commit the offense of attempt escape on January 15, 1968. Defendant argues that to convict one who was incompetent at the time the offense was committed is violative of his constutional right to due process of law; and
2. That the failure of defendant’s counsel to raise the issue of insanity before allowing defendant to enter a guilty plea to the charge of attempt escape was incompetence of counsel which deprived defendant of his constitutional right to counsel.”

These very arguments were raised by defendant in his appeal to this court from the trial court’s denial of his section 72 petition to vacate his convictions for armed robbery and attempt murder in his first jury trial on April 25, 1968. In affirming the denial of defendant’s petition in that case (People v. Hinton, 132 Ill.App.2d 409, 270 N.E.2d 93), we held that an adjudication of insanity at the time of an offense is not an adjudication of incompetency to stand trial and that a subsequent adjudication of defendant as insane as to other crimes is not a fact that requires vacating a defendant’s conviction of a totally different crime. We also found that where, as here, representation by counsel is not of such low caliber as to amount to no representation and to reduce the trial to a farce (People v. Washington, 41 Ill.2d 16, 241 N.E.2d 425), defendant was not denied his right to effective assistance of counsel.

The Illinois Supreme Court affirmed the decision in People v. Hinton, 52 Ill.2d 239, 287 N.E.2d 657, and held:

“One basic premise of defendant’s argument is that the findings of the second jury constitute an adjudication that defendant was insane as a matter of law at the time of the commission of the crimes charged in indictment 4 [the first jury trial] and that such adjudication, by inverse application of the doctrine of res judicata, relates back to the time of the first trial and necessitates vacation of the judgment. In our opinion this argument is based on a misconception of the legal effect of the the second jury’s findings. At the second trial defendant interposed the defense of insanity, and on that particular evidence presented to it the jury found him not guilty by reason of insanity as to the crimes charged in indictments 3 and 5 [the second jury trial]. These findings, however, did not constitute an adjudication that as a matter of law he was insane at the time of commission of the separate crimes charged in indictment 4 which would operate to vitiate the earlier judgment of conviction on that indictment.”
“[T]here has been no showing of any facts which raise a bona fide doubt of the defendant’s ability to understand the nature of the charges against him and to cooperate with his counsel in conducting his defense. No contention is made that defendant was in any manner prevented from raising the defense of insanity through fraud, duress, excusable mistake, or any lack of understanding of his rights. (Glenn v. People (1956), 9 Ill.2d 335.) To the contrary, it is quite possible, as the trial court concluded, that since the trial on indictment 4 was the first of possibly five trials on separate charges which allegedly occurred within a two-hour period, the decision to start with an alibi defense at the first trial was a well reasoned strategic decision on the part of the defendant and his counsel. In our opinion neither the requirements of due process of law nor the purpose and scope of section 72 call for vacation of the judgment of conviction in the first trial, where the alibi defense failed him, simply because he succeeded in asserting an insanity defense at a subsequent trial on other charges.”

In the instant case, our examination of the record reveals that the defendant was carefully admonished by the trial court as to the consequences of his guilty plea to the charge of attempt escape. He indicated that defendant’s constitutional rights to due process and to counsel were not denied by the trial court’s failure to allow him to raise a subsequent acquittal by reason of insanity as determinative of his capacity at the time of the attempted escape. We agree with the Public Defender that there is no merit to the instant appeal. The Public Defender’s request for leave to withdraw as counsel for the defendant is granted and the judgment denying defendant’s petition for post conviction relief is affirmed.

Affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Columbus Woolfolk et al., Defendants-Appellants.
    (No. 56543;
    First District (5th Division)
    May 11, 1973.
    Howard D. Geter, Jr., and Wendell P. Marbly, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (John C. O’Rourke, Jr., and Elmer C. Kissane, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendants were charged in Count I with committing the offense of gambling in that they knowingly set up, promoted, sold, offered to sell, possessed, and transferred policy tickets and other similar devices in violation of Ill. Rev. Stat. 1969, ch. 38, §28 — l(a-S) and charged in Count II that they knowingly did draft, print, and publish policy tickets and shares and other similar devices in violation of Ill. Rev. Stat. 1969, ch. 38, §28 — 1(a-9).

At the trial the parties stipulated that insufficient evidence existed for Count II and it was stricken. A further stipulation was made to the following facts. On November 5, 1970, several police officers arrived at 1223 South 19th Avenue in Maywood, Illinois, presented the woman who opened the door with a search warrant, and entered the premises. Upon entering the basement, they found the two defendants, Woolfolk standing by the window of the basement and Lindsey standing in front of the entrance to the middle room where a dismantled press was found. Nothing was found on the person of either defendants, but in the room with the press, which was not in operation, old policy tickets were found in a refuse pile. Both defendants were found guilty in a bench trial of the possession of the printed slips in violation of Ill. Rev. Stat. 1969, ch. 38, § 28 — 1 (a-8). Defendants then filed a Motion in Arrest of Judgment claiming that the count of the indictment upon which they were convicted was void. The motion was denied. Following a hearing in aggravation and mitigation, defendant Woolfolk was sentenced to three years probation, the first ninety days in the House of Correction on the work release program. Defendant Lindsey was given probation for two years. Both defendants appeal.

The issue presented for review is whether the indictment is duplicitous and therefore void for having listed a number of separate offenses in the conjunctive and in only one count.

OPINION

The indictment under Count I, using the conjunction “and,” charged that defendants committed each of the offenses (“set up,” “promoted,” “sold,” “offered to sell,” “possessed” and “transferred”) listed in § 28 — 1 (a-8). The statute lists each offense in the alternative by using the disjunction “or.” An indictment must sufficiently notify defendant of the charges against him. (People v. Shelton (1969), 42 Ill.2d 490, 248 N.E.2d 65; People v. Tammen (1968), 40 Ill.2d 76, 237 N.E.2d 517; People v. Ross (1968), 41 Ill.2d 445, 244 N.E.2d 608.) Since the State was required to prove and in fact did prove that defendants committed only one of the acts specified in the statute (i.e., possession), the indictment charging them with the commission of all the acts did not sufficiently notify defendants of the crime imputed to them.

In People v. Richardson (1957), 12 Ill.2d 344, 347, 145 N.E.2d 926, 927 the court stated that:

“Particularity of aUegation is required simply to identify, in a reasonable manner, the crime with which the accused is charged. It is not intended as a linguistic exercise whereby the prosecutor must eliminate all possibility of misconstruction.”

By applying the Richardson standard and construing the indictment in the light most favorable to the State, we might overlook the substitution in the indictment of the word “and” for the proper word “or.” However, even if the indictment had properly listed each offense in the alternative People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340, would compel our reversing the convictions. In Heard, the IHinois Supreme Court, dealing specifically with § 28 — 1(a-8), held at 47 Ill.2d 501, 504, 266 N.E.2d 340, 342, that an information containing all of the listed offenses in one count was void:

“The complaint, following the language of the statute, charged the defendants in the disjunctive, that is, it charged that the defendants set up a policy game or promoted a policy game or sold tickets and so on. While a charge which follows the language of the statute defining the crime and uses the disjunctive “or” wiH be sufficient under some circumstances, it wiH not be sufficient where the statute names disparate and alternative acts, any of which wül constitute the offense * * *. The statute here named specific acts which constitute the crime of gambling, some of which acts are clearly disparate and alternative. The promoting of a policy game is not the same act as transferring a policy ticket, for example. The use of the disjunctive under these circumstances causes uncertainty and conjecture as to which of the alternatives the accused is charged with committing.”

Although Heard dealt with an information, the rationale of the decision compels its application to indictments as well. Since all the offenses charged in the indictment in the case at bar were contained in the same count, Heard compels us to reverse the convictions.

Reversed.

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

       § 28 — 1 (a-8) provides:
      Sets up or promotes any policy game or sells, offers to sell or knowingly possesses or transfers any policy ticket, slip, record, document or other similar device * * *


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clifford Ferguson, Defendant-Appellant.
    (No. 55918;
    First District (4th Division)
    May 9, 1973.
    Hogan & Crowe, (Brian L. Crowe and Louis M. Leider, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Clifford Ferguson, was convicted of murder at a jury trial in the Circuit Court of Cook County and sentenced to 25 to 50 years in the penitentiary. A co-defendant, Michael Garcia, was convicted before Ferguson went to trial.

The defendant appeals from his conviction alleging the court improperly allowed the State to read to the jury a transcript of Tim Johnson s testimony taken at the trial of Michael Garcia; the court erred by refusing to give the jury an instruction limiting the consideration given to the information contained in that transcript; the State improperly suggested during closing arguments that he had given a confession to the police; he did not receive a fair trial because of the trial judge’s improper comments and demeanor; he was not proven guilty beyond a reasonable doubt; and restrictions imposed by the trial judge during voir dire examination deprived him of his constitutional right to trial by an impartial jury.

The victim, Jeffrey Pecenka, was beaten to death on June 15, 1968, and at Garcia’s trial a State’s witness, Tim Johnson, testified he saw the victim walking away with Garcia and Ferguson holding his arms. Later that evening he saw both defendants, and Ferguson had blood on his hands, shirt and pants.

During the course of the trial the State called Tim Johnson as its witness. After he responded he did not know either the defendant or the victim, in contradiction to his testimony at the previous trial, the State asked he be called as a court’s witness and the State be allowed to proceed as though he were a hostile witness, and the court allowed the motion. Thereafter, the State read the entire transcript of his testimony at the prior trial to the witness over defense objections, pausing from time to time to inquire whether he remembered. The witness responded variously that he did not remember, remembered up to that point, or remembered parts, but he never did give testimony of his own present recollection. He complained his mind was going bad.

On cross-examination Johnson stated he had been told what to say before his testimony in the previous trial, and he had been mentally coerced.

The State asserts it became necessary to read his previous testimony back to him to refresh his memory when he either failed to remember or wilfully refused to testify, and he adopted his previous testimony when he stated he remembered. But at no time was he allowed to review his prior testimony in private out of the presence of the jury, as proper procedure would dictate. The effect was not to refresh his memory so he might testify of his own knowledge and recollection, but to get before the jury the witness’ testimony at another trial. That testimony was not competent as evidence and ordinarily would have been admissible only for purposes of impeachment, but in the instant case the material contained in the transcript was so highly prejudicial to the accused it should not have been presented to the jury for any reason. In the case of People v. McKee (1968), 39 Ill.2d 265, the court held that where the impeachment of a court’s witness bore directly on the guüt or innocence of the defendant, a new trial should be granted where a finding of guilt was based on information contained in the impeachment material. The court stated:

“Had the case been tried before a jury the admission of such testimony would necessarily constitute reversible error for the reason that such evidence is not competent even for the purpose of impeachment where the statement bears directly upon defendant’s guilt or innocence. The prejudicial affect upon a jury would be too much. (People v. Tunstall, 17 IU.2d 160.)”

In People v. Kimbrough (1970), 131 Ill.App.2d 36, the court held an instruction by the court admonishing the jury that evidence was being admitted solely for impeachment purposes was not sufficient to mitigate prejudice, when the testimony bore too heavily upon defendant’s guilt or innocence.

In the case at bar the court refused to give an instruction which would limit the jury’s consideration of the material contained in the transcript and even aHowed the State to comment during final argument on information contained in the transcript:

“MR. CROWE: Objection, Your Honor, he didn’t say that.
THE COURT: No, no. That was in the transcript.”

It is clear the testimony contained in the transcript bore heavily on Ferguson’s guüty or innocence, and it was error for the court to have aHowed its presentation to the jury for any reason.

Second, the defendant contends it was error for the State to comment with regard to a confession given by the defendant when the confession had been suppressed. On closing argument the State suggested that Ferguson had made a confession:

“STATE’S ATTORNEY: And, that some period of time later Clifford Ferguson goes to the pohce — has a conversation with Detective Heatley, and after that conversation, he is charged with murder.
MR. CROWE [Defense attorney]: Objection.
STATE’S ATTORNEY: And so is Garcia.
MR. CROWE: Objection.
THE COURT: Overruled.
STATE’S ATTORNEY: So, I again ask you, what is the reasonable theory of innocence? Why did he go to the police, guüty conscience, perhaps? But, that does not justify what occurred.
MR. CROWE: Objection, there is no evidence to that.
THE COURT: No, your objection is overruled.
STATE’S ATTORNEY: Why did he go to the police? Again, I say, perhaps a guilty conscience. The fact somebody commits a murder — or commits a dastardly crime, and some period of time later, decides to get it off his chest, that is no excuse.
MR. CROWE: Objection.
STATE’S ATTORNEY: For what was done that day.
THE COURT: Your objection is overruled.”

There was no evidence in the record as to any confession and we hold that allowing comment in the final argument was prejudicial error.

Third, the defendant suggests he was prejudiced because the trial judge showed a bias against the defendant by his remarks and conduct.

It is well settled that the court has a duty not to convey improper impressions to the jury. (People v. Lewerenz (1962), 24 Ill.2d 295.) In the case at bar the record shows the court was impatient with defense counsel to an extent which could have been prejudicial to the defendant. On two occasions when defense counsel inquired whether he might proceed, the judge invited him to “Go to it,” giving rise to the inference that defense counsel’s presentation would not be important for the jury to consider. When the defense counsel asked to make an offer of proof in chambers the judge implied there was something improper with wanting to be heard outside the presence of the jury: “I am not going in the back room. The case is going to be heard over here.”

We conclude that these and other instances of bias contained in the record along with the previously mentioned errors require the judgment of the Circuit Court of Cook County be reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.

ADESKO and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Richard Oloffson, d/b/a Rich’s Ag Service, Plaintiff-Appellant, v. Clarence Coomer, Defendant-Appellee.
    (No. 72-212;
    Third District
    May 21, 1973.

      Rehearing denied June 21, 1973.

      R. K. Rainey, of Princeton, for appellant.
    Roger V. Pierson, of Princeton, for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Richard Oloffson, d/b/a Rich’s Ag Service appeals from a judgment of the circuit court of Rureau County in favor of appellant against Clarence Coomer in the amount of $1,500 plus costs. The case was tried by the court without a jury.

Oloffson was a grain dealer. Coomer was a farmer. Oloffson was in the business of merchandising grain. Consequently, he was a “merchant” within the meaning of section 2 — 104 of the Uniform Commercial Code. (Ill. Rev. Stat. 1969, ch. 26, §2 — 104). Coomer, however, was simply in the business of growing rather than merchandising grain. He, therefore, was not a “merchant” with respect to the merchandising of grain.

On April 16, 1970, Coomer agreed to sell to Oloffson, for delivery in October and December of 1970, 40,000 bushels of corn. Oloffson testified at the trial that the entire agreement was embodied in two separate contracts, each covering 20,000 bushels and that the first 20,000 bushels were to be delivered on or before October 30 at a price of $1.12% per bushel and the second 20,000 bushels were to be delivered on or before December 15, at a price of $1.12% per bushel. Coomer, in his testimony, agreed that the 40,000 bushels were to be delivered but stated that he was to deliver all he could by October 30 and the balance by December 15.

On June 3, 1970, Coomer informed Oloffson that he was not going to plant corn because the season had been too wet. He told Oloffson to arrange elsewhere to obtain the corn if Oloffson had obligated himself to deliver to any third party. The price for a bushel of corn on June 3, 1970, for future delivery, was $1.16. In September of 1970, Oloffson asked Coomer about delivery of the corn and Coomer repeated that he would not be able to deliver. Oloffson, however, persisted. He maffed Coomer confirmations of the April 16 agreement. Coomer ignored these. Oloffson’s attorney then requested that Coomer perform. Coomer ignored this request likewise. The scheduled delivery dates referred to passed with no corn delivered. Oloffson then covered his obligation to his own vendee by purchasing 20,000 bushels at $1.35 per bushel and 20,000 bushels at $1.49 per bushel. The judgment from which Oloffson appeals awarded Oloffson as damages, the difference between the contract and the market prices on June 3, 1970, the day upon which Coomer first advised Oloffson he would not deliver.

Oloffson argues on this appeal that the proper measure of his damages was the difference between the contract price and the market price on the dates the corn should have been delivered in accordance with the April 16 agreement. Plaintiff does not seek any other damages. The trial court prior to entry of judgment, in an opinion finding the facts and reviewing the law, found that plaintiff was entitled to recover judgment only for the sum of $1,500 plus costs as we have indicated which is equal to the amount of the difference between the minimum contract price and the price on June 3, 1970, of $1.16 per bushel (taking the greatest differential from $1.12% per bushel multiplied by 40,000 bushels). We believe the findings and the judgment of the trial court were proper and should be affirmed.

It is clear that on June 3, 1970, Coomer repudiated the contract “with respect to a performance not yet due.” Under the terms of the Uniform Commercial Code the loss would impair the value of the contract to the remaining party in the amount as indicated. (Ill. Rev. Stat. 1969, ch. 26, § 2 — 610.) As a consequence, on June 3, 1970, Oloffson, as the “aggrieved party”, could then:

“(a) for the commercially reasonable time await performance by the repudiating party; or
(b) resort to any remedy for breach (Section 2 — 703 or Section 2 — 711), even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; # * *”

If Oloffson chose to proceed under subparagraph (a) referred to, he could have awaited Coomer’s performance for a “commercially reasonable time.” As we indicate in the course of this opinion, that “commercially reasonable time” expired on June 3, 1970. The Uniform Commercial Code made a change in existing Illinois law in this respect, in that, prior to the adoption of the Code, a buyer in a position as Oloffson was privileged to await a seller’s performance until the date that, according to the agreement, such performance was scheduled. To the extent that a “commercially reasonable time” is less than such date of performance, the Code now conditions the buyer’s right to await performance. (See Ill. Rev. Stat. Annot. 1969, ch. 26, § 2 — 610, Illinois Code Comment, Paragraph (a)).

If, alternatively, Oloffson had proceeded under subparagraph (b) by treating the repudiation as a breach, the remedies to which he would have been entitled were set forth in section 2 — 711 (Ill. Rev. Stat. 1969, ch. 26, §2 — 711), which is the only applicable section to which section 2 — 610(b) refers, according to the relevant portion of 2 — 711:

“(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2 — 612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) ‘cover and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or
(b) recover damages for non-delivery as provided in this Article (Section 2 — 713). * * *”

Plaintiff, therefore, was privileged under Section 2 — 610 of the Uniform Commercial Code to proceed either under subparagraph (a) or under subparagraph (b). At the expiration of the “commercially reasonable time” specified in subparagraph (a), he in effect would have a duty to proceed under subparagraph (b) since subparagraph (b) directs reference to remedies generally available to a buyer upon a sellers breach.

Oloffson s right to await Coomer’s performance under section 2 — 610(a) was conditioned upon his:

(i) waiting no longer than a “commercially reasonable time”; and

(ii) dealing with Coomer in good faith.

Since Coomer’s statement to Oloffson on June 3, 1970, was unequivocal and since “cover” easily and immediately was available to Oloffson in the well-organized and easily accessible market for purchases of grain to be delivered in the future, it would be unreasonable for Oloffson on June 3, 1970, to have awaited Coomer’s performance rather than to have proceeded under Section 2 — 610(b) and, thereunder, to elect then to treat the repudiation as a breach. Therefore, if Oloffson were relying on his right to effect cover under section 2 — 711(1) (a), June 3, 1970, might for the foregoing reason alone have been the day on which he acquired cover.

Additionally, however, the record and the finding of the trial court indicates that Oloffson adhered to a usage of trade that permitted his customers to cancel the contract for a future delivery of grain by making known to him a desire to cancel and paying to him the difference between the contract and market price on the day of cancellation. There is no indication whatever that Coomer was aware of this usage of trade. The trial court specifically found, as a fact, that, in the context in which Oloffson’s failure to disclose this information occurred, Oloffson failed to act in good faith. According to Oloffson, he didn’t ask for this information:

“I’m no information sender. If he had asked I would have told him exactly what to do. * * # I didn’t feel my responsibility. I thought it his to ask, in which case I would tell him exactly what to do.”

We feel that the words “for a commercially reasonable time” as set forth in Section 2 — 610(a) must be read relatively to the obligation of good faith that is defined in Section 2 — 103(1) (b) and imposed expressly in Section 1 — 203. Ill. Rev. Stat. 1969, ch. 26, §2 — 103(1) (b) and § 1 — 203.

The Uniform Commercial Code imposes upon the parties the obligation to deal with each other in good faith regardless of whether they are merchants. The Sales Article of the Code specificaUy defines good faith, “in case of a merchant * * * [as] honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” For the foregoing reasons and likewise because Oloffson’s failure to disclose in good faith might itself have been responsible for Coomer’s fafiure to comply with the usage of trade which we must assume was known only to Oloffson, we conclude that a commerciaUy reasonable time under the facts before us expired on June 3, 1970.

Imputing to Oloffson the consequences of Coomer’s having acted upon the information that Oloffson in good faith should have transmitted to him, Oloffson knew or should have known on June 3, 1970, the limit of damages he probably could recover. If he were obligated to deliver grain to a third party, he knew or should have known that unless he covered on June 3, 1970, his own capital would be at risk with respect to his obligation to his own vendee. Therefore, on June 3, 1970, Oloffson, in effect, had a duty to proceed under subparagraph (b) of Section 2 — 610 and under subparagraphs (a) and (b) of subparagraph 1 of Section 2 — 711. If Oloffson had so proceeded under subparagraph (a) of Section 2 — 711, he should have effected cover and would have been entitled to recover damages all as provided in section 2 — 712, which requires that he would have had to cover in good faith without unreasonable delay. Since he would have had to effect cover on June 3, 1970, according to section 2 — 712(2), he would have been entitled to exactly the damages which the trial court awarded him in this cause.

Assuming that Oloffson had proceeded under subparagraph (b) of Section 2 — 711, he would have been entitled to recover from Coomer under Section 2 — 713 and Section 2 — 723 of the Commercial Code, the difference between the contract price and the market price on June 3, 1970, which is the date upon which he learned of the breach. This would produce precisely the same amount of damages which the trial court awarded him. See Ill. Rev. Stat. 1989, ch. 26, §2 — 732(1).

Since the trial court properly awarded the damages to which plaintiff was entitled in this cause, the judgment of the circuit court of Bureau County is, therefore, affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Edward Studebaker, Defendant-Appellant.
    (No. 71-205;
    Third District
    May 23, 1973.
    John L. Barton, of Marseilles, for appellant.
    Robert Richardson, State’s Attorney, of Ottawa, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Frank Edward Studebaker appeals from a sentence to concurrent terms of imprisonment of 200 to 300 years for two murders, and for 25 to 50 years for armed robbery. The sentences were the result of the negotiated pleas of guilty.

The record discloses that defendant on March 28, 1971, shot Marilyn Schroeder with a .22 caliber pistol and then cut her jugular vein and carotid artery and mutilated her by cutting off her ear. He also shot Robert Schroeder, her husband, three times, and in such case also used a knife, cutting the carotid artery and jugular vein. Prior to the murders, the defendant had been drinking in the tavern in which the crimes were committed, and remained around the tavern, he said, for the purpose of committing an armed robbery. The two victims, who were employees of the tavern, were murdered, and, also, robbed, and the bodies were mutilated by defendant as indicated. Defendant thereafter was indicted for murder of each of the individuals, and also, for armed robbery. As a result of negotiations and plea bargaining lasting a period of several months, defendant pleaded guilty to the two murders and to the armed robbery charge, and agreed to sentences which were thereafter imposed by the court as part of the plea bargaining arrangement. Defendant was represented by capable private counsel of his own choice. He apparently agreed to the concurrent sentences to avoid imposition of the death penalty.

On appeal now in this court, defendant contends that the court erred in entering judgments of conviction for the two offenses of murder, and for the armed robbery. He contends that the conviction for the lesser offense of armed robbery should be reversed. The contention is based on the premise that the murders and armed robbery arose out of the same act, conduct or transaction. Defendant also contends that the concurrent sentences of 200 to 300 years for the offenses of murder are excessive and should be reduced. The State, however, points out that defendant, in seeking to avoid the death penalty, entered pleas of guilty to the two murders and to the armed robbery charge as a result of extended plea bargaining, and that because of the plea arrangement and the nature of the crimes committed, the crimes are separate offenses and that, therefore, the concurrent sentences are proper. The State also contends that defendant entered into the negotiated pleas of guilty to the two crimes of murder and the one of armed robbery with the advice of his private counsel for the purpose of avoiding a possible death sentence. The State asserts that defendant’s admission that he committed the heinous crimes involved, including the mutilation of the bodies of the two victims, places defendant in a position where he cannot now complain that tire concurrent sentences of 200 to 300 years for murders are excessive or should be reduced. The State says this is particularly true since defendant agreed to such sentences as part of the plea bargain.

It is apparent from the record that the crimes are vicious and demonstrated depravity. The State contends that under the factual situation as established in the cause before us, the legal principle which obtains in this case is that stated in the case of People v. Harper, 50 Ill.2d 295, where a defendant contended that sentences for rape and robbery were not permissible since both crimes involved the same victim and arose out of the same course of conduct. In that case the court stated (at page 302):

“While it is true that the rape and robbery occurred in a series of acts committed at the same place and within a short time, it is equally true that they constituted separate acts involving different elements. As such, they were separate offenses for which concurrent sentences were both constitutionally and statutorily permissible.”

In the case before us, it may be observed that the elements of the crime of murder are quite dissimilar from the elements of the offense of armed robbery. Defendant actually pleaded guilty to two counts of murder, which were not the counts charging felony murder. It is also clear that the armed robbery could have been terminated without killing the two victims. It is obvious that the murders and armed robbery did not result either from identical conduct or a single act. The violence of the murders also creates a reasonable inference that a complete change of mental attitude is shown on part of the defendant if his objective was simply robbery. As a consequence, we conclude that the multiple offenses charged and pleaded to by agreement did not arise from or occur as a result of a single act or transaction on the basis of the record before us.

In the recent case of People v. Wilson, 51 Ill.2d 302, defendant was found guilty of a charge of murder. In that case he was charged with murder, murder while attempting to commit burglary, and attempt to commit burglary. The defendant, with accomplices, was burglarizing a store and there shot a police officer. Defendant was found guilty on all three counts, but he was sentenced only on two counts, that is, on the murder count (to a term of 50 to 75 years) and on the attempted burglary count (to a term of 10 to 12 years), with the sentences to be served consecutively. It was shown in the record that defendant with his two accomplices had attempted to commit a burglary and shot and killed a police officer after the officer ordered them out of the building. The supreme court in that case held that the separate and consecutive sentences were independently motivated and separable. It was said by the court (at page 311): ■

“Obviously, the offenses of attempting to commit the burglary and of murder, of which the defendant was convicted, did not result from the same conduct or mental state.”

We believe that the same situation obtains in the case before us and consequently that the negotiated plea arrangement and judgments resulting therefrom should not be reversed.

On the issue of whether the concurrent sentences of 200 to 300 years for murder are excessive, we have noted that defendant had entered into the negotiated pleas of guilty to the two crimes of murder with the advice of private counsel and for the purpose of avoiding a possible death sentence. The record clearly establishes that defendant murdered and mutilated two people. Sentences of 200 to 300 years were agreed to and were part of the negotiated plea arrangement by defendant. The only contention made by defendant is that these sentences frustrate any attempt at rehabilitation and that the sentences constitute an “arbitrary and oppressive" treatment. It is noted that all of the sentences, as a result of the plea bargaining arrangement, were directed to be served concurrently. While we do not believe that sentences specifying periods of time beyond normal life expectancy show a realistic approach to problems of sentencing, we conclude that we would not be justified in reducing such sentences to any number of years which would in fact authorize the release of the defendant from imprisonment during his lifetime. Any modification we should make, in state of the record, would not, we believe, affect the time defendant would serve in prison as a practical matter. We, therefore, see no practical purpose in making such modification. We are aware that any person sentenced for any term will automatically come up for consideration for parole after a period of 20 years. The double murder in the present case and the heinous nature of the crime, we believe, would clearly be manifest to parole authorities in their consideration of defendant. We have recently given consideration to a case in which sentences imposed for murder were two sentences of 60 to 90 years, with sentences to be served consecutively. (People v. Barger, 6 Ill.App.3d 164.) In that case, we observed, at page 165 (citing Craven, Sentencing, 1966 U.Ill.L.F. 523, 531):

“‘There is no longer much debate that the ultimate objective of a sentence is the protection of society in all its broadest implications * *

We see a parallel to the penalty provision in the instant case in People v. Pearson, 52 Ill.2d 258, where the Illinois Supreme Court sustained concurrent sentences of 100 to 125 years for aggravated kidnapping; 100 to 125 years for rape; 5 to 10 years for theft, and a consecutive sentence of 10 to 15 years for attempted murder. In that case, the victim was raped by defendant and an accomplice several times and she was shot four times, but survived.

Accordingly, while we believe that sentences more realistically related to possible life expectancy in a case such as is before us would have been preferable, we do not believe that we should modify or change the sentences in any manner, as indicated in the course of the opinion.

The judgment of the circuit court of LaSalle County will, therefore, be affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.