author: MR. PRESIDING JUSTICE McCORMICK

text:
    Harry Zaidenberg, d/b/a Allstate Acceptance Association, and Ethel Dalton Purdiman, Plaintiffs-Appellants, v. Occidental Life Insurance Company of California, a Corporation, Defendant-Appellee.
    Gen. No. 49,846.
    First District, Fourth Division.
    December 10, 1965.

      Harry Zaidenberg, of Chicago (Howard Hoffman and Arthur J. Schoenfeld, of counsel), for appellants.
    No briefs filed for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from the summary judgment entered July 14, 1964, in the Circuit Court of Cook County in favor of Ethel Allen Purdiman, in the sum of $2,492.50. Richard Purdiman was insured under an Occidental Life Insurance Company policy carried through the Teamsters Union Health and Welfare Fund, which policy provided for life insurance benefits in the sum of $2,500. In order to secure the insurance, Richard Purdiman completed.an enrollment card on October 14, 1954, which card designated as the .beneficiary of the insurance policy “Ethel Purdiman, Wife.”

Richard Purdiman died on December 31,. 1962. On April 30, 1963, a “complaint in chancery” was filed against the Occidental Life Insurance Company of California, by Allstate Acceptance Association and Ethel Purdiman [hereafter referred to as Ethel Dalton Purdiman]. Among other things, the complaint alleged that the defendant had issued a policy of insurance on the life of Richard Purdiman, designating “the complainant, Ethel Purdiman, wife,” as the beneficiary. There is a further allegation that Richard Purdiman and Ethel Dalton Purdiman were married on July 5, 1955, in Yazoo County, Mississippi. It further alleged the death of Richard Purdiman, and that proof of death was made to the defendant; that on January 3, 1963, in consideration of funeral services rendered and goods and chattels furnished in connection with the burial of Richard Purdiman, Ethel Purdiman assigned a portion of her interest to the benefits payable under the insurance policy, in the amount of $1,238, to L. C. Wesley, d/b/a L. C. Wesley Funeral Homes; that on the same date Wesley assigned his right, title and claim in the assignment to Allstate Acceptance Association, and that the original assignment and reassignment were forwarded to the defendant; and that Allstate Acceptance Association prays for judgment in the amount of $1,238, and Ethel Purdiman in the sum of $1,262. A copy of the assignment to the Wesley Funeral Home and of the Wesley Funeral Home to Allstate Acceptance Association was attached to the complaint.

On June 11, 1963, Ethel Purdiman [hereafter referred to as Ethel Allen Purdiman] filed a petition to intervene, in which petition she alleged that she and Richard Purdiman were married at Stacey, Arkansas, in 1936, and that the suit filed by Ethel Dalton Purdiman and her assignee, is false because at the time of the death of Richard Purdiman, Ethel Allen Purdiman was his legal wife, and she prays that she be permitted to intervene. On the same day an order was entered granting her leave to file her petition to intervene.

On June 14, 1963, defendant, Occidental Life Insurance Company of California, filed a countercomplaint of inter-pleader against Allstate Acceptance Association, Ethel Dalton Purdiman and Ethel Allen Purdiman. Occidental therein alleged among other things that the deceased was validly insured in a policy in its company in the sum of $2,500; and that he had executed an enrollment card naming “Ethel Purdiman, wife” as his beneficiary. The defendant admitted liability in the sum of $2,500 and prayed that an order be entered directing the defendant to deposit the sum of $2,500 with the clerk of the court.

On June 14, 1963, the defendant filed its answer to the complaint in chancery and the petition to intervene, setting forth in substance the same allegations contained in its countercomplaint of interpleader. On June 18, 1963, the court entered an order giving defendant leave to deposit $2,500 less costs with the clerk of the court.

On July 10, 1963, Allstate Acceptance Association and Ethel Dalton Purdiman filed their answer to the intervening petition of Ethel Allen Purdiman, in which they admit that Ethel Allen Purdiman and Richard Purdiman were married in 1936, and that at the time of the demise of Richard Purdiman she was his legal wife. The answer also states that Ethel Dalton Purdiman was married to Richard Purdiman on July 5, 1955, and that prior thereto, since on or before the year 1952, they had lived together as husband and wife and were so living at the time of his death. It is further alleged that “she was the intended and designated beneficiary to the aforedescribed policy.”

Ethel Dalton Purdiman and Ethel Allen Purdiman each filed separate answers to the countercomplaint of inter-pleader of the insurance company, admitting all the allegations therein contained, and each urging that she was the beneficiary under the insurance policy.

On August 8, 1963, the court entered an interlocutory decree which, among other things, dismissed the Occidental Life Insurance Company from the cause after the deposit of the sum of $2,492.50 with the clerk of the court.

On November 20, 1963, Ethel Allen Purdiman filed a motion for summary judgment, alleging that she was married to Richard Purdiman, now deceased, and never divorced, as set forth in the attached affidavit; that she was legally entitled as the beneficiary to the money paid into court by the insurance company, and that there were no other valid claimants to the proceeds of the policy; she prayed that an order be entered giving her summary judgment, and that the money deposited in the court be turned over to her. With that motion Ethel Allen Purdiman filed an affidavit in which she again alleged that she was married to Richard Purdiman in 1936; that subsequent to the marriage eight children were born; that Richard Purdiman lived with her until 1954 when he left her; that since such time, until he died in 1962, he frequently visited her and their children at her residence; that at no time from the date of the marriage until the death of Richard Purdiman was any proceeding for divorce filed either by Richard or by the affiant; that he remained a resident of the City of Chicago until his death; and “that during all of the time affiant and Richard Purdiman resided in Chicago, until his death, he paid monies to affiant for the support of affiant and their children.” She further alleged that on December 31, 1962, Richard Purdiman was her legal husband.

On November 20, 1963, Allstate Acceptance Association and Ethel Dalton Purdiman were given leave to file counteraffidavits to the motion for summary judgment, and on December 16, 1963, Allstate Acceptance Association and Ethel Dalton filed what they termed “answer to motion for summary judgment and counteraffidavit,” asking that a summary judgment be entered in their behalf. The document realleges the 1955 marriage of Ethel Dalton Purdiman to Richard Purdiman, and also alleges that there was attached to the affidavit a photostatic copy of the marriage certificate. This certificate does not appear in the record. The document also alleges that Ethel Dalton Purdiman is the legal wife of Richard Purdiman and the intended beneficiary to the matter in question. This affidavit is signed and sworn to by Ethel Dalton Purdiman and Harry Zaidenberg, d/b/a Allstate Acceptance Association. On January 14, 1964, the court entered the following order:

“This cause coming before the Court on the motion of Ethel Allen Purdiman for Summary Judgment and the Court having heard arguments of counsel and having jurisdiction of the subject matter and being fully advised in the premises, and the Court finding that Ethel Allen Purdiman is the beneficiary in the policy of insurance herein.”

It was ordered that a summary judgment be entered in behalf of Ethel Allen Purdiman, and that the clerk of the court be instructed to pay over to her the proceeds of the policy.

On January 24, 1964, Ethel Dalton Purdiman and Allstate Acceptance Association filed a motion to vacate the order of January 14, and with it filed a memorandum of law. In that motion they alleged that there was a triable issue of fact, to wit: “who did Richard Purdiman intend to designate as beneficiary to Occidental Life Insurance Company policy . . .” This motion also alleged that when the enrollment card was issued, providing for the designation of “Ethel Purdiman, wife,” on October 14, 1954, “the insured, Richard Purdiman, had been residing with and cohabiting with Ethel Dalton Purdiman as husband and wife since 1952.” It further stated that Richard Purdiman had referred to her as his wife, although there was no marriage ceremony until 1955.

On March 23, 1964, the court commenced a hearing on that motion. During the hearing counsel for Ethel Dalton Purdiman and Allstate Acceptance Association stated that the summary judgment was entered in spite of the fact that the court had been informed that Richard Purdiman was residing with Ethel Dalton Purdiman for a two-year period before 1954. It was pointed out by the court that that statement did not appear in the affidavit heretofore filed. The only reference made to the marriage certificate showing a marriage of Ethel Dalton Purdiman and Richard Purdiman was a statement by counsel for Ethel Dalton Purdiman that “We have the marriage certificate, we had the marriage certificate. . . .” He further stipulated that Richard Purdiman was married to Ethel Allen Purdiman as alleged in the complaint of the intervenor, and stated he was not contending that Ethel Allen Purdiman had been divorced from Richard Purdiman. He further stated that there had been a marriage ceremony entered into with Ethel Dalton Purdiman, but that he did not wish to raise any question as to whether or not such ceremony was legal.

Counsel for Ethel Dalton Purdiman again stated that at the time the policy was issued Ethel Dalton Purdiman had been residing with Richard Purdiman for a two-year period. This information does not appear in any sworn statement except the answer to the intervening petition and the motion to vacate. Counsel again erroneously stated that the answer to the motion for summary judgment alleged that Ethel Dalton Purdiman was residing with the insured at the time of the designation of beneficiary. The court denied the petition to vacate.

The court had entered a summary judgment finding Ethel Allen Purdiman the beneficiary in the insurance policy. She had filed a motion for summary judgment, as had Ethel Dalton Purdiman. When a request is made for a summary judgment it is the first duty of the court to determine whether or not there is any question of fact involved. If there is, the summary judgment must be denied. In the leading case in Illinois, Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576, where both parties moved for summary judgment, the court held that “It is clear that all material facts were before the court; the issues were defined; and the parties were agreed that only a question of law was involved.” The court further held that the view of the parties was correct and that a summary judgment could properly be entered. Second, the court, having determined that there are no questions of fact involved, must then find that sufficient inferences may be drawn from the pleadings and affidavits before it to show that a summary judgment may properly be entered for the moving party.

As we have stated, Ethel Dalton Purdiman and Harry Zaidenberg, the appellants, filed a sworn answer to the complaint of Ethel Allen Purdiman and Occidental. In that answer the appellants admitted to the marriage of Richard to Ethel Allen Purdiman in 1936, further admitted that Ethel Allen Purdiman was Richard’s wife at the time of his demise, and stated that a photostatic copy of a marriage certificate, indicating that Ethel Dalton Purdiman and Richard Purdiman were married in Mississippi on July 5, 1955, was attached. Such certificate does not appear anywhere in the record.

In the instant case, the counsel representing Ethel Dalton Purdiman cites a number of cases to the effect that the word “wife” in the description of the beneficiary is merely one of description and is not a warranty that the alleged beneficiary was in fact the wife of the insured. An examination of the cases [Strachan v. Prudential Ins. Co. (Mass), 73 NE2d 840, 173 ALR 711; Ester v. Prudential Ins. Co. of America, 298 Mich 330, 299 NW 96; Treadway v. Tewksbury (Ohio), 49 NE2d 955] cited in the brief for Ethel Dalton Purdiman indicates that the beneficiary is specifically named so that she can be identified and the addition of the word “wife” is of no value. ¡

In 2 Appleman Ins L & P § 802, p 156, it is said:

“It has been stated that where the widow was never named as beneficiary that she has no interest in the policy. If the simple word ‘wife’ is used, with nothing more to designate the beneficiary, it would seem clear that the wife alone could recover. But, usually, the word wife following a person’s name is held to be merely descriptio personae, and, sometimes, surplusage. Thus, policy payable to ‘Mary Smith, wife’ or ‘John Jones, husband’ would give the benefits to those persons named regardless of the. fact that they may never have been graced by the sacred bonds which the description’’would imply. Those persons and no other may recover the policy benefits in such instance, provided, of course, that the designation of such person does not violate the rules of the organization or the public-policy of the state.”

In 46 CJS Insurance § 1160, the following statement is made:

“If the beneficiary is named, or can otherwise be definitely identified, her designation as the wife of insured is descriptive only, and it is immaterial whether or not she is, or becomes, his lawful wife, or is his concubine, or even that another person is his legal wife. ... If, however, the insurance is to be paid to the wife of insured under that general designation, it is not payable to any person who is not his actual and legal wife. . . .”

In Russ v. Supreme Council American Legion of Honor, 110 La 588, 34 So 697, it was held that where the beneficiary in a certificate is designated by name, and also as the wife of the person to whom the certificate is issued, and this person has but one wife, there is no uncertainty, though the beneficiary is called “Georgie,” instead of “Georgiana.”

The case before us hinges on the question of whether there was any issue of fact which must be resolved or whether, under the pleadings and affidavits filed in the case, the court could draw but one inference and consequently enter a proper summary judgment. There seems to be no qúestion that at the time the insurance policy was taken out the only person who could be designated as the wife of the deceased was Ethel Allen Purdiman. Under those circumstances, the word “wife” as used in the designation of the beneficiary is not a mere descriptio personae.

In Hogan v. Wallace, 166 Ill 328, 46 NE 1136, a bill of interpleader was filed by the Independent Order of Foresters, against Ellen B. Hogan and Kate Wallace in order to determine which was entitled to the proceeds of an insurance policy issued by the I. O. F. In 1884 they issued a benefit certificate to Michael Hogan, payable at his death, to “Mrs. Kate Hogan, his wife.” Michael Hogan had in 1872 been married to Ellen B. Hogan who had lived with him continuously as his wife until his death. Their five children survived him and were living with their mother. Kate Wallace was Michael Hogan’s sister, who was married to James Wallace six years before the issuance of the policy in question, and had since lived with him as his wife. She had never lived with her brother since her marriage, nor had she ever been dependent on him. The court said: “The beneficiary named in the policy is described as ‘Mrs. Kate Hogan, my wife.’ Appellant [Ellen B. Hogan] was his ‘wife’ and also Mrs. Hogan, though not ‘Mrs. Kate Hogan.’ ” There was evidence introduced that the doctor who wrote out the application did not know the name of Hogan’s wife, but thought that Kate was her name; and that he should have written Ellen B. Hogan. The court held that the identity of the beneficiary as Ellen B. Hogan, wife of Michael, was established, and that all doubt on that point was removed. It further held that she should get the proceeds of the policy.

In the instant case, there was only one person who could have been considered as the beneficary named in the policy, and that was Ethel Allen Purdiman. There was neither a latent nor a patent ambiguity. It is uncontradicted that she was the legal wife of Richard at the time when the policy was taken out; that he was supporting her and their family, and did support them until the time of his death. The “affidavit and answer” of Ethel Dalton Purdiman is sketchy and indefinite, as are the statements made before the court on the petition for rehearing. The summary judgment in favor of Ethel Allen Purdiman was properly entered by the court, and the judgment is affirmed.

The appellee filed no brief nor appearance. Under such a circumstance we could have, in accordance with the prayer of the appellants, reversed the judgment of the Circuit Court. Tabron v. Pleasant, 64 Ill App2d 367, 212 NE2d 312; Meilach v. Guillaume, 63 Ill App2d 103, 211 NE2d 606; Basinski v. Basinski, 20 Ill0 App2d 336, 156 NE2d 225. However, in those cases the court did examine the record. In the instant case we have examined the record and the appellants’ brief, and we have determined that in order to do substantial justice the order of the trial court should be affirmed. Barton v. Barton, 318 Ill App 68, 47 NE2d 496; 2ILP § 560.

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

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Emil Wills, Incompetent, Plaintiff-Appellee, v. Helen Wills, Custodian of Emil Wills, Incompetent, Defendant-Appellant.
    Gen. No. 50,048.
    First District, Fourth Division.
    December 10, 1965.

      Morris L. Simons, of Chicago (Marshall Patner, of counsel), for appellant.
    Wachowski & Wachowski, of Chicago (Casimir R. Wachowski, Raymond Wasik, and Steve A. Kubiatowski, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

On June 8,1961, Emil Wills was adjudicated a mentally ill person and committed to the care and custody of his wife, Helen Wills. He was hospitalized from time to time in Wesley Memorial Hospital. In early 1964 he left the hospital, and on July 20, 1964, he filed a petition for discharge from his custodian. On July 21, 1964, the judge of the Circuit Court of Cook County, County Division, appointed a commission of two physicians to examine Emil Wills with reference to his mental condition, and on the same day Wills appeared before the court. The commission found that he had fully recovered and recommended that he be restored to all his rights and privileges as a sane person. The court entered an order on the same date, finding that Emil Wills was fully recovered and ordering his restoration to all rights and privileges.

On August 6, 1964, Helen Wills filed a verified petition to vacate the order of restoration. In that petition she recited the order committing Emil Wills to her custody and his petition for restoration, and stated further that while he, together with his attorneys and agents, knew; that Helen Wills had been appointed and was acting as his custodian, no notice was given to her of the mental examinations conducted, the hearing of the commission, or the court hearing on the petition for restoration. She further stated upon information and belief that Emil Wills’ condition required continuance of his status as a legal incompetent. She prayed that the order of restoration entered on July 21, 1964, be vacated, that she be permitted to file her answer to the petition, and that the matter be set down for hearing.

In the court hearing on July 21, 1964, Emil Wills testified that he had been in the hospital because of a nervous condition, but that he left the hospital four months before the hearing date. A Dr. Imbiorski testified that the doctor’s certificate (accompanying the petition, as required by statute) seemed to be satisfactory; that it adequately described the present condition, and that the patient was apparently “well oriented.” Emil Wills’ mother testified that he was well and should be restored.

The court then asked Emil Wills why his wife was not there and he replied that she was antagonistic. He said he had been living with his wife and was in her care and custody. The court again asked why his wife was not in court, and he answered this time that she had been asked but did not want to come. He further said that he had asked her to come down and restore his rights but she would not do it. The court asked Wills what reply his wife had made to his request and he said she wanted to keep him under her custody. The court asked him whether he had told his wife that he would be in court on July 21, 1964, and he said he had not so informed her.

On August 6, 1964, the court entered an order denying Helen Wills’ petition to vacate.

The question presented to this court as to whether a notice is necessary under the statute requires us to interpret certain sections of the Mental Health Code of 1963 (Ill Rev Stats 1963, c 91%) effective July 1, 1964. Section 10-1 provides:

“Petition for discharge■—Persons admitted or hospitalized as in need of mental treatment
Any person who has been admitted to a hospital as in need of mental treatment or hospitalized as such, or who has been ordered to and remains in the care and custody of some other person or some hospital, or any person on his behalf, may file at any time in the court of the county in which such person is hospitalized or otherwise located, or the court of the county from which the patient was originally hospitalized or wherein the consultation required by Section 7-2 of this Act was held, a verified petition setting forth the name of the patient, the circumstances of hospitalization and the date of the prior order of the court ordering the patient to the care and custody of some other person or to some hospital for mental treatment, the request for discharge from custody, care, treatment, detention and training under such order of hospitalization and the reasons for such request. Such petition shall be accompanied by the certificate of a physician who shall not be related by blood or marriage to the patient, stating that the patient is no longer in need of mental treatment and setting forth the facts upon which such statement is based.” [Emphasis ours.]

Section 10-3 states:

“Hearing on petition
Upon the filing of any such petition for discharge the court shall set the matter for hearing and shall direct that such reasonable notice be given to the person or to the superintendent of the hospital with whom or in which such mentally retarded person, or person in need of mental treatment was hospitalized, as circumstances shall indicate, and to such other person or persons as the court may direct.”

The Code further provides, in section 1-14:

“Reasonable notice
‘Reasonable Notice,’ when used in this Act, means a written notice served in such manner and at such time prior to the hearing as the court having jurisdiction of the matter shall determine and direct.”

The former Mental Health Code, c 91%, § 7-4, provided:

“Hearing on petition
Upon the filing of any such petition for restoration or for discharge the Court shall set the matter for hearing and shall direct that such reasonable notice be given to the person or to the Superintendent of the hospital to whom or to which such mentally ill person, mentally deficient person, or person in need of mental treatment was committed, as circumstances shall indicate, and to such other person or persons as the Court may direct.” [Emphasis ours.]

That section is clear and understandable. Section 10-3 lacks the clarity of the old section. However, we think that section 10-3 must necessarily be construed as requiring notice to be given to the person to whom the mentally ill person was committed. To attempt to interpret that section in any other way would make it meaningless, and contrary to the general statutory scheme.

In White v. Prenzler, 7 Ill 2d 624, 131 NE2d 540, the court laid down the rule that in construing notice requirements courts must look to substance, rather than to the form, in seeking the true intention of the legislature. In Snavely v. Snavely, 349 Ill App 369, 110 NE2d 685, the court in discussing whether statutory notice as required by the statute was served upon the appellant before he was committed to a state hospital for the insane, cited Eddy v. People, 15 Ill 386, where the rule was laid down that notice in such cases is indispensable even where the statute made no provision for it.

While the consequences of committing an allegedly mentally incompetent person to a mental institution are grave and serious, the consequences of discharging an allegedly mentally incompetent person formerly committed to a mental institution or to a custodian, are also serious, though possibly in a lesser degree. Nevertheless, in this case the statute required notice to be given to the hospital or custodian of such person; this was not done.

The judgment of the County Division of the Circuit Court of Cook County is reversed and the case is remanded to permit the custodian to file an answer to the petition, to require that the petition be set for hearing, and for. such other proceedings as are not inconsistent with this opinion.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ.', concur.


author: MR. PRESIDING JUSTICE BURMAN KLUCZYNSKI, J.,

text:
    People of the State of Illinois, Appellee, v. William Jones, Appellant.
    Gen No. 50,018.
    First District, First Division.
    December 13, 1965.
    Rehearing denied January 3, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Patner, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, William Jones, was indicted on the charge of rape. He pleaded not guilty, waived a jury, was found guilty by the trial judge and was sentenced to the penitentiary for a term of 10 to 25 years. On appeal, he contends that there was a complete failure to identify him by direct evidence as the person guilty of the crime; that the State based its case upon purely circumstantial evidence and failed to exclude every reasonable hypothesis as to his innocence; and that circumstantial evidence may be overcome by testimony of the defendant’s good reputation, which testimony cannot be disregarded.

The complaining witness testified that on January 10, 1964, between the hours of 4:45 and 6:00 a. m., she was raped by two men in her home where she lived alone. She awoke to find a figure standing over her and a sheet was thrown over her head. Thereafter, she could not see the two men well enough to identify them, but testified that she could distinguish their forms. Struggling and screaming, she freed one hand, touched the head of the assailant then holding her, and found his hair to be, “cropped and very curly and kinky.” She then said, “Is—Bill, is this you? If it is, why?” At which point the man then holding her withdrew himself very quickly, and she was grabbed by the other man. She was raped first by a man whom she described as being of average height and stocky, and then by a man whom she described as about six feet three inches in height and very thin. (At the trial, she described the defendant as being of “average height and stocky.”) After both men had raped her, the stocky man held her while the other man searched the kitchen cabinet, where a cash box had been kept by the previous owner, and then searched a linen closet where he found her billfold and took $30 from it. The tall, thin man, then tied her legs and said to her in a muffled voice, “Don’t move and we won’t hurt you. If you do, we will.” This was the only occasion upon which either of the men spoke. The men then left, and as soon as she freed herself she called the police. Shortly thereafter she was examined at a hospital.

The prosecutrix owned and operated a dog kennel at the same address as her home, and testified that on the evening in question there were approximately 24 dogs on the premises. Two dogs, a little poodle and a Doberman pinscher, were in her apartment that evening, but she had not heard either of them bark. She subsequently learned that entry to her apartment had been gained through the kennel run door, and that the dogs in her apartment had been given ether under a door jamb.

On the following night, while cleaning the room where the crime had been committed, the prosecutrix found various papers, some of which bore the name of the defendant, lying on the floor next to her bed. These papers included a traffic ticket issued October 13, 1963, a Passenger Car Transfer Identification Card issued May 10, 1963, a notice of federal income taxes due, an owner’s manual for a 1959 Chevrolet, and some bills, all of which admittedly were the property of the defendant. After the papers were turned over to the police, the defendant was arrested.

For a period prior to the purchase of the dog kennel by the prosecutrix on July 15, 1963, she and the defendant had both been employed by the former owner of the kennel. After the purchase, the prosecutrix had employed the defendant at the kennel for a number of weeks. The trial court inquired as to the witness’s use of the term “Billy,” and she testified that during the time the defendant had been employed at the kennel “. . . everyone called him Billy.” She also testified that during his employment the defendant never became “fresh” with her, and that she had considered him a gentleman. After defendant left his employment at the kennel in July or August of 1963, mail addressed to him continued to be delivered at the kennel. The prosecutrix testified that he.had visited the kennel to pick up his mail about three times, and that the latest such visit was around August 25,1963.

The defendant denied entering the prosecutrix’s apartment, and denied raping her. He testified that he had put all of the papers which were found in the bedroom of the complaining witness into the glove compartment of his 1959 Chevrolet, and that the traffic ticket was still there as late as November 8, 1963. He said that on that date he went to court and obtained a continuance, and when he returned to his car he put the continued date on the back of the ticket and put it back in the glove compartment along with the other papers in question; and that he had not removed them prior to the repossession of his car.

In rebuttal, the State called a representative of a finance company, who testified that when he repossessed the defendant’s car on November 27, 1963, he examined the glove compartment and found nothing left in it.

The only issue raised by the defendant on this appeal is the identity of the person committing the crime. No contention has been made that the circumstances surrounding its commission differed in any respect from the account given by the prosecutrix. The defendant points out that the State offered only circumstantial evidence in the attempt to identify him as the person guilty of the crime. The cases are clear that the identity of the accused may be established by circumstantial evidence, People v. Fitzpatrick, 359 Ill 363, 194 NE 545. But it is also true, as defendant points out, that a conviction can be based on purely circumstantial evidence only if the guilt of the accused is so thoroughly established as to exclude every reasonable hypothesis of his innocence, People v. Ahrling, 279 Ill 70, 116 NE 764; People v. Dougard, 16 Ill2d 603, 158 NE2d 596.

Of the several incriminating items of circumstantial evidence in this case, the defendant has offered an explanation for only one: the presence of his papers in the bedroom of the prosecutrix. He testified that he had never removed those papers from the glove compartment of his car prior to its repossession in November of 1963, and suggests that they were removed and deposited at the scene of the crime by someone else in order to cast suspicion upon the defendant.

The trial judge, who heard and saw the witnesses, apparently did not view this hypothesis in support of the defendant’s innocence as reasonable, for he stated that it “. . . would stretch the imagination here no question to say somebody would steal—get these papers out of his car and end up having a forcible rape with a lady that he formerly worked for.” Where a case is tried without a jury the determination of the credibility of the witnesses and the weight to be given to t their testimony is for the trial judge, and this court will not substitute its judgment on such matters for that of the trial judge who saw and heard the witnesses. People v. Mack, 25 Ill2d 416, 185 NE2d 154; People v. Henson, 29 Ill2d 210, 193 NE2d 777. Thus, it was within the province of the trial court to pass upon the reasonableness of the defendant’s hypothesis as to the presence of the papers in the bedroom of the prosecutrix.

Furthermore, this was not the only incriminating circumstantial evidence in the case. The testimony of the prosecutrix indicates that she suspected the defendant who was formerly employed by her to be one of her assailants even as the crime was being committed. The sudden withdrawal of her assailant when she said, “Is . . . Billy, is this you?” is significant. The men were also careful not to speak during the entire period they were in the prosecutrix’s apartment, so that the prosecutrix could not identify their voices. Finally, the assailants evidenced a prior knowledge of the premises in that they anticipated the presence of dogs in the apartment, as well as in the kennel, and took pains to search a kitchen cabinet where a former owner had kept a cash box.

The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged, does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt. From a review of the entire record, we are of the opinion that the trial court did not err in holding that there was sufficient evidence to establish the defendant’s guilt beyond a reasonable doubt. People v. Huff, 29 Ill2d 315, 194 NE2d 230.

The defendant’s final contention is that circumstantial evidence may be overcome by testimony as to the good reputation of the defendant, and that such testimony cannot then be disregarded, People v. Buchholz, 363 Ill 270, 2 NE2d 80. The testimony in this case to which the defendant refers occurred during the cross-examination of the prosecutrix, and is as follows, (R 17):

Q. Mr. Jones never made any pass at you, anything like that ?
A. No, he did not.
Q. Would you consider him a good employee?
A. I considered him at the time a good employee. To a point, yes, I would consider him a good employee.
Q. He never became fresh or anything in any way with you, did he ?
A. No, he didn’t.
Q. All the time he worked for you you would consider him as a gentlemen, is that right ?
A. Yes.

The reviewing court must presume that the trial court, in reaching its decision, took into account all of the testimony in the record. The defendant has offered nothing to show that the trial judge in this case did anything less.

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

Judgment affirmed.

MURPHY, J., concurs.

KLUCZYNSKI, J.,

dissenting:

There is a reasonable doubt regarding the identification of the defendant with the crime. The judgment should be reversed.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    City of Chicago, Plaintiff-Appellee, v. 3 Oaks Wrecking & Lumber Company, August Riccio, Owner, Defendant-Appellant.
    Gen. No. 49,928.
    First District, Third Division.
    December 16, 1965.
    Rehearing denied January 6, 1966.
    Daniel A. Gallagher, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Dominick P. Dolci, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

August Riccio is one of the owners of the 3 Oaks Wrecking & Lumber Company. In April 1964, the City of Chicago, in three quasi-criminal complaints, charged him and his company with maintaining on three occasions an open fire which discharged dense smoke and endangered surrounding property in violation of sections 17-23 and 193.8, respectively, of the Municipal Code of Chicago. In a nonjury trial on the return date, May 15, 1964, the defendant was found guilty and fined $400 in each case.

The defendant filed motions to vacate the judgments. The motions were supported by affidavits which stated, inter alia, that the defendant was unable to appear in court on May 15th, that his attorney asked for and was denied a continuance, that the court proceeded to hear the cases over objection and that the defendant had a good and meritorious defense to the City’s charges which he was unable to present because of the immediate trial. The motions were denied and the three cases were consolidated for appeal. In his appeal the defendant contends that the court abused its discretion in refusing to grant a continuance the first day the case came up; that the court erred in holding that the defendant had to be ready for trial on the return date specified in the summons and that, in overruling his objections to trial on the return date, the court did not follow rule 2 of the Supreme Court.

At the outset we are confronted with the record of the court which recites what took place on May 15th. The record contradicts the defendant’s version of what occurred. The record, in each of the three cases, recites that the defendant was present in open court, waived a jury trial and submitted the cause to the court for trial. The orders in the record state that the court heard the evidence, the arguments of counsel and was fully advised in the premises before finding the defendant guilty and assessing the fines. The properly authenticated record imports verity and we are bound by it. Spears v. Spears, 45 Ill App2d 167, 195 NE2d 237; County Board of School Trustees of DuPage County for Use of School Dist. No. 46, DuPage County v. Bendt, 30 Ill App2d 329, 174 NE2d 404. We cannot accede to the defendant’s request that we reject the record and accept in its stead the affidavits filed in his motion to vacate. The court record is conclusive and affidavits cannot impeach it.

There is no report of proceedings in the record and we, therefore, must assume that the evidence heard by the court was sufficient to support the court’s judgments. Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195; Janecko v. Appleton Elec. Co., 38 Ill App2d 116, 186 NE2d 662; Smith v. Smith, 36 Ill App2d 55, 183 NE2d 559.

An examination of the record reveals no error by the trial court and there is nothing therein to sustain the contentions made by the defendant. The judgments are affirmed.

Affirmed.

SULLIVAN and SCHWARTZ, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Appellee, v. James Trammell, Appellant.
    Gen. No. 49,974.
    First District, Third Division.
    December 16, 1965.
    Rehearing denied January 6, 1966.

      James T. Griffin, of Hubaehek, Kelly, Miller, Rauch & Kirby, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a trial by jury the defendant was convicted of burglary and sentenced to four to ten years in the state penitentiary. He contends that the indictment was insufficient, that the goods allegedly stolen were illegally seized, that inadmissible evidence was allowed to show his ownership of a car in which the stolen goods were found and that the evidence does not prove his guilt beyond a reasonable doubt.

On the night of September 25, 1963, Ruth Johnson accompanied by her friend Wendell Jones, a Chicago police officer, drove to her place of employment, a barber shop owned by Booker Cook at 7706 Vincennes Avenue, Chicago, for the purpose of picking up a book she had left there. She went to the front door and began to place her key in the lock when she suddenly stepped back and said, “There’s someone inside.” Jones, who was waiting in the car, ran around to the rear of the shop and saw that the iron gate at the rear entrance was ajar. He peered through a back window and saw the defendant crouching behind a barrel. Pulling his gun, he entered the shop and placed defendant under arrest. When the lights were turned on, Miss Johnson recognized the defendant James Trammell as a former employee in the shop. Both Miss Johnson and Jones, a frequent customer at the shop, noticed that the usual complement of barbers’ tools and equipment was missing.

The police and the proprietor Cook were called. Cook and Officers Butkus and Bishop arrived about 20 minutes later. When questioned, the defendant admitted he owned a car, but denied that it was in the vicinity. Cook said he had seen defendant’s car in a lot behind the shop and to this the defendant did not respond. Officers Butkus and Jones went to the car which was parked about 20 feet from the shop, shined a flashlight through the car window, and spotted what appeared to be a bundle wrapped in a barber’s cloth. They took the bundle from the unlocked car into the shop, opened the cloth and found numerous pieces of barbers’ equipment and a radio which were identified by Cook and Miss Johnson as Cook’s property. The defendant was then taken to the police station.

The indictment charges that “on the 25th day of September, 1963, at and within said County [of Cook], James Trammell committed the offense of burglary, in that he, without authority, knowingly entered into a building, to wit: barber shop of Booker Cook, with the intent to commit therein a theft. . . .” Defendant argues that the failure of the indictment to specify the address of the barber shop renders it invalid under the Illinois constitution, Art II, Sec 9, and pertinent statutory provisions. (Ill Rev Stats ch 88, § 716 (1961); Ill Rev Stats c 38, § 111-3 (a) (4) (1963).) Defendant did not move to quash the indictment or to obtain a bill of particulars, but proceeded to defend on the merits. A motion in arrest of judgment was made and denied.

Since the oral argument was heard in this court, the supreme court of this state has overruled People v. Williams, 30 Ill2d 125, 196 NE2d 483, relied on by defendant here, and specifically held that the former and current statutory requirements with respect to stating the place of the offense are satisfied by designation of the county wherein the offense took place. People v. Reed, 33 Ill2d 535, 213 NE2d 278; People v. Blanchett, 33 Ill2d 527, 212 NE2d 97. These cases are dispositive of this issue. The court noted that the bill of particulars is available where the defendant reasonably needs additional information to prepare his defense, but the defendant here did not invoke that procedure. People v. Reed, supra, at 3; People v. Blanchett, supra, at 6.

Defendant contends that the introduction in evidence of the barbers’ equipment taken from the car was a violation of the constitutional provision against unreasonable searches and seizures. A motion to suppress this evidence was denied after a hearing. Defendant argues that the search of the car and the seizure of the barbers’ tools was too remote in time and place to be considered a search made incidental to a lawful arrest. The cases relied on by defendant on this point are clearly distinguishable. In People v. Erickson, 31 Ill2d 230, 201 NE2d 422, the defendant’s car had been stopped for a traffic violation. The arresting officer noticed a rubber cord extending from the trunk and after being denied permission to search, he broke into the trunk and seized certain incriminating goods. The court held that this search without a warrant was not justified because valid searches of moving vehicles “must be for specific property, and may not be exploratory and made solely to find evidence of guilt.” (P 233.) In the instant case the search was not exploratory, but was in pursuit of •specific property which the officers had ample cause to believe had been stolen.

In Preston v. United States, 376 US 364, 367 (1964), also relied on by defendant, police were notified at night that three suspicious men were parked in a downtown area. After interrogation the three were arrested for vagrancy, searched for weapons, and taken to police headquarters. The car was driven to the station separately and then towed to a garage where it was searched. The police found equipment fit for use in robbing banks, but the court held that these articles were inadmissible. However, the court has repeatedly affirmed the right to search the place where a person is lawfully arrested in order to find and seize things connected with the crime, such as its fruits. United States v. Rabinowitz, 339 US 56 (1950); see Stoner v. California, 376 US 483, 486, 487 (1964); Agnello v. United States, 269 US 20, 30 (1925). The search here was made at the place of the arrest before the accused had been removed and within a brief time after the arrest. The aim was to find fruits of the crime and for this purpose it was reasonable police practice to search the immediate vicinity without delay. The introduction in evidence of the barbers’ tools found in the car behind the shop was proper.

In order to establish the defendant’s interest in the car, the state introduced the testimony of Booker Cook that he recognized the car as one he had seen defendant driving on a prior occasion and the testimony of a Chicago police officer that he had personally observed records kept at a pound where the car had been taken which showed that the vehicle was registered in defendant’s name. Defendant argues that Cook’s testimony, while admissible, was too indefinite and that the officer’s testimony violates the best evidence rule. The issue in this case, however, is whether the defendant entered the shop with intent to commit theft. He was discovered huddling in the shadows, the barbers’ equipment was missing, and it was found in an old unlocked car parked a few steps from the rear of the shop. Under this set of facts, it was not necessary for the state to show defendant’s prior connection with the car in order to support the inference that it was he who had placed the tools there. The evidence establishes that defendant was guilty beyond a reasonable doubt.

After defendant’s notice of appeal was filed in this court, he moved that the case be transferred to the supreme court on the ground that it involved constitutional questions. The motion has been denied because cases presenting similar questions have been transferred by the supreme court to this court. People v. DeFilippis, 54 Ill App2d 137, 203 NE2d 627; People v. Tadlock, 59 Ill App2d 481, 208 NE2d 100; People v. Lafin, 59 Ill App2d 489, 208 NE2d 105. See People v. Valentine, 60 Ill App 2d 339, 344-49, 208 NE2d 595.

The judgment is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois ex rel. Marilyn Perz, Plaintiff-Appellant, v. Dr. Hans Schneemilch, Defendant-Appellee.
    Gen. No. 50,171.
    First District, Third Division.
    December 16, 1965.
    Jerome Berkson, of Chicago, for appellant.
    Larry Levy, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order finding the defendant not guilty and discharging him after trial on a complaint of paternity and from the trial court’s denial of plaintiff’s motion for a new trial. The cause was heard by the court without a jury.

The only question of importance in this case is whether it was error for defendant’s attorney, without the knowledge of the plaintiff, to arrange to have sent to the magistrate the results of a lie detector test taken by the defendant.

In preparing the record for appeal it developed that a written report of a polygraph examination of the defendant, which was addressed to “Honorable Judge Green, Court of Domestic Relations, Room 900, 1121 South State Street, Chicago, Illinois,” bearing date August 24, 1964, (two days before the trial in this case) was attached to the record in the court file. The relatrix thereupon filed a motion for a new trial setting forth in part (a) that the court erred in accepting a polygraph examination report which was not known to the relatrix or her attorney and which was read by the court prior to or during the pendency of the hearing and trial of the cause; (b) that the court erred in reviewing, reading or considering said lie detector test or in accepting the same without determining the circumstances of the taking of such examination ; (c) that the court erred in reading said polygraph report and that the same was prejudicial to the complainant; (d) that although the record failed to disclose the admission of the aforesaid lie detector test into evidence, nevertheless, said lie detector test was attached to the record and is part of the record presently filed in the office of the clerk of the court. The motion further relied upon an alleged error by the court in not declaring a mistrial after counsel for defendant stated in open court, “. . . the question of lie test ... he took it freely and voluntarily . . . the doctor did take a lie test so I know it’s not subject . . .” Objection was duly made by counsel for the relatrix to the foregoing statement referring to a lie detector test, and that the defendant had taken the same freely and voluntarily. The court ignored the objection.

The motion for a new trial was thereafter argued before Magistrate Greene, and it is significant that the magistrate who heard this case did not during the trial of the case disclose that he had received the results of a lie detector test, nor did he at any time during the argument on the motion for a new trial comment on the fact that the results of a lie detector test had been brought to his attention. He merely denied the motion for a new trial.

The polygraph examination report at the beginning reads as follows:

“ARRANGEMENTS:
At the request of Attorney Larry Levy, Hans Schneemilch was examined on the polygraph, a detection of deception technique. The purpose of the examination was to investigate the paternity of the illegitimate child born to Marilyn Perz in January 1964.”

and the test concludes as follows:

“CONCLUSION:
After careful analysis of this subject’s polygrams, it is the opinion of the examiner that he substantially told the truth.”

What is meant by “substantially” telling the truth on this simple issue is not shown.

It is not disputed that the arrangements were made by the attorney for the defendant for taking of the lie detector test and for the delivery of.the same to Magistrate Greene without the knowledge of the relatrix. During the oral argument of this case the attorney for the defendant admitted that he had arranged for the taking of the test by Dr. Hans Schneemilch, and apparently saw nothing wrong in having the results of that test brought to the attention of the court without the knowledge of the relatrix. Obviously the only purpose in sending the results of the lie detector test to the magistrate was to influence his decision in the case. The fact that it was not divulged to the relatrix or her attorney is not explained.

In People v. Zazzetta, 27 Ill2d 302, 306, 189 NE2d 260, the court said:

“In the absence of stipulation, our courts, without exception, reject the results of lie-detector tests when the same are offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, (cases cited). . . . The reason most commonly assigned for the exclusion of the results of a lie-detector test from evidence is the contention that the lie detector has not yet attained sufficient scientific acceptance as a reliable and accurate means of ascertaining truth or deception as to be acceptable in a court of law.”

An action under the Paternity Act is not a criminal action in this state, nevertheless, the same rule and reason for excluding the admission of the lie detector test in a criminal case would apply with equal force to an action brought under the Paternity Act.

We have no way of knowing to what extent the magistrate may have been influenced by reading the results of this test which were before him. Even if a lie detector test was admissible in a court of law, it would be necessary to prove the qualifications of the party administering the test, which is wholly absent here.

In People v. Boney, 28 Ill2d 505, 192 NE2d 920, the court stated that the results of the lie detector test could not properly be introduced as evidence of either the guilt or innocence of the accused. While the results of the lie detector test were not offered in evidence in this case, the document was before the magistrate.

We are of the opinion that the plaintiff did not receive a fair and impartial trial in this case and the judgment of the court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Farlane Bedford, Principal, United Bonding Insurance Co., Surety, Defendants-Appellees. People of the State of Illinois, Plaintiff-Appellant, v. Ira Lee Jones, Principal, La Salle Casualty Co., Surety, Defendants-Appellees. People of the State of Illinois, Plaintiff-Appellant, v. Ira Lee Jones, Principal, La Salle Casualty Co., Surety, Defendants-Appellees. People of the State of Illinois, Plaintiff-Appellant, v. Farlane Bedford, Principal, United Bonding Insurance Co., Surety, Defendants-Appellees.
    Gen. Nos. 50,289, 50,290, 50,291, 50,292.
    First District, Third Division.
    December 16, 1965.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Joseph V. Roddy, Assistant State’s Attorney, of counsel), for appellant.
    Woodrow W. Hodge and Howard T. Savage, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The state appeals from an order directing the County Treasurer of Cook County to refund moneys paid by the appellee United Bonding Insurance Co. (United) in satisfaction of a scire facias judgment entered on a bail bond forfeiture. The state contends that the court lacked jurisdiction to enter that order. Three other cases presenting the same issue have been consolidated with the instant one.

United was surety on a bond of Farlane Bedford who was a defendant in a criminal case. The case was set for hearing in the criminal branch of the Municipal Court of Chicago (now a division of the Circuit Court of Cook County) and for nonappearance the bond was forfeited. Scire facias judgment was obtained in a civil branch of the First Municipal District of the Circuit Court of Cook County. After satisfying the judgment United petitioned in the same branch of the Municipal District for a refund order pursuant to Ill Rev Stats ch 38, sec 625g (1963) which provides:

“All moneys realized on forfeited bonds and recognizances . . . shall be deposited in the county treasury . . . and . . . shall be held for a period of 36 months from the date of the forfeiture of such recognizance or bond. At any time within such 36 month period the court wherein the forfeiture occurred may upon motion . . . and upon a showing that the defendant who incurred such forfeiture has been apprehended or surrendered . . . enter an order for the return of such money. . . .”

United alleged that the defendant had surrendered in open court within the statutory period and therefore it was entitled to a return of the forfeited bail. The state moved to dismiss for lack of jurisdiction of the subject matter. The court ordered the return.

The state contends that in the instant case the statutory language, “the court wherein the forfeiture occurred,” refers to the branch of the municipal district which entered the bond forfeiture and does not refer to the branch which entered the scire facias judgment on the bond forfeiture. Article VI, Section 9, of the Illinois Constitution provides: “The Circuit Court shall have unlimited original jurisdiction of all justiciable matters. . . .” The allocation of judicial responsibility to various branches within the Circuit Court does not detract from this grant of power. If the state believed it was being heard in an inappropriate subdivision or department of the Circuit Court, it should have made a motion for transfer.

The state also contends that the refund provision does not apply to moneys realized from bond forfeitures by way of scire facias judgments. This construction would reduce its scope to those bond forfeitures paid voluntarily before the entry of final judgment. The intent of the legislature was not that narrow. The judgment is affirmed.

Judgment affirmed.

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


author: ALLOY, P. J.

text:
    Jack Campbell, Plaintiff-Appellee, v. Joslyn Manufacturing and Supply Company, Defendant and Third Party Plaintiff-Appellee. Joslyn Manufacturing and Supply Company, Defendant and Third Party Plaintiff-Appellee, v. Midland Constructors, Inc., a Corporation, Third Party Defendant-Appellant.
    Gen. No. 65-19.
    Third District.
    December 15, 1965.

      Matthews, Jordan, Dean & Suhler, of Aurora (Joseph T. Suhler and Eoger W. Eichmeir, of counsel), for appellant.
    Gray, Thomas, Wallace & O’Brien, of Joliet (Thomas Feehan, of counsel), for defendant and third party plaintiff-appellee.
   ALLOY, P. J.

Midland Constructors, Inc., a Corporation, as third party defendant, appeals to this court from an order denying a motion to dismiss an amended third party complaint filed on behalf of Joslyn Manufacturing and Supply Company, original defendant, and third party plaintiff. Questions raised on appeal are solely based upon the pleadings in this cause and rulings thereon.

The original action filed by Jack Campbell as plaintiff sought to recover damages for personal injury sustained when plaintiff fell from a wooden pole while he was engaged in connecting electrical wires. Plaintiff was an employee of Midland Constructors, Inc., the third party defendant. The pole from which the plaintiff fell was manufactured and supplied by the third party plaintiff and original defendant, Joslyn Manufacturing and Supply Company. The original complaint of plaintiff alleges negligence in the manufacture and treatment of the pole in question by Joslyn Manufacturing and Supply Company and failure to inspect the pole for defects prior to delivery. Joslyn Manufacturing and Supply Company denied all of the allegations of the complaint and filed a third party complaint against Midland Constructors, Inc. alleging that the negligence, if any, was active on thé part of said Midland Constructors, Inc. and secondary on the part of Joslyn. The original complaint was filed on January 30, 1961. A motion to dismiss such third party complaint was filed and the motion was argued on March 29, 1961. On that date, the trial court entered an order dismissing the third party complaint but made no provision for filing of an amended third party complaint. On July 3, 1963, an order was' entered granting leave to Joslyn to file an amended third party complaint against the same third party defendant, which amended third party complaint alleged that the negligence of the third party defendant was active and that that of the third party plaintiff, if any, was passive. A motion to dismiss was again made by said third party defendant which was denied by the trial court. The trial court then amended the order denying the motion to dismiss to further find that there was no just reason to delay the appeal of this question. The third party defendant, Midland Constructors, Inc., elected to stand on its motion to dismiss the amended third party complaint.

On appeal in this cause, appellant contends that the trial court committed error in granting leave to Joslyn to file the amended third party complaint for the reason that the original order of March 29, 1961, dismissing the original third party complaint without granting leave to amend constituted a conclusive adjudication of the rights of the parties as to indemnification of Joslyn and further that the court was without jurisdiction to grant leave to file an amended third party complaint more than thirty days- after entry of the order dismissing the original third party complaint. Appellant also contends that the trial court erred as a matter of substantive law in refusing to grant the motion to dismiss the amended third party complaint since the original complaint and the third party complaint show on their face that if defendant-third party plaintiff Joslyn is guilty, it must be guilty of active negligence.

The first issue with which we are concerned is the propriety of the allowance of leave to file the amended third party complaint, by the trial court. It appears from the record that the order allowing the motion to dismiss on March 29, 1961, was not final in its nature. Under the provisions of section 25, chapter 110, Illinois Revised Statutes (Ill Rev Stats 1968, c 110, § 25 (2)) it is specifically provided that a third party action may be brought by filing a third party complaint. Our courts have repeatedly concluded that where a motion to dismiss a complaint is sustained, for such ruling to become final, a judgment should be entered for the defendant to such complaint which contains language showing that plaintiff was to take nothing by virtue of his action or similar conclusive language. Under Section 50(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 50 (2)), it is provided that if multiple parties or multiple claims for relief are involved in an action, any order which adjudicates fewer than all of the claims or fewer than all of the claims of the parties does not terminate the action, and is subject to revision at any time before entry of an order adjudicating the claims of all the parties.

In the case of Johnson v. City of Rockford, 26 Ill App2d 133, 169 NE2d 534, there was an order of dismissal as to the City of Rockford. The court in decreeing that such order was not final, stated (at p 137):

“Where the order merely sustains Defendant’s motion to strike complaint without stating more, such order is not a final, appealable order . . .”

In Bohannon v. Ryerson & Sons, Inc., 15 Ill2d 470, 155 NE2d 585, where a verdict had been rendered in favor of a third party defendant on a third party complaint, the Supreme Court held that the action involved multiple parties and was governed by Section 50 (2) of the Civil Practice Act. The court stated (at p 475) :

“More is here involved than an insistence upon ritualistic compliance with an empty procedural form. Nothing in the record as it now stands shows that the underlying liability of ‘Third Party Plaintiff’ upon which their third party claims were based has been established.”

The court concluded that since all claims had not been disposed of and no finding had been made that the directed verdict was appealable, the judgment was not final, and was subject to revision at any time before disposition of all claims of all parties. Similarly, in the case of Krambeer v. Canning, 86 Ill App2d 428, 184 NE2d 747, the principal defendant filed a third party complaint which was dismissed on motion of the third party defendant on May 5, 1959. An Amended third party complaint was dismissed on October 22, 1959. In November 1960, third party plaintiff moved to vacate the order of October 22, 1959, and prayed in the alternative for an order amending that order to the effect that no just cause exists for delay of the appeal. On November 18, 1960, the court entered an order that no just cause exists for delay of the appeal and the appeal was taken but the Appellate Court dismissed the appeal without prejudice for want of a final order. On November 8, 1961, the trial court amended and made final the order of October 22, 1959, by finding the issues in favor of the third party defendant and that there was no just reason for delaying the appeal. The Appellate Court held that since the principal case involved multiple claims and fewer than all of the claims were referred to in the original dismissal order, the order was not final and appealable and was subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties (citing section 50 (2), ch 110, Ill Rev Stats). The court pointed out (at p 432):

“Throughout the period of time during which the third party plaintiff was asserting his claim for indemnification, this case was pending in some aspect in the Circuit Court and that court had jurisdiction to revise the order of October 22, 1959 and to make it a final judgment or order.
“Since the case had been pending all this while and no prior final order had been entered from which an appeal could have been taken, the court had jurisdiction to revise the order. . . .”

In the case before us, the appellant-third party defendant itself apparently recognized the necessity of complying with section 50(2) of the Civil Practice Act and moved to amend the order denying its motion to dismiss the amended third party complaint to show that no just cause exists for delaying the appeal. The principal case is still pending and the defendant-third party plaintiff is still asserting its claim for indemnification against third party defendant. It was obvious that no words of finality were shown in the order. There were multiple parties involved, and there was no finding in the order dismissing the initial third party complaint that there was no just reason for delaying the enforcement of the appeal. In accordance with provisions of section 50(2) of the Civil Practice Act such order was subject to revision at any time and the court retained jurisdiction and could allow the amended third party complaint to be filed. We, therefore, conclude that the allowance of the filing of the amended third party complaint was proper.

The basic question before us in this appeal is whether the action of the court in denying appellant’s Motion to dismiss the amended third party complaint was justified. Appellant-third party defendant in this cause asserts that since plaintiff alleged specific acts of negligence against the original defendant (later third party plaintiff) there could be no basis for a third party complaint. The burden of such contention is substantially that plaintiff would be required to establish that defendant-third party plaintiff was guilty of active negligence before a recovery could be had against said defendant, and that, therefore, said defendant-third party plaintiff would have no basis for a third party complaint since such complaint could only be sustained if its negligence was- passive in nature.

It has been asserted, with some justification in the past, that the entire field of third party practice has at times appeared to be in a state of confusion (Vol 46, Chicago Bar Record, No. 9, page 419, “A SECOND LOOK AT THIRD PARTY PRACTICE” by James W.'Kissel). We believe, however, that our Appellate Courts have now clearly answered many of the questions and have outlined guideposts applicable in dealing with a situation such as appears in the instant case. In Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346, the court indicated that it was not necessary in a third party complaint for indemnity, to allege explicitly indemnitor’s» negligence, so long as a duty is raised and a failure to perform is alleged. The court, in essence, indicated that it is sufficient that the pleadings show a possibility of recovery, and that prior to hearing on the evidence, it cannot be said whether plaintiff is entitled to relief and, if so, who was primarily responsible.

In the case before us, Joslyn contends that its negligence, if any, was passive and secondary but that the negligence of Midland Constructors, Inc., which had sole possession and control of the pole at the time of plaintiff’s injury, was the primary and active cause of plaintiff’s injury. A case which we believe is a precedent which sustains the position of the trial court in denying the motion to dismiss the amended third party complaint is Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808. In that case, the Court stated (at pp 16, 18, 19):

“Section 25(2) of the Civil Practice Act provides that ... a Defendant may by Third Party Complaint bring in as a Defendant, a person not a party to the action who is or may be liable to him for all. or part of the plaintiff’s claim against him . . .
“Shell contends Union is charged with active negligence, thereby precluding a right to recovery over . . . The pleadings here do not indicate whether the negligent acts complained of were active or passive in nature. ‘It is the function of the jury to determine whether both defendants were guilty of negligence contributory to the harm: if so, to determine whether they were equally at fault in which event no right of indemnity arises. If, however, the jury finds that the fault of the third-party plaintiff was passive only and that the fault of the impleaded defendant was the primary cause of the harm, the latter will be held to indemnify the former in an action over.’
“We cannot say here, prior to hearing evidence, that the negligence complained of in plaintiff’s complaint is active or primary in nature.”

The court there concluded that where any set of facts arise in a case where a third party claim is permitted, if the third party complaint sets forth a claim which may have substance, then the trial court should not dismiss the complaint in the pleading stage merely on the argument that there are allegations of active negligence in the original complaint against such third party plaintiff. A determination as to whether the negligence is active or passive could not be made until all of the evidence is heard at the time of trial. After hearing the evidence, the trial court can then determine whether the third party should or should not be entitled to recover as a matter of law or whether the issue should be submitted to the jury for determination. There are obviously such factual questions to be determined by a jury in the instant case.

The allowance of the motion to dismiss the amended complaint filed by defendant-third party plaintiff would have been improper, and the action of the Circuit Court of Will County in denying such motion was consistent with the third party practice in effect in this state. The order of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER and CORYN, JJ., concur.


author: GOLDENHERSH, J.

text:
    Harold Liddell, Plaintiff-Appellant, v. Noel Smith, Midwest Construction Company, a Corporation, Sherwood Land Company, a Corporation, Noel Smith Development Company, a Corporation, and Burnis Smith, Defendants-Appellees, and Cross Appellants.
    Gen. No. 64-105.
    Fifth District.
    November 1, 1965.
    Rehearing denied December 22, 1965.

      Craig & Craig, of Mt. Vernon (Glenn E. Moore and Ronald W. Polston, of counsel), for appellant.
    Kern and Pearce, of Carmi, and Wham and Wham, of Centralia, for appellees.
   GOLDENHERSH, J.

This is one of six appeals growing out of a transaction involving farmlands in Wayne County, Illinois. In a prior appeal taken in this case (Liddell v. Smith, 43 Ill App2d 57, 193 NE2d 45) this court (then the Fourth District), affirmed the order of the Circuit Court of Wayne County, appointing a receiver pendente lite of Sherwood Land Company, one of the corporate defendants in this case, hereinafter called Sherwood. The facts are set forth in the opinion in Liddell v. Smith filed November 1, 1965, 65 Ill App2d 295, 213 NE2d 599, and will not be repeated here.

In his amended complaint, plaintiff alleges that he, defendant, Noel Smith, hereafter called Smith, and one James Castle, organized defendant, Sherwood, each taking one-third of the capital stock, that each of them became a director and officer of Sherwood, that it was agreed that Sherwood would purchase uncleared timberlands in Wayne County, clear the land so as to make it suitable for farming, and then either sell the land or farm it; that the funds necessary to the transaction would be advanced by either defendant, Smith, or defendant, Midwest Construction Company, Ltd., hereafter called Midwest, owned and controlled by defendant, Smith; that defendant, Smith, would seek to make a loan on behalf of Sherwood in an amount sufficient to repay defendants, Smith and Midwest; that no money would be repaid defendants, Sherwood or Smith, until Sherwood, through the making of a long-term loan, or from its earnings, could pay off the entire indebtedness; that plaintiff and Castle agreed to clear the land for $50 per acre although the usual charge for such work was $80 per acre; that Sherwood bought 960 acres of land and then an additional 80 acres; that Castle assigned his shares in Sherwood to defendant, Smith, that defendant, Smith, agreed to transfer one-half of these shares to plaintiff and that plaintiff is seeking to enforce specific performance of this agreement in another suit pending between these parties; that the land was cleared and ready for cultivation on December 1, 1961; that the lands have been planted and the crop should be worth $50,000 to $70,000; that Sherwood has purchased and owns farm equipment; that defendant, Smith, entered into the transaction with the false and fraudulent intent of taking over all of Sherwood’s assets after having obtained plaintiff’s services in the land clearing project at substantially less than its value; that in furtherance of his scheme he caused Sherwood to execute various notes and mortgages to him or Midwest, secretly caused a 320 acre parcel, hereafter called the Peyton tract, to be conveyed to him rather than to Sherwood, has failed to make an effort to obtain a loan for Sherwood, refused to consummate a sale to which plaintiff had consented, removed Sherwood’s books and records from Illinois, usurped complete control of Sherwood, removed Sherwood’s equipment to farms owned by him, used Sherwood’s money and equipment to clear the 320 acre parcel while contending that he owned it, attempted to obtain an assignment of plaintiff’s stock in Sherwood upon the representation that such assignment was necessary to effect a loan for Sherwood and upon plaintiff’s refusal to make the assignment, threatened that the mortgages running to him and Midwest would be foreclosed, incurred large, unnecessary and fictitious bills for which Sherwood was liable, caused the records of Sherwood to show that defendant Burnis Smith, wife of defendant, Smith, was elected secretary of Sherwood.

Plaintiff prayed the issuance of an injunction restraining defendants, Smith and Burnis Smith, from conveying any of Sherwood’s assets to defendants, Smith or Midwest, restraining defendants, Smith or Midwest, from foreclosing the various mortgages executed by Sherwood, and further that the defendant, Smith, be required to make an accounting of his various acts and doings; that a receiver be appointed to preserve Sherwood’s assets and effect its liquidation, and that Smith be ordered to convey the Peyton tract to Sherwood.

The record shows that Midwest’s name has been changed to Noel Smith Development Company, Ltd., but nevertheless, it shall be referred to as Midwest. The defendant, Burnis Smith, is the wife of defendant, Smith, and except for having been elected an officer and director of Sherwood, took no part in any of the transactions.

The circuit court rendered a decree finding the Peyton tract to be the property of defendant, Smith, and not of Sherwood, and ordered the sale of Sherwood’s assets, and its dissolution. The decree restrained the defendants, Smith and Midwest, from proceeding with the foreclosure of the mortgages executed by Sherwood.

Plaintiff appeals from that part of the decree which found defendant, Smith, to be the owner of the 320 acre parcel (the Peyton tract), and defendants cross-appealed from those portions of the decree which ordered the dissolution of Sherwood, and restrained defendants, Smith and Midwest, from foreclosing their respective mortgages on Sherwood’s assets.

The evidence shows the execution by Sherwood of a number of promissory notes and of real estate and chattel mortgages purporting to secure the indebtednesses. Some of the notes and mortgages name Smith as payee and mortgagee, the others name Midwest. On July 11, 1963, Smith and Midwest filed suit in the District Court of the United States for the Eastern District of Illinois seeking to foreclose the various mortgages. The complaint alleges that Smith advanced various sums on behalf of Sherwood aggregating $185,695.08. The complaint further prays the entry of a judgment subordinating any claims which plaintiff may assert to Sherwood or its assets, to the various claims, notes and mortgages held by defendants Smith and Midwest.

The testimony offered in this case is lengthy and conflicting, and both sides offered numerous exhibits. In reviewing the record we are bound by the rule that when the chancellor sees the witnesses and listens to their testimony, his findings of fact will not be disturbed unless they are manifestly against the weight of the evidence. Schnepper v. Ashlock, 404 Ill 417, 88 NE2d 853. However, when it appears from a consideration of the entire record that the evidence does not justify the decree, it is the duty of this court to reverse it. Stephenson v. Kulichek, 410 Ill 139, 101 NE2d 542.

The evidence fully supports the findings of the trial court that Sherwood should be dissolved. The prayer for dissolution is predicated upon ch 32, sec 157.86, Ill Rev Stats 1963, and the evidence establishes the presence of several grounds therein enumerated. Gidwitz v. Lanzit Corrugated Box Co., 20 Ill2d 208, 170 NE2d 131.

That portion of the decree which finds the 320 acre Peyton tract to be the property of defendant, Smith, is manifestly against the weight of the evidence. Bill Peyton, the former owner from whom the land was purchased, testified that he had told plaintiff that if he ever decided to sell this tract, he would sell to plaintiff. The original contract for sale was entered into between Peyton and his wife as vendors, and Sherwood as vendee. The earnest money came from Sherwood’s funds. Smith’s only explanation of why it was conveyed to him, rather than Sherwood, is that plaintiff did not live up to the terms of his agreement, that he had been required to pay for clearing work on the land, and when the time came to pay the Peytons, he caused it to be conveyed to him, rather than Sherwood.

The evidence shows that one William Theofanopoulos, usually called Bill Theo, was employed by written contract with Sherwood, to do clearing work on the Peyton parcel. Sherwood paid him $1,000 in cash, and the parties executed a contract for deed for 80 acres of land which Theo wanted to buy from Sherwood. Edward Clevenger testified that he worked for plaintiff as a tractor driver, and from time to time operated a dragline. As plaintiff’s employee, he worked on the Peyton land, sweeping, raking and burning the timber cut down by Theo. Plaintiff testified that he worked on the Peyton land until November of 1961, and then stopped because he had strong suspicions of Smith’s intentions, and because there were related to him a number of efforts on the part of Smith to sell the Peyton land, although he had not been consulted about a sale.

The evidence does not support Smith’s right to summarily vest title in the Peyton land in himself. Assuming that he expended funds for its improvement, his remedy is to recover the funds from Sherwood. By causing the property to be conveyed to him he acquired an interest therein, adverse to that of Sherwood, the corporate defendant, of which he was president, a director, and at least of record, the owner of 66%% of its stock. A corporate officer occupies a fiduciary relation to the corporation. Shlensky v. South Parkway Bldg. Corp., 19 Ill2d 268, 166 NE2d 793. When a corporate officer obtains an interest in property adverse to that of the corporation, the burden rests on him to prove by clear and convincing evidence that he has exercised good faith. Mile-O-Mo Fishing Club, Inc. v. Noble, 62 Ill App2d 50, 210 NE2d 12. In a letter written by Smith to one Herman Springer on April 19, 1961, he expressed his appreciation of Springer’s suggestion that Burnis Smith, his wife, be named secretary of Sherwood, because “that way I will have full control.” In a letter to Springer dated May 28, 1962, he stated “I have this deal under full control, except cancelling out Liddell. This will be done in a length of time.” The letters indicate that Smith felt these actions were justified because all the money in the deal was his, or had been advanced by Midwest, which corporation Smith owned and controlled. Assuming this to be true, it would not sustain the burden of proof required of Smith as president, director and controlling shareholder of Sherwood that he had exercised good faith. Obviously Smith’s knowledge of, and opportunity to acquire, the Peyton land arose from his corporate position, and since the record does not sustain the burden imposed upon him under these circumstances to prove by clear and convincing evidence that he had not breached the fiduciary relationship, a constructive trust must fasten to the property. Davis v. Hamlin, 108 Ill 39.

Defendants contend that plaintiff by suing for the work performed on the Peyton tract, and recovering a judgment in the amount of $3,000 has elected, his remedy, and is thereby barred from obtaining the remedy sought in this case. The doctrine of election of remedies does not apply where remedies are coexistent and consistent with each other. Paoli v. Zipout, Inc., 21 Ill App2d 53, 157 NE2d 79; Kaszab v. Metropolitan State Bank, 264 Ill App 358. There is no inconsistency in plaintiff’s seeking a money judgment and a mechanic’s lien while contending that the Peyton land was the property of Sherwood rather than Smith. Nor is there any merit in defendants’ contention that plaintiff waived his right to a decree holding the land to be Sherwood’s, rather than Smith’s by reason of the fact that a count seeking that remedy was included in the complaint in a prior action, and dismissed prior to hearing of evidence after defendants were defaulted. The voluntary dismissal of a cause of action without prejudice does not preclude the filing of a new action. Paoli v. Zipout, Inc., 21 Ill App2d 53, 157 NE2d 79.

In view of the relationship between Smith, Midwest and Sherwood, the court correctly enjoined Smith and Sherwood from proceeding further with their efforts to foreclose the mortgages above described. The decree ordering the dissolution of Sherwood makes adequate provision for the determination of its liabilities and the priorities of the claims of its creditors, and for the sale and orderly distribution of its assets.

For the reasons herein set forth the decree of the Circuit Court of Wayne County is reversed insofar as it finds that the 320 acre parcel, known as the Peyton tract, is the property of defendant, Noel Smith, and is, as to all other parts thereof, affirmed, and the cause is remanded with directions to amend the decree previously entered so as to impress the said 320 acre parcel with a constructive trust for the benefit of Sherwood Land Company, a corporation, and ordering the defendant, Noel Smith, to convey to Sherwood Land Company, a corporation, all of his right, title and interest therein, and for further proceedings consistent with this opinion.

Decree affirmed in part, reversed in part, and cause remanded with directions.

EBERSPACHER, P. J. and MORAN, J., concur.

       Liddell v. Smith, 41 Ill App2d 408, 191 NE2d 260; Liddell v. Smith, 43 Ill App2d 57, 193 NE2d 45; Theofanopoulos v. Liddell, 44 Ill App2d 416, 194 NE2d 678; Liddell v. Smith, 345 F2d 491; Liddell v. Smith, 65 Ill App2d 295, 213 NE2d 599.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Johnson, Alias L. C. Johnson, Defendant-Appellant.
    Gen. No. 50,102.
    First District, Fourth Division.
    December 23, 1965.

      Marshall A. Patner, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was indicted for armed robbery, was tried without a jury in the Criminal Division of the Circuit Court of Cook County, and found guilty. Motions for new trial and in arrest of judgment were denied and the court entered .judgment, sentencing the defendant to the Illinois State Penitentiary for a term of five to ten years. An appeal was taken from that judgment to this court.

The defendant here argues that the indictment was invalid since it did not specify time and place other than by stating the date and county of the alleged offense. In support of that contention, defendant cites People v. Blanchett, 55 Ill App2d 141, 204 NE2d 173. In People v. Blanchett (No. 39232) the Supreme Court, however, reversed the holding of the Appellate Court and decided that such specifications are sufficient, in line with this court’s conclusions in People v. Petropolous, 59 Ill App2d 298, 208 NE2d 323. In that opinion the Supreme Court also reversed its previous holding in People v. Williams, 30 Ill2d 125, 196 NE2d 483. The indictment in the instant case was proper.

The defendant also argues that the uncorroborated testimony of the complaining witness was inconsistent and improbable, and therefore inadequate to sustain a conviction. The complaining witness testified that he was a high school student who on May 30, 1964, was on his way home from summer employment at Henry’s Hamburgers, located at the corner of Madison and Kedzie; that he was at the corner of Madison and Pulaski Streets at about 5:30 a. m., waiting for a bus, with no one else on the street, when the defendant approached him. He had never seen the defendant before. He testified that the defendant pushed a pointed object into his back [which he later identified as a white-handled knife] and told him to walk down Pulaski to an alley. There the defendant took money from the witness’ wallet, took his radio, and ran down the alley. The witness testified that he waited for the defendant to get half-way down the alley, then followed him and saw him enter a building. The witness promptly sought a police officer, who testified that the complaining witness accosted him at about 7:00 a. m. The witness brought the officer to the building, and when they were inside, the complaining witness identified the defendant through a partially open door as the person who had robbed him. The police entered the defendant’s room, found the money and the radio, and arrested the defendant.

The defendant, on his own behalf, testified that on the morning of May 30, 1964, he had been at a neighborhood club; that he left to go home and saw the complaining witness on the corner of Wilcox and Pulaski; that the complaining witness propositioned him to commit a homosexual act and offered to pay him money; that they went to the defendant’s room where they both undressed, but there was no homosexual act; that the complaining witness had put his radio on a chair, together with $3 which the defendant testified the complaining witness was to pay him. The defendant testified that the complaining witness dressed and started to leave; the defendant believed he was going to the bathroom. As the complaining witness was leaving he said he wanted his radio, and the defendant told him to leave it until he came back.

Two police officers testified that the complaining witness had told them the story which he told on the stand; that they went to the building where the defendant lived and could see him through a door which was ajar; that the complaining witness identified the defendant as the man who had robbed him; that they went into the defendant’s apartment and found the radio and $3.63 on a chair. At that time the defendant was fully dressed.

According to the police officers, the defendant did not tell them the same story he told on the stand about being propositioned by the complaining witness. One police officer testified that the defendant, at the time of his arrest, said that he was not guilty and further said, “This is a kid. All right, here’s a sawbuck. Give me five back and get rid of the kid.” The police officers also testified that they told him to keep his money. The court found the defendant guilty.

The defendant admitted that he had a record going back to 1950, and that in 1953 he was sentenced to the penitentiary for three to six years for robbery. In 1958 he was again sentenced for five to eight years for armed robbery, and was paroled in 1962. The court entered a sentence of five to ten years in the penitentiary.

As it usually is in criminal cases, the evidence is in conflict. It is the duty of the trial court, in a trial without a jury, under those circumstances to determine from the testimony of the witnesses before the court, who is telling the truth and the weight to be accorded to the testimony of each witness. This court will not substitute its judgment for that of the trial court where the evidence is merely conflicting. People v. Cullotta, 876 Ill 333, 33 NE2d 601. The finding of the trial court should not be set aside by a reviewing court unless the proof is so unsatisfactory or implausible as to justify reasonable doubt as to the defendant’s guilt. People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599.

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

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       The complaining witness testified that the money which he had in his pocket and which he stated the .defendant took, was $3.63. When the police came to defendant’s room they found on the chair the radio, together with $3.63.