text:
    Robert Bokowski, Plaintiff-Appellant, v. Civil Service Commission of the City of Chicago, Defendant-Appellee.
    (No. 54402;
    First District
    August 20, 1971.

      Adamowski, Newey, and Riley, of Chicago, (FRANCIS X. RILEY, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (Marvin E. Aspen, John Elson, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

This is an appeal from an order of the circuit court confirming a decision of the Civil Service Commission by which plaintiff was discharged from his position with the Chicago Fire Department.

The Commissioner of the Chicago Fire Department filed charges with the Civil Service Commission against plaintiff. After a hearing, plaintiff was found guilty of violating the following sections of the Rules and Regulations of the Fire Department: Section 383, “Entering Places Where Intoxicating Liquors Are Sold While On Duty, Except In The Immediate Pursuit Thereof”; Section 384, “Neglect of Duty”; section 390, “Absence From Duty Without Permission.” The Commission thereupon ordered that plaintiff be discharged from his position as firefighter, 1st Class. This order was confirmed by the circuit court on administrative review.

Plaintiff contends that the evidence adduced at the hearing failed to prove the charges, that the rule against firemen on duty entering places where intoxicating beverages are sold was unreasonably applied in this case, and that the discharge from the service was harsh and unconscionable punishment even if the charges were proven. In view of plaintiff’s contentions, we find it necessary to set out in detail the testimony taken at the hearing.

Ennis Rice, for the Department: He is the Division Marshal of the 4th Division of the Chicago Fire Department and is assigned to Headquarters. On May 7,1967, plaintiff was working under his direction and was detailed to the International Amphitheatre. About 4:00 A.M. on May 8, he received a call from the Amphitheatre that a fireman was in trouble. When he arrived, he found plaintiff sitting on the floor. Plaintiff explained that his knee had been injured when he was attacked by some Mexicans in Donovan Hall, which is a partitioned area in the southern part of the Amphitheatre. A dance had been held by a Mexican group in Donovan Hall, and he [Rice] understood that alcoholic beverages were served there. Plaintiff said that he had gone to the washroom in Donovan Hall because the one near his apparatus stank; that he had also heard that sandwiches were being given away at the dance and he wanted to get one. Plaintiff claimed that he had gone into the mens room and three men had chased him when he came out. He said he had done nothing to provoke the attack and had not had anything to drink.

Marshal Rice had given orders to remove Flood Pressure Unit 11 (plaintiffs unit) from Donovan Hall because of the presence of a cocktail bar there, and had ordered that no firemen were to go into Donovan Hall. The order was given to plaintiff and he was told to relay it to the other men. A general regulation prohibiting on-duty firemen from entering places where liquor is sold was also in effect at that time.

The witness called an ambulance for plaintiff, then took another man, Kushner, to check and see if the toilets were properly marked, which they were. He checked the washroom plaintiff had said was dirty, and found nothing wrong with it. This washroom was close to plaintiffs apparatus.

Although the men are not expected to stay on their apparatus and may visit other rigs, they are expected to stay close to their equipment. The apparatus to which plaintiff was assigned was located in Exposition Hall. The washroom plaintiff had used was 300 feet south to Donovan Hall and an additional 250 feet beyond.

Arthur Lentz, for the Department: He is a Lieutenant in the Chicago Fire Department. He arrived at the Amphitheatre about midnight and found that plaintiff was missing from his assignment when he should have been at his apparatus. Engineer Kushner said plaintiff had taken a walk to the south end of the hall. He waited about 10 minutes and, when plaintiff did not return, he went to Donovan Hall looking for him. Intoxicating liquors were being sold in Donovan Hall that night. There were two or three thousand people at the dance. After searching for about one and a half hours, he found plaintiff talking to some people at the south end of Donovan Hall, about a block and a half from his equipment. He asked plaintiff what he was doing there, and plaintiff replied, “I am just looking around.” He told plaintiff to return to his apparatus, and plaintiff said something to the effect of “this job is for squares.” He told plaintiff to return to his apparatus or he would be suspended. Plaintiff said “Okay,” and disappeared into the crowd. He tried to follow him but lost him, and spent 15 to 20 minutes looting for him unsuccessfully.

The witness went back to the apparatus about 1:30 A.M., and called the Division Marshal to tell him that he was going to suspend plaintiff, but the Marshal was not in. He remained at the' apparatus, awake, until approximately 3:45 A.M., when he next saw plaintiff. Plaintiff was with Marshal Rice and was sitting on the floor in front of the apparatus, with a cut over his forehead, nose bleeding, and clothing torn. Plaintiff explained that he had been assaulted by four Mexicans upon leaving the washroom to which he had gone after returning to his apparatus. Plaintiff was then taken to the hospital.

Plaintiff knew of the order to remain on the apparatus. Men on such detail must stay within five to ten feet of their equipment. There was a washroom 30 to 40 feet from the apparatus which witness had used that night and it was not too duty. He did not know where plaintiff was between 1:30 A.M. and 3:45 A.M. Plaintiff belonged at the rig where the witness was during that time. If there was a fire, the Company getting the alarm would blow the siren. He doubted that a siren could have been heard by someone in Donovan Hall that night, due to the general noise and the band.

Carlyle Jakovec, for the Department: He is a Fire Department Lieutenant assigned to Donovan Hall on May 7. About 3:30 A.M., after the dance broke up, they moved their equipment back to Donovan Hall. About 200 feet away, he saw plaintiff being escorted out of the women’s washroom by three or four male Mexicans. He turned away, and then a fireman said, ‘look at him.” Whereupon, he turned back, heard some women yelling something, and saw plaintiff running north about 50 to 60 feet away, with the men following close behind him. They caught plaintiff, and the witness yelled, “Stop.” Plaintiff tore loose and continued north. He figured that plaintiff had gotten away, and decided not to “make an incident out of it.” About ten minutes later, he was told by the police that plaintiff had been ‘beat up and hurt.”

There was a general order not to go into Donovan Hall that night; however, he and his two men had been expressly assigned there by the Chief. There were three apparatuses at the Amphitheatre. He had seen plaintiff in Donovan Hall earlier that night about 8:00 or 8:30 P.M. He thought a siren could not be heard in Donovan Hall because of the three Mexican bands. His men normally used the washroom plaintiff used.

Jake Kushner, for the Department. He is a Fire Engineer who was assigned to the same apparatus as plaintiff on the night in question in Exhibition Hall. He arrived on duty ten minutes before midnight and saw plaintiff, who was sitting with the engineer on duty. Plaintiff told him he was going to take a walk. The Lieutenant came there and then left, saying he was going to look for plaintiff. The witness stayed on the apparatus and did not see plaintiff until two or three hours later when plaintiff was on the floor. He may have dozed off during the time he was on the truck.

During several previous assignments he had been given an order not to enter Donovan Hall. He understood that if a show was going on, the men could look at it, but had to stay within sight of the apparatus at all times.

Robert Bokowski, in his own behalf: On May 7, 1967, he was assigned to Fire Pressure Unit 11 in the Exhibition Hall at the Amphitheatre from 4:00 P.M. to 8:00 A.M. the following day. Lt. Augustine was in charge when he came on duty, and did not instruct him to stay out of Donovan Hall. No one ever told him to stay out of Donovan Hall. He was also not instructed by either the Chief or Lt. Augustine not to walk around. He saw Lt. Lentz that day at the south end of Donovan Hall on the west wall. Lt. Lentz instructed him to return to the rig, which he did. Lt. Lentz was not there when he returned, and he did not see him between 1:30 and 3:45 A.M. He saw Engineer Kushner in the cab but did not bother him.

He had a cold, felt feverish, and had diarrhea which caused him to go back and forth to the washroom, which he found filthy, so he used a clean one in Donovan Hall. There were no women in the washroom.

He stayed in Donovan Hall for a short time, walking around, and talked with about seven firemen. He returned to his rig after a few minutes and sat behind it where it was warmer. The longest he was away from his apparatus was 15 to 20 minutes and could have been back to his rig, which was about 100 yards away, within 15 seconds in case of an alarm. He could see his rig, if he looked, from where he was in Donovan Hall. He listened to the music at the dance and knew that intoxicating beverages were served in Donovan Hall in set-ups. Liquor was not being sold. He imagined they were selling beer, but he didn’t see it being sold and he didn’t have any. He had an electric scooter which he used to circle around to pass the time. The next time he left the apparatus was when he went for a sandwich and seltzer in Donovan Hall. In all, he went to Donovan Hall three times, once for the sandwich and twice to listen to music, staying 15 or 20 minutes each time. He testified additionally that he was at the dance about one-half the time, and it was possible that he was not at his rig between 1:30 and 3:00 A.M. He was back at the apparatus about 2:30 or 3:00 A.M. He also visited another apparatus about 200 feet from his own, and was in the immediate area of his rig between 12:00 and 2:00 A.M.

At one point, he was gone for about half an hour to the washroom. The washroom he was in could have been a women’s washroom. He had a bad cold, and the lights were out. Nobody, however, was in there. He was there for half an hour when he heard some noise and left the washroom. As he came out, someone said, “What are you doing here?” He walked away and did not have an altercation with any of the people attending the dance on that day. Following the night in question, plaintiff spent seven days in the hospital.

Plaintiff’s principal contention is that the evidence does not support the Commission’s conclusions. The duty of a reviewing court in this situation is to examine the entire record to determine whether the findings of the administrative body on questions of fact are contrary to the manifest weight of the evidence. Dorfman v. Gerber, 29 Ill.2d 191, 196; Ill. Rev. Stat. 1967, ch. 110, par. 274.

Two of the findings, that plaintiff was guilty of neglect of duty and absent from duty without permission, are related and are supported by substantially the same evidence. Lt. Lentz testified that he gave plaintiff a direct order to return to his apparatus or face suspension, and that plaintiff failed to do so. Plaintiff admitted being in Donovan Hall, at least 100 yards from his equipment, on three occasions for at least 15 or 20 minutes each time, listening to music and getting a sandwich. He also testified that he may not have been at his rig at all between 1:30 and 3:00 A.M. Although he testified that he could see his rig from where he was in Donovan Hall, he admitted that he was not always looking at it, and was riding on a scooter along the sides of the dance. We note that he contradicted himself a number of times during his testimony concerning his presence at his apparatus during the time in question. His excuse for using the more distant washroom in Donovan Hall was refuted by Rice and Lentz, who found the washroom near plaintiffs equipment to be sufficiently clean for use. Both Lieutenants Lentz and Jakovec testified that a siren probably could not have been heard in Donovan Hall. Plaintiff did not deny that he was found in an injured condition by Marshal Rice, or that he then spent a week in the hospital, although he did deny participation in any altercation. Considering the evidence as a whole, and recognizing that it is the province of the Commission to judge the credibility of the witnesses, we conclude that the findings of the Commission that plaintiff was absent from duty without permission and that he neglected his duty were supported by the manifest weight of the evidence. Crepps v. Industrial Com., 402 Ill. 606, 615.

The other finding of fact was that plaintiff was guilty of entering a place where intoxicating liquors were sold. In this connection, Lt. Lentz testified expressly that intoxicating liquor was being sold in Donovan Hall during the dance. Plaintiff testified that liquor was served in the form of set-ups with bottles on tire tables. He testified that he imagined beer was being sold, though he didn’t see any being sold and did not have any. Again, the question of credibility of witnesses being a matter for the Commission, we cannot say that its finding on this point is contrary to the manifest weight of the evidence.

Concerning plaintiff’s contention that the punishment imposed was too harsh, surely the penalty was not arbitrary or capricious in the light of the evidence. And, as this court said in Nolting v. Civil Service Commission, 7 Ill.App.2d 147, 162-163: “If the court is to substitute its judgment for the judgment of the Civil Service Commission and of the Commissioner of Police as to disciplinary action that should be taken, it would in effect be substituting judicial discipline without responsibility for executive discipline with responsibility. The ultimate effect of such action would be a breaking down of the discipline and morale of the Police Department. Courts must accept the honest judgment of the Chief of Police and the Civil Service Commission, those arms of the executive department charged with administration of the police, with respect to the proper discipline to be enforced when charges have been proved.”

The judgment of the circuit court is affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    Cook Electric Company, Plaintiff-Appellee, v. Irving Kolodny et al., d/b/a National Dye Works, Defendants-Appellants.
    (No. 54471;
    First District
    August 26, 1971.
    Rappaport, Clorfene & Rappaport, of Chicago, (Hamilton Clorfene, of counsel,) for appellant.

      Defrees, Fiske, Voland, Alberts & Hoffman, of Chicago, (Edward J. Griffin, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This action was brought by plaintiff to recover damages for the value of property held by defendants as bailee and not returned to plaintiff. After a bench trial, judgment was entered for plaintiff, and defendants appeal.

Defendants owned and operated a textile dyeing business. On July 2, 1963 plaintiff delived to defendants 2,704 yards of Fortisan acetate cloth to be treated with a solution of sodium chlorate. The purpose of the treatment was to make the cloth so inflammable as to leave no identifiable residue after combustion. Although defendants were not informed of the intended use of the cloth, it was to be used as parachute material. The cloth apparently remained at defendants’ plant for over three weeks, but was not treated with the solution. On July 26, 1963 defendants informed plaintiff in writing that its cloth had been entirely destroyed in a fire which occurred in defendants’ plant on the evening of July 24.

Plaintiff’s complaint originally alleged that its cloth was destroyed by the fire. After discovery depositions were taken, plaintiff filed an amended complaint deleting the specific charge that the cloth was destroyed in the fire. At trial plaintiff presented evidence of the value of the cloth, of its delivery to defendants, and that the cloth was not returned. It is undisputed that plaintiff had thus established a prima facie case in its favor, and that defendants thereupon had the burden of proceeding with the evidence. Byalos v. Matheson (1927), 328 Ill. 269, 159 N.E. 242; Miles v. International Hotel Co. (1919), 289 Ill. 320, 124 N.E. 599.

In order to meet that burden, defendants offered the testimony of Morris Kolodny, one of the partners in the operation of defendants’ business. Kolodny testified that after its delivery plaintiff’s cloth was tightly wound into one large roll around a wooden spool. The roll of cloth was then stored with 73 other rolls of cloth and 24 empty wooden spools in one section of the plant. Kolodny particularly noticed the roll of cloth belonging to plaintiff before he closed the plant a few hours before the fire. After the fire Kolodny could not find any residue of plaintiff’s cloth nor of the wooden spool. All of the other rolls of cloth and spools were identified and listed in an inventory taken after the fire. Kolodny testified further that he did not report the loss of plaintiff’s cloth because he was informed by the insurance adjuster that plaintiff’s cloth would not be covered by the insurance policy.

Russell Whiteman, an adjuster for the company which insured defendants, testified as a rebuttal witness for plaintiff. Accompanied by one of the defendants and defendants’ adjuster, Whiteman inspected the plant the morning after the. fire and made an inventory of the damage to customers’ property. The fire in the plant was up high and had spread to the roof. There was little fire damage to the property located on the floor. While the rolls of cloth were all water-logged, there were only a few rools which were burned, and this burning was limited to a charring or singeing of the top layers. Whiteman found no evidence that any rolls of cloth had been totally destroyed. While not personally familiar with Fortisan, Whiteman testified that any acetate cloth would melt in a fire and leave a hard plastic residue. He did not believe that acetate would burn without leaving a residue. No one informed Whiteman that plaintiff’s cloth was on the premises at the time of the fire, and he denied telling anyone that plaintiff’s cloth would not be covered by the insurance policy.

Harry A. Sommerfield, a public insurance loss adjuster who represented defendants in their loss claims, also testified in rebuttal for plaintiff. Sommerfield saw no evidence that any rolls of cloth had been burnt beyond recognition. He also testified that the plant fire burned only the outer layers and ends of some of the rolls of cloth. Based upon his experience, Sommerfield believed that rolls of cloth wrapped around a wooden core under the conditions present in the instant fire would not have burned completely.

At the conclusion of the evidence, the trial judge found that the Fortisan cloth was not involved in the fire, since there would have been some trace of it afterward. He then entered judgment for plaintiff.

Defendants contend that the trial court incorrectly held that they were absolute insurers of plaintiff’s goods. Under the same heading, they further argue that once they proved that plaintiff’s cloth was destroyed in the fire, they had satisfied their burden of proceeding with the evidence and were entitled to judgment. However the trial court determined that plaintiff’s cloth was not destroyed in the fire, and that therefore defendants’ failure to return the goods entitled plaintiff to judgment. Consequently the primary issue presented to this court is whether the trial court’s determination was supported by the evidence.

It is so well settled as not to require citation of authority that the trier of fact is in a superior position to a reviewing court to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh and determine the preponderance of the evidence. And the reviewing court will not disturb the trial court’s holding unless it is manifestly against the weight of evidence. In the instant case, defendants presented only the testimony of Morris Kolodny to support their defense that plaintiff’s cloth had been so totally destroyed in the fire that there was not even a trace of its existence in the plant after the fire. Two expert and disinterested witnesses contradicted Kolodny’s testimony. The trial court accepted their testimony, and found that plaintiff’s goods were not destroyed by the fire. We cannot say that such a determination was erroneous. We find no merit in defendants’ suggestion that Fortisan cloth was super-flammable type of cloth. If that were true, it would have been unnecessary to treat it with sodium chlorate. Additionally, there was testimony that Fortisan was an acetate material not unlike much of the other cloth stored in the plant.

Moreover, even if the trier of fact had been persuaded that plaintiff’s roll of cloth was destroyed in the fire, to avoid liability defendants as bailee would have the burden of proving freedom from negligence in that fire. (Heyman & Bros. Inc. v. Marshall Field & Co. (1939), 301 Ill. App. 340, 22 N.E.2d 776; Clemenson v. Whitney (1925), 238 Ill.App. 308.) In the present case, no evidence was presented as to the cause of the fire, and defendants offered no evidence of their freedom from negligence. The fire may well have occurred through the negligence of defendants; for that reason also, judgment was properly entered in favor of plaintiff.

Defendant also argue that the trial judge based his decision upon matters outside the record. They object particularly to the following statement of the court:

“I cannot conceive how a thing like that, wound tightly, which has to burn from the outside in, could be totally consumed, even if you had it on the hottest flame, it would take hours and hours to be consumed.”

The comment of the judge was a conclusion consistent with the testimony of the witnesses; it was an express statement of a conclusion implicit in his finding. There was nothing improper about the. remark.

The judgment of the circuit court is affirmed.

Judgment affirmed.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
    Betty Mason Odom, Plaintiff-Appellant, v. Herbert R. Odom, Defendant-Appellee.
    (No. 54735;
    First District
    August 20, 1971.
    Posanski, Krohn & Jacobs, of Chicago, for appellant.
    Harry G. Fins, of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal from a decree granting a divorce to defendant. On appeal plaintiff’s main contention is that there was insufficient evidence for the trial court to find that she committed extreme and repeated acts of physical cruelty against defendant.

Plaintiff originally filed a complaint for divorce; defendant filed a cross-complaint and an amended cross-complaint for divorce and plaintiff filed an amended complaint for separate maintenance.

The evidence of plaintiff in the trial for separate maintenance disclosed that the parties were married on November 24, 1962; that a daughter was born in 1967; that in 1966 plaintiff had filed for separate maintenance charging physical violence in February and March 1966; that defendant left the home on January 15, 1969, without cause and that the parties lived separate and apart since then. Defendant was called by plaintiff as an adverse witness under section 60 and testified that he started packing to leave home about the 1st of January, 1969, had applied for an apartment on January 6 and that he told her “it would be best to get a divorce under the circumstances we were living.” When asked what these circumstances were, he replied, “many acts of violence by my wife or by myself.” He described her as five feet three or four inches tall weighing 120 pounds. He was six feet one and one-half inches tall and weighed 154 pounds. He left the apartment on January 14,1969.

At the conclusion of plaintiffs evidence the court found plaintiff had established a prima facie case for separate maintenance. Defendant was granted leave to proceed on his cross-complaint for divorce with the evidence thereunder to stand as his defense to the separate maintenance action.

Defendant testified that plaintiff committed the following acts of cruelty:

1. May 1964 — struck defendant with a decanter — no bruise or mark.
2. March 1966 — pulled a knife — no injury.
3. July 1966 — pulled a gun — bit the defendant.
4. March 1968 — after a heated discussion about bills struck defendants arm with a mirror.
5. August 1968 — pointed gun and “something struck him above left eye.” (This incident is not alleged in defendants cross-complaint.)
6. November 6, 1968 — struck defendant’s left wrist with door knob —no medical treatment.
7. January 14, 1969 — After a heated discussion about money, struck defendant with a boot on left elbow; had X-ray a day or two thereafter and took off a day and a half from work. (Defendant’s witness, Amanda Norman, testified that about January 27, 1969, defendant was given a heat treatment for a bruise on his arm from a shoe.) Defendant also testified that while he lived in the home until he moved

out on January 15, 1969, he last slept with his wife in August 1968. (As a witness for plaintiff under section 60 in the separate maintenance action defendant first testified that they cohabited until January 1969; later he stated that there was no sexual relations between him and his wife after March 1968.)

Plaintiff testified that sexual relations continued until January 7, 1969, and that she never pointed a gun at defendant, never struck her husband with a mirror, door knob or boot. She also denied the other alleged incidents. She further testified that in August 1968 defendant pulled his gun and threatened to kill her; that plaintiffs Exhibit 10 represented a carbon copy of a complaint she signed based on this incident; and that she dropped the charges a few days later. (In the separate maintenance trial defendant first testified that he never owned a gun; on being shown a gun registration form he admitted applying for it on June 26, 1968.)

The court granted defendant a divorce on his amended counter-complaint and dismissed plaintiff’s amended complaint for separate maintenance with prejudice.

In Levy v. Levy, 388 Ill. 179, 184, the court stated: “Our statute requires proof of extreme and repeated cruelty’ and obviously slight acts of violence’ are not extreme as to a normal person whether husband or wife.” The court then further stated: “It is true that the physical condition of the parties involved must be taken into account and each case considered upon its own facts.”

In McKeon v. McKeon, 4 Ill.App.2d 515, the court held that hitting, scratching and throwing dishes by the wife were not acts constituting extreme and repeated cruelty. See also Hinkleman v. Hinkleman, 88 Ill.App.2d 47.

In the instant case plaintiff was five feet three inches tall weighing 120 pounds while defendant was six feet one and one-half inches tall and weighed 154 pounds. He testified that: “I’ve never struck my wife in anger. I am a fighter and know my wife is no competition for me. I was Golden State Boxing Champion for 3 years, National Boxing Champion, Michigan State College, for 2 years, and AAU Boxing Champion for 2 years.” Under all the circumstances of this case we cannot agree with a finding that extreme and repeated cruelty was proven.

We therefore find that the court erred in granting defendant a divorce on his cross-complaint and in dismissing the amended complaint for separate maintenance with prejudice.

The judge found at the conclusion of plaintiff’s evidence that plaintiff had proved a prima facie case for separate maintenance. Although defendant’s evidence on his cross-complaint was to stand as his defense to the separate maintenance action, we find no evidence therein to rebut plaintiff’s evidence. Defendant testified that he had decided to move out in August 1968, started moving on January 1, 1969, and applied for his own apartment on January 6,1969.

The judgment of May 27, 1969, is reversed and the cause remanded with directions to vacate the decree granting the divorce and dismissing the amended complaint for separate maintenance; to enter a decree in favor of plaintiff for separate maintenance incorporating the provisions of the divorce decree relating to child custody and child support and for fmther hearings in regard to the amount, if any, for her maintenance and attorney’s fees.

Reversed and remanded, with directions.

ENGLISH, P. J„ and LORENZ, J., concur.

       According to defendant’s cross-complaint, this separate maintenance suit was dropped.


author: Mr. PRESIDING JUSTICE ENGLISH,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Blumenthal, Defendant-Appellant.
    (No. 55241;
    First District
    August 20, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Themis N. Karnezis, Assistant State’s Attorneys, of counsel,) for the appellee.
   Mr. PRESIDING JUSTICE ENGLISH,

delivered the opinion of the court:

OFFENSES CHARGED

Two counts of conspiracy. (Ill. Rev. Stat. 1965, ch. 38, par. 8—2.) Six counts of theft. (Ill. Rev. Stat. 1965, ch. 38, par. 16—1.) Two counts of forgery. Ill. Rev. Stat. 1965, ch. 38, par. 17—3(a)(1) (2).

JUDGMENT

On defendant’s plea of guilty, the trial court sentenced him to concurrent terms of two to six years.

CONTENTIONS RAISED ON APPEAL

1. Defendant was not properly advised by the court as to the consequences of his plea of guilty before the acceptance of that plea.

2. It was error for the trial court to deny defendant probation because his co-defendant had been granted probation, and defendant’s background was consistent with probation.

OPINION

Defendant’s first contention is that he was not properly admonished as to the consequences of his guilty plea in that the court informed him that he could be imprisoned for up to ten years, whereas a conviction for forgery actually subjected him to a potential 14-year sentence. Ill. Rev. Stat. 1967, ch. 38, par. 17 — 3(d).

For two reasons, we find that the admonition concerning the possible penalties was sufficient. First, the court informed defendant that he could be sentenced for a period in excess of ten years due to the possibility of consecutive sentences for the multiple charges in the indictment, which defendant said he understood. Second, the actual concurrent sentences of two to six years imposed were within the maximum stated in the admonition of the court, and we therefore believe that no prejudice resulted to defendant. In People v. Gaytan, 266 N.E.2d 488, the court held that although defendant was not advised of tire possibility of a death penalty when he pleaded guilty to murder, he was not prejudiced thereby because the sentence of 18 to 35 years imposed was well within the court’s admonition as to possible sentences. Additionally, in Gaytan the court noted that there had been no suggestion that defendant would have changed his plea had the admonition included the information omitted. The facts and conclusions in Gaytan are applicable in the case before us.

Defendant’s second contention is that the court committed error in denying his request for probation, because his co-defendant was granted probation and this defendant’s background was consistent with probation. There was a stipulation as to the acts which constituted the offenses charged, and defendant’s contention must be viewed in light of these acts.

Defendant was employed as a salesman for the Universal Trunk Company and sold merchandise to Polk Brothers. Defendant was put under surveillance when the Polk Brothers accounting department discovered discrepancies in their purchasing and accounts receivable in connection with defendant’s transactions. Defendant was discovered to have been stealing blank purchase orders from Polk Brothers’ purchasing agent, living Feuerstadt, forging his signature on them and submitting them to his employer, Universal Trunk. On the strength of the purchase orders, defendant would take the merchandise (luggage) from Universal Trunk and dispose of it to merchants on Maxwell Street, representing it as seconds. Charles Scaife, a shipping and receiving clerk for Polk Brothers, and a co-defendant in this case, would then make out false receiving tickets on the merchandise defendant was converting, with the result that Polk Brothers would then pay Universal Trunk for the merchandise (valued at a total of approximately $232,000) which they never received, as disclosed by an audit of Universal Trunk. These continuing acts occurred over the period from July 1, 1986 to December 4, 1968. Defendant admitted having personally received about $30,000 to $40,000 from these transactions, and conceded that he should repay Polk Brothers for their full loss. After he was caught, he aided in exposing his co-defendant, Scaife, together with his boss and a shipping clerk at Universal Trunk who were also in on the scheme. Defendant was 45 years of age and had no prior criminal record.

After hearing the stipulated evidence and defendant’s testimony concerning his cooperation with the State, the court sentenced defendant to concurrent terms of two to six years and placed Scaife on probation for two years.

Defendant relies heavily on the fact that Scaife received probation, and argues that the principle of dispensing equal justice under the law requires that he also be admitted to probation, citing People v. Steg, 69 Ill.App.2d 188, 191. In that case, the court was confronted with a rather unusual situation in which two defendants were given lengthier sentences than a third co-defendant who was the instigator and planner of the crime and whose prior record was worse than that of the appeal ing defendants. The court said at page 192: ‘Where there is no basis either in the records of the individuals involved or in the nature of the participation of such individuals in the crime which would justify a more severe sentence as to one of equal participants in such criminal venture, a sentence which arbitrarily imposes a greater punishment or penalty upon one or more of the individuals than another should not be approved.” Emphasis supplied.

The stipulated facts in the instant case clearly demonstrated that defendant Blumenthal was the mastermind behind this scheme, and the most active participant, stealing purchase orders, forging signatures, and selling the stolen goods. While Scaife’s activities were clearly criminal, and may have been indispensable, he was involved in but one step of the scheme, and the court could, in the proper exercise of its discretion, find that he was not an “equal participant” under the reasoning in the St eg case cited above, and that the “nature of the participation” of the respective parties justified a difference in penalty.

Defendant also contends that the sentence was excessive and that his background is consistent with probation. As has often been stated, the trial judge is ordinarily in the best position to make a sound determination as to the proper sentence, and a reviewing court “should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from tire fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense.” People v. Taylor, 33 Ill.2d 417, 424; People v. Allen, 266 N.E.2d 712, 713.

We think that sentences imposed in this case are proper. The judgment is therefore affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    George R. Shaw et al., Plaintiffs-Appellees, v. Bobbie G. West, Defendant.—(Allstate Insurance Company, Garnishee-Appellant.)
    (No. 70-237;
    Second District
    September 2, 1971.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, (Julian Johnson, of counsel,) for appellant.
    Diver, Ridge, Brydges & Bollman, of Waukegan, for appellees.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The Allstate Insurance Company brings this appeal from a judgment against it as garnishee entered July 7, 1970, by the circuit court of Lake County.

On November 30, 1964, Bobbie West, a member of the U.S. Navy, was visiting with his sister in Detroit, Michigan. He had just left Pearl Harbor and was on his way to his next assignment at Great Lakes Naval Training Center in North Chicago, Illinois. On that day, he went to an automobile agency and arranged to purchase a 1964 automobile. He informed the automobile salesman that he would obtain full insurance coverage through Allstate.

With that purpose, West went directly to a Sears, Roebuck store in Detroit and went up to an Allstate booth maintained there. The booth had a large “Allstate Insurance” sign above it and had a bar where business could be transacted. West talked to Robert Sverid and informed him that he had just purchased an automobile and wished to obtain complete insurance coverage as soon as possible since he had to be at Great Lakes by December 13th or 14th. When he told Sverid that he was single, 26 years old and would be stationed out of State, he was advised that it would not be possible to obtain Allstate insurance but that he could obtain insurance through an Assigned Risk Plan. Sverid explained that under the plan his application would be "pulled out of a hat” by the eventual insurer who would send him the policy but that he would not be covered until the policy was issued. Sverid filled out an application for West and, although it was not possible to complete it until West knew the serial number of his automobile, West signed the application and paid Sverid $75. Sverid told him he would forward $3 with his application and hold the balance to pay the assigned insurer the premium and that the policy should be forthcoming within 5 to 7 days thereafter.

West testified that he telephoned the Allstate booth on December 1 and, since Sverid was not there, gave the serial number to another man who answered the call. West became concerned when he did not receive his policy and telephoned the booth again on December 9 and talked to Sverid. Sverid told him not to worry, to go on to Great Lakes since he was covered by insurance and that delivery of the policy was probably tied up in the Christmas mails.

West arrived at Great Lakes on December 12 and was involved in an automobile accident on December 14 wherein George and Phyllis Shaw were injured. The Shaws sued West and obtained judgments against him in the amounts of $3,000.00 and $32,000.00 respectively. West’s application was assigned to State Farm Mutual Insurance Company on December 17 and they wrote to West with a request for the $72 premium.

Sverid, who left Allstate in 1967, testified at an evidence deposition that he did not recall ever receiving the serial number of West’s car and denied he talked to West on December 9.

It is not contended that Allstate has any obligations in this matter under a policy of insurance but as principal for the acts of their agent, Sverid, under the doctrine of respondent superior. The trial court found that Sverid had entered into a binding agreement with West on November 30 to procure insurance and that at such time Sverid was the agent of Allstate with either actual or apparent authority to enter into such a contract on their behalf. It is not disputed that the measure of damages for a breach of a contract to procure insurance is based on the terms of the policy that was to be procured, (Gothberg v. Nemerovski, 58 Ill.App. 2d 372, 383; Johnson v. Mini Mutual Insurance Co., 18 Ill.App.2d 211, 216.) There is also no dispute that on November 30, 1964, Sverid was an employee of Allstate under an exclusive agency agreement and that the booth maintained in the Sears store was operated by Sverid and approximately a dozen other Allstate agents on a rotating basis. Sverid was authorized to bind Allstate and a subsidiary company and to accept applications for the Assigned Risk Plan.

The trial court, in a memorandum opinion, maíces much of the fact that West specificaHy sought out Allstate, apparently as a result of their barrage of media advertising, to obtain his insurance and that he relied not on Sverid but on his employer. That opinion concludes that if AH-state did not furnish Sverid with actual authority to bind it to an agreement to procure insurance through the Assigned Risk Plan, it, at the least, clothed Sverid with the apparent authority so to do. The court repeats the facts that the booth was managed only by Allstate agents, bore an Allstate sign and was located in a Sears store. The court permitted itself the levity (we presume) of stating that West believed he was in good hands with AHstate.

Although there are no Illinois cases on this precise point, a similar situation existed in the case of Gibbs v. Allstate Insurance Company. 386 S.W.2d 606. In that case, Bruce Odom, aged 25 years and unmarried, visited an Allstate booth in a Sears store in Texas in July, 1961, to obtain liability insurance on his automobile. At the booth, Odom talked with an Allstate agent and employee named Humphrey. Humphrey told Odom that he could not be insured by AHstate but that it might be possible to obtain insurance through the Texas assigned risk plan. Accordingly, Odom signed an application, and paid Humphrey $93.00. Humphrey forwarded the application to the plan and, in due course, a pohcy was issued by the assigned insurer, Continental Casualty. A year later, Odom allowed the Continental policy to expire for non-payment of premiums and returned to the AHstate booth to renew that pohcy or obtain other insurance. Humphrey again took Odom’s application and his check for the first year’s premium but faded to process the application. Shortly thereafter Odom was involved in an accident before he was covered under any pohcy of insurance and he brought suit against both Humphrey and Allstate. The jury found that Humphrey was acting as an agent for Allstate when he agreed to procure insurance for Odom; that Humphrey was clothed with apparent authority to act for Allstate in the transaction; and that Odom had rehed upon Allstate to protect his interests in the matter. The trial court disregarded all three findings and found that Allstate had no liability whatsoever either to Odom or the parties injured in the accident. On appeal, the Court of Civil Appeals of Texas affirmed the lower court and held that under the circumstances it was evident that Odom placed his reliance, not on Allstate, but on Humphrey as an individual. The court pointed out that Odom knew he would not be issued a policy by Allstate and that his apphcation would be forwarded to the plan for assignment. The court concluded that Humphrey acted as agent for Odom to place his application to the plan and not as an agent for Allstate.

The facts in the Gibbs case are significantly similar to those before us. Although, as the trial court has emphasized, West first went to the Allstate booth to obtain Allstate insurance, he was apprised immediately that he could not obtain insurance from them. As in Gibbs, the Allstate employee, Sverid, explained the assigned risk plan and took his application and check. The application signed by West (and a carbon copy was given to him on November 30) contained a statement immediately above his signature that he understood that Sverid was “* * * not acting as an agent of any company for the purposes of this insurance and has no authority to bind such insurance * *

The case of Gothberg v. Nemerovski, 58 Ill.App.2d 372, cited by the plaintiffs as their principal authority, although similar in certain respects to this cause contains an important distinction. In Gothberg, Ronald Jackson telephoned the Illinois State Auto Insurance Agency, an insurance broker, on December 10, 1956 and requested insurance. On December 11, Albert Levenstein called at Jacksons home, took his application together with a payment of $10.00 and gave him a receipt of the Agency signed by him as agent. Levenstein told Jackson he would be covered “within an horn” after he returned to his office and completed the necessary paper work. As it turned out, the Agency did not forward Jackson’s application to the insurer until a further payment was made and he was not actually insured until January 15, 1967. In the meantime, Jackson had an accident on December 23. The court found that the Agency had, through their agent, Levenstein, entered into a binding contract to procure insurance for Jackson on December 11 and when they failed to obtain the insurance they were liable to him to the extent of the insurance that they had agreed to procure. But, unlike our case, it was undisputed that Levenstein acted as agent for the Agency at the time he contracted with Jackson. The distinction is, of course, that Allstate here maintains that Sverid was not acting as their agent at the time he took West’s application nor had they clothed him with apparent authority to enter into contracts on their behalf to procure insurance with other companies.

We agree with the logic of the Gibbs case and conclude that the trial court was in error in this matter. In view of our decision it is not necessary to comment on the other points raised in the appellant’s brief. The

judgments against Allstate will be reversed.

Judgments reversed.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Allen, Defendant-Appellant.
    (No. 70-221;
    Second District
    August 2, 1971.

      Michael F. O’Brien, of St. Charles, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant appeals from a judgment convicting him of armed robbery after a jury trial.

He claims that he was deprived of a speedy trial and that the admission of evidence of other alleged wrongdoing deprived him of a fair trial. He raises no question as to the sentence or as to the quantum of proof.

Defendant urges that he was denied a trial within 120 days of his arrest, as required by Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5. The trial first began on August 21st, 1969. His argument is based upon a statement submitted to the parole board subsequent to sentencing in which the date of arrest and the date for jail credit is written “4/20/69.” The statement is signed by the State’s Attorney and approved by the court in accordance with Ill. Rev. Stat. 1969, ch. 108, par. 203. The same date appears in the Mittimus. The State, however, claims that defendant was arrested on April 24th, 1969, for the robbery of the Prince Castle in Aurora alleged to have occurred on April 20th, 1969, and thus claims that the trial, which began on August 21st, occurred on the 119th day following the arrest. An examination of the transcript supports this view. The April 24th date is confirmed by the testimony of the arresting officers, by the defendant’s own testimony, by the testimony of co-defendants, and by the written statements of the defendant in evidence.

In determining whether defendant has been afforded a speedy trial we may look at both the transcript of proceedings and the common law record to do justice. (People v. Jenkins (1968), 101 Ill.App. 414, 418.) However, the Official Statement of the State’s Attorney and Trial Judge is not part of the common law record (People v. Lantz (1944), 387 Ill. 72, 76) and cannot be relied upon in cases of variance between it and the common law record. (People v. Saxton (1948), 400 Ill. 257, 260.) The same observations apply to the mittimus. See United States ex rel. Sterling v. Pate (7th cir. 1968), 403 F.2d 425, 427, cert. den. 396 U.S. 911. The manifest weight of the evidence indicates that the date of arrest was April 24th, 1969, not April 20th, with the clear indication that the date in the Official Statement was a clerical error; the April 20th date was apparently adopted by the mittimus from the Official Statement. The defendant has not sustained the burden incumbent upon him to show that he is eligible for a discharge under ch. 38, par. 103—5, supra. Cf. People v. Behning (1970), 263 N.E.2d 607, 609.

A mistrial was declared on August 21st, 1969, and concurrently an order was entered setting the case for trial again on August 22nd. On August 22nd the State filed a motion to extend the time for trial for the purpose of seeming a necessary witness. The motion was granted on September 8th, 1969, over defendant’s objection and after defendant’s request for a discharge under the 120-day rule. The second trial began on September 10th, 1969, which was some three weeks after the mistrial. We do not think that defendant’s claim that the trial court abused its discretion in granting the State a continuance following the mistrial is well taken. The defendant argues that the State’s motion and supporting affidavit were deficient in form and in fact. However, since the record fails to show a lack of due diligence by the State or any actual prejudice suffered by defendant because of the delay, we are not justified in finding that prejudicial error occurred. (See People v. Hudson (1970), 46 Ill.2d 177, 183, 184.) The defendant was re-tried within a reasonable time after the mistrial. (See Ill. Rev. Stat. 1967, ch. 38, par. 103—5(e), supra.) His right to a speedy trial was not violated under the circumstances of this record.

The further claim of defendant — that the admission of evidence that he was involved in a separate robbery on April 24th, 1969, deprived him of a fair trial — raises a more substantial issue and requires an examination of the particular evidence.

The employees of the Prince Castle testified that three youths were noticed in the premises on April 20th, 1969; that one positioned himself behind a customer at the register, one at the west end and one at the east end of the shop; and that although the individuals had not been seen upon entry, aU three were observed leaving by the east door after the robbery. Defendant was identified as the one who was stationed at the east door. Officer Beatus testified that defendant’s statement was taken on April 24th and that in it Allen said that he was in the Prince Castle on April 20th, 1989; that Cecil Grissette and Larry Kelly were also present; that defendant ran through the park after the robbery; and that he received $97 from its proceeds. Defendant’s statement was admitted in evidence.

Larry Kelly was then called as a defense witness. On direct examination Kelly testified that only he and Grissette were together in the Prince Castle robbery; that they both had entered and left via the east door; and that he was arrested about four days after the April 20th robbery and saw defendant at the police station on the date of his arrest. On cross examination, Kelly stated that defendant had come into the Prince Castle after Cecil and he had entered; that defendant had only stayed for about 10 seconds before leaving; that they caught up to defendant running in the park; and that the three of them went to Cecil’s house where defendant received some of the proceeds.

On further cross-examination, the State impeached Kelly by KeUy’s statement made on the 24th in which he had said that defendant was part of the April 20th robbery of the Prince Castle. However, after impeaching Kelly’s previous testimony, the State’s Attorney continued to question Kelly relative to his April 24th statement and over objection elicited testimony to the effect that KeUy and defendant had robbed the “Country Cupboard” on April 24th, 1969. The trial court agreed with the State that this last testimony was admissible as “tending to discredit the witness.”

Defendant testified that he had entered the Prince Castle by the west door and had seen Grissette and Kelly, whom he knew, “pulling a stickup”; that thereupon he ran into the park, but they caught up to him; that he went to Cecil’s home with them where Cecil gave him $97 in satisfaction of a $100 debt which Cecil owed him.

Evidence which discloses that an accused committed crimes other than the one charged is admissible where such evidence is relevant to a contested issue in the case and tends to establish the crime charged. (People v. Davis (1958), 14 Ill.2d 196, 200; People v. Spaulding (1923), 309 Ill. 292, 304. See also Anno: 42 A.L.R. 2d 854, et seq.) But such evidence is not admissible where it only has value to create an inference— necessarily prejudicial — that because a man has committed other crimes he is more likely to have committed this one. People v. Lehman (1955), 5 Ill.2d 337, 342, 343; People v. Durkin (1928), 330 Ill. 394, 404.

Defendant has argued generally that the testimony of the subsequent crime was independent and unconnected with the crime charged and was therefore irrelevant. While the specific point has not been made here, we are aware of Illinois authority (e.g., People v. Hobbs (1921), 297 Ill. 399, 414, 415; People v. Gotler (1924), 311 Ill. 387, 391; and People v. Lehman, 5 Ill.2d 337, supra, at page 343) which makes a distinction between proof of prior and subsequent similar offenses when the issue is one of knowledge and intent. This distinction seems to have been peculiar to Illinois (see Anno: 42 A.L.R.2d 854-890, supra) and moreover, not consistently adhered to in the Illinois cases in every instance in which intent was in issue. (E.g., People v. Cione (1920), 293 Ill. 321, 332, 333; People v. Bracken (1966), 68 Ill.App.2d 466, 472; People v. Richardson (1959), 17 Ill.2d 253, 259.) We believe that the real test of the admissibility of other crimes to be distilled from the decisions remains that of independent relevance to an issue in the case.

In this view, the evidence brought out in the cross-examination of Kelly was relevant for more than one reason. It was relevant to explain the nature of defendant’s presence and conduct at the scene of the crime charged which could otherwise be said to be equivocal. The defendant admitted that he was present during the charged robbery of the Prince Castle but asserted, in effect, that he did not participate in the robbery. The participation with one of the same persons in a similar offense some four days later tends to refute the defendant’s explanation of his allegedly innocent presence at the scene of this crime. Defendant’s presence during this robbery may be said to be an equivocal act which would be innocent or criminal depending upon the intent or motive with which his presence at the scene of the crime is invested. The offered evidence is relevant to establish the purpose of his presence, that is, whether innocent or as a participant in the crime. (See Bush v. United States (9th cir. 1959), 267 F.2d 483, 489.) It was also relevant in refutation of Kelly’s ambiguous testimony which sought to show that defendant was not a participant in the Prince Castle robbery, but was there by coincidence. And the evidence of another similar armed robbery in the same community of a similar type of business just four days subsequent to the crime charged, involving defendant and one of the same participants in the crime charged might also be said to show a peculiar plan to commit this particular offense, thus falling within the rule of People v. Lehman, 5 Ill.2d 337, supra, at page 343. See also People v. Hill (1968), 98 Ill.App.2d 352, 359, 360.

Even if it were to be considered that the evidence of the participation of defendant in the subsequent robbery was erroneously admitted or that the State was allowed to go into this evidence in more detail than necessary to show defendant’s participation in the April 20th crime, there still would not be reversible error in our opinion. There was other strong evidence of defendant’s participation and guilt: he was at the scene of the crime; he ran from the Prince Castle; he voluntarily joined the two others whom he knew had just committed the robbery; he shared in the proceeds (receiving approximately one-third), knowing the proceeds to have been stolen; and four days later he was in the company of one of the known robbers (Kelly) and, with him, unsuccessfully attempted to flee upon being accosted by the police. When the competent evidence shows beyond all reasonable doubt that a defendant is guilty in a case in which the jury does not judge the penalty to be inflicted, an error in the admission of evidence of other offenses does not call for reversal, when — as here — the jury could not have reasonably found the defendant not guilty. People v. Tranowski (1960), 20 Ill.2d 11, 17.

Although the trial court should have admonished or instructed the jury as to the limited purpose for which Kelly’s testimony of the other offense was to be considered, in the absence of defendant’s request for such an admonition or instruction, no affirmative duty rests on the court to so admonish or instruct, and thus no error arises from the failure to do so. People v. Smith (1960), 18 Ill.2d 547, 553.

We, therefore, affirm the judgment below.

Judgment affirmed.

MORAN, P. J. and GUILD, J., concur.


author: Mr. JUSTICE WILLIAM L. GUILD Mr. PRESIDING JUSTICE MORAN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Hinkle, Defendant.
    (No. 70-127;
    Second District
    August 5, 1971.

      MORAN, P. J., dissenting.
    Morton Zwick, Director of Defender Project, of Chicago, (E. Roger Horsky and Ralph Ruebner, of counsel,) for appellant.
    James E. Boyle, State’s Attorney, of Sycamore, (Charles Marshall, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE WILLIAM L. GUILD

delivered the opinion of the court:

Defendant was sentenced in the circuit court of De Kalb County to a term of 1-5 years in the penitentiary after waiver of his right to counsel, indictment, trial. He entered a plea of guilty and applied for probation which was denied. On direct appeal from Ins conviction for theft, defendant claims error in failure of the trial court to advise him of his constitutional right to assistance of counsel at the time of sentencing.

In June of 1969, the defendant and his female companion went to a used car lot in De Kalb at night, broke a window in a 1960 Chevrolet and when they could not start it, they towed it to a bam. In about a week the defendant had removed the motor and transmission from the stolen car and installed them in the girl’s car.

The defendant had been released on parole two months earlier, after having served two years of a 2-4 year sentence imposed for burglary.

At arraignment on June 27, 1969, the court was informed defendant had been served with a copy of the information, and the following colloquy ensued:

‘The Court: Do you have a lawyer?
Defendant: No, I don’t.
The Court: Do you understand you have a right to have a lawyer represent you at all stages from now on? Do you intend to hire a lawyer?
Defendant: No Sir, your Honor, I would like to enter a plea of guilty.
The Court: What?
Defendant: I would like to enter a plea of guilty.
The Court: Your age is what?
Defendant: 20.
The Court: Speak up now so she can take this down. You understand the right to a lawyer includes the right to have the public defender appointed for you if you have no funds, the court could upon your request appoint the public defender. Do you want to ask for tire public defender?
Defendant: No, Sir, your Honor.”

There was no further reference to counsel until after pronouncement of sentence three weeks later, but step by step, defendant was then advised of his right to indictment and signed a waiver; his right to jury trial, and signed a waiver; his right to trial by comt, and the possible penalty. After defendant stated he was pleading guilty because he was in fact guilty and that no promise or threats had been made by anyone, the plea was accepted and the matter continued for defendant to file an application for probation.

A pre-sentence investigation report prepared by a Probation Officer lists additional convictions for no driver’s license, petty theft, contributing to the sexual delinquency of a child, and leaving the scene of an accident. It further indicates the same trial court judge handled the present and all previous charges against defendant. After opportunity to read the report during a brief Court recess, defendant acknowledged the prior petty theft and did not dispute any other statements in the report.

At the hearing on probation, July 18, 1969, the trial judge said the parole officer was there to take defendant back “whatever the court did.” The State adopted the probation officer’s report as aggravation, and when asked if he had any mitigation evidence, defendant said he could see nothing else. The assistant state’s attorney, however, said defendant had aided the police and had testified in three criminal cases, and upon the State’s recommendation, defendant was sentenced to a term of 1-5 years.

Defendant concedes on this appeal that his right to counsel at arraignment was effectively waived. The question turns upon the court’s failure to again advise him of this right at sentencing.

Like other rights, assistance of counsel can be knowingly and intelligently waived and the Constitution does not require that counsel be forced upon a defendant. (Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; People v. Bush (1965), 32 Ill. 2d 484, 207 N.E.2d 446; City of Chicago v. Kiger (1970) (Ill.App.2d), 264 N.E.2d 488.) But courts indulge every reasonable presumption against waiver and acquiescence in the loss of fundamental rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

While persons accused of federal crimes have long enjoyed the right to counsel guaranteed by the sixth amendment of the constitution of the United States, persons accused of serious state crimes could not necessarily claim the same protection until Gideon v. Wainright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed. 2d 799, swept away a double standard and extended that fundamental right to defendants in state courts through the due process clause of the Fourteenth Amendment. It was rapidly expanded to critical stages other than the trial itself, as custodial interrogation (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); pre-trial identification procedures (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149); preliminary hearing (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999,); and in Mempha v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, to sentencing following revocation of probation. Mc Connell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed. 2, applied the Mempha rule retroactively.

We agree that sentencing is a critical stage of the proceeding, and in so doing are in agreement with People v. Vesley, 86 Ill.App.2d 283, 229 N.E.2d 886, and with the majority of other States. (Trimble v. State of Florida, 170 S.2d 453; State v. Strickland, 27 Wis.2d 623, 135 N.W.2d 295.) Later Case Service, 20 A.L.R.2d 1240-1246, Secs. 1, 3, notes a few decisions to the contrary. It indicates many findings of federal and state courts before Mempha, supra, that sentencing is a critical state with a right to assistance of counsel unless there has been an effective waiver.

These cases usually involve sentencing of a defendant in the absence of counsel, although there had been representation or appointment of counsel at an earlier stage of the proceeding. We must consider then, the suggestion of the State that this situation is distinguishable because defendant’s effective waiver at arraignment continued through the subsequent sentencing. This is the rationale of a few cases noted in Later Case Service, 20 A.L.R.2d 1240-1246, sec. 3, including in Re Grayson, 242 Cal.App.2d 110, 51 Cal.Rptr. 145, which was decided prior to Mempha v. Rhay, supra. The Grayson court said the right need not be repeated every time the defendant comes to court, and that generally, where there has been an effective waiver, he must take some affirmative steps to reinstate the right to assistance of counsel.

We must disagree in recognition of the flow of the law from Gideon v. Wainright, supra, and the explicit direction of the Illinois Supreme Court:

“A finding of waiver will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected the representation of appointed counsel.” People v. Hessenauer, 45 Ill.2d 63, 256 N.E.2d 791.

There was no waiver of the right to assistance of counsel at sentencing as the record clearly shows there was neither offer nor rejection. It is to be expressly noted that the record discloses no plea bargaining in this case. The defendant merely plead guilty to the offense charged. In this respect this case differs somewhat from those cases in which defendant has been represented by counsel and has entered into a "negotiated plea.” The ruling in this case is applicable to the instant factual situation where the defendant had no counsel at any time.

We therefore affirm the judgment of guilty and reverse the order denying probation and imposing sentence. This cause is remanded with directions to set aside that order and to hold further proceedings consistent with the views expressed in this opinion.

Affirmed in part, reversed in part, and remanded with directions.

ABRAHAMSON, J. concurs.

Mr. PRESIDING JUSTICE MORAN,

dissenting:

The opinion of the court declares that, “Sentencing is a critical stage with a right to assistance of counsel unless there has been an effective waiver.” (Emphasis added.) While agreeing with the basic tenet, my differing view stems from the interpretation and application of the emphasized portion to the case at bar.

The citations in the majority opinion relate to the assistance of counsel during the critical stages of a criminal proceeding, there being five such stages: interrogation, identification, preliminary hearing, arraignment and sentencing, the last to include a hearing for the purpose of revoking probation. I have no disagreement with the cited cases under the circumstances disclosed by each, but feel that they are not responsive and can each be distinguished from the issue presented in this review. A reading of the cases discloses that the defendant was not admonished of his right to counsel, was improperly admonished of such right or, even though represented, his counsel was not present at one of the critical stages of the case.

In Hessenauer, one of the principle cases relied upon by the majority, counsel was appointed for the defendant at his preliminary hearing. Subsequently, at his arraignment, the defendant appeared pro se and entered a plea of guilty. Prior to the entry of the plea, he was advised of his right to be indicted by the grand jury, his right to trial by jury and his right to be represented by an attorney during trial. However, he was not advised of his right to have counsel present at this arraignment while his rights were being explained and waived. The judge made no inquiry with regard to the absence of the attorney whom he had appointed, nor did he ask the defendant if he wished to proceed without counsel. Quite obviously, the case was reversed for failure to advise the defendant of his right to counsel at a critical stage of the proceeding — the arraignment itself.

In Vesley, the defendant was originally improperly arraigned; however, this was corrected and, upon re-arraignment, the Public Defender was appointed to represent him. At the time of sentencing, for some unexplained reason, the Public Defender did not appear. The court proceeded and sentenced the defendant. Obviously, the case should have been, and was, reversed. The same factual background is found in Trimble and Strickland, and the same results correctly followed.

In the instant case, the admonishment was unusually explicit in covering, not only the arraignment stage, but also the sentencing stage, when the judge asked the defendant, “Do you understand you have a right to have a lawyer represent you at all stages from now on?” (Emphasis my own.) The majority found this to be a proper waiver of counsel for acceptance of a plea of guilty, but insufficient as to the waiver of counsel at the sentencing stage.

Before accepting the plea of guilty, the trial court advised the defendant of his right to counsel in strict compliance with Supreme Court Rule 401 (Waiver of Counsel) and 402 (a)-(c) (Plea of Guilty). Both rules provide that the defendant must be informed of the minimum and maximum sentence that may be imposed. This was done.

It is my opinion, because of the verbiage used by the court, and even though a three-week period intervened between the acceptance of the plea and sentencing (which is customary), the defendant knew and understood that his waiver of counsel at the time of arraignment meant a complete waiver of counsel for the balance of the proceedings then under consideration by the court.

We are not here concerned with whether a waiver of counsel at the time of revocation of probation, preliminary hearing or preceeding critical stages constitutes a waiver at the time of arraignment, nor are we concerned with fully protecting the rights of the accused on the basis of his innocence. What is involved is whether an admitted offender can. at the time of arraignment, on a plea of guilty, waive counsel for the ensuing proceedings when a proper admonishment has been given.

It is my opinion that there was no duty upon the trial judge in this case to repeat the charge prior to sentencing. Once the right has been properly explained and waived, as I believe was done in this case, the defendant should have the duty to take some affirmative action to reinstate the waived right.

I am of the opinion that the defendant herein effectively waived his right to counsel for the purpose of sentencing and, therefore, I would affirm the trial court in all respects.


author: Mr. PRESIDING JUSTICE MORAN

text:
    Aurora Tower Finance Corporation, Plaintiff-Appellant, v. Effanio Cervantes et al., Defendants-Appellees.
    (No. 70-208;
    Second District
    August 5, 1971.

      Redman, Shearer, O’Brien and Blood, of St. Charles, for appellant.
    George W. Presbrey, of Aurora, for appellees.
   Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

Plaintiff confessed judgment on defendants’ note. Defendants secured opening of the judgment and pleaded that the debt underlying the judgment was barred by a discharge in bankruptcy. Plaintiff replied claiming that the discharge, as to it, was prevented because the loan was based upon defendants’ fraudulent financial statement. After a bench trial, the judge found plaintiff had “failed to sustain its burden of proof”.

Plaintiff appeals contending that defendants failed to carry their burden of proving that they did not intend to deceive plaintiff and that the lender did not rely on the statement. Plaintiff also contends that the finding of the trial court was against the manifest weight of the evidence.

The undisputed evidence shows that the defendants went to plaintiff's office on April 21, 1969, and there re-financed a delinquent loan. Prior to doing so, they signed a document entitled, FINANCIAL STATEMENT. The printing on the statement directed defendants to list all of their debts and stated, “We rely on your good faith and the truth of your representations.” Debts totalling $3,411.14 were scheduled. Later, defendants were declared bankrupt. The debt to plaintiff was one of the debts discharged. The bankruptcy schedules listed $22,007.47 in debts incurred prior to April 21, 1969.

Plaintiff’s evidence consisted of the testimony of defendants (called under section 60 of the Civil Practice Act), Ralph Whiten and Donald DeVasier, plaintiff’s employees. Defendant Effanio Cervantes identified the financial statement in question. He claimed that when he was handed the statement, he read it and stated that he did not have room to list all of his debts; that he was told then to list just those for which he had a contract; that plaintiff knew he (Cervantes) had quite a few debts because the company had previously made a “personal payment plan” for him. Mr. Cervantes then admitted to several specific debts which were not listed including some for which he did have a contract. Mrs. Cervantes stated that her answers would be the same as those of her husband.

Ralph Whiten testified that he was present when defendants signed the note. He admitted the note refinanced a previous loan. Whiten said he never told defendants to just fist a few details on the statement. On cross-examination he gave an unclear response when defense counsel implied that someone besides Whiten and the defendants had filled in the portion of the statement which listed the debts. To the question, “They came down because they were delinquent and you asked them to come down, isn’t that right?” he replied, “There could have been circumstances.” In response to further cross-examination, he admitted he had not brought with him to court any of the company records which would show the reason for defendants’ visit; that the file contained an old financial statement of defendants’; that at the time of the refinancing, he could have looked in the file to determine their financial condition but that he did not; and that defendants took home very little cash from the new note because most of the difference between it and the old note was taken up by insurance charges made by the company. Whiten then testified that if defendants had fisted all their debts, they would not have received the loan.

Donald DeVasier, plaintiff’s office manager, testified that he did not hold that position at the time of the loan and could only describe the procedure generally followed by the company.

In defense, Mr. Cervantes testified that defendants had been in debt to plaintiff continuously since 1960; that on the day of the loan in question, he and his wife went to the company at its request, for the purpose of discussing the delinquent loan; that he talked to Don Schiff who was plaintiff’s office manager at the time, in addition to talking with Whiten; that the conversation concerned the possibility of a new note which would pay all of his bills; that plaintiff rejected this possibility because they owed too much money; that Schiff then asked defendant to refinance the note; and that Whiten brought the papers into the booth while Schiff was present. In response to a question concerning what happened when the financial statement was completed, Mr. Cervantes replied, “I told him ... I said, ‘Gee, I haven’t got room in here for everything.’ I don’t know whether I told him or Don. He said, ‘That’s all right; we don’t have to have’ . . .” His response was cut short by his attorney who said, “Room, you’re talking about these things . . .”, and named some of the fisted debts.

Plaintiff admitted that Schiff was still in its employ but did not call him in rebuttal.

On October 19, 1970, the Bankruptcy Act was amended to provide that a creditor of a non-commercial debtor must appear in the bankruptcy court at the time of the discharge proceedings if he desires to assert the non-dischargabifity of his debt. Failure to do so results in the debt being discharged. Bankruptcy 11 U.S.C.A., Sec. 35 (a) (2) 1970; 1 Collier Bankruptcy Manual, Sec. 17.10 (3). However, the Act in force at the time of this suit (February 9, 1970) excepted from discharge certain debts where:

“* * * liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive * *

Consequently, a creditor could sue upon an obligation incurred prior to bankruptcy and if the defendant raised the defense of discharge it would then be up to the creditor to prove his claim to be one of the exceptions to discharge. The plaintiff in the case at bar relied upon the above quoted exception.

In order to prove that the discharge did not prevent enforcement of the judgment, plaintiff was required to show actual fraud. (Sweet v. Ritter Finance Company (W.D. Va. 1967), 263 F.Supp. 540, 543.) That is, plaintiff had to prove (1) the debtor made a materially false representation; (2) that at the time he knew they were false: (3) that he made them with the intention and purpose of deceiving the creditors; (4) that the creditor relied upon such representations and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made. Nickle Plate C. Federal Credit Union v. White (1970), 120 Ill.App.2d 91, 94; 8 Remington on Bankruptcy, sec. 3320.

In an action based upon fraud, the elements necessary must be affirmatively proven by clear and convincing evidence. Sajich v. Sajich (1970), 128 Ill.App.2d 432-437; Turzynski v. Libert (1970), 122 Ill.App. 2d 352, 359.

Plaintiff first contends that the defendant did not disprove that he intended to defraud the plaintiff and that the defendant did not disprove that plaintiff relied upon the false financial statement. It was not defendant’s duty to disprove the elements of plaintiff’s case. It was the plaintiff’s obligation to affirmatively prove by clear and convincing evidence the elements of actual fraud. Until this occurred, the burden of proof remained with the plaintiff. The second contention of the plaintiff more accurately leads into what this court believes to be plaintiff’s sole issue on appeal. Were the elements of intent to defraud, and reliance thereon, so firmly established by the proofs of plaintiff herein that the trial court’s findings were against the manifest weight of the evidence?

Unless the court, in a bench trial, is clearly wrong, a reviewing court will not upset- its findings of fact. It is up to the trial judge in such instance to determine the credibility of the witnesses and the weight to be given to their testimony. His conclusions will not be disturbed unless manifestly contrary to the weight of the evidence. Country Mut. Ins. Co. v. Murray (1968), 97 Ill.App.2d 61, 75.

Plaintiff’s argument is based primarily on only that evidence most favorable to itself. However, we have reviewed the entire record and find that there was sufficient evidence for the trial court to conclude that, when the consolidation of all debts was discussed, plaintiff knew (or should have known) the true financial situation of the defendants; that the defendants did not intend to deceive the plaintiff, but were present at plaintiff’s office at the latter’s insistence because of a delinquency in their earlier loan. The conversation related by Mr. Cervantes, to the effect that there was insufficient room on the financial statement to list all of his debts, if believed by the judge, would dispel any reliance on the part of the plaintiff.

We therefore hold that the judgment of the trial court was not against the manifest weight of the evidence and that plaintiff did not prove its case by clear and convincing evidence as required.

Judgment affirmed.

ABRAHAMSON and KRAUSE, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Schulz, Defendant-Appellant.
    (No. 70-267;
    Second District
    September 17, 1971.

      Murphy, Griffin & Dixon, of Aurora, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Richard Schulz, was indicted by the grand jury of Kane County for the offense of Unlawful Sale of Narcotic Drugs in violation of section 22 — 3 of the Illinois Criminal Code. The matter proceeded to trial before a jury and the defendant was found guilty and sentenced to serve 10 years to 10 years and one day in the Illinois State Penitentiary. This appeal followed.

There is little dispute as to the facts in the case and they can be briefly related. On September 30, 1968, Inspector Michael Figueroa of the Illinois Division of Narcotics Control was at the home of one Jeffrey Lynch during the course of a narcotics investigation in the Aurora area. Figueroa was at the home to arrange a purchase of narcotics and Lynch telephoned the defendant for that purpose. Figueroa and the defendant had a telephone conversation at that time in regard to a possible purchase of marijuana. Figueroa subsequently telephoned the defendant at his home on two occasions and once at his place of his employment to arrange the purchase. On October 17, Figueroa met Schultz in a parking lot in Aurora and they drove together in Schultz’ automobile to his home where he picked up a large plastic bag containing green plant material. They returned to the parking lot where Schultz gave Figueroa the large bag together with a smaller bag of material that he removed from under the seat of his car and some capsules in exchange for $95.00 in marked money. Three police officers were in the parking lot in unmarked surveillance cars and observed the transaction.

The defendant first contends that the State failed to show that the plant material allegedly sold to Figueroa was in fact a narcotic drug. Section 22-2-17 of the Illinois Criminal Code (Ill. Rev. Stat., 1969, Ch. 38, par. 22—2—17) defines marijuana as follows:

“(3) Cannabis includes all parts of the plant Cannabis Sativa L (commonly known as marihuana), whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, of the sterilized seed of such plant which is incapable of germination.”

Miss Paula Cardozzi, a chemist at the Illinois Bureau of Criminal Identification in Joliet, testified that she analyzed the plant material sold to Figueroa by extracting the resins and testing them with another chemical agent. She was able to state, as a result of that test, that the resins so extracted were in fact marijuana resins. On cross examination, however, Miss Cardozzi admitted that there was no way that she could determine if the extracted resins came from the leaves or the stalk of the plant. Since the statute makes an express exemption of the stalk from classification as a narcotic drug, the defendant contends that the State failed to sustain the burden of proof that the material was in fact a prohibited narcotic.

Section 22—44 (Ill. Rev. Stat. 1969, ch. 38, par. 22—44) provides that in any action or proceeding brought for the enforcement of the Act, the burden of proof is upon the defendant to show that the plant material offered in evidence is exempt from the statute. The cases hold that if there is sufficient evidence in the record to raise a reasonable possibility that the exemption applies, thus creating a reasonable doubt of the guilt of the defendant, then he has met that burden of proof. The People v. Williams, 23 Ill.2d 549, 555, 556; People v. Marichez, 73 Ill. App.2d 230, 233.

Although the defendant did not offer any direct evidence that the plant material sold to Figueroa came within the exemption of the statute, it is argued that the testimony of the chemist, as brought out in cross examination, raised a reasonable possibility that the resin was extracted from the stalk and was thus exempt. However, such a possibility does not appear to us to be reasonable when the testimony of the chemist is considered in its entirety. She also testified that she performed a microscopic examination of the plant material to determine if it could be marijuana before she conducted the chemical analysis. She discovered on the leaves of the plant tiny hairs characteristic of marijuana. Although other plants could have similar appearing hairs, it was her opinion based on her microscopic and chemical examinations . . that the plant material contained marihuana and its resins.” We feel that the evidence of the characteristic hairs on the leaves of the plant that itself contained marijuana resins was sufficient proof that the material was in fact marijuana as defined in the Act and that the defendant did not sustain his burden to show that it was within the expressed exemption.

The defendant also contends that the State failed to establish a foundation for the admission into evidence of the narcotics since it did not show a sufficient continuity of possession between the time it was obtained by Figueroa and analyzed by Miss Cardozzi. The rule is well established that the State has the burden of showing a continuous chain of possession to establish the necessary foundation to admit the material into evidence. The People v. Cain, 35 Ill.2d 184, 188; The People v. Anthony, 28 Ill.2d 65, 68.

Figueroa identified a brown paper bag offered into evidence as the bag given to him by the defendant at approximately 6:00 P.M. on October 17. He also identified two plastic bags inside the paper bag as the bags of plant material sold to him. All three bags were marked with the date and the initials of Figueroa and the other surveillance agents shortly after the sale took place. Figueroa then sealed the bags in a large, yellow “evidence” envelope and kept the envelope in his custody until he delivered it to the Bureau of Criminal Identification in Joliet at approximately 9:00 P.M. The only person at the Bureau at that hour was Gordon Kingman, a fingerprinting technician. Kingman testified that the envelope was sealed tight when it was given to him by Figueroa and that he, in turn, placed the envelope in the internal mailbox of Miss Cardozzi. Kingman locked the building when he left around midnight and it was not re-opened until the day shift, including Miss Cardozzi, arrived the next morning. She testified that she placed the sealed envelope into an evidence vault at the Bureau where it remained until she took it out on December 1 or 2 to conduct her analysis. She then broke the seal and found the brown paper bag with the plastic bags of plant material inside.

It was brought out that the internal mail box was accessible to others in the Bureau and that at least 7 other chemists would have access to the evidence vault. In addition, Miss Cardozzi admitted that it was possible that in the course of her analysis of the material she might have left it for a few moments unguarded on her work table. The defendant maintains that, under the circumstances thus disclosed, the State did not meet that burden of showing a continuous chain of possession as required by law.

We disagree. Although it appears that other chemists or personnel employed by the Bureau had access to the envelope delivered by Figueroa, it is undisputed that the seal was unbroken from the time he placed the evidence into the container until it was opened by Miss Cardozzi. There is no suggestion that the material had been altered or handled in any manner. In the absence of such suggestion, we believe that the continuity of possession was sufficiently established to admit the bags and their contents into evidence. The People v. Cain, 35 Ill.2d 184, 188; The People v. Norman, 24 Ill.2d 403, 407.

The defendant also advances the defense of entrapment as defined in the Illinois Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 7—12):

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

When Figueroa first talked to the defendant on September 30, he inquired about the possible purchase of a kilo (about 2Yz pounds) of marijuana. According to Figueroa, the defendant told him that he was expecting a large shipment from Mexico any day and that he should call again. Figueroa did call again on October 8 and 14 and arranged, on tire 15, to purchase a smaller amount on the 17 since the Mexican shipment had not arrived. Schulz admitted the telephone calls but testified that he told Figueroa on September 30 that he didn’t want anything to do with it. Fie did tell Figueroa about a shipment from Mexico but, he testified, he did so in an attempt to “delay” and put him off. Finally, out of desperation, according to Schulz, he agreed to sell a smaller quantity to get the persistent Figueroa “off his back”.

The record discloses that the defense was argued to the jury and that they were adequately instructed on the law of entrapment by the comt. We have recently said in the case of People v. Gonzales, 125 Ill.App.2d 225, 232, that “Entrapment is not available to one who has the intention and design to commit the criminal offense, and who does commit the essential acts constituting it, merely because a law officer or his agents, for the purpose of securing evidence, affords such person the opportunity to commit the act, or purposely aids and encourages a defendant in its perpetration”. Although there is a dispute as to the exact content of the conversations between Figueroa and the defendant that led to the sale, the record adequately supports the determination of the jury that the defendant had not been entrapped. There is no entrapment where a law officer does no more than provide the defendant the opportunity to commit a criminal offense. People v. Morgan, 98 Ill.App.2d 435, 438; People v. Johnson, 66 Ill.App.2d 465, 470; The People v. Clay, 32 Ill.2d 608, 610.

The defendant next argues that the evidence envelope itself should not have been submitted to the jury since it bore the markings “sold by Schulz” on the exterior. Since Schulz admitted he had sold the contents of the envelope, we cannot see that he could conceivably be prejudiced by the markings on the outside. We do agree, however, that Figueroa’s testimony relative to his belief that the defendant was a supplier of dangerous drugs was improper and should have been stricken on the request of defense counsel. Flowever, as is well known, not all error is fatal and if the error has not affected a substantial right of the accused, it should be disregarded. Ill. Rev. Stat. 1969, ch. 110 A, sec. 615 (a); People v. Price, 96 Ill.App.2d 86, 96.

Finally, it is contended that it was improper to permit Figueroa to virtually repeat his entire testimony when he was recalled as a witness to rebut the defendant’s testimony relative to their telephone conversations. The admission of testimony in rebuttal is a matter largely left to the discretion of the trial court and will ordinarily not be set aside on review. (People v. Shannon, 94 Ill.App.2d 110, 118.) We do not find that the trial court abused its discretion in this instance.

However, in view of the new Illinois “Cannabis Control Act”, we hereby affirm the conviction of the defendant, but remand the cause, on the court’s own motion to the trial court, and direct that within fifteen days of the filing of this opinion the defendant be brought before said court for disposition under the now applicable provisions of the “Cannabis Control Act” as amended; and further, that within fifteen days of conclusion of said hearing, the trial court is to certify to this court the evidence taken, together with the judgment entered. People v. McCloskey (2nd Dist. No. 70—190.)

Judgment affirmed in part; cause remanded with directions. Court retains jurisdiction for further review, if necessary.

MORAN, P. J. and GUILD, J., concur.

SUPPLEMENTAL OPINION

Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The conviction in this case was affirmed and we remanded the case to the Trial Court to conduct a hearing under the provisions of the “Cannabis Control Act” and report back to this Court its findings within a short date.

Now, however, in view of People v. McCabe, Supreme Court Docket No. 42674, filed Oct., 1971; rehearing denied November 24, 1971, 49 Ill.2d 338 (1971), and People v. Hudson, Supreme Court Docket No. 43994, filed Nov. 30, 1971, 50 Ill.2d 1 (1971), there is no necessity for a hearing under the “Cannabis Control Act.”

Therefore, the judgment of the Trial Court is reversed.

Judgment reversed.

MORAN and GUILD, JJ„ concur.


text:
    John E. Griffin, Plaintiff-Appellee, v. Ernest E. Billberry, Defendant-Appellant.
    (No. 71-20;
    Second District
    September 17, 1971.

      Rehearing denied October 20, 1971.

      John R. Snively, of Rockford, for appellant.
    Williams, McCarthy, Kinley & Rudy, of Rockford, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff filed a small claims action for property damage arising from an automobile accident. The body of the complaint was in the following (printed except as italicized) form:

“(Caption)
I, the undersigned, claim that the defendant is indebted to the plaintiff in the sum of $793.56 for property damages arising from an automobile accident on January 20, 1968, and that the plaintiff has demanded payment of said sum; that the defendant refused to pay the same and no part thereof has been paid; that the defendant resides at 2116 Magnolia Street, Rockford, Illinois Phone No. -; that the plaintiff resides at 809 2nd Avenue, Rockford, Illinois Phone No. -; in the State of Illinois.”

Defendant’s motion to dismiss the complaint was denied; plaintiff thereafter was permitted to increase the ad damnum to $893.56; and the cause was thereafter heard by the magistrate without a jury. Proofs were completed on June 3rd, 1970.

Counsel were notified of the court’s ruling by a letter signed by the magistrate on September 14th, 1970. On that same date, the magistrate penned on the small claims jacket, “Judgment for II for $893.56 & costs.”

In this appeal, defendant urges that the complaint did not state a cause of action; that plaintiff was guilty of contributory negligence; that the record does not show that any judgment was rendered; and that the judgment is void. We find no merit in any of these claims of error.

Defendant’s attack on the sufficiency of the complaint is based upon the argument that Supreme Court Rule 282 (Ill. Rev. Stat. 1969, ch. 110A, par. 282) requires that the nature of plaintiff’s claim be stated, and therefore necessitates, in a cause of action based on negligence, that facts be set forth which raise a duty, show a breach of duty and show an alleged resulting injury. However, the authorities cited (Donehue v. Duvall (1967), 90 Ill.App.2d 472; Fanning v. Lemay (1966), 78 Ill.App.2d 166; and Church v. Adler (1953), 350 Ill.App. 471 are not applicable to small claims actions. The provisions of the Small Claims Act (ch. 110A, supra, pars. 281-288) are meant to provide a simplified and inexpensive procedure for small claims, and the rules are complete in themselves without reference to other rules (except as to the form of summons). See Smith-Hurd Annotated, ch. 110A, par. 282—Committee Comments; Daily Journal v. Smith (1969), 118 Ill.App.2d 411, 415. The complaint was sufficient to clearly notify defendant of the nature of plaintiff's claim and thus to state a cause of action under which he could prove negligence and the resulting injury.

Defendant’s objection to the form of the judgment order is that it did not state against whom the judgment was rendered or that plaintiff should ‘have and recover” the amount specified from the defendant. By clear implication, the judgment for the plaintiff could only be against the sole defendant. There could be no uncertainty in the judgment particularly since a memorandum letter went out from the court to the parties, which although not an official part of the court’s record, was a writing which fully advised the defendant of the judgment against him and its basis in the court’s view of the evidence. While it would have been better practice for the judgment to have been recorded by the clerk and preserved more formally (or for that record to be before us if it were, in fact, maintained), we do not consider that reversal or remand for this primarily clerical purpose would serve any useful interest under the circumstances here.

Nor was the order void because there was no showing that the court took the case under advisement after the hearing of evidence on June 3rd, 1970, for the period intervening before its judgment on September 14th, 1970. It appears from the affidavit of the magistrate filed with the record that the delay was due to his intervening illness. We do not consider that this is a necessary showing, however, since jurisdiction once acquired is not lost until all issues of fact and law have been finally determined. Fiore v. City of Highland Park (1968), 93 Ill.App.2d 24, 31. Here, the magistrate having acquired jurisdiction of the cause retained jurisdiction to enter his order.

We do not consider defendant’s remaining claim that the plaintiff was guilty of contributory negligence, since defendant has the burden of proving by the record that the judgment was against the manifest weight of the evidence and has not included a report of proceeding or its equivalent for that purpose. See Libman v. Gipson (1968), 93 Ill.App. 2d 62, 64; and Croft v. Lamkin (1969), 112 Ill.App.2d 321, 328.

The judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

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