text:
    People of the State of Illinois, Plaintiff-Appellee, v. Adolph Johnson, Defendant-Appellant.
    Gen. No. 50,749.
    First District, Second Division.
    December 28, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court..

This is an appeal from the conviction of the appellant, Adolph Johnson, in the Circuit Court of Cook County, for the crime of unlawful possession of narcotics. Following a bench trial, appellant was found guilty and was sentenced to the penitentiary for a term of not less than two nor more than three years. Appellant contends on this appeal that he was convicted on evidence obtained from him in violation of state and federal constitutional guarantees against unreasonable search and seizure.

Succinctly stated, the activity which the appellant claims violated his constitutionally protected rights was his arrest and treatment at the hands of the arresting officers, Charles Loving and Ernest Jones. On May 2, 1964, the officers saw the appellant standing in front of the DuSable Hotel at 764 East Oakwood, Chicago, Illinois. The officers saw the appellant put something into his mouth. The officers then told the appellant that he was under arrest. Officer Loving grabbed appellant by the throat to prevent him from swallowing the item he had placed there. Officer Loving was assisted by his partner who also was holding the appellant by the neck. As a result of the throttling by the two officers, the appellant coughed up a package which turned out to be heroin. Appellant failed to raise any objection at the trial or to make a motion to suppress the evidence. For that reason, no evidence was presented by the People on the issue of the circumstances surrounding the arrest.

Appellant contends that the activity described above is controlled by Rochin v. California, 342 US 165, 72 S Ct 205. In that case there was a concerted course of action which shocked the conscience of the court, including an illegal search and seizure of the defendant’s room and jumping on him and choking him and finally the forcing of an emetic down his throat to make him cough up the contraband he had swallowed. Timely objection was made at the trial to the manner in which the evidence was obtained.

The activity of the police in this case falls short of the shocking activity of the police in the Rochin case. It is more like that of federal authorities in Espinoza v. United States, 278 F2d 802, where the officers obtained evidence from the defendant’s mouth by grabbing him about the throat and choking him and by prying open his mouth. The. United States Court of Appeals, Fifth Circuit, held that the efforts of the federal officers in preventing the defendant from swallowing the narcotics involved no more force than was reasonably necessary under the circumstances.

No motion to suppress was made at the trial of the appellant. Provisions for making a motion to suppress in this state are very clear: chap 38, § 114-12(2) (b) Ill Rev Stats 1965, “The motion shall be in writing and státe facts showing wherein the search and seizure were unlawful. . . . (c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” It is true that in appropriate cases that “. . . Plain errors or defects affecting substanial rights may be noticed although they were not brought to the attention of the trial court.” Chap 38, § 121-9, Ill Rev Stats, 1965.

We do not feel this is an appropriate case to consider the alleged illegality of the search by the police officers in the absence of a motion to suppress by appellant’s counsel. There was no such clear-cut invasion of the appellant’s rights which would permit us to consider the matter of the obtaining of the evidence in the absence of a motion to suppress. Under the circumstances of this case the action of the police was reasonable.

For the above reasons the judgment of the trial court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BURKE.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Mason, Defendant-Appellant.
    Gen. No. 51,155.
    First District, Second Division.
    December 28, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Vestil Stidham, d/b/a Stidham Construction, Plaintiff and Counter-Defendant-Appellee, v. Peter Pappas, Defendant and Counter-Plaintiff-Appellant.
    Gen. No. 51,431.
    First District, Second Division.
    December 28, 1966.
    Walter F. Kerrigan, of Chicago, for appellant.
    D. G. Walter, of Chicago, and Gabriel J. Aprati, of Chicago Heights (Adolph L. Haas, of counsel), for appellee.
   On Rehearing

MR. JUSTICE BURKE

delivered the opinion of the court.

In a complaint filed on March 25, 1965, plaintiff Stidham sought judgment for $2,800 for work and labor performed for the defendant according to the terms of a contract and an amendment thereto. Defendant filed an appearance and a jury demand and the cause was transferred. Thereafter the defendant, Pappas, filed an answer and a counterclaim, wherein he sought damages from the plaintiff (counterdefendant) in the amount of $10,000. The plaintiff, Stidham, (counterdefendant) did not file any pleading responding to the counterclaim. On December 16, 1965, an ex parte jury trial resulted in a finding for Pappas and against Stidham on the complaint and a finding on the counterclaim for Pappas and against the counterdefendant Stidham, with damages of $10,000. Judgments were entered on the verdicts against Stidham in the case in chief and against Stidham on the counterclaim for $10,000. On March 1, 1966, Stidham filed a petition to vacate the judgments. On March 28, 1966, he filed an affidavit in support of the petition. The court vacated the ex parte judgments, ruled that Stidham plead to the counterclaim within 30 days and restored the cause to the jury calendar. Pappas, defendant and counter-plaintiff, appeals.

Appellant asserts that the appellee does not in his petition or affidavit set forth ultimate facts indicating that he has exercised due diligence in preventing the entry of the judgments, that section 72 of the Civil Practice Act is not intended to relieve a party of the consequences of his negligence and that a party seeking to set aside a judgment must show more than a meritorious defense. Appellant insists that appellee has not shown facts entitling him to have the judgments vacated and asks that the order be reversed and that the cause be remanded with directions to reinstate the judgments. There was no answer to appellee’s petition to vacate the judgments. Hence the facts properly pleaded therein are taken as true.

From the record it appears that on April 14, 1965, appellant filed his appearance and jury demand in the 6th Municipal District; that on April 20, 1965, the court ordered (Honorable Carl W. McGehee, Presiding) that the cause be continued to April 22, 1965; and that on April 20, 1965, the cause was transferred to Municipal District No. 1 “for jury” and given by the Clerk “new case No. 65 Ml 350240,” the original case number having been “65 M6 00286.” The court further ordered that the cause be “transferred to the Chief Justice for reassignment.” It further appears that on April 23, 1965, (Honorable Augustine J. Bowe, Presiding) the cause was set for trial in “Room 1107, August 23, 1965”; that on April 26, 1965, an answer and counterclaim were filed; that on August 23, 1965, the cause was continued to December 16, 1965; that on December 16, 1965 (Honorable John Ouska, Presiding) the Court, pursuant to an ex parte finding by a jury, entered judgment in the case in chief for the defendant (Pappas) and against plaintiff (Stidham) and on the counterclaim for the counterplaintiff (Pappas) and against the counterdefendant (Stidham) for $10,000.

Stidham’s petition to vacate the judgments was filed March 1, 1966. On March 28, 1966, Stidham filed his affidavit in support of his petition to vacate. On March 21, 1966, Pappas filed his motion to strike the petition of Stidham. The latter’s petition to strike was accompanied by a letter from the president of the Savings & Loan Association of Hegewisch, dated September 21, 1963, and addressed to Pappas, stating, “I called Mr. Stidham today and he says that he will settle this matter for the sum of $1,952.93. This money will go to the City Service Lumber Company execept for $50 for costs he has incurred in connection with the settlement. Mr. Stidham claims he has $2,300 coming under his contract but will be willing to settle for the above. I think this is reasonable and you should pay this and get the matter over with as soon as possible.” Pappas’ petition also attached a letter from Mr. David L. Coghlan dated October 8, 1963. Apparently at this time Mr. Coghlan was the attorney for Mr. Pappas. Mr. Coghlan’s letter returned certain documents concerning the controversy between Stidham and Pappas. Attached to the affidavit of Stidham is a letter from a law firm in Warsaw, Indiana, addressed to Stidham at Warsaw, advising him of the judgment for $10,000 entered on the cross-complaint of Pappas and suggesting that Stidham make arrangements for payment of the judgment or a law suit to satisfy the judgment in Indiana would be commenced. Apparently the receipt of the letter from the Warsaw law firm was the first knowledge that Stidham had that a judgment had been entered against him and resulted in the filing of the petition to vacate the judgments. The motion of Pappas to strike the petition to vacate the judgments in his favor was denied and the petition of Stidham to vacate the judgments in favor of Pap-pas and against Stidham was allowed; a rule was entered on Stidham to plead or otherwise answer the counterclaim within 30 days, and the case presenting the issues joined on the complaint, the answer thereto, the countercomplaint and the answer thereto, when filed, were placed on the jury calendar. The record shows that the order transferring the cause from the 6th District to the 1st District and giving the case a new number was entered on April 20, 1965, and that the pleading containing the- counterclaim was filed in the 6th District on April 26,1965, after the transfer to the 1st District.

Supreme Court Rule 5 states that pleadings subsequent to the complaint, written motions and other papers required to be filed, shall be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead. This rule also states that failure to deliver or serve copies as required by the rule does not in any way impair the jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy from the clerk and the court shall order the offending party to reimburse the aggrieved party for the expense thereof. The record in this court does not show that Stidham had “theretofore been found by the court to be in default for failure to plead” nor does the record show a certificate of counsel or other proof that a copy of the “answer and counterclaim” was served on the attorney for Stidham. While not controlling, the failure to receive notice is a factor to be considered on the hearing of a petition to vacate.

We find that the petition to vacate the judgment and the affidavit in support filed thereafter show that Stidham, on learning that an ex parte judgment had been rendered against him, sought relief within a reasonable time. The petition and the affidavit also state a good defense by Stidham against the counterclaim filed by Pap-pas. The attorney for Stidham was first made aware of the judgments on February 10, 1966, after Indiana attorneys engaged by Pappas to enforce the payment of the judgment for $10,000 under the counterclaim, contacted Stidham. On March 1, 1966, Stidham filed his petition to vacate the judgments under section 72 of the Civil Practice Act and on March 29, 1966, filed his affidavit in support thereof.

Since the opinion in Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350, and continuing with Elfman v. Evanston Bus Co., 27 Ill 2d 609, 190 NE2d 348, there has been a liberal trend to relieve litigants who without negligence have suffered default and ex parte judgments and dismissals against them. In the recent case of United Accounts, Inc. v. Lantz (ND), 145 NW2d 488, the Supreme Court of North Dakota upheld an order granting a motion to vacate a default judgment made within the required reasonable time though made approximately six and one-half years after entry of judgment. The court pointed out that no steps had been taken to enforce the judgment, that defendant’s attorney stated that he had received no notice of the entry of the judgment and that there was acknowledged error on the part of the county court which had informed defendant’s attorney that it would not enter judgment until he had been notified. In deciding these cases the courts consider the good faith exhibited by the litigants. The court recognizes that telephones are available and that courtesy among lawyers is and should be the rule rather than the exception. In the instant case Stidham claimed a balance of $2,800. Pappas denied that anything was due to Stidham and also sought $10,000 in a counterclaim. Stidham asserted that he did not receive a copy of the counterclaim. His attorney endeavored to ascertain the status of the cause but was unsuccessful. The exhibits filed by both parties show that these parties were maintaining their respective positions. When Stidham learned that there was a judgment against him on his claim for $2,800 and also a judgment against him and in favor of Pappas for $10,000, he, Stidham, took appropriate action. It is clear from this record that Stidham was insisting on his position that he was entitled to a judgment for $2,800. Under these circumstances neither Stidham nor his attorney would allow an ex parte judgment to be entered against Stidham. We think that the court was right in exercising an equitable discretion in setting aside the judgments, and giving both Stidham and Pappas their day in court. Therefore the order of March 28,1966 is affirmed.

Order affirmed.

BRYANT, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE MORAN

text:
    Federal Savings & Loan Insurance Corporation, Plaintiff-Appellee, v. La Salle National Bank, Trustee Under Trust No. 28171, and Howard B. Quinn, et al., Defendants-Appellants.
    Gen. No. 66-23.
    Second District.
    December 29, 1966.
    Rehearing denied February 15, 1967.
    Samuel E. Hirsch, and Boodell, Sears, Foster, Sugrue & Crowley, all of Chicago, for appellants.
    Gomberg, Levin & Rosen, and Sidney Z. Karasik, all of Chicago, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The instant case was filed to foreclose three mortgages in default involving some eleven hundred acres of farmland in Lake County. Hillside Savings and Loan Association, the original mortgagee, underwent voluntary liquidation and plaintiff, a corporation of the United States, succeeded to the interest of Hillside Savings and Loan. The defendant-trustee held title to the property in question for the benefit of the individual defendants.

More than one year after filing an answer to the complaint for the foreclosure the individual defendant obtained leave and filed a counterclaim alleging matters involving himself and Hillside Savings and Loan, which while on the fringe of the pending controversy were not directly related.

The plaintiff filed a motion to dismiss the counterclaim and the trial court granted that motion “without prejudice.” Subsequently, the trial court denied leave to file a new counterclaim. No appeal was taken from either of the trial court’s orders with reference to the original or the new counterclaim.

The trial court heard testimony and ultimately granted a decree of foreclosure. Pursuant to that decree the property was sold and the proceeds have been distributed.

The individual defendant filed this appeal without supersedeas or bond. The notice of appeal provided only that the appeal was “taken from the entire order of foreclosure entered in the above entitled cause on the 9th day of December 1965.” The brief filed by the individual defendants in this court and their oral argument has been solely directed to the proposition that the trial court committed error in dismissing the counterclaim. It appears, therefore, that they have filed an appeal on one issue and argued another. The decision of the trial court could be affirmed simply on the basis that no appeal was taken from the trial court’s decision with reference to the counterclaim and that the issue appealed from was not raised or argued in this court and is therefore waived. (Appellate Court Rule 7, c 110, § 201.7, Ill Rev Stats 1965.) Despite the fact that the case could be affirmed based upon the foregoing without further consideration, we conclude that the interest of justice will best be served by consideration of one further matter.

One week before filing the counterclaim in the trial court the individual defendants filed suit in the United States District Court for the District of Columbia against the plaintiff in this case raising the same issues and involving the same controversy that were raised and involved in the counterclaim. In oral argument before this court counsel for the individual defendants admits that that suit was filed and is still pending. In effect counsel urges reversal so that the same case could be tried in two different courts, with neither having priority of jurisdiction over the other.

Section 48(1) (c) of the Civil Practice Act (Ill Rev Stats, 1965, c 110, par 48(1) (c) provides for dismissal on the ground:

“That there is another action pending between the same parties for the same cause.”

Prior to 1964 there was controversy in the Illinois Courts as to whether or not the phrase “the same cause” required that similar actions both pend in the Illinois Courts for dismissal. The case of F & F Laboratories, Inc. v. Chocolate Spraying Co., Inc., 6 Ill App2d 299, 127 NE2d 682 (1955), had held that dismissal was required even though the similar case was pending in a Federal Court and in an Illinois State Court, whereas the case of Skolnick v. Martin, 47 Ill App2d 167, 197 NE2d 739 (1964), had held at the Appellate level, that both cases must be pending in the Illinois Courts before a dismissal was required. The Supreme Court of Illinois took jurisdiction of Skolnick v. Martin to resolve the conflict and held in 82 Ill2d 55, 59, 203 NE2d 428, that the phrase “for the same cause” applied “. . . irrespective of the jurisdiction in which the other action was pending.” The court further said at page 59:

“. . . the Civil Practice Act was designed to eliminate the formalized rules of common-law pleading and to provide a procedure whereby substantive rights could be determined with a minimum of delay, technicality and expense. (Citation.) Indeed, it is the express direction of section 4 that the act shall be liberally construed to the end that controversies may be speedily and finally determined. (Ill Rev Stats 1961, chap 110, par 4.) Certainly the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the same issues pending in another action are consistent with the purpose and spirit of the Civil Practice Act, and it can hardly be said that actions for the same cause filed in the Federal courts or those of our sister States are less repetitious or burdensome than those filed within our own jurisdiction.”

The court went on to say at page 60:

“Certainly neither due process nor equal protection requires a right to entertain more than one action for the same cause, and just as certainly our statute does not interfere with or take away plaintiff’s right to pursue his action in a Federal court.”

In this case the defendants’ counterclaim was dismissed “without prejudice.” He has lost nothing and he has an action pending in a court of competent jurisdiction raising the same questions.

While we believe that the counterclaim issue has not been properly presented to us, yet we conclude that upon the merits of such issue, the speedy and proper administration of justice require us to sustain the trial court.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    The People of the State of Illinois ex rel. Eugene S. Meyer; The People of the State of Illinois ex rel. Roger Fisher; Eugene S. Meyer, Individually; Roger Fisher, Individually; and All Other Taxpayers of Winnebago County, Illinois, Similarly Situated as Are the Said Individual Plaintiffs, Plaintiffs, v. Horace M. Skinner, County Clerk of Winnebago County, Illinois; Community High School District No. 211 of Winnebago County, Illinois; Non-High School District No. 206 of Winnebago County, Illinois, Defendants. Board of Education in and for the City of Rockford, No. 205, Winnebago County, Illinois, a Municipal Corporation, Counter-Plaintiff, v. Community High School District No. 211, Winnebago County, Illinois, Counter-Defendant.
    Gen. No. 66-75.
    Second District.
    December 29, 1966.
    Rehearing denied January 31, 1967.

      Reno, Zahm, Folgate and Skolrood, of Rockford, for appellant.
    Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiff, the Board of Education of School District No. 205 in the City of Rockford, brought this action against defendant, Community High School District No. 211 of Winnebago County, to recover for an unpaid balance of tuition for the 1963-1964 school year in the sum of Nine Thousand Nine Hundred Seventy-Eight and 34/100 ($9,978.34) Dollars.

The plaintiff is a special charter school district operating public schools in the city of Rockford, offering education in grades one through twelve. Defendant is a protectorate high school district which does not own or operate any school buildings but uses its funds to pay for the tuition and transportation of its pupils to other school districts. A majority of its pupils attend the schools operated by the plaintiff.

At the end of each school year plaintiff submits a claim for tuition to defendant covering plaintiff’s costs of operating and maintaining its schools, in an amount representing the defendant’s share of that cost.

At the close of the 1963-1964 school year, plaintiff submitted a bill to defendant including the pro rata cost of interest on building construction bonds and depreciation on the same buildings. Defendant paid the depreciation and all of the tuition cost excepting only the amount in controversy which represents the amount which plaintiff alleges to be due from defendant on account of interest on the building bonds. Defendant refused to pay that portion of the tuition claim attributable to building bond interest on the ground that it did not represent a proper part of the tuition charges.

Only one witness testified in the trial court. The Assistant Superintendent of the plaintiff district testified that the plaintiff district levies for the full amount of its bond interest in each year and the amounts collected from other school districts for this item are simply added to its general fund without any reduction in subsequent tax levies.

The trial judge at the conclusion of the testimony granted judgment in favor of the plaintiff and against the defendant for the full amount. This appeal followed raising the single legal issue. May plaintiff include in its tuition claim against defendant interest paid on plaintiff’s building bonds as well as depreciation on the same buildings ?

This issue did not exist prior to 1959. Before that time section 11-17 of the School Code provided:

“The tuition paid shall in no case exceed the per capita cost of maintaining the high school attended, excluding therefrom interest paid on bonded indebtedness which shall be computed by dividing the total cost of conducting and maintaining said high school by the average number of pupils enrolled, including tuition pupils.”

(Ill Rev Stats c 122, §11-17, 1957). In 1959, the language italicized above was deleted from the statute so that the statute presently reads as follows:

“The tuition paid shall in no case exceed the per capita cost of maintaining the high school attended, which tuition shall be computed by dividing the total cost of conducting and maintaining the high school by the average number of pupils enrolled, including tuition pupils. Depreciation on the building and equipment of the high school attended shall be included as part of the cost of maintaining the high school attended, and the amount of annual depreciation on such building and equipment shall be dependent upon the useful life of such property. The board of education of any non-high school district may audit the claims of any school submitting a claim for tuition, and shall, after making request of the school board and the school treasurer, have access to the school records and financial records of the district for the purpose of making the audit.
“The school board of the high school that the tuition pupils attend shall certify not later than August 1, of each year, to the non-high school board, the estimated amount of the tuition charges for the succeeding school year.” (Ill Rev Stats 1965, c 122, par 12.22.)

Section 10-20.12a of the School Code (Ill Rev Stats 1965, c 122, par 10-20.12a) provides that it is the duty of the school board:

“To charge non-resident pupils who attend the schools of the district tuition in an amount equal to the per capita cost of maintaining the schools of the district for the preceding school year.
“Such per capita cost shall be computed by dividing the total cost of conducting and maintaining the schools of the district by the average daily attendance, including tuition pupils. Depreciation on the buildings and equipment of the schools of the district, and the amount of annual depreciation on such buildings and equipment shall be dependent upon the useful life of such property.
“The tuition charged shall in no case exceed the per capita cost of conducting and maintaining the schools of the district attended. Non-resident pupils attending the schools of the district for less than the school term shall have their tuition apportioned.”

The plaintiff argues that the deletion of the phrase “excluding therefrom interest paid on bonded indebtedness” occurring in the amendment of 1959 expresses a legislative intention that amounts so represented may now be charged. Defendant, on the other hand, argues that the courts of Illinois have previously held it unlawful to charge both building bond interest and depreciation. In addition, defendant argues that the phrase “cost of conducting and maintaining the schools” does not include interest on building bonds.

The Supreme Court and this court have had occasions to consider the statute prior to its amendment in 1959. The case of The People v. Chicago & N. W. Ry. Co., 286 Ill 384, 121 NE 731 (1918), involved the validity of the prior statute as against a charge that it discriminated against taxpayers of the high school district in favor of the taxpayers of the district where no high school building was located. The Supreme Court said at page 395:

“That a reasonable tuition shall be paid for non-high-school pupils has been recognized in this State. The right of the legislature to fix such reasonable tuition and the means of its payment, subject to the requirement that the privileges thereunder be extended equally to all children similarly situated, is likewise well established. (Citations Omitted.) The act providing the tuition in this case meets these requirements. Section 96 of the Act provides that the cost of maintenance, upon which the computation of the tuition is based, shall be ‘the total cost of maintaining such high school,’ less interest paid on bonded indebtedness. It is evident that the legislature intended by this provision to secure as even a distribution of cost as it is possible to obtain; that the ‘total cost’ of maintaining such high school should include all expenses incurred by the high-school district in maintaining such high school, the rental of any buildings therefor not owned by the high-school district, and a reasonable charge for the use and depreciation of buildings owned by the high-school district; and that interest paid on bonded indebtedness should be excluded from such computation to avoid duplication, which would necessarily result if interest on bonded indebtedness as well as said use and depreciation was to be charged. The computation of the tuition on a basis excluding interest on bonded indebtedness does not, therefore, create an inequality.”

In the case of Board of Education of Earlville Community High School Dist. No. 380 v. Board of Education of Non-High School Dist. of La Salle County, 343 Ill 464, 175 NE 810 (1931), the Supreme Court said at page 469:

“The maintenance of a high school building does not, under Section 96 of the School law, authorize a positive charge for the use of the building in computing the tuition to be paid for the pupils attending the high school from a non-high school district.”

In Board of Education in and for School Dist. of City of Rockford, Ill. v. Board of Education of Non-High School Dist. 206 of Winnebago County, Ill., 321 Ill App 131, 52 NE2d 274 (1943), this court held at pages 136 and 137:

“Depreciation must be carried as a current charge, and if interest on bonded indebtedness for the construction of the building is also carried as a current charge, there would be a duplication.”

It is a familiar principle of statutory construction that where two or more constructions may be placed upon a statute, the court should select that construction which leads to a logical result a.nd avoids the absurd. In this case if we select the construction urged upon us by the plaintiff, then more taxes will be levied and collected for interest on building bonds than is necessary to pay the interest and the additional monies will go into the general funds of the plaintiff district.

“It is well settled that school boards and other taxing authorities have no power to make a levy to accumulate a fund for use at some undetermined future time.”

Board of Education v. Board of Education, supra, at page 136. Consequently, no levy is made against the property within the plaintiff school district for the item of depreciation while such levy is made within the defendant school district. However, to secure a just distribution of costs between the respective school district, the plaintiff school district levies a tax against the property within its district for principal and interest on the building bonds for the construction of the school buildings in question and the defendant makes no levy therefor.

We believe that under the construction urged by the defendant, the taxes levied by it for the payment of tuition costs will be those amounts necessary for the conduct and maintenance of the school; and that this is in accord with the clear intention of the legislature. We therefore conclude that the trial court erred in granting judgment for the plaintiff. We conclude that proper tuition includes depreciation but does not include interest on building bonds and that plaintiff is not entitled to collect from defendant on that account. The judgment is therefore reversed.

Judgment reversed.

DAVIS and ABRAHAMSON, JJ., concur.


author: CRAVEN, P. J.

text:
    Sharon Lynn Nappier, a Minor, by Jake Nappier, Her Father and Next Friend, Plaintiff-Appellant, v. Michael Cobb, Defendant-Appellee.
    Gen. No. 10,810.
    Fourth District.
    January 12, 1967.

      Glenn and Logue, and Tom E. Grace, of Mattoon, for appellant.
    Jack E. Horsley and Richard F. Record, Jr., of Craig and Craig, of Mattoon, for appellee.
   CRAVEN, P. J.

This action for personal injuries resulted in a jury verdict for the defendant. Judgment was entered on the verdict and post-trial motions denied. This appeal follows.

The only error suggested on this appeal relates to the alleged prejudicial nature of the argument of counsel for the defendant.

We have taken with the case a motion to dismiss the appeal. This motion asserts the inadequateness of the record on appeal and of the abstract of record filed in this court. Both points are well taken. We will discuss only the insufficiency of the abstract.

The abstract contains only a portion of the closing argument of counsel for the defendant. It does not contain all of the argument nor does it contain any of the argument of counsel for the plaintiff. This is wholly inadequate to enable this court to pass upon the error urged. Department of Public Works and Buildings v. Anastoplo, 14 Ill2d 216, 151 NE2d 337 (1958); Rench v. Bevard, 29 Ill App2d 174, 173 NE2d 1 (3d Dist 1961).

There are other defects and insufficiencies in the abstract, the enumeration of which is unnecessary in this opinion. This court will hot search a record to reverse. Notwithstanding our preference to reach and decide issues on the merits as distinguished from a procedural disposition for noncompliance with rules, we can conceive of no reasonable alternative when the abstract is inadequate to present the single issue relied upon for reversal. The motion to dismiss the appeal is allowed and the appeal is dismissed.

Appeal dismissed.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gary Horton, Defendant-Appellant.
    Gen. No. 49,968.
    First District, Fourth Division.
    December 30, 1966.

      Norman Nelson, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged in the Indictment

Theft of property exceeding $150 in value (the automobile of one Jack Glasson).

Defense at the Trial

Alibi.

Judgment

A jury trial resulted in a verdict of guilty. In aggravation it appeared that defendant was on parole from a sentence of one to five years for armed robbery. The court entered judgment on the verdict and sentenced defendant to a term of one to ten years.

Contentions on Appeal

(1) It was error to permit reference by State witnesses to other crimes committed by defendant.

(2) The court’s ruling on point (1) was made in a manner which was prejudicial to defendant.

Evidence

Billy Smallwood and Ronald Stubblefield, 15 and 16 years of age, respectively, were the principal witnesses for the State. They testified to twenty hours of joy riding with defendant (age 22), commencing at 11:15 a. m. on September 24, 1963, and ending when defendant crashed the Glasson car against a curb at 7:00 a. m. the next morning, with the police in hot pursuit. Smallwood and Stubblefield were apprehended immediately, and defendant a few hours later. If believed, the testimony of these witnesses, together with that of the owner of the automobile and one of the arresting police officers, indisputably proved the offense charged in the indictment. Defendant, his mother, and his girl friend testified to an alibi covering the entire period involved in the testimony of the State’s witnesses, but the jury obviously did not believe them.

The sufficiency of the proof is not questioned, but prejudice is claimed on account of the references by Smallwood and Stubblefield to their activities with defendant on the day in question prior to the theft of the Glasson automobile. Their stories were consistent in this regard. At 11:15 a. m. they met defendant at a playground where they played basketball till about noon. Then defendant said that “he had a car over there” in the alley, so they went riding. An hour or two later, upon seeing a “paddy wagon” they abandoned the car in the middle of the street, and ran down an alley to a store where they remained until about 3:00 o’clock. That car was not identified other than as a 1958 blue Chevrolet. (Smallwood said it was blue; Stubblefield said it was green and white.)

Continuing with Smallwood’s testimony, as confirmed by Stubblefield, they were then sitting on a doorstep watching defendant while he was “trying to get in” a 1963 Chevrolet station wagon. “He got it started,” told them to get in, and they rode around in that car until it ran out of gasoline. They made two stops in the interim at the home of defendant’s girl friend and stayed there for a while each time. There was no further identification of this second automobile.

At about midnight defendant “found another car,” a blue 1961 Chevrolet, shown by other evidence to have been the car belonging to the complaining witness, Glasson, who had left it parked and locked in front of his home. The three then continued their drive, roaming the city and suburbs until 7:00 a. m., when, with defendant driving, they sideswiped another automobile. A police car took chase and the crash occurred, followed by defendant’s flight and arrest.

Opinion

(1) Defendant contends that he was prejudiced to an extent requiring reversal because the State’s witnesses were permitted to testify, as recited above, concerning the first two automobiles used by defendant that day. The point is made that this was testimony of other, independent crimes committed by defendant, and was therefore inadmissible, citing People v. Tranowski, 20 Ill2d 11, 169 NE2d 347; People v. Botulinski, 392 Ill 212, 64 NE2d 486; and 1 Wigmore Evidence, 3d ed, § 194.

The State argues that the evidence was admissible, even though indicating the commission of other crimes by defendant, as it was necessary in this way to establish the relationship between the two boys and defendant in order to prove the identity of defendant as the perpetrator of the theft charged; that this was important because the police officer had not seen defendant’s face at the time of his flight from the scene of the car crash, and could testify only to his general physical characteristics. Further, it is argued, the events leading up to the theft of the car in question were necessary facts to rebut the alibi (testified to by defendant, his mother, and his girl friend) that defendant was home in bed that day until 3:00 p. m., at which time he went to his girl friend’s house and remained there till 6:00 a. m. the next morning.

While it is unquestionably the general rule that evidence of distinct and unrelated offenses is inadmissible (People v. Donaldson, 8 Ill2d 510, 517, 134 NE2d 776), there are well-recognized exceptions where such evidence tends to aid in the identification of the perpetrator of the crime charged (People v. Lewis, 30 Ill2d 617, 621, 198 NE2d 812), to place defendant in proximity to the time and location of the crime charged, to prove design, motive or knowledge (People v. Tranowski, 20 Ill2d 11, 16, 169 NE2d 347), or to rebut an alibi defense (People v. Mikka, 7 Ill2d 454, 461, 131 NE2d 79).

We believe that these principles constitute an answer to defendant’s contention in this regard, and that the corollary rather than the general rule is applicable to the facts of this case. We also believe, however, that the testimony in question did not really amount to evidence of other crimes. As a matter of fact, the witnesses appear to have been extremely careful not to state that the taking or using of the first two cars was in any way unauthorized by the owners. But even if it be assumed that these references to the other cars suggested to the jury other automobile thefts, “where evidence is relevant and otherwise admissible, it is not to be excluded because it may also have a tendency to prejudice the accused.” People v. Galloway, 28 Ill2d 355, 360, 192 NE2d 370; People v. Jackson, 22 Ill2d 382, 390-391, 176 NE2d 803.

(2) In the State’s Attorney’s opening statement he outlined what the State expected the evidence to show, including the joy rides in the first two automobiles. In doing so, he punctiliously avoided the use of words indicating criminal activity, employing only such terms as, “he had a car to get,” and “they entered a 1963 Chevrolet.” Near the conclusion of his statement, defense counsel objected to his reference to the first two cars. It was only in the making of this objection, and in defense counsel’s colloquy with the court in regard thereto, that the words “crime” or “theft” were spoken in the presence of the jury.

At that time the court sustained the objection, directed the State’s Attorney to confine his remarks to the car in question, and instructed the jury to disregard any statements pertaining to other automobiles. When it came to the presentation of the State’s evidence, however, the judge stated, in the presence of the jury, that he had been doing some research on the subject; that he had been mistaken in excluding all reference to the other cars; that the State’s Attorney had not said that they were stolen; and that he would permit the evidence to go in, and it was then introduced as it has been set forth above. The court reiterated to the jury that the only question to be decided by them was whether or not defendant had stolen the Glasson car as charged. Defendant’s objection was overruled and his motion for a mistrial was denied.

We find no reversible error in the court’s handling of this matter.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and MCCORMICK, J., concur.

       Ill Rev Stats (1963), ch 38, § 16-1 provides, in pertinent part:
      § 16-1. Theft

      A person commits theft when he knowingly:
      (a) Obtains or exerts unauthorized control over property of the owner;

        and
      (1) Intends to deprive the owner permanently of the use or benefit of the property; or
      (2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
      (3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.
      Penalty.
      ... A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

       Considered as rebuttal of the alibi defense, we note that this evidence was introduced as a part of the State’s case in chief, presumably, and correctly so, in anticipation of defendant’s alibi testimony. Although this may not be a desirable practice, the fact that the testimony was received out of its natural order is not fatal to its admissibility. People v. Stathas, 356 Ill 313, 320, 190 NE 661.

       In People v. Horton, 78 Ill App2d 428, 223 NE2d 206, filed concurrently, it was stipulated that evidence in the instant case be considered as evidence in that case, and we found the evidence insufficient to prove theft of the two ears, as charged in those indictments.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gary Horton, Defendant-Appellant.
    Gen. No. 50,070.
    First District, Fourth Division.
    December 30, 1966.
    Norman Nelson, of Chicago, for appellant.
    No appearance made for appellee.

       Ill Rev Stats (1963), ch 38, § 16-1 provides, in pertinent part:
      § 16-1. Theft

      A person commits theft when he knowingly:
      (a) Obtains or exerts unauthorized control over property of the owner;
      and
      (1) Intends to deprive the owner permanently of the use or benefit of the property; or
      (2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or

        (3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.
      Penalty.
      ... A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.

       See Callaglian’s Illinois Digest, same topic and section number.

   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged in the Indictments

Theft of property exceeding $150 in value. Two indictments charging defendant with theft of automobiles (the property of Harold J. Harrison and Lila Anderson) were consolidated for trial.

Defense at Trial

Alibi.

Judgment

After a bench trial, the court found defendant guilty of both crimes charged, and sentenced him to terms of one to three years, to be served concurrently with each other and with the sentence involved in People v. Horton, 78 Ill App2d 421, 223 NE2d 202, the question in which is being filed this date.

Evidence

It was stipulated that if Lila Anderson were called, she would testify that she was the owner of a 1958 Chevrolet worth $800; that she parked her car in front of her place of work in Chicago at 7:00 a. m. on September 23, 1963, and in the afternoon of September 24 she noticed that it was missing.

It was also stipulated that if Harold J. Harrison were called, he would testify that he was the owner of a 1963 Chevrolet station wagon having a value of $2500; that he parked his car in front of his home in Chicago at 8:00 a. m. on September 24, 1963; that the car was missing at 3:30 p. m. that day, and was recovered later at the Chicago auto pound.

In addition, it was stipulated that the testimony of the State witnesses Smallwood and Stubblefield in the trial involved in People v. Horton, 78 Ill App2d 421, 223 NE2d 202, “as to the taking of these two automobiles by Mr. Horton would be the same, and that the testimony of Mr. Horton’s witnesses in that case would be the same in these cases.”

Opinion

For a recital of the testimony of Smallwood and Stubblefield in People v. Horton, 78 Ill App2d 421, 223 NE2d 202, reference is made to the opinion in that case. As to the acts of theft of the two automobiles with which we are here concerned, it was stated only that defendant “had a car over there” in the alley, and they went riding in it; that later defendant was “trying to get in” a station wagon; that “[h]e got it started” and they rode around in it also. Aside from the description of these cars as 1958 and 1963 Chevrolets (with some discrepancy as to the color) there was no evidence whatsoever to identify the cars as those belonging to Mr. Harrison and Mrs. Anderson, as charged in the indictments. Nor was there evidence to establish beyond a reasonable doubt that defender's use of these automobiles had not been authorized by the owners. In other words, the State did not meet its burden of proving all the elements of the crimes charged.

Decision

The judgments of the Circuit Court are reversed.

Reversed.

DRUCKER, P. J. and McCORMICK, J., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Harden, Jr., Defendant-Appellant.
    Gen. No. 10,701.
    Fourth District.
    December 29, 1966.

      Gerald M. Penner and Ronald H. Silverman, of Chicago (Joel J. Sprayregen, of counsel), for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   TRAPP, J.

Defendant appeals from his conviction upon a plea of guilty to an information charging pandering, upon which plea a sentence of 2 to 5 years in the penitentiary was imposed. Defendant’s motion in arrest of judgment, or in the alternative, for a new trial, was denied.

Upon this appeal it is urged that defendant’s prosecution was not consistent with due process of law and fundamental fairness in that: (1) the trial court accepted an unknowing and involuntary waiver of defendant’s right to counsel; (2) the trial court accepted an unknowing and involuntary waiver of defendant’s right to be tried upon indictment; (3) the trial court accepted an unknowing and involuntary waiver of defendant’s right to trial by jury; (4) the trial court failed to allow defendant adequate time to prepare his defense; (5) the trial court accepted an unknowing and involuntary waiver of defendant’s right to present evidence in mitigation for the purpose of sentencing, and unfairly sentenced defendant to an excessively long term in the Illinois State Penitentiary; (6) the errors in the court below, taken and cumulated as a whole, violate traditional standards of due process of law, even if no single error itself violates such standards; (7) a minor defendant, under twenty-one years of age, may not be allowed under any circumstances to waive his constitutional rights unless represented by counsel.

The defendant therefore requests that the judgment of the trial court below be reversed in its entirety; or in the alternative, that such judgment be vacated and remanded to the trial court below for a new trial; or, in the alternative, that the punishment imposed by the trial court be reduced as equity and fundamental fairness demand.

We consider the several contentions in the light of decisions by the Supreme Court that the reasonable intendments not contradicted by the record be taken in favor of the validity of a judgment and that one seeking the reversal of a judgment has the burden of proof as to its invalidity. People v. Wilson, 399 Ill 437, 78 NE2d 514; People v. Couvion, 33 Ill2d 408, 211 NE2d 746.

Within this context we note that the issue in this case must be distinguished from those in many of the authorities cited by defendant, where such issues arise under a motion to withdraw a plea, a petition in habeas corpus, a petition in post-conviction proceedings, a petition in the nature of coram nobis, People v. Jackson, 23 Ill2d 475, 179 NE2d 9, or under our Civil Practice Act, ch 110, § 72 (Ill Rev Stats, 1963); Withers v. People, 23 Ill2d 131, 177 NE2d 203. Under such proceedings the issues are reviewed in the light of facts in evidence or before the court upon affidavits or other verified material, resulting in an affirmative showing that the defendant acted under some disability, or while coerced, overawed or influenced by the representations of some person in authority.

Upon the issue of defendant’s waiver of counsel, it is urged that while the court satisfied its obligation to advise the defendant of his right to be represented by counsel, and to have counsel assigned if he was indigent, in language that the defendant would normally be expected to understand, nevertheless, the court failed to meet an obligation to conduct a meaningful inquiry into the particular circumstances in order to satisfy itself that the waiver of counsel, expressed orally and in writing, was intelligently given. It is suggested that acceptance of defendant’s waiver of counsel was tantamount to a denial of counsel in that the court did not inquire into matters of intelligence, understanding of the crime charged, emotional state, past criminal record, financial status and support by parents and friends.

The Criminal Code, ch 38, § 113-3 (a) (Ill Rev Stats, 1963) provides:

“. . . If the defendant desires counsel. . . .” (Emphasis supplied.)

he shall have a reasonable time to procure counsel and consult with him before pleading to the charge. Section 113-3 (b) contains the language:

“. . . if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed. . . .” (Emphasis supplied.)

Supreme Court Rule 26 (2) provides for the appointment of counsel and includes the language:

. . If he desires counsel, and states under oath he is unable to employ counsel, the court shall appoint competent counsel to represent him.” (Emphasis supplied.)

The appointment of counsel thus depends upon an expressed desire of the accused, except as controlled by the following provisions: ch 38, § 113-5 (Ill Rev Stats, 1963) provides:

“No person under the age of 18 years shall be permitted to plead guilty or waive trial by jury in any case except where the penalty is by fine only unless he is represented by counsel in open court.”

Supreme Court Rule 26 (4) provides:

“In no case shall a plea of guilty or waiver of indictment be received or accepted from a minor under the age of 18 years unless represented by counsel.”

We have found no other instructions or directions within the Criminal Code or the Supreme Court Rules relating to the appointment of counsel for a minor, or to the waiver of counsel by a minor. The net result is that an accused of 18 years or better can waive indictment, waive a trial by jury and enter a plea of guilty, although not represented by counsel, unless the record discloses some element which taints the proceeding or convinces that there has been a denial of due process.

Matters of supplemental record establish that the age of defendant at the time of arraignment and plea was 18 years and 5 months.

The propriety of the waiver of counsel by the defendant in this case is to be measured by the standards established in People v. Bush, 32 Ill2d 484, 207 NE2d 446. There the defendant had entered a plea of not guilty and ultimately the public defender was appointed for him. On date of trial defendant moved to be permitted to act in his own behalf. The trial court termed the request unusual and advised defendant that while he had a right to act as his own attorney, there appeared to be difficult legal problems concerning instructions and argument to the jury in the case, and that it was the court’s judgment that it was advisable that defendant have an attorney. The court then advised defendant that he was entitled to counsel under the law and that the court was willing to appoint counsel for him. Defendant indicated that he understood his right and desired to waive it.

Upon appeal he contended that he was deprived of his constitutional rights to the assistance of counsel. The argument actually was that a lawyer should have been appointed to explain to the defendant his right to counsel. This argument was rejected by the Supreme Court.

In holding that the defendant was not deprived of his constitutional right to assistance of counsel, the court’s opinion cited several opinions as authority for the proposition that the record must show that the defendant had been offered counsel, that there must be more than a routine inquiry as to whether he wished to have counsel, or waived such representation, and the record must show that the offer of counsel was intelligently and understandingly made.

Supreme Court Rule 26(3) provides that:

“The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person . . . unless the court finds from proceedings had in open court . . . [that the accused] understands he has a right to counsel, and understandingly waives that right. . . .” (Emphasis supplied.)

It is not controverted that here the defendant was offered counsel. At the preliminary hearing he was advised of his right to counsel, and again, at arraignment, the trial court twice advised of the right to counsel and of the duty of the court to appoint counsel if defendant was without money. At the time of this portion of the colloquy, the defendant had been advised of the severe penalty which might be imposed.

It has some significance that the trial court asked defendant if he wished to have counsel appointed. We distinguish a query as to whether defendant waived or wished to waive counsel. We cannot infer an overawed defendant in a position where it was easier to answer “yes” to the court than to answer “no.” The record does not disclose any inducement or representation by a person in authority which influenced defendant’s rejection of counsel. The totality of the colloquy discloses the court’s advice concerning the determination of defendant’s guilt upon a trial before a jury, or a trial before the court without a jury, and included the statement that if the defendant was found not guilty by a jury he would go free, but if found guilty he would be sentenced in the manner indicated by the court.

From the record and within the language of the Rule, we must conclude that the waiver of counsel was made “understandingly” in the sense that the defendant understood that he must be proven guilty before the jury, and that a lawyer would be appointed to assist him, but to such offer defendant twice said that he did not wish an attorney. We conclude the colloquy and the offer to appoint an attorney was not routine.

The opinion in Bush discusses waiver of counsel in terms of being “intelligently” made. Such factor is not within Rule 26 (3). The term “intelligently” seems to be taken from the United States Supreme Court decisions in Carnley v. Cochran, 369 US 506, 8 L Ed2d 70 and Johnson v. Zerbst, 304 US 458, 82 L Ed 1461. As we understand the first authority, it was contended that it was presumed that the defendant waived counsel, but there was no affirmative showing of waiver of counsel in that neither offer of counsel appeared in the record, nor did it appear that assistance of counsel had been affirmatively rejected. In the latter case, it appears that the court had not made inquiry of the defendant as to whether he wished counsel appointed, although request had been made of the United States Attorney and others that the defendant be permitted to have counsel. The substance of the opinion was that defendant had been ignorant of his constitutional rights and that acquiescence in the loss of such rights would not be presumed.

We conclude that in Bush our Supreme Court determined that the waiver of counsel was intelligently made in the sense that the defendant made his choice after the court had pointed out the various problems facing the defendant in the proceedings.

We have considered the many cases cited by defendant from the United States courts and their jurisdictions. Virtually all arose upon proceedings in habeas corpus or coram nobis and concern instances wherein the defendant was not advised of the right to counsel, or counsel had been requested but not appointed, or the defendant had not been advised of the consequences of his plea, or the defendant had acted as the result of representation by persons of apparent authority.

Defendant has cited People v. French, 67 Ill App2d 462, 214 NE2d 604; People v. Breese, 34 Ill2d 61, 213 NE2d 500; People v. Couvion, 33 Ill2d 408, 211 NE2d 746. In each of these cases there was no adequate advice of the right of counsel, or there was no appointment of counsel as requested.

Defendant relies upon United States v. Plattner, 330 F2d 271, a proceeding in coram nobis. He cites language that when a waiver of counsel is proffered, it is incumbent upon the trial court “by recorded colloquy” to explain to the defendant of his right to a lawyer, the obligation of the State to appoint a lawyer if indigent, the fact that he will be given a reasonable time to make a choice, the advisability of his having a lawyer, and the opinion of the court that it is in the best interests of the defendant to be represented by counsel. That opinion, however, found that upon the record taken as a whole, the defendant had made an understanding waiver of his right to counsel and the court pointed out that the suggested outline of procedure was made for the use and guidance of trial judges, rather than an absolute formula to be adhered to. We commend such admonition to judges as a desirable procedure which may eliminate problems present here.

We conclude that upon this record the trial court was not in error where it is shown that defendant was doubly advised of his right to counsel, that he could have counsel appointed if indigent and that the choice was made following the statement of the extent of the sentence which could be imposed upon the plea of guilty and a statement of his rights to a trial to determine his guilt.

We consider defendant’s argument that his waiver of indictment was not knowingly and understandingly made.

Chapter 38, § 111-2 (Ill Rev Stats, 1963) provides that all prosecutions for felonies shall be by indictment:

“. . . unless waived understandingly by the accused in open court. . . .”

Supreme Court Rule 26(3) provides that the waiver of indictment shall not be permitted unless the court finds from the proceedings in open court:

“. . . that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information. . . .”

Supreme Court Rule 26 (4) provides that the court shall not receive or accept a waiver of indictment from a minor under 18 years unless represented by counsel. We find no comparable statutory provision delimiting the age at which the court may accept a waiver of indictment by a minor.

The record discloses a written waiver of prosecution by indictment and consent to proceeding by information. The report of proceedings discloses that the court advised the defendant:

“You have an absolute right to have this matter presented to a grand jury and have an indictment returned, or you can waive a grand jury indictment and consent to prosecution in this way.”

In response to the court’s query, defendant stated that he wished to waive indictment.

In People v. Bradley, 7 Ill2d 619, 131 NE2d 538, the court considered the constitutionality of the then statute permitting waiver of indictment. The statute, ch 38, § 702 (Ill Rev Stats, 1955) then simply provided for the waiver in open court of prosecution by indictment. While the statute did not, by its terms, require that indictment be “waived understanding^,” the court interpreted the then statute in a similar light, as it said:

“Every accused person still enjoys an absolute right to be prosecuted by indictment. Only if he knowingly waives that right can he be prosecuted by information.”

The opinion finds that the defendant:

“. . . was fully advised by the court of his right to have the grand jury act on the matter before he could be prosecuted. . . .”

The Supreme Court’s opinion remarked upon the kinship between the problems involved in the waiver of trial by jury and those involved in the waiver of indictment. In People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404, the Supreme Court spoke of the trial court’s duty to determine whether the defendant knowingly and understanding^ had waived his rights to jury trial. There the court had advised the defendant that he had an absolute right to a jury trial and when the defendant replied that he wished to waive a jury trial and signed a written waiver, there was adequate evidence that such waiver was understandingly made.

The constitutional provisions with regard to the right to proceedings founded upon indictment are designed to protect the accused in his life and liberty against arbitrary power, oppression and tyranny. People v. Fisher, 340 Ill 250, 172 NE 722; Smith v. U. S., 360 US 1, 3 L Ed2d 1041. The grounds of prejudice alleged as to this defendant are that if there had been proceeding through indictment, the State would have been required to present some evidence and there would have ensued a delay which would have permitted the defendant to reflect upon the charges, with every reason to believe that defendant would have realized that he should have counsel. These are not matters coming within the purview of the concept of the constitutional safeguards provided.

The defendant’s argument that the defendant was deprived of constitutional rights through the trial court’s acceptance of an unknowing and involuntary waiver of his right to trial by jury is discussed only in the light of a waiver to trial by jury by reason of the plea of guilty. Chapter 38, § 115-1 (Ill Rev Stats, 1963) provides that prosecutions, except on a plea of guilty, shall be tried by the court and jury, or the court when a jury is waived by the defendant in open court. Chapter 38, § 113-5 (Ill Rev Stats, 1963) provides that no person under the age of 18 years shall be permitted to waive trial by jury unless represented by counsel in open court, except where the penalty is by fine only.

The record in this case contains a written waiver of jury signed by the defendant on the date of the arraignment. The report of proceedings discloses that following the court’s statement to the defendant of the maximum penalty for the offense charged, and following the court’s statement of the absolute right to proceed through indictment, the court advised the defendant that upon information he could have a trial by jury if he desired, or he could waive the jury and be tried by the court. Thereafter, upon tender of the plea of guilty, the court reiterated the right to a jury trial if desired, pointing out that if found not guilty by the jury he would go free, but that if found guilty by the court or by a jury he would be sentenced as explained. Following such explanation, defendant persisted in his plea of guilty.

The Legislature, having determined the age at which minors may waive trial by jury, and having established the standard to be followed by the trial courts, we cannot, in this case, say that the defendant was deprived of a constitutional right where the record does not disclose coercion, actual misapprehension or misrepresentation by any person in authority.

Defendant contends that the plea of guilty was not an understanding or informed plea because he was never adequately advised as to the “nature of the acts constituting the offense with which he was charged,” so that the trial court did not act in compliance with Supreme Court Rule 26(3) (Ill Rev Stats, 1963) which requires that the defendant be advised of:

“. . . the nature of the charge against him, and the consequences thereof if found guilty. . . .” (Emphasis supplied.)

Considering the language of the Rule, it appears that the noun “nature” connotes and is synonymous with the words essence, general character, kind or sort. In such sense the language of the Rule does not call upon the trial court to state to the defendant all of the acts which do or may constitute the offense.

We believe that in determining compliance with Supreme Court Rule 26(3), the court’s authority permits consideration of the total record in determining whether or not there was an understanding of the nature of the charge. People v. Doyle, 20 Ill2d 168, 169 NE2d 250; People v. Baldridge, 19 Ill2d 616, 169 NE2d 353. We distinguish People v. Washington, 5 Ill2d 58, 124 NE2d 890, where the trial court, in accepting the plea of guilty, did not mention the nature of the crime but only made reference to certain counts of the indictment, and People v. Culbert, 69 Ill App2d 162, 215 NE2d 470, where the Supreme Court noted that there had been no attempt by the trial court to advise of the nature of the offense.

Upon the premise that we are authorized to consider the entire record, we note that prior to the colloquy between the court and the defendant, the latter had appeared before the magistrate and had received a copy of the complaint in two counts, one of which alleged that the defendant had compelled a named female to become a prostitute, and one count which charged soliciting a named male for purposes of prostitution. Defendant had a copy of such complaint, together with a list of the witnesses. The record discloses that at the arraignment, or prior thereto, defendant had received a copy of the information charging pandering without compulsion, in one count. In his colloquy with the defendant the trial court referred to the offense as pandering. In response to the court’s inquiry, defendant stated that he understood the nature of the charge.

Defendant relies upon People v. Rice, 383 Ill 584, 50 NE2d 711 and People v. Potter, 5 Ill2d 365, 125 NE2d 510, as holding that charges relating to prostitution in the language of the statute does not adequately describe the act constituting the offense. Such authorities are limited to those instances where there has been a motion to quash. People v. Clark, 1 Ill App2d 250, 117 NE2d 421. Again, it appears that the constitutional right under Art 2, § 9 of the Illinois Constitution, to demand the nature and cause of the accusation, means what it says, that is, a demand exercised through a motion to quash. People v. Williams, 30 Ill2d 125, 196 NE2d 483; People v. Beeftink, 21 Ill2d 282, 171 NE2d 632; People v. Peters, 10 Ill2d 577, 141 NE2d 9.

Neither authorities cited by defendant, nor authorities which we have discovered, require that the provisions of Rule 26(3) mean that the trial court must explain what acts the defendant did to commit the offense. Upon an argument similar to defendant’s made in People v. Doyle, 20 Ill2d 163, 169 NE2d 250, the Supreme Court noted that the record - must be read in a realistic manner and that the admonishment is sufficient where an ordinary person would understand it.

' Defendant’s argument that it should be presumed that a plea is unintelligent and without understanding when made by a minor cannot be sustained when the Criminal Code, ch 38, § 113-5 and Rule 26(4) establish the age at which the trial court is authorized to accept a plea of guilty. There is no contention that there was any omission to explain the severe consequences of the plea, or that the plea was persisted in despite the severe prospective incarceration. People v. Baxton, 10 Ill2d 295, 139 NE2d 754.

Our Supreme Court has consistently held that minority does not make it improper to accept a plea of guilty. See People v. Batey, 392 Ill 390, 64 NE2d 875, where the defendant was 15 years of age; People v. Davis, 396 Ill 432, 72 NE2d 193, where the defendant was 16 years .of age and without counsel. That opinion holds that there was nothing in the record to show that the plea was not made understandingly and that youth alone does not affect a plea of guilty. See also People v. Donovan, 376 Ill 602, 35 NE2d 54; People v. Sheehan, 407 Ill 545, 95 NE2d 878.

It is further argued that by reason of the fact that the arraignment and sentence occurred within some 48 hours following defendant’s arrest, he was denied an opportunity to prepare his defense. In People v. Davis, 396 Ill 432, 72 NE2d 193, the defendant, age 16 years, was arraigned and entered his plea on the day of his arrest. The court held that the mere fact that the defendant was 16 years of age raised no presumption that the court’s action was improper, as the important fact disclosed by the record was that the defendant had been fully advised of his right to a jury trial, his right to counsel and the consequences of the plea, and there was nothing in the record to indicate that the defendant was unable to understand or comprehend the nature of the proceedings. To the same effect is People v. Carter, 398 Ill 336, 75 NE2d 861, where a 20-year-old defendant pleaded guilty, and the court held that it must appear from the record that there was an abuse of discretion on the part of the trial court. See also People v. Ross, 400 Ill 237, 79 NE2d 495.

We distinguish this case from People v. Lewis, 413 Ill 116, 108 NE2d 473, where the record of a hearing in aggravation and mitigation disclosed that the defendant was incapable of representing herself by reason of the confusion and incoherence noted by the court, and People v. Evans, 4 Ill2d 211, 122 NE2d 730; and People v. Cox, 12 Ill2d 265, 146 NE2d 19, where facts were presented for consideration on review in the record upon post-conviction hearing.

Defendant urges that even if no single one of the several errors argued heretofore is sufficient to require reversal, still accumulated as a whole, they violate traditional standards of due process, and the case must be reversed. This is a kind of hypothesis proposing that a chain is weaker than its strongest link, a proposition which we are not prepared to defend. We do not believe that this case calls for adopting such a policy.

It is propounded by defendant that a violation of due process exists if a minor is permitted to waive his constitutional rights. It must suffice to say that both the Legislature and the Supreme Court, by rule, have stated the public policy upon the matter, and it is not for this court to oust such determinations and hold them for naught.

From an examination of the record we conclude that defendant was advised of his right to the hearing of evidence in aggravation and mitigation and that there was an express waiver thereof within the rule of People v. Harris, 66 Ill App2d 46, 213 NE2d 588, and that there was nothing which might properly be considered the equivalent of a motion for such hearing under the rule of People v. Smith, 62 Ill App2d 73, 210 NE2d 574. Defendant gave a categorical negative to the court’s inquiry regarding such a hearing and thereafter, immediately prior to the announcement of the sentence imposed, he advised the court that he had nothing to say. Upon imposition of the sentence and statement of its terms, defendant again advised the court that he had nothing to say concerning the sentence. People v. Muniz, 31 Ill2d 130, 198 NE2d 855. Contrary to the argument presented by counsel, the record does not make it clear that defendant was an apprehensive, uncomprehending, coerced, overawed and callow youth who was appearing in court for the first time. Such conclusion can only be reached by the eager use of inference related to his age alone. Rather, there is, in fact, a statement in the record which suggests some experience with court proceedings including probation. It is patent that a hearing in aggravation and mitigation cannot always be an aid of the defendant, and in some cases a failure to claim the right may be well advised.

We believe, however, that the record does not adequately disclose the exericse of judicial discretion in the fixing of the sentence, as it appears that such sentence was imposed by the trial court solely upon the recommendation of the State’s Attorney. By reason of the nature of the proceedings, the court had heard no evidence and was without knowledge of the offense except as disclosed in the information. Chapter 38, § 1-7 (g) provides that:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial. . . .”

Chapter 38, § 115-2(b) provides that:

“Upon acceptance of a plea of guilty the court may hear evidence of the charge.”

The Committee Comment upon the latter provision states that the section does not make the hearing of evidence of the charge mandatory, but that § 1-7 (g) makes mandatory the hearing of matters in aggravation and mitigation. This conclusion of the Committee, however, does not seem to be borne out entirely where there has been an express waiver of the hearing in aggravation and mitigation. People v. Harris, 66 Ill App2d 46, 213 NE2d 588; People v. Smith, 62 Ill App2d 73, 210 NE2d 574.

The Criminal Code, ch 38, § 1-7 (e) provides that all sentences to the penitentiary shall be for an indeterminate term and that:

“. . . The court in imposing a sentence of imprisonment in the penitentiary shall determine the minimum and maximum limits of imprisonment. . . .” (Emphasis supplied.)

The fixing of the sentence is an exercise of judicial discretion. People v. Riley, 376 Ill 364, 33 NE2d 872. In People v. Spann, 20 Ill2d 338, 169 NE2d 781, defendant contended that the trial court committed prejudicial error when it received evidence in aggravation and mitigation after conviction. Reversing a former holding under such circumstances, the court held that the hearing was for the protection of the defendant and society alike, and was aimed at permitting intelligent judicial discretion in the matter of imposing sentence. That opinion cited Williams v. People of State of New York, 337 US 241, 247, 93 L Ed 1337, 1342, to the effect that highly relevant, if not essential, to the selection of an appropriate sentence is the possession of information concerning the defendant and the offense. As stated in People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503, in another context, in fixing an appropriate penalty, the trial court owes a duty to the public as well as to the accused, and should weigh and consider pertinent facts, including the nature of the offense and the attending circumstances.

In People v. Rummerfield, 4 Ill2d 29, 122 NE2d 170, it was held that where the defendant had waived the hearing in aggravation and mitigation, the court may substitute some other method of obtaining the necessary information, and upon its own motion the facts of the case were outlined to the court. In People v. Wakeland, 15 Ill2d 265, 154 NE2d 245, the court heard statements from counsel which, upon inquiry, the defendant affirmed. In People v. Muniz, 31 Ill2d 130, 198 NE2d 855, the court heard statements of counsel and defendant was asked if he had anything to say.

Upon the record before us in this case, the recommendation of an Assistant State’s Attorney was the sole factor before the court as it determined the quantum of sentence, and we conclude that there were no facts before the court upon which there could be an exercise of judicial discretion in the matter of sentence.

By reason of the premise, the judgment of conviction is affirmed, but the cause is remanded with directions to vacate the sentence and to ascertain, as a matter of record, such facts as will permit the court to determine the sentence upon matters properly before him. People v. Harris, 66 Ill App2d 46, 213 NE2d 588; People v. Smith, 62 Ill App2d 73, 210 NE2d 574.

This court would be greatly remiss if it failed to note that acting upon information then available to them, four attorneys of the Champaign County Bar volunteered to act in defendant’s behalf, presenting post-trial motions and initiating this appeal. This demonstration of a high sense of professional responsibility requires recognition and commendation.

The judgment of conviction is affirmed, but the cause is remanded with directions to vacate the sentence and for such further proceedings as are not inconsistent herewith.

Conviction affirmed, but remanded with directions as to sentence.

CRAVEN, P. J. and SMITH, J., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ollis Napper, Defendant-Appellant.
    Gen. No. 50,699.
    First District, Fourth Division.
    January 4, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John David Dillner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Ollis Napper, was convicted after a jury trial of rape and was sentenced to the penitentiary for a term of not less than two nor more than twelve years.

Contention, on Appeal

Defendant’s sole contention is that his identification by the complaining witness was insufficient to prove him guilty beyond a reasonable doubt.

Evidence

According to the evidence adduced by the prosecution the complaining witness (Joann Petties, an eighteen-year-old high school student) was accosted at approximately 11:30 p. m. on April 26, 1964, as she was walking near her sister’s home on South University Avenue in Chicago, Illinois; defendant grabbed her and asked if she wanted to make $5, she refused and was then grabbed by the arm; defendant put a knife to her side and they walked one and one-quarter blocks down a lighted street and then into a gangway where the rape took place. Defendant asked her name and address (she told him the address of her sister but she actually lived elsewhere with her mother), walked her to the corner and stated that he would be there at 8:00. She then ran to her sister’s home, related the aforesaid events to her, and the police were called. Miss Petties described her assailant to the police as a Negro, 35 to 37 years of age, approximately four feet nine inches tall, 140 to 150 pounds and dressed in dark clothing. She also gave the description to her brother-in-law, Dennis Dupart. Approximately two weeks later defendant arrived at the Dupart home (Miss Petties’ sister) and asked for Miss Petties; Dennis Dupart said that she lived down the street and would take him there; upon reaching their destination defendant pulled a knife and ran but was subsequently subdued and was taken to the emergency room at Billings Hospital for treatment of injuries suffered in his capture. Dupart testified that on the basis of his sister-in-law’s description he recognized the defendant as her assailant when he knocked on the door; Dupart then went to Joann Petties and told her they had the man who attacked her, after which they went to Billings Hospital where she identified the defendant. She again identified defendant at the trial.

Defendant denied raping Joann Petties and offered the alibi that he was at home with his “common-law wife,” which the latter corroborated. Defendant’s explanation of his appearing at the Dupart apartment in search of Miss Petties is that he met a man named Hugo in a tavern; they began drinking and Hugo requested the defendant to pick up the former’s girl; and that Hugo drove him in his car to the house to get her. Defendant could not further identify “Hugo” and stated that he knew nothing of the man but his name. Hugo did not testify' at the trial. Defendant admitted pulling a knife on Dennis Dupart but stated that he did so only after Dupart'and four others jumped on him.

Opinion

The testimony of one witness alone, when it is positive and the witness credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 195 NE2d 694. In weighing evidence of identification the opportunity of a definite identification must be considered. People v. Stewart, 62 Ill App2d 428, 211 NE2d 154. In the instant case the complaining witness had ample opportunity to observe her assailant as they walked together down a lighted street and. also as he attacked her. Moreover, she gave a complete description of her assailant to the police. During the course of the trial the jury had the opportunity to compare that description, as related in the testimony of a police officer, with the physical characteristics of the defendant. The identification was positive at all times. The fact that Miss Petties’ brother-in-law informed her that they had the man who attacked her, prior to her identification of him at the hospital, goes only to the weight of the identification, not to its competency. People v. Berne, 384 Ill 334, 51 NE2d 578. The question of the defendant’s identification was for the determination of the jury, which will not be disturbed because it was not so unsatisfactory or implausible as to justify a reasonable doubt of defendant’s guilt. People v. Woods, 26 Ill2d 582, 187 NE2d 692.

Holding on Appeal

We find that the defendant was proven guilty of rape beyond a reasonable doubt. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       We note that the house was not the home of Miss Petties but that of her sister and the address was the one given by Miss Petties to her assailant.


text:
    Patricia W. Mabbatt, Plaintiff-Appellee, v. Richard H. Mabbatt, III, Defendant-Appellant.
    Gen. No. 51,084.
    First District, Fourth Division.
    January 4, 1967.

      Defrees, Fiske, Thomson & Simmons, of Chicago (Thomas J. Johnson, Jr. and Thomas Z. Hayward, Jr., of counsel), for appellant.
    Edmund J. Burke, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from an order modifying the child custody provision of a divorce decree and awarding attorney fees to the plaintiff.

Plaintiff and defendant were divorced in 1961. A property settlement agreement which was negotiated by the parties and incorporated into the decree provided in relevant part that the defendant, Richard Mabbatt, shall have custody of the children: Kenneth David, then eight years old, born of defendant and his first wife (who was deceased) and adopted by plaintiff; William Churchill and Thomas Roy, then five and three years of age, respectively, both natural children of the parties. At the time of the divorce all three children were living with plaintiff at the home of her parents in Denver, Colorado. Defendant made no objection to this arrangement and, although plaintiff and the children subsequently returned to Cook County in January of 1963, all of the children were allowed to reside with the plaintiff until May 4, 1965, almost four years from the entry of the decree. At that time plaintiff notified defendant that she could no longer handle the oldest boy, Kenneth, and the latter then came to live with defendant and has since been living with him. On June 19, 1965, when the other two boys were with defendant for the weekend, defendant determined that he would not return them to plaintiff and notified her by letter that “he was exercising his custody rights under the decree.” Shortly thereafter plaintiff went to defendant’s home, found the two younger boys in a neighbor’s pool and took them away with her. After a series of legal proceedings defendant petitioned the court to require plaintiff to return the children to him in accordance with the child custody provisions of the divorce decree. Plaintiff cross-petitioned the court to modify the divorce decree and to award her custody of all three children. After hearing extensive evidence the trial judge modified the decree and awarded plaintiff custody of the two younger children but allowed the older child to remain in the custody of defendant. Plaintiff was also awarded $300 in attorney fees.

Defendant contends that plaintiff failed to show any change of circumstances which would support a modification of the decree. In Bemis v. Bemis, 89 Cal App2d 80, 200 P2d 84, the mother sought modification of a decree granting legal custody to the father. The children had been living with the mother for “over a year.” In ruling in favor of the mother and modifying the decree (reversing the trial court) the court stated at page 91 that:

Upon the record defendant’s opposition to modification finds support only in the purely legal ground that having been awarded custody of the children he may not be deprived of their custody without a showing that he has become an unfit custodian. . . . [W]e deem this an insufficient ground for the denial of plaintiff’s application. Under the unusual circumstances of the case the inquiry should have been as to the conditions surrounding the children in the mother’s home, inasmuch as they had not been with their father. The court heard all the evidence that defendant introduced, or offered, which tended to prove that at the time of the hearing plaintiff was an unfit person to have custody, as to whether she had ever neglected the children or failed in her maternal duties toward them.

In the instant case defendant permitted the children to remain in the custody of plaintiff for nearly four years following the entry of the divorce decree, notwithstanding that (1) custody of all the children was awarded to the defendant, and (2) defendant had remarried in May, 1962. Therefore, as in the Bemis case, the proper inquiry was as to the conditions surrounding the children in the mother’s home. The trial judge heard extensive conflicting testimony on that issue which need not be reiterated here. However, he chose to believe that testimony which was favorable to the plaintiff and determined that she was fit to have custody of the two children. It is for the trial judge, who saw and heard the witnesses, to determine the credibility. Wade v. Wade, 345 Ill App 170, 102 NE2d 356. The fact that there was substantial conflicting evidence, in itself, would not justify this court in disturbing the conclusion of the court below, since that conclusion was not against the manifest weight of the evidence. Bateman v. Bateman, 337 Ill App 7, 85 NE2d 196. Moreover, the determination of the trial court in a hearing involving child custody should not be disturbed unless manifest injustice has been done. Bateman v. Bateman, supra; Hahn v. Hahn, 69 Ill App2d 302, 216 NE2d 229.

The trial court was in a better position than an appellate tribunal to determine the best interests of the children (Buehler v. Buehler, 373 Ill 626, 630, 27 NE2d 466). Under the circumstances of this case we will not disturb the court’s judgment.

Defendant also argues that attorney fees were improperly awarded to the plaintiff. Defendant asserts that “the power of a court to grant attorney fees rests on Section 15 of the Divorce Act (Ill Rev Stat 1965, ch 40 § 16; that by its terms the right granted by the statute is limited to services rendered in connection with the marital relation, not for services, rendered after that status has been terminated by the original decree.” In further support of his argument defendant asserts that it was plaintiff who initiated the action to modify the divorce decree. Contrary to defendant’s contention, attorney fees can be awarded to a divorced wife in subsequent proceedings to modify the decree under proper circumstances. Martin v. Martin, 332 Ill App 661, 76 NE2d 353. Moreover, the allowance of the aforesaid attorney fees depends not upon who initiates the proceeding but rather upon the circumstances peculiar to the individual case. In Jacobs v. Jacobs, 328 Ill App 133, 65 NE2d 588, the divorced wife petitioned the court for an increase in alimony on the ground that an amendment to the income tax laws had reduced the balance remaining in her hands. The request was denied by the trial court. On appeal it was held that the modification should be granted and that the wife should be awarded attorney fees. In Williams v. Williams, 320 Ill App 354, 51 NE2d 284, where the husband sought to modify the terms of the decree, the court allowed the wife $400 in attorney fees on the ground that “the welfare of the children is directly in issue.” In its opinion at page 357 the court distinguished Gerson v. Mathes, 252 Ill App 607, a case in which attorney fees were denied to a divorced wife who initiated the proceedings to modify the decree, on the ground that “The petition there filed sought to change the custody of the children involved, not for their welfare but for the convenience of the parties.” The court did not draw the distinction that in Mathes it was the wife who initiated the proceeding, whereas in Williams it was the husband who sought to modify the decree. In Gehlbach v. Gehlbach, 219 Ill App 503, where the wife petitioned for an increase in alimony, the court denied the allowance of attorney fees to her solely on the ground that there was no proof that the fees were reasonable, customary and usual. The court thereby intimated that the fees otherwise would have been allowed. In Moore v. Black, 10 Ill App2d 339, 134 NE2d 347, a divorced wife who was granted custody of the children petitioned the court to modify the terms of the decree to allow her to remove them to another jurisdiction where her new husband had found employment. The request was granted and attorney fees were allowed to the wife (plaintiff in that case). On appeal the court determined that attorney fees should not have been allowed, proceeding on the theory that while the modification was in the best interests of the children, “it does not follow that plaintiff’s petition for modification was required by circumstances created by defendant.”

In the instant case it is clear that the welfare of the children is involved. Moreover, contrary to the facts in Moore v. Black, supra, the incurrence of attorney fees by plaintiff in the instant case was required by circumstances created by the defendant. The filing of plaintiff’s cross-petition for modification of the decree and the consequent incurrence of attorney fees was necessitated by defendant’s petition to enforce the terms of the original decree almost four years after the entry thereof, in which he sought to upset the status quo of the de facto custody of the children. Defendant, by his petition, sought to alter a situation which he had voluntarily allowed to exist for almost four years.

We find that under all the circumstances of the instant case the trial judge did not abuse his discretion in awarding attorney fees of $800 to plaintiff.

The order of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       No cross-appeal is taken by the plaintiff with regard to the custody of the older child.

       At first the children were in Colorado and defendant was unmarried, circumstances which might well have prompted him not to disturb the status quo. After his remarriage in 1962, and the return of the children to Cook County in 1963, all impediments to his assertion of custody rights had been removed — unless his desire to have the boys live with him was something less than he now contends.

       Additionally, attorney fees are allowed to the wife who initiates a proceeding to enforce the terms of a decree. Walters v. Walters, 409 Ill 298, 99 NE2d 342.