author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Paul Conway, Defendant-Appellant.
    Gen. No. 50,948.
    First District, Third Division.
    July 6, 1967.

      James G. Flannery, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of burglary with intent to commit theft, burglary with intent to commit rape, and attempt rape. A jury found the defendant guilty, rendering a general verdict covering the three counts. After a hearing in aggravation and mitigation the defendant was sentenced to seventy-five to one hundred and fifty years in the penitentiary.

Defendant contends on appeal that: (1) inflammatory evidence, not properly connected with defendant or shown to be relevant, was improperly admitted; (2) assigned counsel did not provide defendant with the legal assistance guaranteed him by the Constitution; (3) the form of the verdict deprived the accused of a fair trial on each count of the indictment, and (4) the seventy-five to one hundred and fifty year sentence was excessive and out of proportion to the offenses.

On May 6, 1965, at approximately 4:00 a. m., someone forcibly and without authority entered the home of the Pullen family in Chicago. Entry was through a pantry window, after the burglar had pried the screen from its frame.

Mrs. Pullen’s wallet, containing some money, a driver’s license bearing Mrs. Pullen’s name, and money from Miss Susan Pullen’s purse were taken. The intruder, later identified as defendant Conway, also entered Miss Pullen’s bedroom and got upon her bed. She was awakened when he placed a cloth over her face and a knife at her throat. As soon as she awakened he removed the cloth from her face and told her to show him where the money was kept in the house. She claimed to be very weak and suffering from a contagious disease, so as to ward him off.

The attacker then ordered her to lie on her back and to kiss him. She complied under the threat of the knife at her throat. Defendant took the knife from her throat to slit the crotch of her pajamas. He fondled her body and threatened to perform an act of oral copulation. After forcing her to straighten her legs defendant said, “Hold still, hold still, I’m going to fuck you.” As he leaned back to unfasten his pants Miss Pullen screamed and began vigorously struggling. During the fracas, she was cut and bruised. However, her efforts succeeded in frightening defendant, and he jumped up and ran.

During the time of the attack, there was a faint light shining into the bedroom and Miss Pullen was able to look directly into the face of her assailant. When defendant jumped up and ran, Miss Pullen chased him, grappling with him. On her way after him she was able to turn on lights in the dining room and kitchen. He turned and faced her in the well-lit kitchen, knocked her down and escaped.

The police were called and told that the assailant was a male Negro, a little under six feet tall, wearing a light brown jacket and dark colored wash pants. Not long afterwards defendant, who matched the description Miss Pullen had given, was picked up by the police. On his person were found Mrs. Pullen’s wallet containing a driver’s license bearing Mrs. Pullen’s name, some money, and a screwdriver.

Defendant was taken to Roseland Hospital where Miss Pullen was being treated for the cuts she had received during her struggle with the assailant. The victim identified Conway as her assailant. She testified that she then told the officers she recognized Conway by his eyes and nose, and, when he began to scream, his voice. She said she was sure he was the man who attacked her.

Defendant first contends that the court erred in admitting inflammatory evidence not properly connected with defendant or shown to be relevant. Those items are the pajamas worn by the victim the night of the attack, the Pullen’s kitchen knife, the screwdriver found on defendant’s person at the time of his arrest, and Mrs. Pullen’s wallet and the money it contained. Generally, evidence having a natural tendency to establish facts in controversy should be admitted, and truly competent evidence should not be excluded merely because it might arouse feelings of horror or indignation. People v. Jenko, 410 Ill 478, 102 NE2d 783. The question, therefore, is whether the evidence here complained of is relevant and connected to the case and defendant.

Defendant claims that, for proper admission of the pajamas, there must have been a showing that the defendant was the man who attacked Miss Pullen and the one who cut the pajamas. The victim testified that she saw her assailant from a distance of a foot for a period of several minutes with a night light shining in on him from another room. She further stated she saw the man in other rooms while chasing him. She had turned on the lights in two rooms, and saw him then under good lighting conditions. Just a few minutes later she was able to describe the man who attacked her as to his clothing, race, height and hair. This description fit the defendant and, when the victim was face to face with him at the hospital where she was taken for treatment, she immediately identified him. She stated that she was sure he was the man, and that she recognized his eyes, nose and voice. Miss Pullen is a school teacher twenty-two years of age. She was mature in her handling of the terrifying situation confronting her and she gave the police a good description of the man involved. She was positive in her identification, which was soon after the occurrence, so as to leave his image fresh in her mind. We feel this identification is sufficient to come within the rule that the testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict. People v. Ashley, 18 Ill2d 272, 164 NE2d 70; People v. Tunstall, 17 Ill2d 160,161 NE2d 300. Defendant contends that Miss Pullen’s identification of Conway is incredible and that her description prior thereto was sketchy. We feel that this contention is unfounded. The fact is, she did identify the defendant and she testified that he was the one who cut the pajamas. Miss Pullen connected the defendant and the pajamas with the crime by her testimony. It should be noted that the cut clothing is relevant to the element of force of the crime. Therefore the item was properly admitted.

The knife introduced was a kitchen utensil, commonly referred to as a butcher knife. Several of Miss Pullen’s statements referred to a knife in the possession of the defendant. After he had escaped, she found the knife in her hand. When she put it down, it was, according to her testimony, bloody. The victim had been cut during the struggle with her assailant. This testimony was sufficient to connect the knife to the defendant and to the crime, and was properly admitted into evidence. The Illinois Supreme Court has held that a weapon may be admitted as evidence where there is proof offered connecting it with defendant and with the crime. People v. Ashley, supra.

Defendant also claims that it was error to allow into evidence the screwdriver found on defendant’s person at the time of his arrest. There was evidence that the burglar had entered the Pullen home by prying a window screen from its frame. People v. Brancztet, 59 Ill App2d 381, 208 NE2d 416, discussed the admissibility of a screwdriver found on a person when he was arrested for burglary, and ruled that the tool, taken after a lawful search, was admissible. Defendant also claims that several remarks made during the trial about the screwdriver and the knife were inflammatory and prejudicial. While wé do not decide that the remarks complained of were advisable, our examination of the record shows that they were not grounds for reversal.

Defendant also claims that the wallet and money (identified as belonging to Mrs. Pullen) found on Conway’s person when he was arrested do not tend to prove a wrongful taking from the Pullen home. It is well established that the recent, exclusive, and unexplained possession of the fruits of a burglary gives rise to an inference, not only of connection with the crime, but of guilt sufficient to sustain a conviction of that burglary. People v. Pride, 16 Ill2d 82, 156 NE2d 551; People v. Rogers, 16 Ill2d 175,157 NE2d 28.

Defendant next contends that assigned trial counsel for Conway did not provide him with the legal assistance guaranteed him by the constitution. Although an accused has the right to assistance of effective counsel this does not mean infallible counsel. Incompetency of counsel has been held to be such as renders the defense a farce or amounts to no representation at all. People v. Dean, 31 Ill2d 214, 201 NE2d 405. Defendant claims that his trial counsel failed to make objections to damaging and inflammatory remarks, failed to offer adequate evidence in mitigation and failed to provide any affirmative defense. The first alleged failure refers to decisions that are generally a matter of trial tactics and an error therein will not be grounds for reversal due to incompetency. People v. Wesley, 30 Ill2d 131, 195 NE2d 708. The other alleged failures are those of not presenting evidence favorable to defendant. These matters are beyond the record and we have no way of knowing that such evidence existed. Defense counsel certainly has no duty to make up defenses. People v. Olmstead, 32 Ill2d 306, 205 NE2d 625. The Wesley case, supra, discussed similar alleged errors of trial counsel and ruled that matters pertaining to exercise of judgment are not within a review of competency of counsel. The court there also commented on the evidence of guilt for which there could have been little effective defense. The same statement could be made in the instant case.

Defendant next contends the form of the verdiet given deprived the accused of a fair trial on each point of the indictment. The indictment contained three counts: burglary with intent to commit theft, burglary with intent to commit rape, and attempt rape. These three counts all arose out of one occurrence, that of May 6, 1965. The form of the verdict objected to was as follows:

“We, the Jury, find the defendant, George Paul Conway, guilty in manner and form as charged in the indictment, and we further find the defendant to be about the age of 31 years.”

Defendant argues that the jury was thereby given no opportunity to decide guilt or innocence on each count, but was instead required to use an “all or nothing” approach. However, defense trial counsel neither offered another verdict which distinguished among the counts nor objected to the form of the verdict given. Although defendant’s appellate counsel suggests that this shows incompetency of trial counsel, we do not agree. Trial counsel may well have felt the general form of the verdiet was more favorable to defendant. Rather than deprive the jury of the opportunity of decision on each count it required a finding of guilty of all three for a return of the verdict of guilty “in manner and form as charged in the indictment.” In view of the evidence against Conway this may have indeed been a wise decision on the part of trial counsel. At any rate, no objection was made at the trial to the form of verdict given and such questions may not be raised for the first time on appeal. People v. Bruce, 344 Ill App 114, 100 NE2d 350, held that if trial counsel failed to submit a verdict whereby defendant could have been found guilty of a lesser offense and the evidence supports the verdict reached, it was not error for the trial court to fail to give a verdict whereby defendant could have been found guilty of the lesser offense. This reasoning is equally applicable to Conway’s case. The evidence presented clearly was sufficient to have found him guilty on all three counts and the jury, in returning a general verdict, accepted that evidence.

Defendant lastly contends that the seventy-five to one hundred and fifty year sentence was excessive and out of proportion to the offenses. Defendant was convicted of serious and violent crimes. Furthermore, at the hearing on aggravation and mitigation, it was shown that he had served sentences for three prior offenses, assault with intent to murder and two burglaries. Less than three months after his release from the last sentence he committed the crimes for which he was sentenced in this case. This is far from a showing of any tendency toward reform. The sentence imposed was within the statutory limits. (Ill Rev Stats 1965, c 38, pars 8.4, 11.1, 19.1.) Where the punishment imposed is within the statutory limits and was authorized by law, it cannot be said to be disproportionate to the nature of the offense, and the reviewing court will not interfere therewith in absence of a clear abuse of the trial court’s discretion. People v. Stevenson, 27 Ill App2d 144,169 NE2d 281.

As was shown in People v. Caldwell, 79 Ill App2d 273, 224 NE2d 634, the sentence is not as onerous as it may appear. In the Caldwell case defendant had been sentenced to a term of fifty to one hundred years. We there pointed out that any minimum term of more than twenty years is treated as a twenty year sentence for the purpose of parole eligibility. (Ill Rev Stats 1965, c 38, par 123-2 (a) (3).) With possible time credit for good behavior, the prisoner may become eligible for parole after eleven years and three months. There is then a wide spread between the minimum and maximum sentences that this defendant may serve. As in the Caldwell case, supra, we feel that this flexibility is an aid to the parole board making its determination as provided for in the parole laws of Illinois.

For the reasons expressed above, the judgment and sentence of the trial court are affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    William Matyskiel, Plaintiff-Appellant, v. Joseph J. Bernat, Defendant-Appellee.
    Gen. No. 51,345.
    First District, Third Division.
    July 6, 1967.

      Davis, Dietch and Ryan, of Chicago (Arthur F. Cichorski, of counsel), for appellant.
    Liebling, Adelman & Bernstein, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Automobiles owned by William Matyskiel and Joseph Bernat collided in June of 1965 and Matyskiel sued for damages to his car. After a nonjury trial, the court found Bernat at fault, assessed Matyskiel’s damages at $175 and entered judgment for that sum.

Bernat, through new counsel, filed a motion to vacate the judgment. The motion alleged that: Matyskiel was uninsured at the time of the accident; Bernat notified his insurance company that he had a claim against Matyskiel which would be presented under the uninsured motorists coverage of his policy; thereafter he was served with process notifying him that Matyskiel had filed a property damage suit; he forwarded the summons to his insurance company; notwithstanding his own claim, the company furnished the attorneys who defended him in Matyskiel’s suit; the company’s and the attorneys’ interests were adverse to him; they could not adequately and fairly represent him but they proceeded to trial despite their conflict of interest. The motion further alleged that because of Matyskiel’s judgment the defense of estoppel would be raised to any subsequent suit or arbitration proceeding commenced by Bernat under the uninsured motorists provision of his policy. The trial court granted the motion.

Matyskiel regarded the trial court’s order as one granting Bernat a new trial and he petitioned this court for leave to appeal. No brief, objection or countermotion was filed in opposition to the petition and it was allowed. Matyskiel filed an additional brief in support of his petition and requested oral argument. An appearance was filed by Bernat’s attorneys but no brief was presented in his behalf. Despite this deficiency an attorney appeared at the argument and, in response to our inquiry, stated that no brief had been filed because of the small amount involved and because the defendant relied upon a memorandum of law which was in the record and which had been submitted to the trial court.

The memorandum referred to did not, in any respect, meet the issues or answer the arguments made in the appellant’s petition and brief. Since the appellee did not file a brief in this court we would be justified, without further consideration of the merits of the case, in reversing the order of the trial court (541 Briar Place v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964)). Appellate Court Rule 5(2) (k) (Supreme Court Rule 39(1) (1965)) provides:

“Each party to a cause in this court shall file a printed brief. . . .
“Appellant’s Brief shall contain the following divisions . . . Points and Authorities. . . .
“II The Points and Authorities shall consist of the propositions relied upon in support of the appeal with citation of authorities.
“IV The Argument shall be limited to the points made and cases cited in the Points and Authorities.
“No alleged error or point not contained in the brief shall be raised afterwards, either by reply brief or in oral or printed argument. . . .
“Appellee’s Brief shall conform to the same rules as those governing appellant’s brief. . . . The Points and Authorities shall consist of the propositions relied upon to sustain the judgment, decree or order appealed from, with supporting authorities. . . .”

Although an appellee has not complied with Rule 5 (2) (k) we may, if we believe it advisable, examine the record to ascertain if an injustice would be done the appellee if the trial court’s order, decree or judgment were to be reversed. Werbeck v. Werbeck, 70 Ill App 2d 279, 217 NE2d 502 (1966). In view of the averments made in the defendant’s motion we have done that in this case.

The motion was filed within thirty days of the judgment and prayed that the judgment be vacated and the case set for trial. Although the motion did not state the statute under which it was brought, the memorandum presented in support of the motion said it was “. . . filed within Thirty (30) days of the entry of the aforementioned judgment, as provided for in Section 72 of the Civil Practice Act.” This was obviously wrong. The motion could not lie under section 72; this section provides for relief from final orders, judgments and decrees, after thirty days from entry thereof. The motion could have been made under section 68.3 of the Civil Practice Act:

“In chancery cases and in cases at law tried without a jury, any party may, within 30 days after the entry of the decree or judgment, file a motion for rehearing, or a retrial, or modification of the decree or judgment or to vacate the decree or judgment or for other relief.” Ill Rev Stats, 1965, c 110, § 68.3(1).

The court’s order did not state the authority under which the motion was allowed; it merely granted the motion and ordered a new trial. Under the circumstances, it was not unreasonable for the plaintiff to interpret this as an order granting a new trial. The defendant apparently accepted this interpretation. As we have mentioned, he did not object to the petition for leave to appeal and did not move to dismiss the appeal after the petition was allowed.

An order vacating a judgment is interlocutory and is not appealable. Dross v. Farell-Birmingham Co., Inc., 51 Ill App2d 192, 200 NE2d 912 (1964). An order granting a new trial, while interlocutory, may be appealed if permission is obtained from the reviewing court. Supreme Court Rule 30 (1965); Rule 306 (1967); Rodriguez v. Chicago Transit Authority, 58 Ill App2d 150, 206 NE2d 828 (1965). We adhere to our decision; we retain the appeal as one from an order granting a retrial.

This ease must be distinguished from Natale v. Enterprise Pub. Co., 82 Ill App2d 105, 227 NE2d 84 (1967). In Natale a judgment was entered after a jury found the defendants guilty. Although the defendants had filed an answer the case went to trial without the defendants being present or anyone appearing in their behalf. Evidence was heard, instructions were considered by the court and the jury was given 12 instructions. Within 30 days the defendant moved to vacate the judgment. The motion was granted and a new trial ordered conditioned upon the payment of certain fees and costs. The plaintiff petitioned this court for leave to appeal from the order granting a new trial under Supreme Court Rule 30. The defendants moved to dismiss the appeal. The question before this court was whether the appeal was sought from an order granting a new trial or from an order entered pursuant to the provisions of section 50(6) of the Civil Practice Act (Ill Rev Stats, 1965, c 110, § 50(6)) which provides that a court may, in its discretion, on motion filed within 30 days, set aside any judgment upon reasonable terms and conditions. This court held that Natale was not a contested trial, that the trial court was correct in accepting the defendants’ motion as one filed under section 50(6), and the petition for leave to appeal was dismissed.

In Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill App2d 354, 199 NE2d 618 (1964), this court said that a motion for a new trial is addressed to the discretion of the trial court judge and his judgment thereon will not be reversed except for a clear abuse of such discretion, which must affirmatively appear in the record. The record in the present case shows that the plaintiff and defendant were represented by counsel. The trial was contested. Three witnesses testified on behalf of the plaintiff and three on behalf of the defendant. The witnesses were cross-examined. After both sides rested oral argument took place. The motion to vacate the judgment did not claim that Bernat did not receive a fair trial; it did not allege that he had a meritorious defense which was not advanced; it did not assert that the court’s finding was contrary to the weight of the evidence; it did not charge errors in the admission or exclusion of evidence, and it did not urge that the amount of the judgment was excessive. The motion did allege that the defendant’s attorneys failed to file a counterclaim and that they announced they were ready for trial although certain witnesses whom they had subpoenaed were not in court. The motion did not say what the testimony of these witnesses would have been nor did it claim that a new trial would bring a different result.

The defendant’s motion stated reasons for a new trial for which neither the court nor the plaintiff was responsible. The court stated that it set aside the judgment because of “equitable considerations.” These considerations were not explained. Presumably they arose from the averments in the defendant’s motion. The application of equitable principles where occasion demands is permissible in ruling on motions to vacate judgments. But the equitable considerations in this case had nothing to do with the defendant’s relationship with the plaintiff. Matyskiel did nothing unjust; he took no advantage of Bernat. The equitable considerations were between Bernat and his insurance company. It may have been to the company’s interest to have had a judgment entered against him, and he may have an action against his insurer because of its conduct. He may also have an action against the attorneys selected to represent him if they were aware — and he was not — of the conflict of interest between the company which employed them and the client they served. These considerations did not, however, justify depriving the innocent plaintiff of his judgment and compelling him to try his case a second time against the defendant who had been found guilty in a fair and errorless trial.

The order of the trial court will be reversed.

Reversed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: TRAPP, J.

text:
    Alice Luster Summers, Plaintiff-Appellee, v. Charles Summers, Defendant-Appellant.
    Gen. No. 10,800.
    Fourth District.
    July 10, 1967.
    Costigan & Wollrab, of Bloomington, for appellant.

      Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for appellee.
   TRAPP, J.

Defendant appeals a judgment entered in favor of plaintiff upon the verdict of a jury in the sum of $12,000.

Count I of the complaint, for personal injuries, in its relevant allegation sets forth that plaintiff was the owner of a certain automobile sedan which was being driven by the defendant along a described rural road, and that, at the time and place described, plaintiff was a “passenger” and not a “guest” within the meaning of § 9-201, chapter 95y2 (111 Rev Stats, 1965). It is further alleged that the defendant negligently drove the automobile in several specified ways, that the plaintiff was in the exercise of ordinary care and caution for her own safety and safety of her property, and that, as a direct and proximate result of defendant’s negligence, she suffered personal injuries and the loss of her automobile.

Count II of the complaint alleging wilful and wanton ligence on the part of the defendant was dismissed prior to trial.

The trial court denied defendant’s motions to dismiss Count I directed to the propositions that the owner-occupant of an automobile has no right of action against the driver thereof for negligence, and also that the Count failed to allege that the plaintiff had contracted away and abandoned her right to control of the automobile.

Defendant’s answer affirmatively set forth the same matters as that stated in the motion to dismiss.

The trial court denied defendant’s motion for summary judgment which set forth the facts regarding the relation of the owner and the driver, and urged as grounds for said motion that the only duty imposed upon the defendant was to refrain from wilful and wanton misconduct, and the further ground that the conduct of the defendant, if negligent, was properly imputed to bar plaintiff’s recovery.

At the conclusion of the trial upon plaintiff’s motion, the affirmative defenses were stricken. Defendant’s post-trial motions were denied. As abstracted, the trial court’s reasons for his ruling included the conclusion that the owner of a vehicle riding in the same is a passenger and not a guest, therefore, negligence would apply and not wilful and wanton.

Facts relevant to the issue framed include the following : The plaintiff and the defendant had been acquainted for approximately three months prior to November 14, 1962, the date of the injury. They were contemplating engagement, and at the time of the trial had been married. The plaintiff was the owner of a 1956 Chevrolet. On the date of the collision she drove in the evening with her young nephew to purchase a book for him at a drugstore. Leaving there, she drove to the hotel where defendant resided and with her nephew went to the defendant’s room, where she asked defendant to accompany her in taking the nephew for a ride. It appears that there was no discussion between plaintiff and defendant as to whether they would use his car nearby or hers, or who would do the driving. As they arrived at plaintiff’s automobile she entered the right front seat and defendant got into the left front seat. The nephew was also in the front seat.

The parties travelled from the town of Lexington onto a rural blacktop road. During this time plaintiff was reading the new book to her nephew. The car was being driven at a speed of 25 to 30 miles per hour upon a clear roadway. It is in the evidence that the defendant opened the glove compartment so that the plaintiff would have a light by which to read the book to her nephew. There is evidence that the defendant became distracted by the laughing and talking of the plaintiff and her nephew, and that in some way the automobile driven by the defendant left the paved portion of the roadway and ultimately struck a culvert, as the result of which the plaintiff sustained injuries, the subject of this action.

The issue is whether the plaintiff, as owner-occupant of the automobile, is a “guest” within the meaning of chapter 95%, § 9-201 (Ill Rev Stats, 1965), so that plaintiff’s right of action must be based upon the wilful and wanton misconduct of the defendant.

It has been held that the plaintiff has the burden to prove that she was a “passenger” and not a “guest.” Fischer v. Ross, 79 Ill App2d 372, 223 NE2d 722, citing Miller v. Miller, 395 Ill 273, 69 NE2d 878; Leonard v. Stone, 381 Ill 343, 45 NE2d 620.

The statute commonly called the “Guest” statute was adopted in Illinois in 1931 and remains substantially in its original form. As chapter 95%, § 9-201 (Ill Rev Stats, 1965), it is in the following language (the italicized portions indicating the 1957 additions to the original statute):

“No person riding in or upon a motor vehicle or motorcycle as a guest without payment for such ride, or while engaged in a joint enterprise withthe owner or driver of such motor vehicle or motorcycle, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or motorcycle, or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or motorcycle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which action is brought. . . .”

Our courts have not heretofore determined whether an owner occupying his automobile when driven by another is a “guest” within the meaning of the statute.

Plaintiff’s contention that she is not a “guest” within the meaning of the statute is presented upon the authorities and decisions from various states which have statutes of varying degrees of similarity. The concept is stated to be that the statute was enacted “. . . to protect those who gratuitously transport others in their automobiles; and that it is the owner, not the driver, who extends the gratuitous transportation. . . .”

Consideration of the language of the statute discloses that it is designed to bar an action against 3 categories of persons: (1) the driver or operator, (2) the owner and (3) the agent or employee of the owner. The language seems explicit that the words “driver or operator” in the statute cannot possibly be interpreted to mean the agent or employee of the owner, for they are specifically distinguished both grammatically and by reference. Further, it is noted that the action is barred as to the owner’s agent or employee in the latter’s own right in contradistinction to a provision barring an action against the owner for the acts of his, the owner’s, agents or employees. These categories are clearly distinguished and set forth twice in the first paragraph of the Act.

The language of our statute is, upon its face, clearly applicable for the benefit of the “driver” and of the “owner.” Our Supreme Court has defined the terms and construed the purpose of the statute in two well known cases. In Miller v. Miller, 395 Ill 273 at 282, 69 NE2d 878, the court said:

“The phrase ‘passenger in a vehicle’ is used to denote the fact that the plaintiff is one who is being carried by another for hire. Conversely, the word ‘guest’ is employed to designate one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him gratuitously, that is, without any financial return except such slight benefits as it is customary to extend as part of the ordinary courtesies of the road. . . .”

There is no suggestion in this record that plaintiff was being carried for hire, i. e., as the “passenger” which she urges herself to be. Upon the “converse,” she was being carried gratuitously by one who was a “driver” within the express provisions of the statute.

The facts of Miller emphasize the language of the court. There the plaintiff shipped cattle in defendant’s motor trucks, for which he paid compensation. Plaintiff rode with the truck to Chicago. Defendant had a truck making a separate trip. Returning from Chicago on a subsequent date, plaintiff rode home on such truck, which also transported plaintiff’s horse, the evidence being ambiguous as to whether he would pay compensation for the latter service. The court reviewed numerous cases from other jurisdictions as to the meaning of the statute. The court pointed out that the transportation of a horse was a separate transaction and conceding that payment was to be made for hauling the horse, evidence was lacking of any consideration for plaintiff’s personal transportation, noting that one may be a guest within the meaning of the statute whether riding in a truck or a pleasure vehicle. Payment is an important, if not the decisive test, and that here plaintiff was riding purely for his own benefit and convenience. This opinion continues in further explanation :

“A guest, it has been said, is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a motor vehicle, who accepts such hospitality and takes a ride either for his own pleasure or on his business, without making any return to or conferring any benefit upon the driver of the motor vehicle other than the mere pleasure of his company.”

Again, in Connett v. Winget, 374 111 531, 30 NE2d 1, the court said:

“In determining whether a person is a guest within the meaning of the ‘Guest statutes’ in the several States, consideration is given to the person or persons advantaged by the carriage; if it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, . . .

We suggest that the use of the words “as a guest” in the statute is not actually necessary to carry out its purpose when the language of the statute and of these cases is considered. Such word, in its dictionary definition, includes contradictory relationships, i. e., (1) “a person entertained in one’s house” (presumably gratuitous), and also (2) “a patron of a hotel, restaurant or other establishment” (payment undoubtedly being required). Webster’s Seventh New Collegiate Dictionary. The contrary connotations of the word “guest” explain the statutory language “guest without payment for such ride.” It appears under the construction in the cited decisions that the meaning of the statute is as if it read:

“No person riding in or upon a motor vehicle or motorcycle without payment for such ride, . . . shall have a cause of action for damages. . .

The facts in this record disclose that the adventure in issue was for companionship and a pleasure outing, being originated in an invitation from the plaintiff. The plaintiff testified that nothing was said as to whether plaintiff’s or defendant’s automobile would be used. There is no evidence that defendant requested to be permitted to drive and his driving of the car, in view of the relationship of the parties, may be deemed a matter of social convention, and even a convenience to plaintiff, having in mind her desire to entertain the 3-year-old nephew. It is not contradicted that as the parties entered the automobile she chose to enter the right side of the front seat leaving the driver’s side for the defendant.

In support of her position plaintiff cites several California cases, including Collie v. Aust, 173 Cal App2d Supp 793, 342 P2d 998; Ahlgren v. Ahlgren, 152 Cal App2d 723, 313 P2d 88, and Ray v. Hanisch, 147 Cal App2d 742, 306 P2d 30, holding that under ordinary circumstances an owner is not a guest. It is apparent that these cases did not accurately state the legislative intent for we find that the California statute was amended to include the provision:

“No person riding in or occupying a vehicle owned by him and driven by another person with his permission. . . .”

Plaintiff also cites Gledhill v. Connecticut Co., 121 Conn 4102, 183 A 379. This opinion seems to be used as the authority for those cases in the several jurisdictions cited by plaintiff. It turns upon a dictionary definition of “guest” and noting that only an innkeeper or householder can offer “hospitality” in his respective establishment, concludes that only an owner of a car can offer hospitality. That court failed to note that a “guest” pays the innkeeper for the hospitality. It seems but fair to observe that at the present time substantially all social events include the use of an automobile; that with few exceptions all parties participating drive and own automobiles, and that the use of a particular individual’s automobile is generally a matter of convenience rather than an especial mark of hospitality. As the Supreme Court said in Clarke v. Storchak, 384 Ill 564, 52 NE2d 229 at 237:

“Undoubtedly the legislature, in adopting this act, was aware of the frequency of litigation in which passengers, carried gratuitously in automobiles, have sought the recovery of large sums for injuries alleged to have been due to negligent operation, and where, in the use of the automobile, which is almost universal, generous drivers might find themselves involved in litigation that often turned upon questions of ordinary negligence. It was evidently the intention of the legislature not only to correct this abuse but to promote the best interests of the people in their relation to each other.”

We believe such reason is equally apt in those instances where those who share a common social outing also share the driving of the vehicle, or otherwise arrange such driving to suit their immediate convenience. We suggest that the use of a particular automobile is of slight, if any, significance in realizing the objectives of companionship and common pleasure.

Finding no pertinent language from our Supreme Court, we believe that the conclusions stated in Murray v. Lang, 252 Ia 260, 106 NW2d 643, by the Iowa Supreme Court are persuasive. There a constructive owner was killed when his companion was driving. That court concluded that the parties were (1) enjoying reciprocal hospitality and mutual pleasure, (2) that the use of the car by the defendant driver was not the motivating cause for the trip, but a means to a common end, and (3) that the owner’s right to control does not remove the defendant driver from the protection of the statute. That court held that, as a matter of law, the owner was a “guest” within the Iowa statute. See also Phelps v. Benson, 252 Minn 457, 90 NW2d 533 and Schlim v. Gau, 80 SD 403, 125 NW2d 174.

Plaintiff urges that our statute is in derogation of the common law and must be strictly construed. The Supreme Court, however, in Miller v. Miller defined a “passenger” as one carried for hire, and a “guest” as one permitted to ride gratuitously for companionship and pleasure. We apply such construction to the facts of this case.

The judgment of the trial court is reversed.

Reversed.

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


author: CRAVEN, P. J.

text:
    In the Matter of the Annexation of Territory to the City of Springfield, a Municipal Corporation. Vincent Galassi, et al., Petitioners-Appellees, v. Charles Bedolli, et al., Respondents-Appellants.
    Gen. No. 10,847.
    Fourth District.
    July 10, 1967.

      Brunsman, Beam and Crain, of Springfield (John B. Crain, of counsel), for appellants.
    Richard R. Grummon, of Springfield, for appellee.
   CRAVEN, P. J.

This case involves the validity of an order of the circuit court of Sangamon County allowing a petition for annexation of certain territory to the city of Springfield. Several errors are alleged to have intervened in the proceeding. We reach only the question of whether the property sought to be annexed was contiguous to the city.

In February of 1966, a petition for annexation was filed in the circuit court seeking to annex certain territory known as “Devereaux Heights” to the city of Springfield. This territory was composed of two adjacent subdivisions, Piper subdivision and Devereaux Heights subdivision, the latter adjoining Piper subdivision on the north, the two subdivisions being separated by a street that runs in an east-west direction. The street is platted as South Street.

Piper Road touches the Piper subdivision on its southeast corner and runs in a northeast and southwest direction. This road is 40 feet wide. Sangamon Avenue, at the point of its intersection with Piper Road, is the north boundary of the city of Springfield. From the city limits measured along this road from Sangamon Avenue to the south line of Piper subdivision is a distance of 2,640 feet. Piper Road was sought to be annexed but the territory west of Piper Road and north of Sangamon Avenue was not sought to be annexed and was not, at the time of this petition, within the city of Springfield. The only connection between the territory sought to be annexed and the existing boundary of the annexing municipality is the corridor 40 feet wide and 2,640 feet long.

The petition did not allege that the area sought to be annexed was contiguous to the city of Springfield. A plat was attached to the petition but the city limits were not indicated thereon.

Certain objections were filed to the petition. The objectors asserted that the territory described in the petition was not contiguous to the annexing municipality. Ultimately, however, by stipulation, the property of the objectors was excluded and an order of annexation was entered, as prayed in the petition, excluding the property of the objectors. This order was entered on March 2, 1966. On April 1, 1966, the appellants filed a post-trial motion seeking to vacate and set aside the order allowing the petition for annexation, asserting lack of contiguity among several grounds for relief.

After the filing of this post-trial motion, the petitioners sought to amend the order providing for annexation. This motion to amend sought to show that the territory north of Sangamon Avenue and south of the territory covered by the annexation order of March 2 had been annexed to the city of Springfield on July 12, 1966. The July 12 annexation would make the territory here involved contiguous. The trial court denied the post-trial motion, allowed the motion to amend the order for annexation and entered an amended order of annexation. This appeal is from that order.

Section 7-1-1 of chapter 24, Ill Rev Stats, 1965, provides: “Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.” Annexation procedures are set forth, and in section 7-1-4 of chapter 24, Ill Rev Stats, 1965, it is provided that if the court finds the property sought to be annexed is not contiguous to the annexing municipality, the petition shall be dismissed. On the facts of this case, the area sought to be annexed would be contiguous only if the court should find that by the annexation of Piper Road a strip 40 feet wide and 2,640 feet long was sufficient for contiguity as that phrase is used in the statute. It clearly is not.

In People ex rel. Adamowski v. Village of Stream-wood, 15 Ill2d 595, 155 NE2d 635 (1959), the Supreme Court defined “contiguous,” for any reasonable interpretation of the statute relating to annexation, as adjacent to and parallel to the existing municipal limits and further observed that strip or corridor annexation has not been permitted either by the courts or the legislature. See also People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 177 NE2d 313 (1961); People ex rel. Coojar Realty Corp. v. Village of Burr Ridge, 81 Ill App2d 203, 225 NE2d 39 (2nd Dist 1967).

The territory sought to be annexed was not, at the time of the filing of the petition, contiguous to the annexing municipality. The intervening annexation of the territory between the municipality and the territory here involved is inoperative to satisfy the jurisdictional requirement of contiguity. Our inquiry must relate to ascertaining whether or not it was contiguous on February 9, 1966, for jurisdiction depends on the facts existing at the time of the commencement of the action. See People ex rel. Hoagland v. Streeper, 12 Ill2d 204, 145 NE2d 625 (1957); 20 Am Jur2d, Courts § 142; Goldman v. Moore, 35 Ill2d 450, 220 NE2d 466 (1966).

Other alleged defects need not be considered since, in our view, the order of the circuit court of Sangamon County must be and is reversed.

Judgment reversed.

SMITH and TRAPP, JJ., concur.


author: SMITH, J.

text:
    Walter T. Morey, Plaintiff-Appellant, v. Kenneth L. Huston, et al., Defendants-Appellees.
    Gen. No. 10,850.
    Fourth District.
    July 10, 1967.
    John F. Dunn, of Decatur, for appellant.
    Roberts and Kepner, of Springfield (Maurice W. Kepner, of counsel), and Craig & Craig, of Mattoon (Jack E. Horsley and Richard F. Record, Jr., of counsel), for appellees.
   SMITH, J.

Plaintiff files this action to recover from the defendants unpaid monthly payments and taxes due under an installment contract for the purchase of a motel. By way of affirmative defense, the defendants pleaded that the plaintiff, by entering and taking possession of the property, had effectively effected a forfeiture of the contract, that he thus made an exclusive election of remedies, and by such forfeiture is barred from the instant suit. In a bench trial, the trial court held that the plaintiff had forfeited the contract and in so doing, payments previously made by the purchasers became liquidated damages and precluded this suit. From a judgment in favor of the defendants, plaintiff appeals.

On March 3, 1965, plaintiff acquired the vendor’s interest in the contract and in the real estate involved. Defendants are the equitable owners under the installment purchase agreement by successive assignments not deemed important to a decision of this case. Three monthly payments being then past due, the plaintiff on May 28, 1965, filed this suit. Two of the three monthly payments were made on June 7 and another became due on June 15. Thus two installment payments were unpaid as of the latter date. The plaintiff paid 1964 taxes, half of which became due on June 1, 1965. On July 2, the plaintiff took over the physical possession of the motel, its contents, the cash in the cash register, and thereafter remained in possession. The first issue in this case is whether the conduct of the plaintiff in reentering and taking possession effectively forfeited the contract. If it did, say the defendants, it was an effective and conclusive election of remedies under the contract and the ball game is over. The plaintiff contends that there was no forfeiture but that in fact and in law, the defendants simply abandoned the contract. There being no forfeiture then, he reasons that he is entitled to recover the two unpaid installments and the taxes in this suit. The contract proclaimed that “time is of the essence of this agreement.” Twenty of the first thirty-four monthly payments were late and were received by the vendor without complaint. Two of such late payments were made and received by the plaintiff after the institution of this suit. The plaintiff thus contends that he had waived his right to declare a forfeiture for failure to make prompt payments and that such right could only be reincarnated by a specific notice to the purchaser of his intention that time was again the essence of the contract. Plummer v. Worthington, 321 Ill 450, 152 NE 133; Kingsley v. Boeder, 2 Ill2d 131, 117 NE2d 82. Thus, he argues that, no warning notice having been given, there could be no forfeiture and this suit is not barred. This is an unusual posture. Normally this rule is invoked against a vendor seeking to declare a forfeiture rather than a vendor seeking to escape the consequences of an alleged forfeiture.

When the plaintiff acquired this property on March 3, the February 15 payment was then due and it was subsequently paid on April 26. When this suit was filed, the March 15, the April 15, and the May 15 payments were then past due. Thereafter plaintiff accepted two payments on June 7. The filing of this suit by the plaintiff is some indication on the part of the plaintiff and knowledge to the defendants that the new owner did not intend to tolerate the dilatory tactics and delayed payments which his predecessors in title had permitted. In evidence, there is an unsigned notice dated July 2,1965, which purports to be a copy of a notice sent by the plaintiff to the defendants and which, after reciting that installment payments were past due, the taxes were unpaid, and the insurance premiums were unpaid, stated:

“For such reasons I have no alternative but to declare a forfeiture of said contract in accordance with paragraph 15 thereof.
“Accordingly I treat this agreement at an end and will re-enter and regain possession of said premises.”

This document was supplied by the plaintiff pursuant to a motion on the part of the defendants to produce documents. The original of the document was never accounted for. Apparently on the date that this notice was given, the plaintiff reentered and took physical possession of the property. Paragraph fifteen of the contract provides that where the buyers are in default “then the said sellers shall have the right to treat this agreement at an end and re-enter and regain possession of said premises as if this agreement had never been made, . . .” It further provides that “a written notice served on purchaser ... of such forfeiture and election to re-enter and regain possession . . . shall be sufficient evidence of such election, forfeiture and re-entry, . . . .” It thus appears that the forfeiture and the reentry by the plaintiff into the property were legally and lawfully effected under the terms of the contract. To escape this result, the plaintiff now insists that since there had been a waiver of timely payments of the monthly installments, a notice was required before he could declare a forfeiture because of a want of such timely payments. This argument has a rather hollow sound. The purpose of that rule of law is so that a vendor may not lull a purchaser into a sense of security and thus inequitably enforce a forfeiture. That rule is for the benefit of the vendees and not for the benefit of the vendor. The vendees do not here complain of the forfeiture, but have and do acquiesce in it. The trial court was correct in finding that a forfeiture had been effected.

This brings us to the question then as to the effect of this forfeiture upon a suit filed prior to the time that the forfeiture became effective. The contract was still in full force and effect at the time this suit was instituted. Does the forfeiture not only nullify the contract, but kill off this suit as well? The plaintiff argues that the forfeiture thus declared and effected is not a bar to the instant suit. He argues that paragraph fifteen of the contract gave the right to treat the agreement at an end and to reenter and regain possession of the premises and that he did exercise that right, but he says the contract further provides “in such event sellers shall have the right to treat all payments made by purchaser to date as rent and as agreed and liquidated damages, . . .” This, he says, is only a right, a right that he did not exercise and hence he has made no election to take liquidated damages equal only to all of the payments made prior to forfeiture, but has the right to sue for and collect the payments due and unpaid prior to the forfeiture together with the unpaid taxes and unpaid insurance premiums. Plaintiff concedes that there are cases in Illinois which hold that a land contract vendor who exercises his right to declare a forfeiture and take possession is thereby limited to the sole and exclusive remedy of liquidated damages. These cases, he points out, have contract provisions which in substance say that the purchaser shall forfeit all payments made by him on the contract and that such payments shall be retained by the seller in full satisfaction and in liquidation of all damages by him sustained. There is no such mandatory provision in this contract. Nevertheless, it is stated in Wollenberger v. Hoover, 346 Ill 511,179 NE 42, 57, as follows:

“ Tf the vendor exercises his option to declare the contract at an end he cannot change his position and thereafter hold the purchaser liable to complete the purchase or pay any part of the unpaid purchase money. The remedy of the vendor by way of cancellation of the contract and the continued liability of the purchaser for the purchase money are totally inconsistent, and the exercise of the former terminates any further liability of the purchaser for the purchase money.’ ”

A like statement is made in Allen v. Borlin, 336 Ill App 460, 84 NE2d 575, 579, where it is said:

“. . . The seller may insist upon specific performance, but he cannot do so at the same time he elects to rescind. Pyle v. Crebs, 112 Ill App 480. But these rules apply to cases where the seller who rescinds is seeking also to compel the purchaser to pay under the contract with the purchaser's funds. In the case before us, the court has not ordered specific performance of the contract in whole or in part, the decree is not designed to make the defendant pay anything more from his own funds, he is merely required to account for money which he wrongfully converted.”

Both of these cases were in equity and it would seem almost fundamental that if in equity one cannot declare a forfeiture or rescind the contract and then require the purchaser to complete his payments under that contract, it would be impossible to maintain a suit in law for such purpose. Concisely stated, the rule is that “a vendor may not invoke a remedy based on affirmance of the contract and also invoke a remedy which is based on disaffirmance, so that the election of one is the abandonment of the other.” ILP, Vendor and Purchaser, 151, p 563. It is thus clear that had this contract been forfeited and possession obtained by the vendor either voluntarily or through a suit in forcible entry and detainer or ejectment, a subsequent suit for the collection of unpaid installments would have been barred. The vendor would have made his election to disaffirm the contract and would be bound by it. This does not meet head-on the precise question before us. Does a subsequent forfeiture of the contract amount not only to a termination of the contract but also to an abandonment of a suit previously instituted to recover back installments, taxes, and insurance required under the covenants of the contract? In our judgment it does. There is no doubt that vendor could have sued for specific performance of the contract or in law for damages for breach of the contract. Each such action recognizes and is based on the existence of the contract. Such suits instituted after forfeiture would clearly be barred on the doctrine of election of remedies, i. e., they are effectively at an end after forfeiture because the right to exercise them died with the termination of the contract. It would seem that the death of such rights by forfeiture carries with it the death of pending suits whose sole foundation is the existence of such rights. The continuation of a suit for specific performance or a suit for damages for breach of contract after forfeiture would eliminate the very basis on which the forfeiture itself rests. Having exercised his right to declare a forfeiture, the vendor made his choice. He can have one remedy but not both. He chose to take the property and terminate the contract. He is bound by that choice. It follows, therefore, that the judgment of the trial court is correct and it is affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: JUSTICE TRAPP.

text:
    Jean Marie Scholz, Plaintiff-Appellant, v. Dale Everett Scholz, Defendant-Appellee.
    Gen. No. 10,819.
    Fourth District.
    July 10, 1967.
    Wilson, Dyar, Houchen and McDonald, of Decatur (Vernon H. Houchen, of counsel), for appellant;
    Le Forgee, Samuels, Miller, Schroeder & Jackson, of Decatur (Jerald E. Jackson and Robert W. Ohlsen, of counsel), for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


text:
    People of the State of Illinois, Appellee, v. Albert Drink, Appellant.
    Gen. No. 50,798.
    First District, Third Division.
    February 2, 1967.

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

delivered the opinion of the court.

Albert Drink was indicted and convicted for the crime of attempt. He was sentenced to one to six years in the penitentiary.

At his trial by the court without a jury the evidence disclosed that Chicago policemen, searching for the robbers of a taxicab driver, observed Drink firing a gun at a window across the street from where he was standing. One of the officers jumped out of the police car and, when about 40 yards from Drink, called out “Police Officers!” Drink turned, fired at the officer and ran into a building. He was captured on the inside stairway of the building.

On appeal the defendant contends that the indictment was jurisdictionally defective and that he was denied his constitutional right to trial by a jury.

The first issue concerns the sufficiency of the indictment. It alleged that:

“. . . on the 19th day of July 1968, at and within . . . [Cook] County ALBERT DRINK committed the offense of attempt, in that he, with . . . intent to commit murder, attempted to kill Gerald M. Lewandowski. . .

The Criminal Code describes the offense of attempt as follows:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill Rev Stats 1961, c 38, § 8-4(a).)

The defendant admits that the indictment set forth the requisite intent and the specific offense attempted but urges that it did not adequately describe an act which constituted a substantial step toward commission of the offense. He further argues that even if the indictment charged all the essential elements of the offense, it was defective in failing to allege the facts and circumstances of the offense and hence was insufficient to inform him of the nature and cause of the accusation in such a manner as to enable him to plead his conviction as a bar to further prosecution for the same offense.

The indictment did charge the commission of an act as required by the statute by the allegation that Drink “attempted to kill Gerald M. Lewandowski.” An attempt to kill is clearly an act constituting a substantial step toward commission of the offense of murder. Although the indictment did not describe the particular method of the attempt it was unnecessary for the State to plead such evidentiary details. See People v. Hughey, 382 Ill 136, 47 NE2d 77 (1943); People v. Meaderds, 21 Ill2d 145, 171 NE2d 638 (1961). The essence of the crime of assault with intent to murder, or attempt murder, is the specific intent to take life (People v. Coolidge, 26 Ill2d 533, 187 NE2d 694 (1963)), and in a case of this kind the indictment need not set out the manner of the assault with any degree of particularity. Hamilton v. People, 113 Ill 34 (1885). The indictment alleged that the defendant attempted the murder of a specified person on a specified date. This adequately informed the defendant of the nature and cause of the accusation (Constitution of Illinois, art II, § 9), enabled him to make preparation for his defense and to plead the judgment (supplemented if necessary by the record, transcript or testimony as to the specific facts involved) in bar of a subsequent prosecution.

The defendant’s second point is that he was not properly and adequately informed of his right to a jury trial. On October 7, 1963, an attorney of the defendant’s own choice entered his appearance. The defendant was arraigned on October 11th, entered a plea of not guilty and the cause was continued to November 4, 1963. The common-law record recites that on November 4th:

“. . . the said Defendant and his Counsel now here propose to waive the intervention of a jury and submit this cause to the Court for trial and the Court having fully advised the said Defendant of his right to a trial by jury, said Defendant still adheres to his proposition to waive such right and by agreement between the State’s Attorney Counsel for the People and the said Defendant and his Counsel, this cause is submitted to the Court for trial and the intervention of a Jury waived.”

The record also contains a waiver of jury trial signed by the defendant on that date. On May 22, 1964, the case was called for trial. The trial judge was not the judge who had advised the defendant of his right to jury trial. The defendant’s attorney announced that the defendant was ready for trial; the witnesses were sworn; a preliminary motion was made and then the State presented its first witness. The trial was without a jury and the trial judge did not tell the defendant that he had a right to one.

To safeguard the right to a jury trial our courts have assumed the duty of seeing that an accused’s election to forego a jury trial is made expressly and with understanding. That duty cannot be perfunctorily discharged. People v. Fisher, 340 Ill 250, 172 NE 722 (1930). This defendant was informed of his right by a court and was assisted by counsel in making his choice. He signed a jury waiver. Nothing in the record indicates that he was coerced to waive his right. Nothing in the record impeaches the evidence that he was fully apprised of his right and that his waiver was expressly and understandingly made.

Since the defendant had in open court understandingly waived his right to a trial by jury (Ill Rev Stats 1963, c 38, § 103-6), the fact that the trial judge did not give him a second explanation of his right does not constitute reversible error. The defendant had the assistance of counsel when he elected to waive a jury trial and when the non jury trial began. At the commencement of the trial he did not indicate in any manner that he sought to withdraw his waiver — instead, his counsel stated that the defendant was ready for trial. Only the defendant and his counsel could know whether the defendant, having once waived his right to a jury trial, now intended to exercise it; and if he did so intend, it was their responsibility to bring his change of mind to the attention of the trial court.

The conviction is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.

On Rehearing

July 13,1967.

The defendant’s petition for rehearing was granted so that consideration could be given to an opinion of the Supreme Court that had not been printed in the advance reports at the time our opinion in this case was filed, which the defendant asserted was “unequivocally and diametrically opposed” to our decision.

The case was People v. Griffin, 36 Ill2d 430, 223 NE2d 158 (1967). Griffin was charged with reckless driving in that on a certain street and date he drove his vehicle with a willful and wanton disregard for the safety of persons or property. The court reaffirmed its decision in People v. Green, 368 Ill 242, 13 NE2d 278 (1938) and held that the complaint, although in the language of the statute, did not advise Griffin of the nature and elements of the offense, did not advise him of the particular acts relied upon to sustain the charge and did not afford him full protection against double jeopardy. The court stated:

“For example, if a defendant drove at an excessive rate of speed, ran through three successive red lights and also drove on the wrong side of the road, and then pleaded guilty to a complaint phrased like the one now before us, his protection from subsequent prosecution for each specific offense is sufficiently dubious to contravene the purpose of section 9 of article II of the constitution.”

The defendant insists that the Griffin rationale is applicable to his indictment because, assuming that on July 19, 1963, he made several attempts to kill Gerald Lewandowski, it failed to inform him which attempt he had to defend and, if he pleaded guilty, it would not bar subsequent prosecutions for any of the attempts. He hypothesizes that he could have attempted to kill Lewandowski at different times on the same day by poisoning him, running him over with an auto, strangling or shooting him.

The defendant ignores the distinction between the nature and elements of the offense (which must be set forth in the indictment, Ill Rev Stats, 1965, c 38, § 111-3 (a)) and the evidentiary details of a crime (which may be obtained by a bill of particulars or made a matter of proof at trial). The type of weapon used, or the means used, are not part of the nature and elements of the offense of attempt to murder. The elements are the attempt to kill coupled with the specific intent to commit murder, and these were alleged in the indictment. In People v. Bonner, — Ill2d — (1967), which was decided two months after People v. Griffin, the indictment alleged that Bonner committed the offense of attempt in that he, with the intent to commit rape, attempted to compel a female, not his wife, to submit to an act of sexual intercourse by force and against her will. The court held that the elements of the crime (1) the attempt with intent to commit rape and (2) the substantial step in that direction — the use of force against the complainant’s will — were sufficiently alleged in the indictment to enable Bonner to prepare his defense and sustain a plea in bar of any further prosecution for the same offense. The Bonner case is more in point than Griffin. In both the instant case and Bonner the indictments charged the crime of attempt. The reasoning and conclusion in the Bonner case apply to the instant case. In fact, an indictment charging intent to commit murder by attempting to kill is more distinct than one charging intent to commit rape by attempting sexual intercourse by force against a female’s will. A person may attempt to kill without an intent to murder, for he may kill in defense of his own life. But a person cannot attempt to compel a female, not his wife, to submit to sexual intercourse by force and against her will without an intent to rape, for rape is sexual intercourse by force and against the female’s will. Ill Rev Stats, 1965, c 38, § 11-1.

If each of the defendant’s hypothetical attempts on Lewandowski’s life had been by the same method, only specification of the time of each attempt would apprise him which attempt he would have to defend, and, as the Griffin case itself points out, such information need not be given in an indictment. Moreover, there is no more danger of double jeopardy than in the usual case, such as robbery or burglary, where an indictment charges that a defendant robbed a particular individual or burglarized a particular dwelling. The defendant argues that if he had pleaded guilty there would be no testimony as to the specific facts of the case and no transcript to protect him in the future. This argument overlooks the fact that the charge is a felony and that in Cook County the proceedings in felony cases upon pleas of guilty are recorded; the court hears testimony or a stipulation of facts in order to see if the evidence establishes the offense charged and the defendant’s guilt and also to determine what his punishment should be.

The indictment in the present case charged Drink with attempting to kill with intent to murder a particular person, on a particular day in a particular county. The defendant waived the reading of the indictment, requested no bill of particulars and did not claim surprise at the trial. He knew the nature, the elements and the details of the offense for which he was indicted. He had a trial and the record of the proceedings, as well as the indictment, are available to protect him from a second prosecution for the same offense.

The indictment was sufficient and our decision remains unchanged.


text:
    People of the State of Illinois, Appellee, v. Edward Asey (Impleaded), Appellant.
    Gen. No. 50,743.
    First District, Third Division.
    July 13, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman 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.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Edward Asey, Donna Baker and Michael Parille were jointly indicted for armed robbery. Asey and Baker were tried at the same time but Asey was tried by a jury while Baker was tried by the court. Asey was found guilty and was sentenced to a term of 7 to 15 years in the penitentiary. This appeal is by him alone.

He contends: (1) improper evidence was admitted, (2) he was not proved guilty beyond a reasonable doubt, (3) the State’s Attorney made improper comments before the jury, (4) the State’s Attorney made an improper argument to the jury, (5) his counsel was incompetent, (6) he was prejudiced by his codefendant pleading guilty during the trial and (7) an instruction to the jury infringed upon his constitutional privilege to decline to take the witness stand.

Shortly before 11 a. m. on January 28, 1964, three armed men entered the office of a life insurance company at 4146 West Chicago Avenue in Chicago. The manager and his assistant were in the outer office. The robbers ordered the two men to put their heads down on a desk and they complied immediately and did not look up. While one of the robbers stayed there, the other two went into the inner office where they confronted the cashier and several clerks. One of the two approached the cashier with gun in hand, told her to open the cash drawer, scooped up the money and took a bag containing checks ready for deposit. The robbers then left the office and were seen running through an adjoining parking lot.

Approximately 10 to 15 minutes later Police Officer Perri saw a woman, who was driving south on Cicero Avenue, go through a stop light at Madison Street. He followed in his squad car with the revolving light on top of the car turned on. At first he saw only the woman but when her vehicle reached Monroe Street he observed two men rise up, one in the front and one in the rear seat. The woman turned into Monroe Street, stopped the car and got out and the man in the front seat started to alight but Perri, who had just heard by radio of two robberies in his district, told him and the man in the rear seat to stay face forward in the auto and to keep their hands in full view. After talking briefly to the woman, Perri told the man in the front seat to get out with his hands in front of him. The man identified himself as Michael Parille, the owner of the vehicle. A police sergeant drove by and Perri, backing up and drawing his revolver, asked for his assistance. Perri ordered the man in the rear seat to get out, noticed something protruding under the side of his coat, touched it and felt a long object. The sergeant turned the man around and, his coat being open, saw the butt of a gun. The sergeant pulled the gun out and money in wrappers spilled to the ground. More money was found between the man’s jacket and shirt and in his jacket pockets, and a bag containing a bundle of checks was taken from his belt. The man was afterwards identified as Asey.

The cashier and a clerk pointed out Parille in a lineup as one of the robbers but Asey was not identified by the cashier, the clerk or the office manager.

The defendant’s first contention is that a photograph of Parille was improperly admitted in evidence. Parille, though indicted with Asey, was not tried with him. The clerk, the cashier and Officer Perri were shown Parille’s photograph; the first two testified that he was one of the robbers and the latter testified he was with Asey in the automobile. The defendant contends that since he was not identified as a participant in the robbery, his guilt was established by the use of the photograph to prove Parille’s participation in the crime and his association with Parille. He cites People v. Rezek, 4 Ill2d 164, 122 NE2d 272 (1954) in support of his contention. Rezek was indicted with three others for armed robbery but was granted a separate trial. Several witnesses to the robbery were able to identify the others but did not recognize Rezek. The State’s Attorney had the others brought before the jury for the witnesses to identify. The court stated that this testimony was not relevant to Rezek’s guilt and that it was calculated to prejudice the defendant in the eyes of the jury.

In the present case the defendant did not object to the State’s Attorney showing the photograph to the witnesses nor to the admission of it into evidence; hence, his contention need not be considered on appeal. People v. French, 33 Ill2d 146, 210 NE2d 540 (1965). Moreover, the contention is without merit. Unlike the Rezek case, the identification of the codefendant (Parille) and proof of the defendant’s association with him were relevant to the issue of the defendant’s guilt: the photograph was used to prove that Parille was one of the robbers and was with the defendant within 10 to 15 minutes after the robbery and less than two miles from where it occurred. Since these facts support an inference that the defendant was associated with Parille in the commission of the offense, the admission of the photograph was proper. Cf. People v. Keagle, 7 Ill2d 408,131 NE2d 74 (1955).

The defendant next argues that he was not proved guilty beyond a reasonable doubt. He stresses the facts that he was not identified as one of the three robbers, that about 15 minutes elapsed before Parille was apprehended and that Donna Baker, who was a woman and so could not have been one of the robbers, was with Parille and the defendant when they were caught.

A conviction can be sustained upon circumstantial evidence as well as upon direct evidence. People v. Russell, 17 Ill2d 328, 168 NE2d 309 (1959); People v. Huff, 29 Ill2d 315, 194 NE2d 230 (1963). The robber who stayed in the outer office could not be identified by the manager. He testified that ten seconds after the robbers entered his office he put his head down, he did not lift it while they were in the office and he did not see the man who pointed the gun at him well enough to describe him. The clerk had a side view of the third robber as he ran across the parking lot about 15 feet from her window; the cashier was about the same distance away and also had a side view. Neither witness was certain whether the third robber, whom they saw only in the parking lot, was the defendant. The testimony of these witnesses reasonably explained why they could not identify the robber who guarded the manager, and did establish that there was a third member of the gang. A short time after the robbery the defendant was found accompanying one of the robbers. They were in an automobile going away from the place of the robbery. They were hiding from view. The defendant had a gun in his belt; he also had in his possession checks and wrapped money stolen from the office and a bag like the one taken. From this evidence a natural and fair inference was that he took part in the robbery, that he was the one who stayed in the outer office. The jury did not err in concluding that the evidence was sufficient to establish his guilt beyond a reasonable doubt.

The defendant next complains of prejudicial comments by the prosecutor. The comments were made when the prosecutor identified one of the State’s exhibits for the record. They were as follows:

“May the record indicate I am opening that envelope and withdrawing from it another envelope which has got Andrew J. Toman on the top. It has been crossed out. Underneath, contents of armed robbery — ”

The defendant contends that he was prejudiced because the jury knew that Toman was the Coroner of Cook County and therefore was left to speculate that somehow a murder was involved in the case, especially since in his opening statement the State’s Attorney said, “Mr. Parille ... is no longer with us” and no further explanation of his absence was given. The defendant also contends that the reference to the contents of the envelope as “contents of armed robbery” was improper.

Three of the State’s exhibits were contained in envelopes bearing the name of Andrew J. Toman and when the State’s Attorney introduced them for identification he mentioned this fact. The defendant did not object the first and third times. Since he failed to do so on these occasions, it is apparent that the objection he made to the second exhibit was to the phrase “contents of armed robbery” and not to the mention of Toman’s name. However, even if the objection be considered as also referring to the latter point, we do not see where he was prejudiced. The defendant was not accused of causing or contributing to anyone’s death; none of his victims or confederates was said to be deceased, and Toman’s name had been crossed out on the exhibits. No inference adverse to the defendant could be drawn by the jury. Moreover, as the prosecutor was explaining what was written on the envelope, an objection was made and the court said, “Strike that. Jury disregard it.” The prompt ruling of the trial judge removed whatever speculation might otherwise have arisen. The notation “contents of armed robbery” did not implicate the defendant in the robbery; it merely set forth the conclusion of an unspecified person that the exhibits were connected with an armed robbery. The evidence previously introduced fully supported that conclusion and no evidence later produced rebutted the fact that an armed robbery had taken place, the defendant was not prejudiced by these words.

The improper argument of the State’s Attorney is said to be his reference to the defendant’s failure to testify. During his argument to the jury the prosecutor remarked, “He doesn’t explain anything about the property found on him; he never does later.” The Code of Criminal Procedure forbids comment on a defendant’s neglect to testify (Ill Rev Stats c 38, § 155-1 (1963)) and a judgment of conviction may be reversed if such a comment is made. People v. Cheney, 405 Ill 258, 90 NE2d 783 (1950). However, when the statement quoted above is put in its full context, it is seen to be only a reference to the four times Asey was questioned by the police. Officer Perri testified that when Asey came out of the auto he told him he was under arrest for robbery and that Asey remained silent. He further testified that he questioned Asey at the police station, asking where the checks and gun came from, and that he did not answer. A detective testified that he questioned Asey at the district station and at the police area headquarters, that he asked him if he participated in the robbery and about the money and the gun he had when arrested, that Asey denied participation and said, “What money? What gun?” In his final argument the State’s Attorney recounted this evidence, discussed the use of circumstantial evidence and the defenses which could be made to rebut a case based on such evidence. The whole argument referred to the pretrial questioning and not the defendant’s failure to testify. Moreover, since the defendant did not object to the statement of which he now complains, the issue is deemed to be waived. People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963).

The fifth point is the alleged incompetency of defense counsel. In his oral argument in this court the defendant’s attorney on appeal stated that his trial counsel did more than an adequate job of defending Asey except in one particular: he did not move to suppress the evidence found on his person at the time of his arrest. The failure to make a motion to suppress is no sign of incompetence, for under the evidence such a motion would have been futile.

Where there has been a lawful arrest, a policeman has a right to search the person arrested for weapons and for fruits of the crime. People v. Peak, 29 Ill 2d 343, 194 NE2d 322 (1963). An arrest without a warrant is lawful if a criminal offense has been committed and the arresting officer has a reasonable basis for his belief that the person to be arrested has committed it. People v. Catavdella, 31 Ill2d 382, 202 NE2d 1 (1964). The test of whether the officer had a reasonable basis is whether a reasonable and prudent man in possession of the knowledge which the officer had would believe the person arrested guilty of the offense. People v. LaBostrie, 14 Ill2d 617, 153 NE2d 570 (1958). And a factor to be considered in judging the reasonableness of the officer’s conduct is his responsibility to prevent crime and to catch criminals. People v. Zeravich, 30 Ill2d 275, 195 NE 2d 612 (1964). Officer Perri saw Donna Baker, apparently alone, drive through a stop light. As he gave chase he saw two men who had been concealed from view raise their heads. He had just been apprised that two robberies had been committed. The car in which the men had been concealing themselves was not far from the site of the robbery, which had been committed about 10 to 15 minutes earlier. The arrest was lawful and these suspicious circumstances indicated to Perri, as they would have to any cautious man, that he might be dealing with criminals, not an ordinary traffic violator, and gave him good reason to search the driver and passengers. Cf. People v. Thomas, 31 Ill2d 212, 201 NE2d 413 (1964). Furthermore, the gun was in plain view — no search was needed. Under the prevailing situation the officers were justified in seizing the weapon and searching Asey to insure their own safety and to prevent his escape.

The sixth point asserted by the defendant is that he was prejudiced because his codefendant, Donna Baker, pleaded guilty during the trial. He contends that Baker should have been required to sit in the courtroom as a defendant until after the jury began its deliberation.

A review of the record demonstrates that no prejudice could have resulted from Baker’s plea of guilty. Before the trial began the court fully explained that although both defendants would be tried at the same time, the jury would decide only Asey’s guilt or innocence, not Baker’s because she had waived a jury trial; that the jury would listen to the evidence pertaining to him and the court would listen to the evidence pertaining to her. In view of this explanation, the jury had little reason to concern itself with Baker’s presence or absence. Before the State completed its case, and outside the presence of the jury, Baker pleaded guilty to the charge of concealing and aiding a fugitive. The State entered a plea of nolle prosequi to the armed robbery charge and Baker was taken away. The jury was recalled and the State continued the presentation of its evidence. Since the State had not yet introduced all the evidence it felt was necessary to sustain a conviction for armed robbery (the only offense charged against Baker of which the jury knew), the jury was more likely to conclude that the State had dismissed the indictment than that she had pleaded guilty to it.

The defendant’s last point is that an instruction violated his right not to testify and to be free from comment on his not testifying. The court instructed the jury that:

. . recent unexplained and exclusive possession of the proceeds of a robbery by an accused in and of itself gives rise to an inference of guilt which may be sufficient to sustain a conviction, in the absence of other evidence which leaves a reasonable doubt in the minds of the jury.”

The defendant argues that since he was the person best able to explain his possession, the instruction was both a comment on his silence and an authorization to find him guilty because of his exercise of his right. He relies on Griffin v. California, 380 US 609 (1965), a case in which the United States Supreme Court held that instructions by a court that an accused’s silence is evidence of guilt are constitutionally forbidden.

The instruction in the case at bar informed the jury of a rule of law which is well-settled in Illinois, cf. People v. Wheeler, 5 Ill2d 474, 126 NE2d 228 (1955) and People v. DeFilippis, 34 Ill2d 129, 214 NE2d 897 (1966), and differed essentially from that condemned in Griffin. In Griffin the jury was told:

“As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”

Here, the instruction neither directly nor covertly referred to the defendant’s failure to testify. How he came to possess the proceeds of the robbery could be explained through the testimony of his own witnesses or cross-examination of the State’s witnesses, as well as by his own testimony, or could have been explained at the time of his arrest or during the course of his investigation. The instruction did not suggest that the inference of guilt would be rebutted only if an explanation were given by him personally from the witness stand. Indeed, the instruction made clear that even if his possession was unexplained, the inference of guilt was rebutted if other evidence left a reasonable doubt in the jury’s mind. The instruction simply advised the jury that the State’s evidence, if believed, would support a conviction despite the fact that the defendant was not identified as a participant in the robbery. It did not transgress his right to decline to testify.

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

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE BRYANT BURKE, J.,

text:
    Mary Vassel, et al., Plaintiffs-Appellees, v. Calvin L. Underwood, Defendant, v. Apex Mutual Insurance Company, Garnishee-Defendant-Appellant.
    Gen. No. 50,942.
    First District, Second Division.
    July 14, 1967.

      BURKE, J., dissenting.
    Gillin, Owens and Willens, of Chicago (Charles J. Owens, of counsel), for appellant.
    Arthur A. Wolf and Phillip E. Blecher, of Chicago (Phillip E. Blecher, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County against the garnishee-appellant in the sum of $3,950 and costs. The original action was brought by Mary Vassel and Jatha Vassel against defendant, Calvin L. Underwood, for personal injuries sustained in an automobile accident. A default judgment was subsequently entered against Underwood in the sum of $3950. Thereafter, a garnishment action was commenced against the Apex Mutual Insurance Company, the alleged insurer of Underwood. Judgment was subsequently entered against the garnishee-appellant, Apex Mutual Insurance Company, hereinafter referred to as Apex.

Garnishee-appellant Apex raises two issues on this appeal. It first contends that the trial court erred in finding that the policy issued to Calvin Underwood was still in force at the time of the accident. Secondly, it contends that even if the policy was in force, the trial court erred in finding that sufficient notice had been given to the company.

At the first hearing on this matter Andrew Galiardo, head of the Automobile Underwriting Department for Shield Mutual Insurance Company, the successor to Apex, testified in behalf of garnishee-appellant. The witness identified and testified to the contents of the company’s file on Calvin Underwood. Included in the file was a letter requesting cancellation of the defendant Underwood’s policy for nonpayment of premium. This letter was on the letterhead of the Fairway Acceptance Corporation, apparently the financing agency, and was stamped with the name and address of Arco-American, the insurance broker. Cancellation was requested as of January 10, 1961, four days before the accident which spawned the present litigation. Also included in the file was the insurance policy with the notation “cancelled, January 10, 1961” on its face. On direct examination the witness testified that the return of the policy indicated that the premium, had not been paid, and that the producer (Arco-American) was requesting immediate cancellation under condition 24 of the policy which is as follows : “This policy may be cancelled by the named insured by surrender thereof to the company or any of its authorized agents, or by mailing to the company written notice, stating when, not less than ten days thereafter, such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. . . On cross-examina-tion it was brought out that this witness was not working for Apex at the time of the incident with which we are concerned, and that he had no personal knowledge of what actually happened. In fact, the witness stated that he personally did not know whether the policy had ever been sent to Calvin Underwood. Garnishee-appellant failed to call one A. J. Metcalfe, who was working for Apex at the time in question and who underwrote the Underwood policy.

At the second hearing on the matter, Calvin L. Underwood testified unequivocally that when he telephoned Apex to report the accident, he was not told that his policy had been cancelled. He further testified that he learned of the cancellation at some later time. At this hearing, Morris West, former claims manager for Apex, testified that the procedure which was followed when a claim was telephoned into the company’s offices, was to keep the party on the line until the underwriting file had been pulled. If the party hung up the procedure was to call the party back to explain the lack of coverage if that was necessary. Calvin Underwood testified that when he telephoned Apex, the girl who answered the phone did not inform him of the cancellation, but told him that she would send him some forms.

In view of the cancellation provision of the insurance policy which provides for immediate cancellation upon surrender of the policy by the insured, but requires a ten-day notice when the company is cancelling, the relation between Arco-American Company and the insured, and Apex is of importance. It is clear that an insurance broker, like any other broker, is the agent of the person who employs him. It is also true that under certain circumstances a broker may become the agent of the insurer. France v. Citizens Cas. Co., 400 Ill 55, 79 NE2d 28; City of Chicago v. Barnett, 404 Ill 136, 88 NE 2d 477. It is, of course, clear that if Arco-American was acting as the agent for Apex, the insurance policy issued to Calvin L. Underwood would have been in force at the time of the accident on January 14,1961.

Unfortunately, both the trial record and the briefs are utterly devoid of shedding any light on this issue. Apex offered no direct testimony on the matter of the relationship of Arco-American and Apex at the trial, and argued the point on this appeal in a most cursory and unsatisfactory manner.

We are loath to overturn the findings of the trier of facts. He is in a position to see and hear the witnesses and to judge their credibility, and is in a position to weigh the evidence. Moreover, it is the duty of the trier of facts to resolve factual questions such as were presented in this case. Unless his findings are clearly contrary to the manifest weight of the evidence we will not reverse. Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 146 NE2d 205; Peet v. Dolese & Shepard Co., 41 Ill App2d 358, 190 NE2d 613; Shilling v. Campbell, 38 Ill App2d 180, 186 NE2d 782. Upon a careful reading of the record in this case, we are unable to say that the evidence presented by garnishee-appellant Apex was sufficient to merit our overturning of the decision of the trial court.

Garnishee-appellant’s second contention is that assuming the insurance policy was still in force at the time of the accident, the company was not given notice of the accident.

Morris West, former claims manager, testified that from looking at the file on Calvin Underwood he did not know whether Underwood had ever telephoned a report of the accident to the company. Raymond Lavell, president of the broker, Arco-American, stated that he did not know whether or not Calvin Underwood had reported the accident of January 14, 1961 by telephone. He further testified that where there was no insurance, no notation of a call would be made on the files, but that the caller would be referred to the company. The original defendant, Calvin L. Underwood, testified that on the Monday following the accident on Saturday, he called Apex and reported the incident. He further stated that the voice at the other end answered with the name of the insurance company. At that time he was not told that the policy had been cancelled, but he was told that forms would be sent to him. Later in the summer Underwood received some court papers and he again telephoned Apex and was told that his insurance had been can-celled prior to the accident.

The evidence on this issue is clearly contradictory. Testimony for garnishee-appellant establishes the usual manner of operation when a claim is reported, and points out that there is no evidence in the files that Calvin Underwood ever reported the accident to the company or to the broker. On the other hand, Underwood testified unequivocally that he called the company twice, and that he took a letter to Arco-American.

We reiterate that it is not our province to substitute our judgment for that of the trier of facts. Bunton v. Illinois Cent. R. Co., supra; Feet v. Dolese & Shepard Co., supra. In view of the conflict in the testimony we feel compelled to uphold the judgment of the trier of facts on this issue.

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

Judgment affirmed.

LYONS, P. J. concurs.

BURKE, J.,

dissenting:

The evidence shows that the premium called for by the policy was not paid by the insured. The policy provided that the insured may cancel the policy by surrendering it. Because of the nonpayment of the premium, the insurance broker held the policy. The commission of the broker would come out of the premium paid by the insured. The broker cancelled the policy because of nonpayment of the premium and surrendered the policy to the insurer, who is the garnishee. The policy was surrendered and cancelled prior to the accident of January 14, 1961, which is the basis for plaintiffs’ cause of action against Underwood. The broker was the agent of the insured. As the policy was not in effect at the time that the cause of action arose in favor of plaintiffs and against Underwood, the insured, there is no basis for the judgment against the garnishee.

Therefore the judgment against the insurer should be reversed and the cause remanded with directions to enter judgment for Apex Mutual Insurance Company, the garnishee, and against plaintiffs.