text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Bailey, Defendant-Appellant.
    Gen. No. 50,631.
    First District, First Division.
    October 17, 1966.

      Philip M. Basvic, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Frederick Bailey, was convicted of murder after a jury trial and was sentenced to a term of not less than twenty-five nor more than fifty years in the penitentiary.

On appeal it is the defendant’s contention that (1) the State failed to prove the corpus delicti of the crime of murder; (2) that the defendant was not found guilty of murder beyond a reasonable doubt; (3) that the conduct of the trial judge prevented the defendant from having a fair and impartial trial; (4) that allowing the defendant’s statement, given to an Assistant State’s Attorney, to be taken to the jury room was error; (5) that the defendant was represented by incompetent counsel; (6) that the court erred in disallowing certain of defendant’s jury instructions; (7) that prejudicial argument of the prosecutor prevented defendant from receiving a fair and impartial trial; and (8) that the sentence imposed was excessive.

We first consider whether the State failed to prove the corpus delicti of the crime of murder. Lena Burke, widow of the victim, testified that she saw her husband on June 6th, and described him to be in good health. She again saw her husband that night in the emergency operating room of a hospital and the next time she saw him was in the county morgue the following morning. The defendant argues that these facts may give rise to an implication or circumstance that he was dead, but that more than this is required to establish the corpus delicti citing People v. Benson, 19 Ill2d 50, 166 NE2d 80, and People v. Wilson, 400 Ill 461, 81 NE2d 211. In Benson the court concluded that there was a reasonable doubt that the deceased came to her death from the illegal act of intercourse or from any criminal agency of the defendant, stating that “When one is charged with murder the elements which must be established are proof of death and proof of a criminal agency causing death, both of which must be established by the evidence beyond a reasonable doubt. (People v. Wilson, 400 Ill 461.) ” P 58. In the instant case the defendant testified that he purchased a gun on June 6th; that during an automobile ride with the deceased on that day they argued and he had the gun in his hand when the deceased attacked him and somehow the gun was discharged. A coroner’s pathologist testified that his examination of the body of the deceased on June 7th, revealed three bullet wounds, and in his opinion the cause of death was a bullet wound of the aorta. The evidence clearly establishes that the corpus delicti was proven.

It is the defendant’s further contention that he was not found guilty of murder beyond a reasonable doubt. He points out that murder has been defined as the unlawful killing with malice aforethought, either express or implied, People v. Papas, 381 Ill 90, 44 NE2d 896, and that the element that distinguishes murder from manslaughter is malice aforethought and that “. . . the word ‘aforethought’ implies, requires an action of the brain prior to the act.” People v. Cochran, 313 Ill 508, 519, 145 NE 207. He argues that had the shooting taken place at the time he was at the victim’s place of business that would be express malice, but instead that after the two of them were together for some two hours at a bar, he drove the car on the expressway and after they had talked about the deceased going with his wife and while on their way to Milwaukee to straighten the matter out the deceased was shot, which he says negates any showing that he acted deliberately or with malice aforethought.

The record reveals that the defendant was suspicious that the deceased was having an affair with his wife. Shortly before he drove to a garage where the deceased worked he purchased a gun which he placed underneath the floor mat of the ear. He testified that he did not go there for the specific purpose of seeing the deceased or to threaten him or to do him bodily harm, but went there to see his brother-in-law, although he knew the deceased was also employed there. After waiting there for one and one-half hours, the two of them drove in his brother’s car to a tavern, where they had drinks for about two hours and then went for a ride in the automobile. It was during this ride that the deceased brought up the matter of the defendant’s wife and an argument started while he was driving the car.

The defendant testified to several versions of what took place before the shooting. On direct examination he said he didn’t remember where his gun was, but that the deceased was struggling with him for the gun and it was discharged accidentally. He said when he saw bloodstains on the deceased he drove him to a hospital and took him to the emergency room. On cross-examination he said it was possible that the deceased pulled the gun out from under the seat. Later he said he “reached for the gun” with his right hand while he was driving and the deceased didn’t have it. He said he evidently switched the gun from his right hand to his left hand. He said the deceased was trying to get the gun away from him when “I heard the gun firing” and it was accidently discharged. He admitted that he might have told the police officers that he bought the gun to scare the deceased and that at the coroner’s inquest it was possible that he may have said that “I had gotten the gun to frighten Levy Burke [deceased] . . . .”

A police officer testified that the defendant voluntarily told him at the hospital that the deceased shot himself and did not say there was a struggle for the gun. A police detective testified that at the police station the defendant told him that he went to the garage to talk to the deceased about an affair he was having with his wife. That he waited until the deceased got off of work. They went to a tavern together, had two drinks and discussed the affair that the deceased was having with his wife. They decided to go to Milwaukee to straighten it out. He then drove on the expressway and while driving picked the gun from underneath the floor mat with the intention of giving it to the deceased to place it in the glove compartment. When he produced the gun Mr. Bailey said that Burke probably thought that he was going to do something with it, and a struggle ensued. Bailey stated that during this struggle he held the gun in his hand and the gun discharged and they continued struggling. During all this time the defendant said he was driving the car. The detective said when he again questioned the defendant he said the purpose for pulling the gun out from underneath the seat was to scare the deceased.

Joseph R. Gill, an Assistant State’s Attorney, testified that he went to the police station about 12:30 a. m. on June 7th, and questioned the defendant while a court reporter took notes. The statement was signed by the defendant after he read it and the defendant made corrections. The defendant testified that he may have made the statement that appears in this document that he bought the gun to scare the deceased, but he didn’t remember,

We have carefully reviewed the record and are of the opinion that the jury could not have reached any other conclusion than they did from the unbroken chain of evidence. It is clear that the defendant being suspicious that the deceased was having an affair with his wife purchased a gun, went to deceased’s place of work, discussed the matter with him and then shot him three times while they were alone on the expressway. The rule is well established that credibility of witnesses and the weight to be given to their testimony are matters to be determined by the jury and this court will not disturb the verdict unless the evidence is so unreasonable, improper or unsatisfactory to justify our conclusion that there is a reasonable doubt of the defendant’s guilt. People v. Woodruff, 9 Ill2d 429,137 NE2d 809.

It is further contended that the conduct of the trial judge prevented the defendant from receiving a fair and impartial trial. The defendant complains of interrogation by the trial judge. The record shows that after the widow had testified that she saw her husband on the morning and evening of June 6th, the court asked: "Mrs. Burke, prior to seeing your husband in the hospital on June 6th, was he in good health ?” and she answered, “Yes, he was.” No objection was made by the defense. Also while a detective was being questioned on direct examination by the prosecutor the court asked:

“The Court: Maybe there is one point that needs clarification. Are you saying, officer, that in a second statement the defendant said that he bought the gun to scare the deceased ?
“A. Yes, sir.
“The Court: Or are you saying he picked the gun from the floor to scare the deceased?
“A. Both. Both, your honor.”

We agree with the defendant that while the court has a wide discretion in the conduct of a trial he must not invade the province of the jury by making comments, insinuations or suggestions of his belief in the defendant’s guilt. The trial judge, however, has the right to ask questions of witnesses in order to ascertain the facts and elicit the truth concerning the questions at issue, but he must do it in a fair and impartial manner, without showing any bias for or prejudice against the defendant. People v. Filipak, 322 Ill 546, 153 NE 673, People v. Marino, 414 Ill 445, Ill NE2d 534. In Marino the court assumed the role of the prosecutor when he stated: "[T]his is the most fantastic thing I ever listened to in all my life” and when counsel objected to the remark he replied: “You may object. It still is, Go ahead.” P 450. In Filipak, the testimony of the prosecuting witness provoked the judge to such an extent that in the presence of the jury he ordered the witness and the defendants to be taken in custody, and increased their bail substantially. The same witness, after his incarceration identified the defendants as the persons who robbed him. The court went on to say “Whether the doubt of their identity which he expressed on the preliminary hearing, and again on the trial, was removed by the feat of further punishment or by his zeal to tell the truth cannot and need not be determined.” P 553. We do not believe that the trial judge by his questions to the witnesses in the instant case showed any impartiality or bias against the defendant, but sought to clarify the testimony for the benefit of the jury.

The defendant also claims that the court erred in permitting the defendant’s statement to be taken to the jury room. It is also claimed that the court did not act with impartiality when it ruled that the defendant’s statement may be admitted and read to the jury. As to the latter incident when the prosecutor offered the statement as an exhibit defendant’s counsel said: “I object, the statement is not shown to be voluntary.” The prosecutor: “We had a hearing and voluntariness was conceded.” While matters of this kind are best said outside the presence of the jury it was the remark of the defendant’s counsel that brought it about and we fail to see how the'defendant was prejudiced thereby. As to allowing the defendant’s statement to go to the jury room we do not find any abuse of discretion to the prejudice of the defendant. People v. Ciucci, 8 IIll2d 619, 137 NE2d 40. In People v. Holcomb, 370 Ill 299, 18 NE2d 878, the case cited by defendant, the lock and keys were not admitted in evidence and it was error to permit the articles to go to the jury room. In People v. Cheney, 368 Ill 131, 13 NE2d 171, the court was not satisfied that the entire dying declaration was properly admitted into evidence and held that it was improper to allow it to be taken to the jury room. Also in the case at bar the defendant testified that he was never threatened or beaten and it appears to have been a voluntary statement made by him as distinguished from the facts in People v. Spranger, 314 Ill 602,145 NE 706.

It is further contended that the attorney privately retained by the defendant was incompetent in defending him. “The question whether a defendant was adequately represented by able counsel must be answered solely from the circumstances of each particular case.” People v. Francis, 356 Ill 74, 77, 190 NE 106. After consideration we have concluded that the record does not disclose that the defendant was not well represented by able and efficient counsel under the circumstances of this case.

It is also charged that the court erred in refusing two jury instructions offered by the defendant, which are as follows :

3. The Court instructs the jury as a matter of law that mere possession of a pistol or revolver by the defendant unlawfully at the time of the homicide is not to be considered as any evidence of guilt on the part of the defendant, but must be only considered with the whole of the evidence.

10. The Court instructs the jury as a matter of law that before you can find the defendant guilty of the charge of murder as alleged in the indictment, the State must prove beyond a reasonable doubt.

1. That the defendant unlawfully took the life of the deceased.

2. That the wounding was done with malice aforethought.

The Court further instructs the jury as a matter of law that if the state fails to prove any one of the foregoing points beyond a reasonable doubt, it is your sworn duty as jurors to find the defendant not guilty of the charge as alleged in the indictment.

The court refused the above instructions because they were either duplications of the instructions given by the State or because they were irrelevant, or because they do not state the law accurately. We are of the opinion that the trial court correctly refused these instructions.

The defendant complains that the closing argument of the prosecutor to the jury was calculated to inflame and prejudice the jury and thus prevented him from receiving a fair and impartial trial. The specific material in the argument objected to is as follows:

Your obligation here is not only to decide what took place on June 6, 1964, but also to decide what are the standards for Cook County and for the residents of Cook County now and hereafter. You are here to protect both sides and for the part of the State you are here to protect the life and limb of every citizen. It affects this defendant, it affects all the people interested in this case, and I submit everyone in this State has an interest in this case.

The defendant has nowhere pointed out, nor can we find in the record, that his attorney objected to this argument and ordinarily that which is not objected to at the trial cannot be alleged as error for the first time on review. People v. Swets, 24 Ill2d 418, 182 NE2d 150. However, we do not consider this argument as contrary to a fair latitude allowed the State, nor do we think that the jury was influenced in the manner objected to. “In order to constitute reversible error, remarks by counsel must be such as to give reasonable grounds for believing that the jury was prejudiced thereby and that their verdict was affected by the remarks. (People v. Jenko, 410 Ill 478.)” People v. Allen, 17 Ill2d 55, 63, 160 NE2d 818.

Finally, the defendant contends that the sentence imposed by the court was manifestly in excess of the proscription of Article II, Section 11, of the Constitution of the State of Illinois and urges that we reduce the sentence. Ill Rev Stats 1963, chapter 38, section 9-1, permits any indeterminate term of years in the penitentiary of not less than 14 years. The grounds for this request is principally based on the errors claimed by the defendant for reversal. The sentence imposed by the court is invested to the judicial discretion of the trial judge within the limits of punishment fixed by the Statute. What was said by the Supreme Court in People v. Moriarty, 25 Ill2d 565, 567, 185 NE2d 688, is appropriate here. “We have always been and are extremely reluctant to interfere with the discretion vested in the trial judge where the sentence is within the statutory range. (People v. Calhoun, 22 Ill2d 31, 36.) ”

Having carefully considered all of the assignments of error, we are of the opinion that the defendant received a fair trial, free from reversible error.

For the reasons given the judgment and sentence is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Cornell Carter, Plaintiff in Error.
    Gen. No. 49,581.
    First District, Third Division.
    October 20, 1966.
    John F. Keefe, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

After a trial by the court without a jury, defendant was found guilty of murder and sentenced to life imprisonment in the state penitentiary. Relying on Escobedo v. Illinois, 378 US 478 (1964), he contends that a written confession and testimony relating to a prior oral confession were inadmissible because he had not been advised of his rights to counsel and to remain silent. The facts follow.

At approximately 10:45 p. m., on April 6, 1958, detectives of the Chicago Police Department, acting on information supplied by a woman to whom defendant admitted complicity in a murder, arrested the defendant and took him into custody. After being detained in a cell for two hours, defendant was brought to the detectives’ room, where he was interrogated with respect to the robbery and murder of a Chicago taxicab driver, Walter Bohn. He denied that he killed the victim, but admitted that his accomplice Gloria Ector, inflicted the fatal knife wounds. He further admitted that he and Gloria had hired the cab driven by the deceased; that he (defendant) had a gun and Gloria had a knife; that they robbed the driver and then forced him to take off his clothes and sit in the rear of the cab; that defendant put on the driver’s clothes and drove the cab; that Gloria was in the rear of the cab with the victim and stabbed him numerous times; that he heard the victim moaning and turned and saw his body covered with blood. He further admitted to the police that he drove the cab to an alley where he dragged the victim out of the cab; that the victim attempted to run away, but fell dying, and that defendant and Gloria fled the scene. Defendant subsequently repeated his story in the presence of an assistant state’s attorney and a court reporter and signed a 48-page statement, reciting the above events in greater detail. This confession was introduced in evidence at the trial.

The state argues that defendant cannot now raise the issue of the admissibility of his confession because he failed to make timely objections to its admission in the trial court and because he failed to charge error with respect thereto in his motion for new trial. The State’s position is sound on each of these contentions. In People v. French, 33 Ill2d 146, 210 NE2d 540, the court said, p 149:

“It is well settled that objections to the admission of evidence not made in the trial court will not be considered on appeal. . . . This rule applies equally to confessions (People v. Tuttle, 382 Ill 147). . . .”

And in People v. Irwin, 32 Ill2d 441, 207 NE2d 76, the court reaffirmed the established principle that errors not raised in a written motion for new trial are deemed waived. Even if the issue was properly before us, we could not sustain defendant’s position.

Subsequent to the filing of defendant’s brief, the United States Supreme Court held that Escobedo v. Illinois, supra, is not to be applied retroactively, and that the former standards of voluntariness are to be invoked in those confession cases arising prior to that decision. Johnson v. New Jersey, 384 US 719 (1966). In the instant case defendant specifically denied that he was subject to duress when he made his confession. There was no error in the admission of the written confession nor in the admission of the evidence relating to the oral admissions, and the judgment will be affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alexander Griffin, Defendant-Appellant.
    Gen. No. 50,200. (Abstract of Decision.)
    First District, Third Division.
    October 20, 1966.
    J. Edward Jones, of Blue Island, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Moore, Defendant-Appellant.
    Gen. No. 50,528.
    First District, Third Division.
    October 20, 1966.
    Rehearing denied November 18, 1966.

      Amiel G. Hall and Howard T. Savage, 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. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction after a jury trial for burglary with intent to commit the crime of theft. Defendant was sentenced to not less than three nor more than six years in the penitentiary.

The defendant contends (1) that the trial court erred in overruling his motions to suppress evidence allegedly obtained by an illegal search of his person, and (2) that the evidence is insufficient to sustain the verdict.

About 10:30 a. m. on July 30, 1964, two Chicago police officers, while patrolling their beat in a squad car, noticed a single car parked in what they termed a “desolate area.” One side of the street, the side on which the car was parked, was a railroad embankment. As the officers passed the car, they noticed that there was no license plate attached to the rear of the car. They stopped and approached the auto, whereupon they saw defendant lying down in the front seat. The officers informed defendant of the license plate violation and asked him to step out of the car and show identification of himself and of ownership of the car. The defendant produced a wallet, but before he gave it to the officers said, “Oh, this isn’t my wallet.” One of the officers had seen the name “James Tabbs” in the wallet while it was in defendant’s hands. Defendant then produced a second wallet which contained a traffic violation summons which identified him as Paul Moore. After examining the second wallet, the officers began to inquire about the first wallet, which defendant said belonged to his cousin. The police asked him what was in the wallet and defendant showed them three checks. The officers then took defendant to the police station, where he said he had found the wallet.

It was established that the checks were of one Mr. Anthony Motors, Inc., a used-car dealership for which defendant had worked. His employment there was for a period of three or four months, and had terminated early in July, 1964. The testimony indicated that, sometime between closing time July 25 and an employee’s" arrival July 26, the side window of Mr. Anthony Motors, Inc. was broken and someone had entered the building through the window and left by the rear door. Several items were taken at that time, including a checkmaster and some blank checks, which latter were of the same type as those found in defendant’s possession at the time of his arrest. The checks were apparently filled in with printing and perforations from the corporation’s missing checkmaster, and with writing of persons other than those authorized to sign the corporation’s checks.

Two friends of defendant testified that he had spent the night of July 25 and the morning of July 26 at home. It was the burglary of that date of which defendant was convicted.

Another friend of defendant, a minister, also testified on Moore’s behalf, stating that he had been with Moore on July 27 when the latter found the wallet and checks.

Defendant first contends that the checks taken from him were erroneously admitted into evidence, in that they were discovered and seized from him while he was unlawfully under arrest, and as a result of an unlawful search and seizure, even if the arrest were valid. Defendant, at the time of the arrest, was in possession of an automobile with no license plate affixed to the rear of the car. The absence of such a license plate is a violation of a city ordinance (Municipal Code of Chicago, 1963, par 27-354(a)) and of a state law (Ill Rev Stats, 1963, c 95%, pars 3-411, 3-701). Possession of such a car justifies police inquiry into ownership of the car and into identity of the possessor thereof. Defendant contends, however, that this minor traffic violation does not justify a search of the occupant of the car, relying upon People v. Watkins, 19 Ill2d 11, 166 NE2d 433, which ’held that minor traffic violations, alone, cannot be the basis of a complete search of the person. However, the court qualified that statement by saying at page 18:

“They (courts) have refused to establish a uniform rule to govern all searches accompanying valid arrests, but rather have examined the nature of the offense and the surrounding circumstances to determine whether the search was warranted. (Citing cases.)”

The court further said at page 19:

“But the violation involved in this case was parking too close to a crosswalk, — the kind of minor traffic offense that ordinarily results in ‘a parking ticket’ hung on the handle of the door of the car, telling the offender that it is not necessary to appear in court if he mails in the amount of his fine. Such an offense does not, in itself, raise the kind of inferences which justify searches in other cases. Some traffic violations would justify a search. The total absence of license plates, for example, as in People v. Berry, 17 Ill2d 247, could reasonably suggest a serious violation of the law, as could an obscured license plate upon a car being driven in the early morning hours, as in People v. Esposito, 18 Ill2d 104.”

In People v. Thomas, 31 Ill2d 212, 201 NE2d 413, the police officers stopped defendant’s automobile at 5:00 a. m. because one or both taillights were not operating. When asked for a driver’s license, defendant replied that he did not have one and that he had just gotten out of jail. The officers then arrested him and searched defendant and the car. The search of the defendant was held to have been justifiable although the officers had initially stopped the automobile for a minor traffic violation.

The court in People v. Hayden, 58 Ill App2d 420, 208 NE2d 309, upheld as constitutional a search of defendant after he had been stopped by police officers for failure to have a rear license plate light. The court said at page 422:

“In view of the circumstances surrounding the arrest, i. e., no license plate light, no city vehicle sticker, and the inability of either defendant to produce evidence of the ownership of the automobile, we hold that the search of the defendant and the automobile was justified in order to attempt to ascertain proof of ownership and for the officers’ protection.”

In this case the violation was one which could rouse suspicion as to the ownership of the car, and the acts of defendant regarding the two wallets further added to the officers’ suspicion. The above cases are therefore in point and we hold that the search of Moore was reasonable and constitutional.

Defendant also contends that the evidence is insufficient to sustain the verdict in that the state did not prove that the three checks introduced into evidence were taken in the burglary of which defendant was convicted, and that the evidence did not prove his guilt beyond a reasonable doubt. While it is true that there was evidence that Mr. Anthony Motors, Inc. had been burglarized on other occasions than the one in this case, there was no evidence that checks had been taken in those other burglaries. Among the things missing after the burglary in this case were checks. One of the owners testified that the checks in evidence were the same as those taken in this burglary.

There was evidence that James Tabbs’ wallet had been taken from him May 13th, more than two months prior to the burglary in this case. At the time the police recovered the wallet it contained the three checks in evidence, one of which was made out to and endorsed in the name of Tabbs. This check was dated July 25th. Sam Lazzara testified that he had made out payroll checks on that date, but did not then or ever have occasion to make a check payable to James Tabbs. Defendant argues that the handwriting on the checks was not his and, since the checks were blank when stolen, this proves that someone else had possession of the checks after they were stolen. Nonetheless, defendant was found in possession of the checks, and the writing proves only that defendant must have shared possession. Joint possession has always been held to satisfy the requirement of the rules of evidence of theft. People v. Reynolds, 27 Ill2d 523, 190 NE2d 301. The law does not speak in terms of continuous possession, but rather of recent possession. This requirement was fulfilled by the checks being found in defendant’s possession only five days after the burglary.

Finally, the evidence of alibi and finding the wallet and checks was provided by friends of defendant. It is the duty of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt, the finding of the jury will not be disturbed. People v. Reaves, 24 Ill2d 380,183 NE2d 169.

Because we find that the rulings on the motions to suppress were not erroneous, and because we find no merit in the contention that the evidence does not support the verdict, the judgment of the trial court must be affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Webb, Junior, Defendant-Appellent.
    Gen. No. 50,587. (Abstract of Decision.)
    First District, Third Division.
    October 27, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Albert Friedman, Frederick F. Cohn, James J. Doherty, Morton Zwick, Assistant Public Defenders, of counsel), 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.
   Opinion by PRESIDING JUSTICE SULLIVAN. Not to be published in full.


text:
    Park Avenue Lumber & Supply Company, a Corporation, Plaintiff, v. Nils A. Hofverberg, Inc., a Corporation, et al., Defendants-Appellees. On Appeal of The Exchange National Bank of Chicago, as Trustee; Morton Shapiro; and Sidney Boyansky, Defendants-Appellants.
    Gen. No. 50,841.
    First District, Third Division.
    October 27, 1966.
    Rehearing denied November 18, 1966.

      Block & Solomon, of Chicago (Irving L. Block, Milton H. Solomon and Harry C. Erdos, of counsel), for appellants.
    John Demling and Robert J. DiLeonardi, of Chicago (John Demling, of counsel), for appellee, Nils A. Hofverberg, Inc.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order entered in a proceeding under section 72 of the Civil Practice Act. The order modified a decree previously entered in a mechanic’s lien suit by vacating and setting aside that portion thereof which undertook to bar Nils A. Hofverberg, Inc. (Hofverberg, Inc.), the appellee defendant, from making any claim for a mechanic’s lien or for money due it for work, labor or material furnished to the premises described. The principal issue is whether it is proper in a proceeding under section 72 to modify a decree which has granted relief against a defaulted defendant far beyond that prayed for in the complaint.

As all the issues in this case are to be resolved on the averments in the pleadings filed in the mechanic’s lien suit, the findings of the court in the decree entered therein, the averments in the petition under section 72 and the findings of the court in the order entered therein, we will first examine those pleadings and findings. To avoid confusion, we will adopt the suggestion of counsel for appellants and call the initial pleading in the mechanic’s lien suit filed by Park Avenue Lumber & Supply Company (Park Avenue Lumber) the “complaint” and the initial pleading in the section 72 proceeding filed by defendant Hofverberg, Inc. the “petition,” and we will refer to the final order in the mechanic’s lien suit as the “decree,” and to the final order in the section 72 proceeding as the “order.” A third suit which has some pertinence to the issues was filed by Hofverberg, Inc. after the filing of the Park Avenue Lumber suit, but before the decree entered therein.

THE MECHANIC’S LIEN SUIT.

The complaint in the mechanic’s lien suit filed by Park Avenue Lumber sought to establish a mechanic’s lien for $3,848.01 for lumber supplied and services performed in connection with the construction of certain buildings on land held in trust by defendant Exchange National Bank of Chicago (Exchange Bank). Additional defendants to that suit were the Marshall Savings & Loan Association as mortgagee, Morton Shapiro and Sidney Boyansky, copartners doing business as Morton Management Company, Nils A. Hofverberg, Inc., the appellee, and a number of other defendants alleged to have had claims for mechanic’s liens. This complaint averred that Exchange Bank as trustee had contracted with defendants Shapiro and Boyansky as general contractors for the construction of buildings and that the latter had in turn contracted with Hofverberg, Inc. for carpentry work and materials and with other claimants for other materials and services. Hofverberg, Inc., as subcontractor, placed orders with Park Avenue Lumber and with other claimants for work and materials. The complaint further averred that Hofverberg, Inc. contracted with it to supply lumber at a price of $3,848.01; that it furnished the lumber, and that the owner and/or contractors were indebted to Hofverberg, Inc. in excess of the amount due plaintiff when, on November 20, 1963, it served notice of lien on the owner. The prayer of the complaint asked that plaintiff be decreed to have a mechanic’s lien on the premises, that a receiver be appointed, and that the defendant subcontractor (Hofverberg, Inc.) and/or the defendant owner be decreed to pay plaintiff the amount found due, and that in default of such payment, the premises be sold, and that plaintiff have other and further relief.

ANSWERS TO THE COMPLAINT.

An answer was filed by the Exchange Bank and Marshall Savings & Loan Association, in which the Exchange bank as trustee alleged that it dealt with the property on direction of the beneficiaries and that it held a naked legal title, but could not exercise any dominion over the property. It admitted that Morton Management Co. was the general contractor, denied that Shapiro and Boyansky were beneficiaries of the trust, and alleged that it was advised, but had no direct knowledge, that Hofverberg, Inc. entered into a contract with Morton Management Co. to supply lumber and carpentry. So far as appears, there was no contest in the mechanic’s lien suit.

THE DECREE.

The decree provided that Park Avenue Lumber should be paid the amount of the indebtedness due it, to-wit: $2,129.98; that it had a mechanic’s lien for that amount, and that defendant Hofverberg, Inc., together with Morton Shapiro and Sidney Boyansky had defaulted for want of appearance and that the decree should be taken as confessed against them, and provided that Hofverberg, Inc. “should be barred from making any further claim in this or any further proceeding for any alleged mechanic’s lien or mechanics’ liens or for any claim for moneys alleged to be due by reason of furnishing any work, labor or material to the premises aforedescribed.” (Emphasis added.) No execution for costs was served on Hofverberg, Inc., until after the thirty-day period had expired.

THE PETITION.

On March 4, 1965, Hofverberg, Inc. filed its petition in the section 72 proceeding, charging that the decree entered on December 30, 1964, in the mechanic’s lien proceeding was improperly entered because the complaint in that cause sought no relief against the petitioner other than a money judgment; that it did not allege that Hofverberg, Inc. claimed any interest either by mechanic’s lien or otherwise; that Hofverberg, Inc. had never been served with or had any notice of counterclaims filed; that all the counterclaims were dismissed before the entry of the decree; that the decree undertook to bar Hofverberg, Inc., from claims against Shapiro and Boyansky, notwithstanding the fact that both of them were defaulted in the same mechanic’s lien suit for failure to appear or plead; that at the time the decree was entered, on December 30, 196k, there was pending in the same court a mechanic’s lien foreclosure suit brought by Hofverberg, Inc. against Shapiro and Boyansky as general contractors; that defendants-appellants had been personally served with summons in that suit and were obliged to apprise the court of the pendency of the other litigation; that petitioner did not know or discover the facts until about February 11, 1965, when it was served with a notice of motion to dismiss the pending mechanic’s lien action brought by it and to bar the petitioner from making any claim. It alleges it had a valid mechanic’s lien in the sum of $77,000.

It should be noted that Exchange Bank denied having any interest in the property involved in the litigation, except as the holder of legal title to the real estate, and that Morton Shapiro and Sidney Boyansky were both defaulted. Thus, it would appear that the real parties in interest, that is, the owners of the beneficial interest, are not before the court. Counsel for the Exchange Bank also represented the general contractors Shapiro and Boyansky and while they appeared for the Exchange Bank in the mechanic’s lien suit, they permitted a default judgment to be entered against their clients Shapiro and Boyansky.

MOTION TO STRIKE THE 72 PETITION.

A motion to strike the 72 petition was presented by defendants-appellants Exchange Bank, Marshall Savings & Loan, Morton Shapiro and Sidney Boyanksy. The motion, supported by an 18-page memorandum of law, raised the foreclosure decree as a bar to any further proceedings of similar nature and challenged the sufficiency of the section 72 petition.

ORDER IN THE SECTION 72 PROCEEDING.

The court did not disturb the portions of the foreclosure decree which declared that Park Avenue Lumber was entitled to a mechanic’s lien. The order did, however, state that the provisions of the decree relating to Hofverberg, Inc. were not supported by the pleadings; that the complaint in the mechanic’s lien proceeding contained no allegation that Hofverberg, Inc. claimed a lien on the premises; that no issue was presented on that point; and that the complaint contained no allegations of fact upon which to base any finding or decree barring Hofverberg, Inc. from asserting a lien or maintaining a suit to collect for its work; that the complaint of Park Avenue Lumber was the only pleading served on Hofverberg, Inc. and that the sworn answer of Exchange Bank as trustee was not served on it; that the Exchange Bank as trustee was advised that Shapiro and Boyansky were indebted to Hofverberg, Inc., but that the amount of the indebtedness was in dispute (emphasis ours); that no allegation of the complaint or of the verified answer of defendant Exchange Bank supports the finding of the decree that Hofverberg, Inc. has no mechanic’s lien on the premises or is barred from pursuing any claim for moneys due; that the decree purports to grant affirmative relief in favor of the defaulted parties against Hofverberg, Inc., although Hofverberg received no notice of the fact that any affirmative relief would be sought. On these grounds the court vacated and set aside that portion of the decree in the mechanic’s lien suit which barred Hofverberg, Inc. from asserting its claim for mechanic’s lien or for moneys due in connection with the premises involved.

Defendants-appellants in their Points and Authorities present four grounds of error:

1. That the court did not obtain jurisdiction of the parties so as to enable it to grant relief under section 72, in that proper service was not effected, and, as a corollary, that the decree is incomplete on its face;

2. That the court had jurisdiction of the parties and of the subject matter and hence its decree could not be void.

3. That the Mechanic’s Lien Act contemplates that there should be but one suit and that all persons known to the plaintiff to have any legal or equitable claim should be made parties thereto;

4. That Hofverberg, Inc. cannot obtain relief under sections 72 and 76 of the Civil Practice Act because that Act will not relieve against alleged errors of law.

On the first point, service was made by ordinary mail, whereas pursuant to Supreme Court Rules 7-1 and 7-2, service in a case such as this may be made by registered mail. Defendants-appellants appeared in court, however, and filed a motion to strike the petition on its merits, presented a lengthy argument in support thereof, and made extensive arguments to the court before amending their motion to include the ground of improper service. Their appearance was general, and we see no merit in their contention that the court did not obtain jurisdiction.

The second item raised in Point I is that by allowing part of the decree to stand, the court is placing a cloud on title and impeding alienation of the property. For this reason defendants-appellants contend that the decree as modified is incomplete on its face and does not dispose of the case on the merits. The relief sought in the Hofverberg petition was modification of the decree in the mechanic’s lien suit to the extent to which it granted relief outside the scope of the complaint filed in the case. The order merely permits Hofverberg, Inc. to pursue its claim for mechanic’s lien or for moneys due. It was not incumbent upon the court to adjudicate the extent of Hofverberg, Inc.’s claim. That is to be done in a proceeding in which Hofverberg, Inc. prosecutes its claim.

Defendants-appellants argue in their reply brief that a hearing should have been held after denial of their motion to strike the petition. The point was not made either in the Points and Authorities nor in the argument in their original brief filed herein except as it may be inferred from the vague language of Point I. The Points and Authorities, under Rule 39, is the statement of the ground upon which appellants seek relief. It supplants the assignment of errors, which was the formal pleading used prior to adoption of modern practice acts. Aside from the technical aspect, we see no occasion for the court to have held another hearing after it passed upon defendants-appellants’ motion to strike. The matters upon which the court decided the issue were of record and undisputed.

Essentially, what defendants-appellants contend appears to be that the court should have permitted them to file an answer to the section 72 petition and should have proceeded to hear the merits of Hofverberg, Inc.’s claim for a mechanic’s lien or for moneys due. There apparently was some colloquy between the court and counsel with respect to this, but nowhere did defendants-appellants present or ask leave to present an answer or say to the court that they desired it to determine the extent and character of Hofverberg, Inc.’s claim. They will, of course, have an opportunity to present their defense on the merits in the suit brought by Hofverberg, Inc.

We proceed to consideration of the second point made by defendants-appellants; that is, that if the court had jurisdiction of the, parties and the subject matter, the decree could not be void. While the language of some of the cases cited by defendants-appellants affords a semblance of authority for their position, it clearly cannot be literally applied. A decree in a partition suit brought by a husband against his wife, for example, could not support a decree of divorce if the complaint did not state such a case and the prayer for relief did not cover it. It is a farfetched example, but one which indicates the weakness in appellants’ position. A much more accurate rule is set forth in Restatement, Judgments, as follows:

“Even though the State has jurisdiction over the parties and even though the court is one with competency to render the judgment, a judgment by default is void if it was outside the cause of action stated in the complaint and if the defendant was not given a fair opportunity to defend against the claim on which the judgment was based. . . .” Sec 8 (c).

One has a right to assume that the relief granted on default will not exceed or substantially differ from that described in the complaint, and he may safely allow a default to be taken in reliance upon this assumption. Sceva Steel Buildings, Inc. v. Weitz, 66 Wash2d 260, 401 P2d 980; Klehm v. Klehm, 41 Ill App2d 423, 191 NE2d 69. This right is protected by section 34 of the Civil Practice Act and by Supreme Court Rule 7-1 which provide that in case of default, if relief beyond that prayed for in the pleadings is sought, whether by amendment, counterclaim or otherwise, notice shall be given the defaulted party. If a party in default is not notified of an amendment changing the complaint in a matter of substance, he may challenge the ensuing decree by means of a section 72 petition. Carr v. Edwards, 12 Ill App2d 369, 139 NE2d 836; Western Smelting & Refining Co. v. Benjamin Harris & Co., 302 Ill App 535, 24 NE2d 255; Dahlin v. Maytag Co., 238 Ill App 85; Frank v. Newburger, 298 Ill App 548,19 NE2d 147.

The third point made by defendants-appellants is that the Mechanic’s Lien Act contemplated that there should be but one suit; that is, that all persons known to have any legal or equitable claim should be made parties so that the watermelon might be cut in proper portions. There is no question but that this is the general policy with respect to mechanics’ lien suits, but that does not mean that the general rules relating to equity practice and procedure do not apply. Defendants-appellants rely on Granquist v. Western Tube Co., 240 Ill 132, 88 NE 468. That case holds that all known lien claimants must be made parties to a mechanic’s lien proceeding and that separate lien proceedings pending at the same time must be consolidated. This is consistent with the time-honored equitable principle that the genuine parties in interest should be the parties to an equitable proceeding. 1 Pomeroy, Equity Jurisdiction, see 114 (5th ed 1941); Green v. Grant, 143 Ill 61, 69, 32 NE 369. In the instant case, defendants-appellants did not make a bona fide attempt to bring all the interested parties before the court for a single adjudication. The same counsel represented Exchange Bank, the trustee, Marshall Savings & Loan, the mortgagee, and Shapiro and Boyansky, the general contractors. Although the identity of the holder of the beneficial interest in the real estate, a genuine party in interest, must have been known to the appellants, they did not disclose his identity nor attempt to bring him before the court.

Counsel for Shapiro and Boyansky helped draft the decree which held Shapiro and Boyansky in default. The attorney for Park Avenue Lumber sent a proposed draft of the mechanic’s lien decree to the attorneys for defendants-appellants, who then redrafted it. When the hearing was held in the mechanic’s lien suit, counsel submitted the redrafted decree to the court, appeared on behalf of Exchange Bank and Marshall Savings & Loan, but their clients Shapiro and Boyansky, having entered no appearance, were defaulted. Counsel for appellants did not disclose to the court before the decree was entered that Hofverberg, Inc. had instituted a suit for a mechanic’s lien in the same court. If they had, the two suits would have been consolidated. They withheld from the court information which in our opinion should have been disclosed. It was they who frustrated the policy of the Mechanic’s Lien Act.

The final point made by defendants-appellants is that Hofverberg, Inc. cannot obtain relief under section 72 because (1) there is no showing of diligence, and (2) the error, if any, was one of law for which section 72 does not afford relief. Attorneys for Hofverberg, Inc. frankly state that summons and complaint were delivered to Hofverberg, Inc. and that the latter did nothing about it; that subsequently it retained a lawyer to file its claim for $77,000 against Shapiro and Boyansky and against the owners and mortgagee of the real estate, and that the lawyers failed to determine that there was an action pending in which Hofverberg, Inc. was a defendant. They say, on the other hand, that Shapiro and Boyansky and the others were served with summons in the suit brought by Hofverberg, Inc. prior to the entry of the December 30, 1964, decree and that thirty days were allowed to pass after the decree in the instant suit before defendants-appellants moved for dismissal of the suit brought by Hofverberg.

Defendants-appellants contend that the practice of this type of law is peculiarly subject to hazards and that the policy of allowing amendments to conform to proof and to cure incidental errors should not apply where the proof was presented ex parte. Every lawyer and every judge in this county knows that the numerous courts and massive amount of litigation conducted here is bound to lead to defaults. For that reason the tendency is to apply section 72 liberally, and this is justified by history and precedent.

Section 72 is a statutory substitute for several common-law writs, most notably, the writ of error coram nobis. The Supreme Court of Illinois had occasion to review the history of this section in Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350. After an exhaustive study of the common-law writ, the court concluded that the statutory remedy should be applied more liberally than its predecessors, and went on to note, p 291:

“Further, we find that the motion has been used extensively as a procedural device to prevent injustice by making possible the vacation of judgments entered without notice to a party where the circumstances were such as to require specific notice.”

The liberal construction of section 72 was reaffirmed in Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, and the policy enunciated by the court there clearly establishes that the courts are not strictly bound by precedent in affording post-judgment relief, but rather may exercise their equitable powers to grant relief where necessary to prevent injustice. Whether or not the litigant is entitled to relief under section 72 depends on all the circumstances attendant on the entry of the default judgment. Many different factual situations would justify or, indeed, necessitate the vacation of a decree or portion thereof. In Bell Auto Repair & Painting Corp. v. Henderson, 73 Ill App2d 234, 219 NE2d 642, filed by this court on July 21, 1966, we held that a decree should have been vacated even though more than two years had elapsed since its rendition. The defaulted party supported his motion to vacate by affidavit that a cognovit note had been procured from him by fraud and that the holder of the note obtained a judgment without notifying the defendant, and had further concealed the existence of the judgment for about three years. We held that relief under such conditions was within the purview of section 72.

In determining the merits of a section 72 petition, the court need not restrict its inquiry to the facts preceding the default judgment, but may consider the conduct of the parties after judgment has been entered. Failure to sue out an execution during the thirty day period in which a decree may be directly attacked is in itself a cloud on the conduct of the party taking the default judgment, and the court may consider such delay when deciding a section 72 petition. Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829. The same principle applies in the instant case, where defendant-appellants interposed the default decree as a defense only after the thirty days had run.

If the decree in the Park Avenue Lumber case were permitted to stand, Hofverberg, Inc. would be precluded from enforcing any claim for materials supplied and services rendered, even though the pleadings of several of the parties to the Park Avenue Lumber mechanic’s lien proceeding allude to a debt running to Hofverberg, Inc. for its work in the construction project. Although the fact that Hofverberg, Inc. has such a claim is apparent from the face of the pleadings, the decree of December 30, 1964, not only bars it from asserting its right to a lien, but also enjoins it from suing in a simple contract action for what may be due it. Thus Shapiro and Boyansky, the general contractors who engaged Hofverberg, Inc. would be immune from suit, even though they themselves had been defaulted in the same suit. Finally, the holders of the beneficial interest in the land trust, whose identity is still undisclosed, would likewise be immune from prosecution of any lien for work and services performed by Hofverberg, Inc. even though they never appeared in court and, according to the trustee, never authorized any one to represent them. The obvious injustice of this result is apparent.

The trial court with scrupulous care examined all the elements in this case and found in substance that it is within the provisions of section 72 and in the interest of justice to grant relief, and his order is affirmed.

Order affirmed.

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


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    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Hopkins, Defendant-Appellant.
    Gen. No. 50,922.
    First District, Third Division.
    October 27, 1966.
    Harry S. Wolin and F. Dennis France, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Clarence Hopkins, was indicted for the possession of narcotics, waived a jury trial, was found guilty and was sentenced to a term of four to eight years in the penitentiary. He complains that he was denied a full and impartial hearing and contends that his guilt was not proved beyond a reasonable doubt.

The manager of John’s Bargain Store, 866 East 63rd Street, Chicago, saw the defendant walk out of the store with three boys’ jackets under his arm. The manager, his assistant and a passerby caught the defendant, and a policeman from a passing squad car placed him under arrest. He was brought back to the store and searched by the officer in the presence of the manager. A tinfoil packet containing white powder was found in his shirt pocket. A test of the powder made at the police station indicated, and a subsequent laboratory analysis established, that it was heroin.

At his trial on the narcotics charge, the defendant admitted stealing the jackets but denied possessing narcotics. He said the store manager was not present when he was searched, that the shirt he was wearing at the time did not have a pocket, that the arresting officer did not take a foil packet from him and did not mention anything about narcotics. He testified that when he was taken to court for the theft he was not informed that he was charged with the possession of narcotics — that the narcotics charge was not placed against him until his second appearance in court.

It is the latter circumstance which has occasioned the defendant’s complaint that he was denied a full hearing. During his direct examination he was asked how long it was after his arrest that he was brought to court on the narcotics charge. An objection to the materiality of the question was sustained. His attorney argued that the question was material because he wanted to bring out that nothing was said to the defendant about a narcotics offense until a long time after his arrest. The purpose of the question was to cast doubt on the truth of the narcotics charge by facts suggesting that it was an afterthought on the part of the arresting officer. The question was material to the defense and the objection should have been overruled. However, the defendant was not harmed by the ruling because, later in his testimony, he supplied the information which the earlier question sought to elicit: he said that the charge of possessing narcotics was not preferred against him until September 11, 1963, which was eight days after his arrest.

A corollary complaint arising from the same ruling by the court is that the defendant was denied an impartial trial. It is the defendant’s contention that by sustaining the objection to the foregoing question the judge revealed that his mind was made up as to the defendant’s guilt, that he had already accepted the testimony of the State’s witnesses and was denying the defendant the opportunity of presenting all the factors pertinent to his defense. There is no justification for this complaint; no such inference can be reasonably drawn from the ruling of the court.

The contention that guilt was not proved beyond a reasonable doubt is predicated upon the delay in filing the complaint, discrepancies in the testimony of the witnesses for the prosecution, and the testimony of the defendant that there was no pocket in the shirt he was wearing on the day of his arrest. No explanation was made at the trial for the delay in charging the defendant with the possession of narcotics, but the explanation offered by the defendant for the delay (that an unfounded charge was fabricated at a later date by the police) is refuted by the evidence and the exhibits offered by the State. It was stipulated that if the chemist who tested the contents of the packet were called to testify he would relate that he received the packet from the arresting officer on September 3, 1963 (the date of the defendant’s arrest) and that he completed his analysis on September 4, 1963. The pertinent exhibits bore these respective dates. It is a reasonable inference that the narcotics charge was not placed against the defendant at the time of his first court appearance, the morning of September 4th, because the officer was waiting for the chemist’s report. Upon learning the result, the officer preferred the charge on the date of the defendant’s second appearance in court, eight days later.

The alleged contradictions in the testimony of the State’s witnesses concern the persons present at the apprehension of the defendant and the clothing worn by him at that time. The defendant sees in these contradictions — which are principally variations differing with his own version of what took place — a reflection on the credibility of the witnesses which should have raised a reasonable doubt in the mind of the trial judge. The differences in the testimony are inconsequential. The defendant admitted stealing from the store, there is no question of his identity, and it matters little whether the assistant manager or the passerby caught and held him, whether his outer garment was called a jacket or a sport coat by the witnesses or whether he was wearing or carrying it.

The defendant testified that his shirt had no pocket. He argues that his testimony was not disputed and that the prosecution should have introduced the shirt in evidence. This argument overlooks the fact that his testimony was disputed by the manager of the store and the arresting officer who stated that his shirt did have a pocket and that the foil packet was taken from that pocket; it also overlooks the fact that the shirt was not in the possession of the State and that the State had no reason to anticipate his testimony and the issue he raised. The shirt was the defendant’s property, was not taken from him when he was arrested and, presumably, was more available to him than the State at the time of the trial — two and a half months after the occurrence.

The trial court heard the defendant and the State’s witnesses and determined their credibility and the weight to be given their testimony. No meritorious reason has been shown why we should disturb the court’s judgment. The judgment was based on legally sufficient evidence and will be affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee King, Defendant-Appellant.
    Gen. No. 50,363.
    First District, First Division.
    October 31, 1966.

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

delivered the opinion of the court.

The defendant, Robert Lee King, was indicted for the crime of murder. The jury found him guilty of voluntary manslaughter, a lesser included offense in an indictment for murder and he was sentenced to serve ten to twenty years in the penitentiary.

On appeal the defendant contends that he is entitled to a new trial because: (1) a statement taken after his request for counsel was denied was admitted into evidence; (2) because the court improperly instructed the jury on the law of self-defense; (3) because the court improperly refused to instruct the jury on accidental shooting, and (4) the failure to name the “place of the offense” in the indictment was fatal.

The record establishes that in the early morning hours of September 12, 1964, the defendant and several other men had been playing dice for several hours in a small room located in the building in which the defendant resided. Two of the players testified that after the defendant accused the deceased, James Robertson, of cheating, he left the room. Upon his return he pulled out a gun and ordered the men to leave the room. The defendant and Robertson were then alone and while the other players were in the hallway, a few feet from the room, a shot was heard. The defendant left the room, gave the gun to his wife, and Robertson was found lying wounded on the floor. The defendant and several of the players brought Robertson to a hospital where they were questioned about the shooting and they denied any knowledge of the affair. Robertson subsequently died as a result of the bullet entering his left lung.

Detective Francis Higgins testified that he and several officers went to the defendant’s home the evening of the 12th and, when questioned, the defendant told them he found Robertson lying in the hallway and that he and other persons took him to the hospital. Shortly thereafter the defendant and three of the players were in the police station and, when questioned, the defendant again denied he knew who shot Robertson. Higgins further testified that Burrel Henry, one of the players, told the defendant “You shot that man. Tell him the truth. You shot him,” and it was then that the defendant admitted shooting Robertson and giving the gun to his wife. On the way to the defendant’s home to get the gun, he said the defendant told them that he and Robertson and others were playing dice, and during an argument about a two-dollar wager, Robertson pushed him and he punched Robertson. When Robertson picked up a board and came at him, he took out his gun, and in the tussel in the hallway, Robertson grabbed for the gun and it went off. When they arrived at defendant’s home he said the defendant’s wife got the gun and gave it to them and the defendant said this was the gun he used.

He testified further that at the police station he asked the defendant if he would repeat the statement to an Assistant State’s Attorney. The defendant said that he wished to consult an attorney first and when asked if he had an attorney he said no, but that he would like to call Mr. Iacullo, his employer. After the defendant spoke to Mr. Iacullo he said he would give a statement. An Assistant State’s Attorney came to the station with a court reporter and after the defendant’s statement was reduced to writing the defendant refused to sign it because he said he couldn’t read very well. It is this statement that was received in evidence that we are asked to consider.

The defendant contends that the conviction rests on a statement taken after a request for counsel was denied in violation of his right to counsel. The defendant’s counsel argues that instead of the police adhering to the request of counsel by the defendant “the police officer used the defendant’s employer to induce him to give the unsigned statement.” The record is clearly to the contrary. The defendant stated he had no lawyer and instead requested permission to speak to Iacullo, his employer. It was after his conversation with Iacullo that he made the statement, which was also substantially the same statement given voluntarily to a police officer before the Assistant State’s Attorney was called in. The defendant, as a witness, did not testify to any action by the police that would induce him to involuntarily give a statement and his employer, Iacullo, called by him as his witness, only testified to the defendant’s good reputation. We agree with the defendant that in determining whether a statement was voluntarily given and admissible into evidence, all the attending circumstances must be examined. Haynes v. Washington, 373 US 503. The proof is more than sufficient to support the findings of the trial judge that the exculpatory statement made by the defendant was voluntary and that he was adequately informed of his right to counsel. The cases cited by counsel are readily distinguishable and we do not feel that a discussion of those cases will be helpful.

The defendant next contends that the refusal of the court to give the following instruction was prejudicial and denied him a fair trial:

If the jury believe from the evidence beyond a reasonable doubt that the defendant shot and killed . the deceased but that the act of the defendant in doing so was not malicious or intentional but the result of mere accident, you should find the defendant not guilty.

The defendant argues and we agree that he has “the right to have the jury instructed as to the law applicable to any state of facts which the jury might legitimately find to have been proved from the evidence.” People v. Kalpak, 10 Ill2d 411, 424, 140 NE2d 726. However, the record is clear that the defendant, with a loaded gun in hand, ordered all the dice players out of the room and was determined to settle his argument with Robertson. The defendant was either guilty of murder or voluntary manslaughter unless the jury believed from the evidence that the defendant fired the gun in self-defense. Instructions relating to voluntary manslaughter and self-defense were given. The trial judge held there was no evidence consistent with accidental death and properly refused the tendered instruction. Moreover, as worded, the instruction is not the law nor has the defendant cited any cases to support it.

The defendant also claims that the instruction given on self-defense was erroneous. This instruction informed the jury, amongst other things, “that at the time of the killing the danger was apparently so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing was absolutely necessary.” (Emphasis added.) It is argued that this instruction imposed a higher burden than the law required because “the law does not demand that it appear ‘absolutely necessary’ to the defendant that he kill before he actually does so in order to protect himself.” It is true, as defendant points out, that the statute does not use the word “absolutely.” The statute uses the word “necessary” and not the words “absolutely necessary.” Ill Rev Stats 1963, c 38, § 7-1. The instruction complained of reads as follows:

The court instructs the jury, as a matter of law, that before a defendant can avail himself of the right of self-defense, as the same is defined in these instructions, it must appear to him, acting as a reasonable person, that at the time of the killing the danger was apparently so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing was absolutely necessary. (Emphasis ours.)

In Belt v. The People, 97 Ill 461, the court held this instruction to be proper when a similar objection was made stating that they perceived no essential difference between the respective expressions. In People v. Jordan, 18 Ill2d 489, 492, 165 NE2d 296, our Supreme Court held that “in order that a killing be justified on the grounds of self-defense it must appear that the danger was so urgent and pressing that in order to save the defendant’s own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary . . . .” (Emphasis ours.) We have examined the cited cases of People v. Turner, 385 Ill 344, 52 NE2d 712, and People v. Williams, 56 Ill App2d 159, 205 NE2d 749, and find them inapplicable on the facts. Under the facts and circumstances in the case at bar we hold that the instruction as given was proper. When a loaded revolver is chosen to settle a wager dispute, the natural presumption is that there will be shooting if it is found necessary to prevail, and the destruction of human life not infrequently is the result of the reckless discharge of the gun. In fact there was sufficient proof, if believed by the jurors, to justify a conviction of murder, People v. Davis, 35 Ill2d 55, 219 NE2d 468.

Finally it is contended that the indictment contained a fatal defect by not stating the “place of the offense.” People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, held to the contrary.

The judgment of the Criminal Division of the Circuit Court will therefore be affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tobey Boone, a/k/a Tobey Richardson, Defendant-Appellant.
    Gen. No. 50,582. (Abstract of Decision.)
    First District, First Division.
    October 31, 1966.
    J. Tobias Dixon, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Walter J. Parrish, Jr., and Thomas M. Burn-ham, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles T. Brown, Defendant-Appellant. People of the State of Illinois, Plaintiff-Appellee, v. Leonard Witherspoon, Defendant-Appellant.
    Gen. Nos. 50,618 and 50,620.
    First District, First Division.
    October 31, 1966.

      Philip M. Basvic, of Chicago, for appellant, Charles T. Brown.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant, Leonard Witherspoon.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Thomas M. Burnham and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Charles T. Brown, was jointly indicted with James E. McIntyre and Leonard Witherspoon for the offense of robbery. McIntyre pleaded guilty and testified for the State. After a joint bench trial, Brown and Witherspoon were found guilty, and each was sentenced for a term of five to ten years. Brown and Witherspoon filed separate appeals based on different grounds, which are consolidated in one opinion for convenience and clarity.

At about 5:00 a. m. on November 10, 1963, the complaining witness, Elgin Richard Dickerson, was asleep, riding on a southbound elevated train in Chicago. He awoke and saw Witherspoon with his wallet, taking money from it. A second man (defendant Brown) was taking off Dickerson’s shoes. A third man (McIntyre) was standing over Dickerson beside Brown. Dickerson reached for his wallet, and Witherspoon “hit me under my left eye, with his fist. I fell back in the seat. . . . They take my money out, threw the wallet down, got off at 55th Street. I told the conductor what happened and he told me to report it. . . . Around 7:00 a. m. November 10, 1963, I went to the 2nd District Police Station. Officers asked me to look at some fellows. I see this Brown, defendant in this case. I had around $30.00. I did not give anyone permission to take that money from me. I had seen Leonard Witherspoon before, on the Subway train. I did not know his name. I had seen Charles Brown before on the Subway. I did not know his name.”

On cross-examination, Dickerson testified he had been in a tavern with two friends, and when he left the tavern, “I had around $28 or $30. I had two 10’s, I had two 5’s and some l’s. I can’t exactly remember. That is a long time. ... I dozed off. I wasn’t drunk, wasn’t feeling high, I didn’t drink that much. I was more tired than drunk. I was awakened by three men. ... I know the men by seeing them. . . . Yes, I actually did see Wither-spoon take the money from my wallet.”

In testifying for the State, McIntyre said that on November 10, he was on a southbound elevated train with Brown and Witherspoon. Dickerson was asleep, and Brown and Witherspoon were trying to pick his pockets. “I didn’t see either of them take anything out of his pockets. I was lookout, watching both ways. . . . Dickerson woke up, and well they hit him. Leonard Wither-spoon. We hurried and got off. . . . No, I did not receive any money taken from Dickerson.”

A CTA police officer testified he knew the three defendants by name. On November 10, 1963, at approximately 5:30 a. m., he first observed them standing on the 58th Street platform. After he and his partner had proceeded to the 61st Street station and returned to the 58th Street station, they stood on the 58th Street platform for approximately fifteen minutes until another southbound train had come into the station. In the front car of this train, the witness “saw Brown and Wither-spoon . . . holding this man' down on the seat, and Brown was going through the man’s pockets.” (This is not the offense with which we are here concerned.) Brown and Witherspoon saw the officer and ran off the train. After a short chase, Brown and Witherspoon were captured and taken into the 2nd District Police Station. The officer was present when Dickerson later made his identification.

Another witness for the State, a Chicago police officer, testified that he searched defendants Brown and Wither-spoon in the police station at 48th and Wabash Avenue and found $12 on Brown’s person and $18 on Wither-spoon. On cross-examination, he said the total amount found was $30, “which included 15 one dollar bills.” Defendant Leonard Witherspoon testified that he had known Dickerson since 1956 — “He was a pickpocket with me.” He denied seeing Dickerson on the train, taking his wallet or money, or that he hit him.

APPEAL NO. 50,618

Defendant Brown contends there is reasonable doubt of his guilt because (1) of his failure to possess the fruits of the crime; (2) Brown and Witherspoon never left the elevated structure and when arrested 45 minutes after the alleged robbery, they had $30 between them, which included 15 singles, and “the complaining witness could not have had fifteen singles, by his own testimony”; (3) the indictment charged the taking of $28 and a ring, and the record is silent as to the ring; (4) as McIntyre pleaded guilty, it must be assumed he robbed Dickerson of $28 and the ring and escaped with the fruits of the crime; and (5) Dickerson’s identification of Brown was “ambiguous, vague and unclear.”

Authorities cited include People v. Sheppard, 402 Ill 347, 83 NE2d 587 (1949), where the court said (p 351) :

“In criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed.”

And on p 352:

“It is the duty of a court and jury to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done, and, where the entire record leaves us, as this one does, with grave and substantial doubt of the guilt of the plaintiff in error, we will reverse the judgment.”

Using the foregoing principles as guidelines here, we believe this record presents sufficient credible evidence to sustain defendant Brown’s conviction, and “the entire record” here does not leave this court with grave and substantial doubt of the guilt of defendant Brown. Dickerson’s version of the robbery was substantially corroborated by McIntyre. The testimony of an accomplice is competent evidence if it is of such a character as to prove guilt beyond a reasonable doubt, although it is subject to grave suspicion and should be acted on with great caution. (People v. Lane, 29 Ill2d 326, 194 NE2d 272 (1963).) The variance between the money stolen and the money subsequently found on the accused does not, of itself, create a reasonable doubt as to the guilt of defendants. Corroboration of Dickerson’s testimony was not required as to every detail, if there was sufficient evidence to establish the elements of the crime of robbery. (Burke v. People, 148 Ill 70, 74, 35 NE 376 (1893).) As there was no evidence showing that a ring was taken from Dickerson, the ring allegation in the indictment may be rejected here as surplusage.

Defendant Brown further contends that “trying to pick the pocket of a man asleep is not robbery under the statute. Nor is it robbery beyond a reasonable doubt, as charged in the indictment. . . . The gist of the offense of robbery is the force or intimidation and taking from another, against his will, a thing belonging to him or in his custody.” (People v. Funk, 325 Ill 57, 155 NE 838 (1927).) Defendant Brown argues that the striking came from Witherspoon and after Dickerson awakened and found Witherspoon with the wallet and money, and “any force, or threatened force, must come before or during the time the property is taken.” We find no merit in this contention. The series of events— the taking of the wallet, the attempt to recover it by Dickerson, and the striking of Dickerson by Witherspoon —constituted a single incident or occurrence or the “res gestae of the crime.” See People v. Chambliss, 69 Ill App2d 459, 217 NE2d 422 (1966).

We find no merit in defendant Brown’s contention that “the variance between the charge in the indictment and the proof was too great to warrant a conviction.” In People v. Lawler, 23 Ill2d 38, 177 NE2d 183 (1961), it is said (p 39) :

“Under an indictment for robbery it is not necessary to prove the particular identity or value of the property taken, further than to show it was the property of the victim or in his care and had a value.”

And in People v. Figgers, 23 Ill2d 516, 179 NE2d 626 (1962), it is said (p 518) :

“It is well settled that a variance, to vitiate a trial, must be material and be of such character as may mislead the accused in making his defense or expose him to double jeopardy. . . . Also of importance here is the general rule that immaterial matters, or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments, may be regarded as surplusage. . . . Accordingly, where an indictment charges all of the elements essential to an offense under a statute, other matters unnecessarily added may be rejected as surplusage.”

These statements apply both to the ring and the currency variance. The evidence shows that Brown participated in the taking of property from the person of Dickerson, and that the use of force was an integral part of the taking. The indictment charged all of the elements essential to the offense of robbery, and the proof offered by the State sustained the charge beyond a reasonable doubt.

For the reasons given, the conviction of defendant Brown of the offense of robbery is affirmed.

APPEAL NO. 50,620

Defendant Witherspoon contends that he did not get a fair trial because (1) evidence of a distinct and separate offense was improperly introduced in evidence; (2) cross-examination was restricted; and (3) defendant was denied counsel of his own choice.

Defendant asserts that the admission of the testimony of the CTA policeman that he saw Witherspoon and Brown holding down another man and going through his pockets comes within the general rule that “proof of separate crimes wholly disconnected from the crime charged” is reversible error. (People v. Gawlick, 350 Ill 359, 364, 183 NE 217 (1932) ; People v. Gleason, 36 Ill App2d 15, 183 NE2d 523 (1962).) Defendant further contends that the error was compounded by the cross-examination of Witherspoon on that point.

We believe the testimony of the CTA policeman was properly admitted. It comes within the guidelines set forth in People v. Tranowski, 20 Ill2d 11, 169 NE2d 347 (1960), where it is said (p 16) :

“It is the general rule that evidence that another or other crimes were committed by a defendant, wholly independent of and disconnected from the crime for which he is being tried, is not admissible. . . . But a corollary of the rule is that evidence, relevant to the main issue, which serves to place a defendant in proximity to the time and place, aids or establishes identity, and tends to prove design, motive or knowledge, is admissible. . . . [T]his evidence served to place defendant in the area at the correct time and establish a scheme or design which was strikingly similar to the offense charged in the indictment.”

However, we think it was improper for the State to cross-examine defendant Witherspoon on a crime for which he had neither been charged nor for which he was on trial. In a proper case this might be a ground for reversal, but under the circumstances of this case this error does not require reversal. As said in People v. Tranowski, p 17:

“It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error.”

Defendant Witherspoon next contends that the cross-examination of Dickerson, the complaining witness, was unduly restricted in that defense counsel was precluded from examining Dickerson as to whether he was a narcotics addict. Defendant argues that whether or not the witness was a narcotics addict was relevant to the general reliability and credibility of his testimony. “The chronic morphinomaniac is often a confirmed liar — the truth is not in him.” (People v. Crump, 5 Ill2d 251, 125 NE2d 615 (1955).) Also, it is contended that the examination of the accomplice, McIntyre, was unduly restricted in defendant’s attempt to show discrepancies between the testimony of the accomplice witness and the complaining witness.

We find no merit in either of these points. There was no evidence that the complaining witness was a narcotics addict, and defense counsel made no offer of proof to support his intended line of questioning. The attempt to cross-examine a witness as to possible impeachment has been held improper unless the examiner is prepared to make a showing to support the intended questions. (People v. Wallenberg, 24 Ill2d 350, 353, 181 143 (1962).) Cross-examination of the accomplice witness was limited only with regard to where the witness was standing at the time of the robbery and whether Dickerson was wrong in his version. In sustaining the objection, the court remarked, “I heard the evidence.” Any further line of inquiry in that regard was a matter for the court’s discretion.

Finally, defendant contends that he was “denied counsel of his own choice.” Cited is People v. Cohen, 402 Ill 574, 85 NE2d 19 (1949), where it is said:

“ [T] he defendant had an absolute right to be represented by counsel. That the right so conferred includes the right to employ counsel of his own choice does not admit of argument.”

Defendant asserts that “before the trial commenced, the court asked if both sides were ready, and the defendant answered that he was not ready, and asked for a continuance, so that he could get another lawyer of his own choosing. The reasons he gave were that he had not paid his lawyer and that certain witnesses were missing. The defendant was not out on bail, so that the request of this nature should not be construed as merely a dilatory tactic.”

As to this contention, the State replies that defendant was represented by retained counsel of his own choosing —“The record discloses no attempt by the defendant to obtain a substitution of attorneys prior to trial. The attorney of record, Mr. Gerber, announced ready for trial. Thus, the defendant’s first reason for requesting a continuance, that of not having finished paying his lawyer, was of no consequence. In addition, after the court represented to the defendant that his attorney was known as a reputable one, the defendant did not pursue this objection to commencing trial and acknowledged the court’s comment.”

From our examination of this record, we agree with the State that “while an accused in a criminal case has the constitutional right to be represented by counsel of his own choosing, such a right may not be employed as a weapon to indefinitely thwart the administration of justice, or otherwise embarrass the effective prosecution of crime. People v. Solomon, 24 Ill2d 586, 590.” We find no merit in this contention.

For the reasons given, the conviction of defendant Witherspoon is affirmed.

Appeal No. 50,618 — Judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Appeal No. 50,620 — Judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

KLUCZYNSKI, P. J. and BURMÁN, J., concur.