author: TRAPP, J.

text:
    Emma Galler, Individually, and as Trustee Under a Trust Agreement Dated July 21, 1956, and as Executor of the Last Will and Testament of Benjamin A. Galler, Deceased, Plaintiff-Appellee, v. Rose Galler and Aaron Galler, Individually, and Rose Galler as Executrix of the Estate of Isadore A. Galler, Deceased, Defendants-Appellants.
    Gen. No. 52,095.
    First District.
    May 13, 1968.
    Rehearing denied June 21, 1968.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, and Jesse Marcus, of Chicago (Patrick W. O’Brien and Thomas N. Jersild, of counsel), for appellants.
    Arvey, Hodes and Mantynband, of Chicago (Sidney R. Zatz and Jack H. Oppenheim, of counsel), for appellee.
   TRAPP, J.

Defendants appeal from an interim order of the Circuit Court of Cook County, Illinois, which was entered pursuant to a reservation of jurisdiction under a previous decree for specific performance of a corporate stockholders’ agreement.

In Galler v. Galler, 32 Ill2d 16, 203 NE2d 577, the Supreme Court upheld a decree dated July 12, 1962, which ordered the enforcement of a stockholders’ agreement in a close corporation. Such agreement required voting of stock for election of directors which would give equal representation to the members of two families who were dominant owners of the stock. The decree also ordered defendants, Isadore Galler and Rose Galler, to account for salaries received during a prior period. The decree provided inter alia:

“10. The court retains jurisdiction of the cause and of the parties hereto for the following purposes:
“(a) To enforce the provisions of this decree;
“(b) To take the accounting required by this decree, and to enter such further orders and decrees as may be necessary and just relative to such accounting;
“(c) To determine any remaining controversy between the parties with respect to the matters set forth in plaintiff’s motion for leave to file a supplemental complaint and the proposed supplemental complaint attached to said motion entered herein on August 4, 1961, and the stipulation of the parties with respect thereto filed herein on August 9, 1961, and for the purpose of entering such orders, conducting such proceedings and entering such judgments or decrees as may be equitable in relation thereto.”

Pursuant to the previous decree the bylaws of the Galler Drug Company were amended to provide for a four-member board of directors as follows: Aaron Galler and Emanuel Galler, representing the Isadore Galler family, and Emma Galler, widow, and her attorney, Sidney Zatz, representing the Benjamin Galler family. The Board elected two members of each family as officers as follows: Aaron Galler, President;. Emanuel Galler, Treasurer; Emma Galler, Secretary; and Gerald Galler (Emma’s son) as Vice-President. In the year 1965, the Board of Directors authorized payment of salaries to the officers in amounts which, during the latter part of 1965, aggregated $37,500 per annum for Aaron and Emanuel Galler, and $37,500 per annum for Emma and Gerald Galler.

At the meeting of the Board of Directors held January 27, 1966, an attorney representing Aaron Galler and Emanuel Galler, proposed that the officers of the company draw no salaries until the accounting suit previously referred to be dropped. It was further proposed that if the accounting suit were dropped, the existing salaries be continued for one year. Plaintiff, Emma Galler, simply proposed that the existing salaries be continued and refused to drop the accounting suit. As a result of the difference, the meeting adjourned and no salaries were authorized.

The petition by Emma Galler for an order requiring the payment of salaries to the officers, and the answer of defendants substantially set forth the facts stated. Additionally, the answer alleges that the services of Emma Galler and Gerald Galler do not justify compensation of $37,500 per year, and further asserts that since the directors did not authorize compensation of the officers they are not entitled to any compensation.

The evidence taken at the hearing essentially confirmed such recitation of facts. However, no attempt was made by either party to furnish a substantial basis for determining a proper salary.

The position of the plaintiff petitioner is that defendants agreed to the salaries, but sought to impose an illegal condition. The position of the defendants is that a court has no authority to require a corporate board of directors to fix salaries, or to fix them in the absence of board action.

Defendants cite Steigerwald v. A. M. Steigerwald Co., 9 Ill App2d 31, 132 NE2d 373, which holds that compensation of a corporate officer for his duties as such must be authorized by resolution of the board of directors. Joy v. Ditto, 356 Ill 348, 190 NE 671, recognizes the rule that compensation of officers for their duties as such must be authorized by the board of directors, but recognizes that officers may also be employees whose compensation for such services may be fixed according to accepted practice of the corporation. Hall v. Woods, 325 Ill 114 on 139, 156 NE 258, holds that an officer who has received a salary larger than that authorized by resolution of the board of directors is required to return the difference. St. Louis, A. & S. R. Co. v. O’Hara, 177 Ill 525, on 531, 52 NE 734, holds that an officer of a corporation cannot recover a salary unless the same is fixed by resolution of the board of directors. Brown v. DeYoung, 167 Ill 549 on 553, 47 NE 863, holds that a director is not entitled to receive a salary as against a dissenting shareholder unless authorized by the board of directors. Ellis v. Ward, 137 Ill 509, 518-519, 25 NE 530, holds that payment to officers for performance of their usual duties must be authorized by resolution of the board of directors.

Plaintiff cites Pepper v. Litton, 308 US 295, 311, 84 L Ed 281; Dixmoor Golf Club v. Evans, 325 Ill 612, 615-616, 156 NE 785; Shlensky v. So. Parkway Bldg. Corp., 19 Ill2d 268-278, 166 NE2d 793 and Kane v. Schuykill Fire Ins. Co., 199 Pa 198, 204-205, 48 A 989, all of which illustrate various situations in which courts of equity have interfered to prevent directors or officers from taking advantage of their position to the detriment of creditors or stockholders.

The authorities cited are not especially helpful in the solution of the specific problem presented. None of the cases cited by either party involve the situation present here.

The Supreme Court in Caller upheld a contract for the management of a close corporation in spite of the fact that it provided for the exercise of management ordinarily delegated solely to the directors. That Court determined that the original agreement concerned a close corporation characterized as sui generis when related to the broad provisions of the statute providing that the board of directors shall manage the corporation. As noted in that opinion no creditors, minority shareholders or other persons of the public are affected, so that it was proper for the Court to require the performance of the contract made by such parties. The same decree which affirmed the contract provisions for electing directors and providing for substantially equal benefits to the two families represented, also provided for an accounting by one group. The essential issue here presented continues to be the performance of the contract concerning the corporate interests of the parties.

The trial court found that, as directors of the corporation, the defendants had a fiduciary duty to carry out the contract found to be valid. It also found the denial of salaries to be arbitrary action in violation of the fiduciary duties, and that the defendants, who had been ordered to account, seek to use the directors’ deadlock over payment of salaries to avoid the accounting ordered in the original decree.

This finding is justified by the record. The trial court could well have found that since the salaries involved were a continuation of salaries which had been authorized, and no basis was laid for a different compensation, such salaries were prima facie reasonable.

Under the circumstances, the action of the trial court was merely an implementation of a decree of specific performance of a contract, and in no way affects the general rule that a court does not substitute its judgment for that of the board of directors.

The order of the trial court was an interim order brought on by the necessities and equities of the situation and is, of course, subject to future modification as the circumstances require.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clayton R. Dial, Defendant-Appellant.
    Gen. No. 50,475.
    First District, First Division.
    May 13, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Carolyn Jaffe, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, David B. Selig, and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial in which three indictments were consolidated and heard as one cause, defendant, Clayton R. Dial, was found guilty of robbery “while armed with a dangerous weapon.” He received three concurrent sentences of 10 to 15 years. On appeal defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and (2) prejudicial trial errors occurred, which deprived defendant of a fair trial.

On June 20, 1963, at about noon, a man armed with a sawed-off shotgun entered the premises of the West-Lin Distributing Company, 3630 North Elston Avenue, Chicago. At gunpoint, he robbed two men, Raymond Fulton and Anthony Chrisos. He ordered the men into a washroom, where the three waited for the arrival of Brink’s guards, who were to pick up the West-Lin receipts of the day before. After waiting about fifteen minutes, the man herded Chrisos and Fulton into an office, where he disarmed two Brink’s guards. He ordered Hilda Meyer, secretary for West-Lin, to put the receipts in a bag and hand it to him. The four men and Miss Meyer were ordered into a washroom and, after five minutes, they came out and the man was gone.

About three months later, because of an anonymous telephone call, the police started an investigation, which resulted in defendant’s arrest and indictment for the three West-Lin robberies of June 20,1963.

At the trial, the witnesses for the State were Raymond Fulton, Anthony Chrisos, Ralph Joch, Hilda Meyer and Walter Murphy, a police officer.

Raymond Fulton, an auditor in the Illinois Department of Revenue, was at West-Lin on June 20, 1963. He testified that defendant resembled the man who had held him prisoner and committed the robbery. On a previous occasion in another courtroom, he saw defendant, who “started yelling about he was being framed, and the voice sounded just like the man that was in the washroom with me.”

On cross-examination, Fulton said he was in the washroom with the robber for about twenty-six or twenty-seven minutes. The man had a pencil mustache and wore a straw hat and wraparound sunglasses. He gave a description to the police that the robber “was something around 6 feet tall, weighed between 175 to 190 pounds, he was a light-complected Negro, that he had a little mustache and a straight nose. ... I saw all the features of the man that weren’t covered up.”

Anthony Chrisos, a truck driver for West-Lin, who happened to be in the plant on June 20, testified in detail as to the robbery. He said, “I was able to see his face during the entire time I was in the washroom. I gave a description to the police.” He stated defendant was the same man he saw on June 20, 1963, “except for the mustache is off.”

Chrisos further testified that in October 1963 he appeared at the Shakespeare Avenue Police Station. Also present were Roy Johnson and Ralph Joch, the two Brink’s guards, and police officers. “There were four colored fellows lined up side by side and we were asked if there was anybody in there that we recognized, and I said I did. I recognized the defendant. I’d say I was about three or four feet away from him. . . . They just asked us first if we saw anybody in the lineup we knew and we all said yes. Then we were asked to go up and put our hand on his shoulder, and all three of us walked up at the same time and put our hand on his shoulder. I gave a description to the police in the month of June. They made a drawing from my description.” Chrisos looked at photographs shown to him by police officers but made no photograph identification.

On cross-examination, Chrisos was questioned at length about the description of the robber given to the police. On June 20 he was with the assailant for a total of about twenty minutes, and he had a good look at his face. He was clean-cut and had a pencil-striped mustache.

As to the lineup, Chrisos said the other three men in the lineup were shorter than Dial and two were real dark. He was positive that the man he saw in the lineup was “Richard Dial.” He heard no remarks from the police officers to the men in the lineup other than to turn around and to look from side to side. On redirect, Chrisos again identified defendant as the man who robbed him on June 20,1963.

Ralph Joch, a guard for Brink’s, Inc., testified in detail as to the robbery. He was able to get a good look at the man and observed his whole body. He viewed photographs four or five times, and on September 27 picked out a picture of the defendant. On October 2, 1963, he went to the Shakespeare Avenue Police Station and identified the defendant in a lineup of four persons— “I was two or three feet away from the person who I identified. I identified the defendant. He was also identified by Mr. Chrisos and Mr. Johnson. The police asked us if we recognized anybody in the lineup, and we all agreed yes. After the lineup was over they said, ‘Which one?’ We all pointed to the same gentleman in front of us. Mr. Johnson is now deceased.” The first time he heard the name of “Richard Dial” was at the lineup on October 2, and later he said that he first heard the name on September 27 when the warrant was issued. The name was given to him by the police officers.

Joch was subjected to a lengthy cross-examination and persisted in his identification of defendant as the robber on June 20.

Miss Hilda Meyer, secretary for West-Lin Distributing Company, testified as to the details of that part of the occurrence which took place in her presence but made no identification.

Walter Murphy, the investigating police officer, testified that on September 25, 1963, by way of an anonymous telephone call, the police received information that “the man who had committed the robbery at the West-Lin Distributors was known as Richie, supposedly a male negro about 6 feet tall, about 25 years old, light-complected and living in a building at 264 North Sacramento. The informer said he had a red and white Chevrolet and had gone to Crane Junior College at night.” On that day they went to 264 North Sacramento and, finding no one who knew “Richie,” they went to Crane Junior College and, on checking the records, found a “Clayton Richard Dial” who had attended night sessions and lived at 264 North Sacramento.

On the morning of September 27, the police officer and his partner went to defendant’s home, and his father told them that defendant was not at home — “Then we saw the defendant, he came to the door and at that time we recognized him from a drawing that was made by these witnesses to the robbery. He perfectly matched that drawing, even had the same mustache he had on when he held up the place. ... It is the defendant right here. . . . We asked him if he was Clayton Dial. He denied it and his father denied it. They said he was Clayton Dial’s uncle.” At that time the officers were informed that “if we ever wanted to talk to Clayton Dial we would have to get a warrant.” The officer further testified that they obtained a photograph of Clayton Dial from the John Marshall High School. They put this photograph with 10 or 15 other photographs and showed them to Brink’s truck driver, Roy Johnson, who “looked through the group of photographs and when he came to the picture you have in your hand there, he said, ‘That is him.’ ” At this point the court overruled defendant’s objection to the entire narration and motion that “it be stricken and declared for naught.”

The officer further testified that the group of photographs was shown to “Ralph Joch, the other Brink’s man,” and when he came to the picture of Dial he stopped and said, “That is him.” Joch then accompanied them to court and obtained a warrant charging “Clayton Dial” with armed robbery. The warrant was secured on September 27, and on October 2 defendant surrendered.

Officer Murphy was present at the showup on October 2. The defendant and three other male Negroes were in the lineup, and they were viewed by Johnson, Joch and Chrisos. After the lineup was over, they were asked if they recognized anybody who was in the lineup, and they all stated they did. All three men then approached the defendant and pointed him out and stated he was the one who held them up on the 20th of June.

On cross-examination, the officer stated the first time he heard the name of “Clayton Richard Dial” was on the afternoon of September 25, and he got the name from the Crane Junior College because of the “anonymous telephone call.” He obtained People’s Exhibit 1 (the high school photograph), on which appeared “School Days, 56-57,” from the office of the John Marshall High School. It was the only photograph of defendant that was in the group of photographs shown to Johnson and Joch, and this was “six years after the picture was taken.”

Defendant testified and denied his involvement in the robbery. He said that on June 20, 1963, he was not working due to a strike. The strike ended about the 4th of July, and he went back to work for Bob Heller, a truck driver for Pepsi-Cola. Defendant was 24 years old, and he was 16 years old when the high school picture was taken. On June 20 he was at home asleep until noon, when he was awakened to eat lunch. Defendant’s Exhibit 5 was a clothing receipt he received on June 20, when he purchased a bathing suit and sunglasses. During the month of June, he had a 1956 red and white “Chewy.” During the months of July and August, he was earning from $75 to $85 a week take-home pay. Defendant’s Exhibit 6 was a loan certificate showing he borrowed $525 on July 15, 1963. He repaid the loan on September 19, 1963. He related that on September 26, the police officers came to his home looking for a “hit and run” driver, and he told them his name was “Bobby Jones.” He refused to go with them because they did not have a warrant, and they told him they would give him a rough time. He turned himself in on October 2. He testified that he was 5-feet-10, and Exhibit 7 was an I. D. card given to him at the County Jail where he was photographed and measured on October 3, 1963. The card shows “Ht. 5-10, Wt. 176, Birth Date 5-13-40.”

Defendant further stated that a police officer informed him that “it was a known stool or police informer that gave him information on me. And he stated that his name was Henderson and he lived on Douglas Boulevard in the 3500 block, and that’s who he said fingered me. ... I was arrested for armed robbery in Oak Lawn in 1961. I plead guilty; I was guilty. They put me on five years’ probation.”

Other witnesses for the defense included:

(1) Vanancia Hall, a clerk at 2959 West Fulton. She had known defendant for about five years, and during the month of June he came into the store every day about noon, and they would talk about the Pepsi-Cola strike. On June 20, 1963, she remembers talking to defendant in the store about noon.

(2) Lucille Davis lived at 264 North Sacramento and would babysit for “Richard’s mother’s grandchild.” She saw him every day in June because of the strike. Generally she would awaken him and fix lunch for him. On June 20, he went shopping and told her he had his lunch. He didn’t leave until around 12 o’clock, and it was 3:00 when he returned. He had a package with him, and his little niece pulled the things out of the bag, including tickets. She saw one of the tickets was dated June 20.

(3) Andrew Struke, a police officer, testified that on June 20 he talked to all the victims and got a description, which he entered in his report as follows: “Male negro, 30 to 35, 6-2; 180 to 185, light complexion, pencil mustache, wearing a yellow straw hat with loud band, wraparound sunglasses, tannish gray zipper jacket, black shoes, carrying a single barrel colt action shotgun, stock and barrel appear to be reasonably cut.”

(4) Robert Heller, a driver for Pepsi-Cola Company, testified that defendant worked for him from September 1962 until September 1963. “During the time that he worked for me he was off only during the strike. The strike started on June 6 and lasted until July 6th. . . . [H]e did lots of heavy work. ... He worked continuously through those two months of July and August.”

(5) Clayton Dial, Sr., testified that on June 20, 1963, he left the home between 10:30 and 11:00, and defendant was at home at that time.

Considered first is defendant’s contention that “the evidence is insufficient to support a conviction beyond all reasonable doubt.” Defendant contends, “The States’ entire case is based upon what is known as ‘eyewitness identification.’ There exists no other evidence connecting the defendant to the crime. Hence, the reviewing court must carefully scrutinize the ‘eyewitness’ evidence to determine whether it is sufficient to support a conviction beyond all reasonable doubt.”

Defendant’s brief shows exhaustive research on all facets of criminal identification. It is unusually well written and amply supported by authorities.

Under the heading of “Anatomy of an Identification,” defendant discusses at length “The Human Fallibilities of Sense Perception and Human Memory.” The subheadings include: 1. “Did the Identifier See the Assailant for a Sufficient Period of Time and Under Sufficient Lighting Conditions?” 2. “Was the Face of the Assailant Covered, Completely or Partially, Depriving the Identifier of an Opportunity to Adequately Observe the Assailant’s Face?” 3. “Discrepancy Between the Description Given of the Assailant Soon After the Occurrence and the Physical Characteristics of the Defendant.” 4. “Did an Extensive Period of Time Pass Between the Time the Identifier Saw the Assailant and the Time He Identified the Defendant as the Assailant?” Defendant also discusses at length “The Validity of Identification is Destroyed by Suggestion.”

Defendant’s authorities include People v. Peck, 358 Ill 642, 193 NE 609 (1934), where the court said (p 649):

“In weighing the evidence of identification of one stranger by another, the attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, must be considered and weighed, for, after all, the identification of one person by another who has never seen him before is an opinion or conclusion of the identifying witness.”

In People v. Gold, 361 Ill 23, 196 NE 729 (1935), it is said (p 31):

“It is apparent that, no matter how honest Levitus and Lipsitz were in their effort to identify defendant as the thief, the circumstances offered great opportunity for mistake.”

In People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966), it is said (p 572):

“ ‘Of all the factors that account for the conviction of the innocent, the fallibility of eye-witness identification ranks at the top, far above any of the others.’ (Inbau, Book Review, 57 J Crim L, C & PS, 376.)”

Other cited authorities include:

“An honest mistake of identification . . . can hang an innocent man despite the most meticulous and fair-minded trial of his case.” Cahn, The Moral Decision (1955), pp 258-259.
“Proof that relies wholly on the identification made by eyewitnesses is inherently weak; persons who merely saw a thief or attacker briefly and under conditions of stress, may, despite the best of intentions, too readily be mistaken.” Kuh, Careers in Prosecution Officers, 14 Jur Leg Ed 175, 187, n 21 (1961).

Defendant also quotes at length from other authorities including Wall, Eye-Witness Identification in Criminal Cases (1965).

Defendant argues that Fulton spent more time with the assailant than any other eyewitness, and “at trial, he could only say that the defendant resembled the assailant. His testimony conclusively demonstrates that the identifications of both Joch and Chrisos were the results of a suggestive identification procedure and a positive identification from a photograph when such positive identification was in fact impossible.”

On the issue of identification, the State contends that each of the witnesses had an ample opportunity to observe the robber, and the “in-court identifications” were based upon the personal observations of the witness while the armed robbery was in progress, and the “lineup identification” evidence was intended only for corroboration and as additional weight. The State also notes that the cross-examination of each of the identifying witnesses did not change their testimony. The authorities for the State include People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959), where it is said (p 163):

“The method or manner of identification is, rather, a matter which goes to the weight rather than the admissibility or competency of identification evidence. . . . Ordinarily the question of whether an accused has been identified as the perpetrator of a crime is a question of fact for the jury and, upon review, we will not reverse a conviction on the question of the sufficiency of the identification unless it is contrary to the weight of the evidence, or is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt.”

Also, People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963), where it is said (p 286):

“In weighing evidence of identification, the attendant circumstances, along with the probability or improbability of an adequate opportunity for a definite identification must be considered. . . . However, the positive identification by one witness who had ample opportunity for observation may be sufficient to support a conviction, even though such testimony is contradicted by the accused.”

We have considered at length defendant’s contention that the “eyewitness identification” in the instant case was insufficient to support a conviction beyond all reasonable doubt. We are aware that evidence of “lineup identification” and “pretrial confrontations” is currently being subjected to critical scrutiny to determine if substantial prejudice to a defendant’s rights has occurred. While the lineup procedure followed here, as examined in the light of current pronouncements, could be found wanting, we find no substantial prejudice to defendant. Both Joch and Chrisos were positive of their “in-court” identification of defendant. Their identification testimony was clear and convincing and unshaken on lengthy cross-examination. Although Fulton testified defendant “resembled” the robber, he did say that the voice of the defendant sounded like the man that was in the washroom.

We are not persuaded that the application of the basic identification principles dwelt on by defendant requires a reversal of the defendant’s conviction. A statement recently made in People v. Bailey, 90 Ill App2d 121, 234 NE2d 332 (1968), applies here. There, Justice Schwartz said (p 123):

“. . . visual perception is subject to error as are all our senses. That is not to say however that courts can no longer trust evidence which might be tainted by human fallibility. To make such an exclusion would in effect render impotent the administration of criminal law.”

We find the identification evidence was sufficient to support defendant’s conviction beyond all reasonable doubt.

Defendant next contends that hearsay of a highly prejudicial nature was admitted in evidence, primarily (1) the testimony as to the identification of defendant by Johnson, the deceased Brink’s guard, and (2) the testimony of Officer Murphy.

We agree that it was error to allow the State to present testimony of what Johnson, deceased at time of trial, said and did at the lineup and when shown photographs. This evidence was offered for the sole purpose to prove that Johnson, before the trial, had identified defendant as the robber. Such evidence was hearsay, and "the error was further amplified by the assistant State’s attorney referring to this evidence in his argument to the jury.” People v. Reeves, 360 Ill 55, 64, 195 NE 443 (1935). See, also, People v. Cook, 33 Ill2d 363, 370, 371, 211 NE2d 374 (1965); People v. Ford, 89 Ill App2d 69, 82, 233 NE2d 51 (1967); and McCormick on Evidence, § 229, p 470. We find no prejudicial error here. This evidence was cumulative, and it supplied nothing substantial that was not in the record.

As to the testimony of Officer Murphy, defendant contends that prejudicial hearsay was included in his direct examination in that “the jury was presented with the testimony of an unknown party that the defendant was the assailant”; also, that Officer Murphy was allowed to testify that in his opinion defendant was the assailant when he said, “Then we saw the defendant, he came to the door and at that time we recognized him from a drawing that was made by three witnesses to the robbery. He perfectly matched that drawing, even had the same mustache he had on when he held up the place.”

The State argues that the informer’s statement was not hearsay as it was not offered to prove the truth of the matter asserted therein. Cited in support is People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963), where the court said (p 121) :

“Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.”

The State contends that the information received from the informer was related by Officer Murphy only for the purpose of explaining how his investigation of the robbery led to the defendant, Clayton Dial, and was not offered as proof of guilt.

The testimony of Officer Murphy as to the description given by the unknown informer of the “man who had committed the robbery,” was hearsay and improper when given at the trial on the issue of defendant’s guilt or innocence. (People v. Williams, 38 Ill2d 150, 152, 230 NE2d 214 (1967).) It was an accusation of defendant by an unknown accuser, without the right of cross-examination, and was inadmissible as evidence against defendant. People v. Smuk, 12 Ill2d 360, 365, 146 NE2d 32 (1957).

The further statement that “he perfectly matched that drawing, even had the same mustache he had on when he held up the place” was an improper opinion on issues to be determined by the jury, i. e., whether defendant “matched the drawing” and if “he held up the place.” The defendant was entitled to have his guilt or innocence determined by the jury, free from the opinions of his guilt made by the unknown informer and Officer Murphy. People v. Morgan, 20 Ill2d 437, 442, 170 NE2d 529 (1960).

The State asserts that defense counsel failed to properly object to the improper testimony of Officer Murphy and waived the right to claim error, and in the absence of objections, only those errors which are prejudicial to the rights of the complaining party are reversible. People v. Storer, 329 Ill 536, 161 NE 76 (1928).

On the question of objections made during Officer Murphy’s testimony, the record shows that after his testimony about (1) the informer, (2) the police visit to defendant’s home, and (3) the conversation with his former employer, defense counsel said, “I object to this narration, your Honor. I fail to see what materiality it has to bear upon the charge against the defendant. What is the connection?” As to the testimony that defendant matched the drawing and had the same mustache, no objection was made to this statement. Later, and after making a courtroom identification of defendant as the naan he talked to at defendant’s home “because he matched the description of the drawing,” the officer added, “Today he is not wearing the mustache he was wearing on that day.” At that time defense counsel said, “I object to that; if the court please, about a mustache.”

On the subject of timely objections to the admission of evidence, in People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817 (1956), it is said:

“An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. ... A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.”

And, in People v. Hester, 49 Ill App2d 308, 200 NE2d 3 (1964), it is said (p 311):

“Furthermore, a trial court is not obligated to exclude improper evidence where a defendant makes no objection, nor moves to exclude it.”

Although some of the volunteered remarks of Officer Murphy were improper, either as hearsay or as his opinion bearing on the ultimate issue, reversible error is not demonstrated here. The disputed testimony of Officer Murphy was not solicited by the State, and it must have been obvious to the jury, as contended by the State, “that the police officer was merely reciting the circumstances of his investigation and embellishing it in his own language. They were well aware that Murphy was not an objective party tendering his expert opinion.”

Finally, we find no merit in defendant’s contention that “the cause should be reversed in order for the trial court to examine the police file to determine the existence of any statement of Chrisos to the police.” The record confirms the State’s contention and the trial court’s findings that the State had given defendant “everything they have.”

We have examined this record to determine whether the cumulative admission of improper evidence was so erroneous and prejudicial as to prevent defendant from receiving a fair trial. Plain errors or defects affecting substantial rights may be noticed, although they were not brought to the attention of the trial court. (People v. Wright, 65 Ill App2d 23, 34, 212 NE2d 126 (1965).) A review of the totality of the evidence shows that defendant was permitted liberal direct examination and cross-examination in all vital areas. Defendant did not make timely and proper objections to have the improper evidence excluded from the record or to have the jury instructed to disregard it. There was substantial positive identification evidence to support defendant’s conviction beyond a reasonable doubt. We conclude the improper evidence heretofore discussed could not have affected the verdict.

For the reasons given, the judgment of the trial court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. JUSTICE ADESKO

text:
    Charles David Maley, as Receiver of McKeown & Co., Plaintiff-Appellee, v. James P. Norville, Defendant-Appellant.
    Gen. No. 50,790.
    First District, First Division.
    May 13, 1968.

      Francis E. Goodman, of Chicago, for appellant.
    John D. Schwartz, George W. Overton, and Harry Goiter, of Chicago (Overton, Marks & Schwartz, of counsel) , for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from an order denying his petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72), which petition sought to vacate a judgment entered against defendant, to stay the execution thereon, and to quash the writ of capias ad satisfaciendum theretofore entered against defendant. On this appeal, defendant maintains that his petition under section 72 set forth a meritorious defense to the judgment, that he made a showing of reasonable diligence, that the original complaint failed to state a cause of action, and that the body execution issued against him was unjust, not founded upon fact, and contrary to the rules.

The instant action was commenced on March 3, 1965, when plaintiff, who had been appointed the receiver for McKeown & Co. (McKeown), by the Federal District Court for the Northern District of Illinois, filed a complaint against Norville and eight other defendants, all of whom were partners of an Illinois copartnership known as Iroquois Development Company (Iroquois). The complaint alleged that an audit of McKeown’s books disclosed that there was due and owing from Iroquois to Mc-Keown, the sum of $20,600. Norville was the Secretary and a Director of McKeown, as well as a partner in Iroquois. The complaint further alleges that the loans made to Norville were in violation of the Illinois Business Corporation Act and “the individual officers and directors who made said loan acted wilfully and wantonly and knowingly in violation of the law.” On the basis of this allegation it is claimed that malice was the gist of the action with respect to Norville’s liability.

The record shows that on March 8, 1965, the Sheriff of Kane County, Illinois, served Norville personally with a summons and copy of the complaint, both in his individual capacity and in his capacity as a partner of Iroquois.

On May 4, 1965, Norville, having failed to file an answer, or otherwise make an appearance, was judged in default and a hearing was set for May 19, 1965. On that date, the following order was entered:

“The Court having heard the evidence in open Court and being otherwise fully advised in the premises, the Court doth find:
- “1. That there is due and owing from the defendant, James P. Norville, to the plaintiff Charles David Maley, as Receiver of McKeown & Co., the sum of $16,100.00 on account of transactions between Mc-Keown & Co. and Iroquois Development Company, a co-partnership.
“2. That the defendant, James P. Norville, is guilty of wanton and willful misconduct, and that malice is the gist of the action against the said defendant.
“3. That the said defendant, James P. Norville, is guilty of malice with respect to his liability to the plaintiff in the sum of $16,100.00.”

One week later, plaintiff filed an “Execution And Fee Bill On Transcript On Judgment” in Kane County, which execution showed that a judgment had been entered against defendant on May 19,1965, in the sum of $16,000, and that demand for payment was being made. The Sheriff of Kane County indicated on the execution that he received the document on May 26, 1965, at 4:00 p. m. On May 29, 1965, an appropriate demand was made on Norville by a deputy in the Sheriff’s office. On July 4, 1965, defendant was arrested on a writ of capias ad satisfaciendum and three days later the instant section 72 petition was filed.

In his petition defendant admits that he was served with a summons on March 8, 1965. He alleges, however, that he “did not know of the entry of this judgment in this case until he was served with some paper and later arrested by the Kane County Sheriff on a writ of capias ad satisfaciendum on Independence Day, July 4, 1965.” The petition goes on to allege that the primary complaint is insufficient because it only states that “loans” were made by McKeown to Iroquois but does not specify the. dates of the loans, the amount, collateral if any, notes if any, and “consequently defendant was not aware that he must file an appearance and defend this suit." He baldly asserts that he relied on the other partners of Iroquois to respond to the suit. Defendant further alleges that he was not a party to any such loans and if they existed, the partners were acting outside the scope of the firm’s business.

Attached to the section 72 petition was an answer to the complaint which was really a motion to strike. Defendant denied that he was presently engaged in the business of Iroquois in that he had withdrawn from the partnership in 1963. He then moved to strike the remaining allegations as being conclusions and incapable of being answered.

Included as a part of the record is a copy of the Iroquois partnership agreement entered into July 10, 1962, and signed by the defendant Norville. One of the provisions of the partnership agreement provides:

“The partnership shall begin on the 10th day of July, 1962, and continue until the 9th day of July, 1967, unless terminated sooner by agreement of a majority of the partners.”

Norville was appointed General Manager of the partnership business and in charge of operating and managing it. The agreement went on to provide that:

“Any member may elect to withdraw from the partnership upon giving the other parties thirty (30) days notice in writing by registered letter.”

No facts showing compliance with the withdrawal provisions of the partnership agreement were pleaded in defendant’s “Answer” attached to the section 72 petition.

In our view, there are two distinct aspects of the instant case: whether the judgment for $16,100 against Norville should be vacated pursuant to his sectoin 72 petition; whether the capias ad satisfaciendum should be quashed.

With respect to the judgment, the pleadings are sufficient to inform defendant of the claim against him. The complaint alleges that loans totaling $20,600 were made by McKeown to Iroquois and that defendant was an officer of the lender and a responsible partner of the borrowing entity. As stated in Hall v. Gruesen, 22 Ill App2d 465, 161 NE2d 345 (1959):

“(U)nder the Practice Act, pleadings are liberally construed with a view to doing substantial justice between the parties. (Ill Rev Stats 1957, c 110, par 33.) This is not an idle generality to which only lip service need be paid. It is the pronouncement of a burial service for the formalities of Chitty and the rigors of common-law pleading. The intricate and complex relationships of contemporary business enterprises make it impossible to state a modern mercantile arrangement within the bounds set by Chitty and his predecessors.” (Pp 468-469.)

We are fully aware of the principles set forth in Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350 (1952), but Ellman does not relieve a party from showing that he has exercised due diligence in preventing the entry of the ex parte judgment. Colletti v. Schrieffer’s Motor Service, Inc., 38 Ill App2d 128, 186 NE2d 659 (1962). In Colletti we held that a defendant who had been served with a summons and mailed a copy of the complaint to the general agent of his insurance carrier would not relieve the defendant of the burden of exercising due diligence in preventing an ex parte judgment from being entered against him. In the instant case, defendant admits that he was served with a copy of the summons. His statement that he relied on the other partners of Iroquois Development Company to file appearances and defend the action is no better than the allegation in Colletti that the summons was sent to the insurance broker. Indeed, Norville is even more guilty of a failure to exercise reasonable diligence to prevent entry of an ex parte judgment against him.

Norville further claims that he did not receive any notice of the existence of the judgment until he was arrested on July 4, 1965, however, the record indicates to the contrary. Within one week after the judgment was entered against Norville, he was served, according to the records of the Sheriff of Kane County, with an execution. In his section 72 petition he admits that “he was served with some paper and later arrested by the Kane County Sheriff.” This would seem to indicate that he acknowledges receipt of the execution served on him on May 29, 1965. Consequently, this is not a case in which a cloud is cast upon the entire proceedings because the plaintiff failed to serve execution within term time. Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829 (1960).

With respect to the right of plaintiff to have a capias ad satisfaciendum issued against the defendant, this issue is now moot. The purpose of the capias is to insure payment of the debt. The People ex rel. Escott v. Hoffman, 97 Ill 234, 236 (1881). Subsequent to filing the notice of appeal, defendant filed an appeal bond in which United Pacific Insurance Company obligated itself to the extent of $18,000 “to pay the above judgment creditor any part of the judgment which is not reversed and interest damages and costs.” In the order approving the bond, the trial court found “the bond proffered being of sufficient security and having been examined by plaintiff’s counsel.” Since a bond sufficient to pay the instant judgment has been provided to insure plaintiff’s recovery of the judgment, the capias should now be quashed.

For the foregoing reasons, the judgment of $16,100 against James P. Norville is affirmed and the cause remanded to the Circuit Court of Cook County with directions to quash the capias upon payment of the judgment.

Affirmed in part and remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Marino, et al., Defendants-Appellants.
    Gen. No. 50,956.
    First District, First Division.
    May 13, 1968.
    Rehearing denied June 12, 1968.

      Frank G. Whalen, of Chicago, for appellants Frank Rago, John Monteleone, and Angelo Pettit.
    John J. Stamos, 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 ADESKO

delivered the opinion of the court.

The above-named defendants were indicted for the offense of theft in that they knowingly obtained and exerted unauthorized control over certain property of the Louis Zahn Drug Company, intending to permanently deprive the owner of the use and benefit of said property in violation of the Criminal Code. (Ill Rev Stats 1963, c 38, § 16-1 (a).) Upon trial by jury, Robert Vaughn was found not guilty. The other four were found guilty as charged. Marino has filed a separate appeal, No. 51,023. Eago, Monteleone and Pettit, who will at times be collectively referred to as “defendants” prosecute this appeal together.

Defendants raise the following points on appeal:

1. The Court erred in denying their motion to suppress;

2. The Court erred in permitting improper and prejudicial conduct in cross-examining the Court’s witness, Officer Prokop;

3. The State was guilty of prejudicial conduct in repeatedly attempting to impeach its own witness Sgt. McLean;

4. The State was guilty of prejudicial conduct in argument to the jury and the Court erred in failing to rule on objections made by the defendants;

5. The State failed to prove the defendants guilty beyond a reasonable doubt and to a moral certainty;

6. The Court erred in permitting the State to prove by State’s witness Nowak that she could not say defendants were not on the premises;

7. There was a fatal variance between the proof and the indictment;

8. Defendants were prejudiced by improper publicity before and during the trial;

9. Defendants were deprived of a fair and impartial trial;

10. The State failed to prove that the fair cash market value of the goods at the time of the theft exceeded $150.00; and

11. The Court erred in refusing to conduct a hearing in mitigation.

Robert Brown was an employee of the Louis Zahn Drug Company. He was in charge of storing merchandise in the Zahn warehouse located in Melrose Park. On Friday, October 4, 1963, he received a trailer of Mead Johnson pharmaceuticals, but because of the lateness of the hour, unloading the trailer was delayed until Saturday. On Saturday, Brown started the unloading process. The top cartons of each stack were marked either “E-24” or “E-25” with a brush type pen. This was so the other employees would know where to place the boxes in the warehouse. About 80 percent of the trailer was unloaded and stacked on an enclosed loading platform when Brown left the warehouse on Saturday night. He checked and locked all the doors and activated the alarm system.

On Monday morning, Brown reported to work to find the merchandise that had been on the loading platform was missing, as well as the Mead Johnson trailer. The police were notified and subsequently on April 13, 1964, they recovered and returned certain merchandise back to the Zahn Warehouse. Brown identified 25 of the cartons as containing his warehouse location markings. Brown, who had experience in pharmaceutical ordering and merchandising, testified that the fair cash market value of the 25 marked cartons was $3,000.

Eugene Marino owned a home on a residential street in the North end of Northlake, Illinois. There was a driveway along the West side of the house, leading to a two-car garage. On April 13, 1964, a neighbor of Marino’s, Mrs. Helen Nowak, observed Marino and three other persons in Marino’s backyard. She testified for the State at the hearing on the motion to suppress and in the main trial that Marino opened his garage door and the other men started hurriedly loading cartons into a truck which was parked in the driveway. Mrs. Nowak further testified that this looked suspicious to her so she called Chief Heggaton of the Northlake Police. She saw the police arrive and fire shots at the men who ran when they were ordered to halt. The police chased after the men as they jumped over the back fence. Mrs. Nowak put in a second call to the police and then returned to her window. She saw Marino run from the garage to his house and later emerge with his hair ruffled and his shoes untied.

Mrs. Nowak could not identify any of the men who were in the backyard, except Marino. At the trial, she identified defendant Bago as the man who was captured by Sergeant Prokop, one of the Northlake police officers, although on a prior occasion she identified defendant Monteleone as the main arrested by Sergeant Prokop.

One of the defense witnesses was Isabel Marino, wife of defendant Eugene Marino. Mrs. Marino testified that the garage behind her house was rented to a Mr. Anderson at the time of the events involved in the instant cause. A rent receipt book and income tax returns showing the reporting of such rental income were introduced into evidence. She further testified that Anderson used the garage for storage, not for a car. Mrs. Marino stored her bleach and soap in the garage as well as garden tools and her children’s bicycles. She had noticed boxes, that she claimed did not belong to her, stacked up in the garage. Her husband, she said, parked his car on the street and she denied that he ever removed any goods from the garage and placed them in his car.

In rebuttal, the State recalled Mrs. Nowak to the stand. A week prior to the events which gave rise to the arrest here, Mrs. Nowak saw Marino go into the garage. Another man drove his car up to the garage and then drove off, Marino following in his own car. This procedure had been repeated often during the first three months of 1964 and in 1963.

Chief Heggaton of the Northlake Police Department testified on the motion to suppress that he recognized Mrs. Nowak’s voice when she called him on April 13, 1964, and informed him of the suspicious activities around the Marino garage. Heggaton and Sergeant Prokop had discussed the fact that stolen goods were being stored somewhere in the North end of Northlake. Prokop and Sergeant McLean, another Northlake police officer, were sent to investigate and Heggaton followed about ten minutes later. Upon arriving on the scene Heggaton saw the police car used by Sergeants Prokop and McLean and a large truck in Marino’s driveway. The back of the truck was completely open and Heggaton identified a photograph showing boxes of pharmaceuticals stacked in the truck.

Sergeant Henry Prokop was called by defendant Monteleone to testify on the motion to suppress. Prokop related that he was dispatched by Chief Heggaton to investigate a “suspicious” situation at 208 N. Major Drive. Sergeants Prokop and McLean drove to the address in a squad car. They had no search warrant. Prokop also denied that Chief Heggaton had discussed with him the fact that stolen merchandise was being stored somewhere on the North end of Northlake.

Upon arriving at the scene, Prokop drove the squad car on to the driveway, stopping near the front of the house. At first he saw nothing suspicious but the truck was at the back of the driveway, about two feet away from the garage. A man peeked out from the rear of the truck and as the officers emerged from their car, three men started running.

The officers drew their weapons and McLean fired 2 or 3 shots in the air. The men ducked behind the house and were out of sight for an unspecified period of time. Prokop, however, did testify that everything that happened did so in very quick succession. Two figures leaped over the back fence and Prokop gave chase. About one block away he arrested defendant Pettit. Prokop did not remember if Pettit was standing still or running at the time he arrested him. He also claimed he did not know of any crime that had been committed.

During the course of the trial, Prokop was called as a Court’s witness because his lawyer informed the State’s attorney that Prokop’s answers to certain questions would be different than the answers he gave before the Grand Jury. Although defendants objected at the trial to the Court calling Prokop as its own witness, this has been abandoned on appeal.

Under cross-examination by the State, Prokop testified that he was in plain clothes when he and Sergeant McLean went to Marino’s house at 208 N. Major Street. As McLean drove into the driveway, Prokop saw a truck backed up against the garage. A head peered out from behind the truck and as the officers started to get out of their car some men started to run toward the back of Marino’s yard. One man looked like he caught his clothes going over the side fence. Another man jumped over the back fence. Prokop followed him and finally caught up with him on Dickens Street, the first street North of Major Street. This man was later identified as defendant Pettit.

Although Prokop testified that he lost sight of the man as he went over the fence, he did say that the man captured looked like the same man who ran through Marino’s backyard.

The State vigorously cross-examined Prokop on this point and confronted him with his testimony before the Grand Jury to the effect that Pettit was the man on the fence who ran when the officers arrived on the scene. Prokop had also testified at a prior hearing on a motion to suppress that he never lost sight of Pettit. Prokop also said he was not able to identify the man he saw go over the side fence. However, before the Grand Jury, Prokop testified that the man he saw go over the side fence was the same man later brought in to the Franklin Park Police Station and identified as defendant Rago.

After the arrest of Pettit, he was brought back to the squad car and handcuffed to Monteleone. Prokop testified that he could not remember any conversation that took place between the three men. At the Grand Jury, Prokop related that Monteleone offered him a bribe if he would let Pettit and Monteleone go.

At this point, the trial judge instructed the jury that this testimony related only to defendants Pettit and Monteleone. The jury was further instructed that prior inconsistent testimony by Sergeant Prokop was to be considered only for the purpose of determining the credibility of his testimony. The last question the State asked Prokop was:

“Q. Sergeant Prokop, did you receive any money on this case from that bribe ?
“A. No, I did not.”

On recross-examination by the State, the following question was asked:

“Q. You said you were scared, scared of being indicted for perjury ?
“A. I am not scared of being indicted for perjury for what I have testified here to because I am telling the truth.”

The defense also cross-examined Prokop. He again denied being able to identify any of the defendants as being at the scene and denied that Pettit was the man he saw go over the back fence of Marino’s yard.

The State also called Sergeant McLean to the stand. McLean testified that as he pulled into Marino’s driveway, he saw the truck backed up against the garage. He saw men jump from the truck and start running. One of the men ran along the side of the garage. McLean gave chase but tripped, at which point he fired a shot from his service revolver. McLean got right up and jumped over the back fence. Defendant Monteleone was standing there with his hands raised and McLean took him into custody. McLean was not sure that Monteleone was the same man he saw running away from the truck and along the side of the garage.

A photograph of the truck showing the back completely open and boxes of pharmaceuticals stacked up inside was identified by McLean as the way it appeared at the scene. The garage door was open and McLean looked inside where boxes of pharmaceuticals were also stacked. After the situation was under control, McLean helped another officer load the remaining pharmaceuticals in the garage into a truck and drove the truck to the Northlake Police Station.

The other defendant involved in this appeal is Frank Rago. Lorretta Armentano was a neighbor of Marino. On the morning in question she was in her kitchen giving herself an insulin shot for her diabetic condition. Although the diabetes affects her eyesight in the mornings, she did see someone jump over the fence of her backyard, and in so doing tear his pants. This person stopped in her yard and looked one way, then the other. Because Mrs. Armentano was not dressed, she went upstairs to get some clothes. She then called the police.

In the Armentano backyard was a toolshed. The doors to this shed were always left open. Officer Hermann of the Franklin Park Police responded to a call from the Northlake Police and drove to the school across from the Armentano residence. A man and woman flagged him down and led him to the Armentano backyard. The officer opened the doors to the toolshed and defendant Rago was sitting inside with his pants pulled down to his knees. The pants were ripped on the right leg. Rago told the officer he was just resting.

Officer Horan of the Northlake Police was called to guard the truck while it was at the station and to drive it to the Zahn Drug warehouse. He testified that he unloaded and inventoried the contents. Twenty-five cartons which were marked with the symbols “E-24” or “E-25” were segregated out and Horan brought them back to the Police Station.

An F. B. I. Agent, who was investigating the Zahn Drug case was notified by the Northlake Police of the find and went with Chief Heggaton to Marino’s house. He saw the open truck and garage and looked at the cartons. The warehouse location markings were visible on several of the cartons in the garage. The agent also observed the unloading and inventorying of the boxes at the Zahn warehouse. The markings on the boxes were also seen at that time.

The defense introduced the testimony of Lieutenant Remkus of the Melrose Park Police and Detective Moran of the Sheriff’s Police, both of whom testified that Robert Brown did not tell them about any markings on the boxes of pharmaceuticals stolen from Zahn Drug Company.

Defendant Monteleone produced as a witness on his behalf a friend named Thomas Grudecki. Grudecki lived about two blocks from Marino’s house. On the date in question, he was out looking for his dog when he saw Monteleone at the corner of Roy and Dickens talking with a man who had a star on his shirt. This is not inconsistent with officer McLean’s testimony.

Each defendant moved to suppress the evidence taken from Marino’s garage and the truck in his driveway. Defendants argue that there was insufficient probable cause upon which the officers could seize the merchandise. The call to the police only said something suspicious was going on. Furthermore they argue, even assuming that the persons who fled from the scene are these defendants, a fact they denied, the flight would not supply the requisite probable cause to justify the arrest and subsequent seizure of evidence.

A determination of what constitutes “probable cause” to permit an arrest and search must depend upon all the facts and circumstances in a given case. People v. McCrimmon, 37 Ill2d 40, 224 NE2d 822 (1967). We are fully aware that mere suspicion, common rumor or report, will not afford probable cause but it has been consistently held that probable cause means something less than evidence which would result in a conviction. People v. Jones, 31 Ill2d 42, 198 NE2d 821 (1964). As the Supreme Court pointed out in Brinegar v. U. S., 338 US 160 (1949):

“In dealing with probable cause, however, as the very name implies we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (P 175.)

Put another way, if the circumstances are such that “a police officer could justifiably be disciplined for failure to act, his action can hardly be characterized as unreasonable.” People v. Moore, 35 Ill2d 399, 403, 220 NE2d 443 (1966).

Reviewing the facts in the instant case, we have two police officers sent by the Chief of Police to investigate a complaint of suspicious activity around a neighborhood garage. Upon arrival at the scene they find a large truck in a residential driveway. Immediately upon the officers alighting from their police car, several men start running. The truck is completely open in the back and so is the garage door. Inside are stacks of cartons of pharmaceuticals. The Chief and an F. B. I. Agent arrive on the scene and the agent sees certain warehouse markings on the boxes which were similar to markings on the boxes stolen from the Zahn Drug Company. It seems to us that this fact situation gives rise to probable cause to permit a search of the premises.

Defendants rely on Henry v. U. S., 361 US 98 (1959) and Wong Sun v. U. S., 371 US 471 (1963) in support of their position that the search and seizure here was improper. In Henry, the defendants brought some cartons out of a residence to their car and drove off. Two officers investigating a theft from an interstate shipment of whiskey observed the defendants but were unable to see any name on the carton defendants were carrying. However, on “mere suspicion” they stopped these men, arrested them and seized the carton which later turned out to be stolen radios.

The instant case is clearly distinguishable from Henry. The Northlake Police were responding to a citizen’s report. Upon arriving at the scene they encountered a situation which was more than merely suspicious. Their mere arrival caused men scurrying in all directions and in plain open view in a residential neighborhood was a large stock of over $50,000 worth of pharmaceuticals. The actions of the defendants here are not the innocent activities of carrying three cartons of radios to a car and driving off as in Henry.

Wong Sun is also distinguishable. In that case an arrest without a warrant was held to be improper because there was no basis in experience for confidence in the reliability of the informant. Furthermore, there was no indication that the man arrested was the same person designated by the informant, nor was an accurate description of where he could be found given to the federal agents. Chief Heggaton testified here that he recognized Mrs. Nowak’s voice when she telephoned and told him men were loading goods into a truck out of Marino’s garage. We feel this makes the instant case much more definite as to activity and identity than the situation in Wong Sun and the action of the police officers here was proper. It is also to be noted that Wong Sun was a five-four decision and additional definitive facts here are sufficient to tip the balance to sustain the police action.

With regard to the cross-examination of Sergeant Prokop, defendants charge that the State went too far. We cannot agree. Sergeant Prokop’s testimony was necessary to establish the connection between defendant Pettit and the crime. We do not feel the questioning by the State was out of bounds. Equally vigorous attacks on court witnesses were upheld in People v. Williams, 22 Ill2d 498, 177 NE2d 100 (1961), US cert Den 369 US 806 (1962), and People v. Jarrett, 57 Ill App2d 169, 206 NE2d 835 (1965).

Defendants next argue that the State was guilty of prejudicial conduct in attempting to impeach its own witness, Sergeant McLean. As pointed out by both defendants and the State, such examination of a witness is largely in the discretion of the trial judge. People v. Wesley, 18 Ill2d 138, 163 NE2d 500 (1960). The State here pursued proper methods of impeachment. The court sustained each defense objection, denied the State’s motion to have McLean made a court witness and instructed the jury to disregard improper comments. Although the abstract shows eight questions to which objections were sustained, whether the tempo and atmosphere of the trial at this point was prejudicial to defendants was a determination for the trial judge. We find nothing here which would require reaching a different conclusion than reached at the trial.

During the closing argument, the prosecutor referred to Sergeants Prokop and McLean as the “I don’t remember twins,” referred to Chief Heggaton, who did not testify at the trial but was often mentioned, as “shifty” and accused these three policemen with being corrupt. All of these arguments are fair inferences from the evidence and were proper in closing argument. People v. Sinclair, 27 Ill2d 505, 190 NE2d 298 (1963). Characterizing certain testimony and witnesses as was done here does not appear to us to be prejudicial. People v. Johnson, 93 Ill App2d 184, 236 NE2d 388 (1968).

People v. Tyner, 30 Ill2d 101, 195 NE2d 675 (1964), cited by defendants is clearly inapplicable. In Tyner, the trial judge openly accused a State’s witness of lying and withholding information. Such misconduct of a trial judge is not involved here. Nor, do we have a denunciation of the defendants’ wickedness and indulging in invective unsupported by facts in evidence as was the case in People v. Fort, 14 Ill2d 491, 153 NE2d 26 (1958). Furthermore, the latitude allowed in castigating witnesses must of necessity be greater than when pointing at the defendant himself. The purpose of restricting closing argument is to prevent discussing matters which do not bear on the issue of defendant’s guilt or innocence. This principle is not violated by calling a witness corrupt.

Another trial error alleged to have been committed by the State was asking Mrs. Nowak the following question with respect to each defendant:

“Mrs. Nowak, can you say that the defendant was not one of the three men you saw with Marino in the backyard?”

Defendants argue that this question called for a highly speculative answer. We do not agree.

In their examination of Mrs. Nowak, defendants showed that she could not identify any of the men who were in the backyard. The impression the defense tried to advance was that because Mrs. Nowak could not identify them, defendants were not there. The State, on this peculiar identification issue, had the right to show that Mrs. Nowak was not testifying for the purpose of identifying the defendants. While this might have been done in different ways, the method chosen by the State was not in error.

Defendants also argue that they were not proven guilty beyond a reasonable doubt. Granting that flight is circumstantial evidence of guilt; defendants assert that there is no other proof that these defendants performed the acts necessary to find them guilty of the charge in the indictment.

Proof of crime may rest entirely on circumstantial evidence. People v. Smith, 90 Ill App2d 388, 234 NE2d 161 (1967); People v. Hill, 58 Ill App2d 191, 206 NE2d 269 (1965). It is unnecessary for us to review the evidence already detailed above. The facts show that each defendant here was engaged in loading a truck with boxes of drugs stolen from Zahn Drug Company. When the police arrived at the scene they ran and were apprehended at the farthest two blocks from the scene. We hold that the State did sustain its burden of proof and the finding of guilty was proper.

Defendants’ contention that the State failed to prove the fair cash value of the goods at the time of the theft is also not supported by the evidence. Robert Brown, the Zahn warehouse manager, testified that the drugs that were stolen during the weekend of October 5, 1963, had a shelf life of one year. He also testified that the cartons retrieved from Marino’s garage on April 13, 1964, which bore his warehouse location markings, had a fair market value of $3,000. This testimony was sufficient to establish value of the stolen property as required by the statute.

It is next argued that there is a variance between the proof and the indictment. The charge was that defendants “knowingly obtained and exerted unauthorized control over . . . property of Louis Zahn Drug Co.” This is a violation of section 16-1 (a). Defendants contend they should be indicted under section 16-1 (d). Subparagraph (d) involves obtaining “control over stolen property.”

As stated above, the facts show that defendants were caught moving cases of drugs, which had been stolen from the Louis Zahn Drug Company, from Marino’s garage into a truck. This is clearly exerting control over property of another. There is no question but that the defendants were concealing the property and intended to deprive the owner of the use and benefit thereof.

Defendants further argue that even if Marino’s possession of the drugs was unlawful, he was nevertheless an “owner” as that word is defined in section 15-2 of the Criminal Code. (Ill Rev Stats 1963, c 38 § 15-2.) Therefore, defendants assert, they can at best be charged with knowingly possessing stolen property (Section 16-1 (d)) and the evidence does not prove such knowledge. This point has been disposed of by this court in People v. Nunn, 63 Ill App2d 465, 212 NE2d 342 (1965). In Nunn defendant was charged with violation of section 16-1 (a). There, as here, it was argued that it was not shown that defendant took the property from the true owner. In response the court stated:

“A good part of defendant’s brief is devoted to arguing that the evidence does not show defendant to have taken the automobile from the place at which it had been parked by the owner. This contention misses the mark, however, because section 16-1 (a) (1) is not limited to the theft of the property in which only the actor who initiates the wrongful asportation is guilty of the offense. A person who ‘knowingly obtains or exerts unauthorized control over property of the owner’ is the statutory description of a thief, provided only that his act is accompanied by the requisite mental state. As expressly pointed out in section 15-8 the phrase ‘obtains or exerts control’ over property includes but is not limited to the taking or carrying away of the property. It also includes (though still not exclusively) the bringing about of a transfer of possession of the property. Ill Rev Stats (1963), c 38, §§ 15-7 and 15-8. The taking of unauthorized possession of the automobile in the instant case, therefore, need not have been on February 20, but could just as well have been on February 23 when defendant was caught in the garage by the police officers.” (Pp 470-471.)

The only comment defendants make about the Nunn case is that the argument they raise was not raised in Nunn. From the opinion this does not appear to be true, nor is this adequate distinction in view of the general reasoning set forth in the Nunn decision.

Whether the defendants had a fair trial is the next point raised. Under this general topic the defendants raise two arguments. First is the fact that a member of the jury was excused on Monday, May 17, 1965. The preceding weekend the headline in a newspaper read “BRIBE OFFER IN ZAHN TRIAL, Juror tells of call to S. Side Home.” This referred to another trial concerning the Zahn Drug Company theft which was proceeding at the same time. Defendants claim the remaining jurors must have thought the released juror was involved in the bribery story reported in the paper. In our view, the failure to declare a mistrial at this point was not in error. The trial judge asked the remaining jurors if they had read or heard anything about the case. The responses were negative. Secondly, the judge told the jurors that the juror was released for physical reasons pursuant to a memorandum from her physician. Thus, there is no reason to connect the bribery charge with any defendants or jurors in the instant case.

Neither People v. Kirkpatrick, 413 Ill 595, 110 NE2d 519 (1953), nor People v. Faulisi, 34 Ill2d 187, 215 NE2d 276 (1966) are applicable here. In both of these cases the jurors were drawn from the panel which had been used for the trial of a codefendant. Bias and prejudice was held to be inherent in such a situation. But here, the jury in the instant case had no connection with the jurors in the other “Zahn trial.”

The second point raised is that defendants were prejudiced by newspaper publicity before and during the course of the trial. The defendants made seven motions for either a mistrial, a continuance or both. Their argument is twofold. First, they claim that there was prejudicial atmosphere surrounding the trial. At the time the prosecution against the instant defendants commenced trial in the cause of People v. Greenberg, involving a distinct aspect of the Zahn Drug Company theft and was in progress in another court room. Articles on the Green-berg trial were appearing daily.

On Friday, May 13, 1965, the selection of the jurors in the instant case was completed and the case adjourned to Monday morning for opening statements. Friday evening the headline about the bribe offer, set forth above, appeared in the papers. A later edition of the paper contained the following headline. “FOUND GUILTY IN ZAHN CASE.” Over the weekend, several other articles although not headlines, appeared in the Saturday and Sunday papers.

We have already indicated that on Monday morning the trial judge questioned the jurors en masse if they had read, heard, or discussed anything about the case over the weekend. The response was negative. The jury had been admonished on the preceding days against reading or discussing the case and this direction was repeated at the close of each session of the trial.

This court is fully aware of the ever present danger that the right of the individual to a fair and impartial trial is often infringed upon by mass communication media. Certain remedies were suggested by the Reardon Report, American Bar Association Project Minimum Standards for Criminal Justice, “Fair Trial and Free Press,” Tentative Draft (1966). But each case must be evaluated on the circumstances peculiar to it. Sheppard v. Maxwell, 384 US 333 (1966).

In People v. Brinn, 32 Ill2d 232, 204 NE2d 724, (1965), we stated:

“In the present case, where there is no evidence in the record that the jurors had read the headlines, and indeed a negative response by the jurors to specific inquiries as to their exposure to such influences, we do not believe that the trial judge erred in believing that the panel was free of prejudice and that the jurors had heeded the court’s constant instructions and admonishments. (Cohen v. United States (9th cir) 297 F2d 760, 764.) We therefore conclude that the trial court did not err in denying defendants’ motions for mistrial.” (P 239.)

The above quote is clearly applicable to the instant case. The jury was admonished not to expose themselves to outside influences and when questioned about this they informed the court they complied with its instructions.

Although not cited by either party, People v. Cain, 36 Ill2d 589, 224 NE2d 786 (1967) is particularly relevant. Cain involves yet another aspect of the Zahn Drug Company theft. A series of headlines presented information which was not proper for consideration by the jury. One of the jurors admitted seeing the headlines. It was at this point that the trial judge in Cain failed to exercise the options available to him to maintain the impartiality of the jury.

While the publicity in the instant case approaches the quantum of prejudicial comment surrounding Cain, it does not reach the same proportions. Furthermore, we have no indication of any improper influences on the jury for which corrective steps had to be taken.

United States v. Accardo, 298 F2d 133 (7th Cir 1962), is the basis of the defendants’ second argument that they did not receive a fair trial. Defendants requested the trial judge to conduct an in camera individual examination of each juror. In Accardo the court reversed the conviction stating:

“The jury separated each night and was exposed to the prejudicial publicity. In view of that fact and of defendant’s publicity value, it was essential that the judge frequently, prior to separation call the attention of the jurors specifically to the possibility of newspaper accounts carrying statements of facts about the case. Coppedge v. United States, DC Cir, 272 F2d 504, 507 (1959).
“The judge’s general admonitions at the beginning of the jury selection, his assumption of their effectiveness, and his instructions, were inadequate protection. His general inquiry during the voir dire examination did not supply the deficiency. There is no certainty that all jurors would volunteer information about violating the admonitions or admit that they were influenced by the publicity. Coppedge v. United States, DC Cir, 272 F2d 504, 508 (1959). He should have by the careful examination of each juror, out of the presence of the others, determined the effect of the articles on those who had read them and whether they had discussed the articles with others. Coppedge v. United States, DC Cir, 272 F2d 504, 508 (1959). These individual interviews would have tended to overcome reluctance to speak out.” (P 136, emphasis added.)

The individual juror examination procedure called for by defendants and approved in Accardo is not binding in our State courts. In People v. Brinn, supra, a similar request was made and denied in a case where daily banner headlines relating to the trial appeared in the local Chicago newspapers. Our Supreme Court affirmed the conviction. A refusal to poll the jury was also affirmed in People v. Johnson, 35 Ill2d 516, 221 NE2d 497 (1966). Pursuant to the Illinois authorities, we find no error in the trial court’s refusal to follow the procedure outlined in Accardo.

The final point raised by defendants is that the trial court erred in refusing to conduct a hearing in aggravation and mitigation. Although counsel for defendants did address the court on their behalf, the record does not disclose that a full hearing was had. In People v. Sessions, 95 Ill App2d 17, 238 NE2d 94 (1968), this Division fully discussed the mandatory requirement of conducting a hearing in aggravation and mitigation. We therefore remand this cause to the Circuit Court of Cook County, Criminal Division, to conduct such a hearing.

Judgment affirmed and cause remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Marino, et al., Defendants-Appellants.
    Gen. No. 51,023.
    First District, First Division.
    May 13, 1968.

      A. J. Marco and A. F. Mannina, of Downers Grove, for appellant Eugene Marino.
    John J. Stamos, 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 ADESKO

delivered the opinion of the court.

Defendant Marino was indicted for the offense of theft in that he knowingly obtained and exerted unauthorized control over certain property of Louis Zahn Drug Company, intending to deprive said company permanently of the use and benefit of said property in violation of section 16-1 (a) of the Criminal Code. (Ill Rev Stats 1963, c 38, § 16-1 (a).) Upon trial by jury together with the four other defendants, Marino was found guilty as charged. He now prosecutes this appeal.

Defendant raised the following points:

(1) The Court erred in denying the defendant’s motion to suppress evidence;
(2) The State’s case was purely circumstantial and a grave and serious doubt of guilt existed once the defense explained the circumstances on a reasonable hypothesis consistent with innocence;
(3) The testimony of the State’s witness, Helen Nowak, was not credible and completely unworthy of belief so that defendant was not proven guilty beyond a reasonable doubt.

On defendant’s motion, we permitted him to adopt the abstract and brief filed by counsel for the defendants in case No. 50,956. Defendant here adopts by reference every error assigned therein.

Our opinion in People v. Marino, 95 Ill App2d 369, contains a full discussion of the relevant facts and there is no need to repeat them. The only fact not discussed there is the capture of Marino. Mrs. Nowak was the neighbor of the defendant, who informed the police about the situation which led to the arrests. She testified that after the police ran past the garage chasing the men who had jumped over the fence, Marino emerged from the garage and ran into his house. He then came back out, only this time his shoes were untied and his hair messed up. When he walked outside, he was arrested.

Marino did not testify at the trial. He did, however, testify during the motion to suppress. He claimed the merchandise in the garage was not his, but belonged to the man who had rented the garage from him. Marino also claimed that he did not know about any truck until he came out of his house.

With respect to the motion to suppress, we dealt fully with this issue in No. 50,956. Marino now voices only one additional argument, based on People v. DeFilippis, 34 Ill2d 129, 214 NE2d 897 (1966). Although the main issue was whether a defendant must allege a possessory interest in property seized in order to pursue a motion to suppress that evidence, the court did state:

“ (I)f they (officers) did not gain their knowledge until after a wrongful entry into the protected premises, it is clear that the subsequent search and seizure cannot be deemed to have been incident to a lawful arrest.” (Citations omitted.) (P 138.)

The cases relied on in DeFilippis, People v. Bankhead, 27 Ill2d 18, 187 NE2d 705 (1963) and People v. Parren, 24 Ill2d 572, 182 NE2d 662 (1962), both deal with the reliability of the informant. However, the instant case involves the police responding to the call of a known person. Marino’s motion to suppress was thus properly denied.

With respect to the sufficiency of the evidence, defendant argues that “legitimate doubts were raised as to the recency, exclusiveness and personal possession of the property.” We cannot agree. Mrs. Nowak testified that Marino led Rago, Pettit and Monteleone to the garage and opened it up for them. She also testified that quite often during 1963 and 1964, Marino would open the garage, a truck or car would pull in and then leave with Marino following in his car. These facts clearly show Marino exercising control over the contents of the garage and those contents included stolen drugs. These statements of fact by Mrs. Nowak were proper rebuttal to Marino’s defense that someone else owned the goods in the garage.

Defendant also argues that because this conviction is based on circumstantial evidence, such evidence must “thoroughly establish guilt as to exclude every reasonable hypothesis of innocence.” See Wharton’s Criminal Evidence, 12th Edition, § 6. However, Wharton goes on to say in section 980, “circumstantial evidence need not be such that no possible theory other than guilt can stand: only proof beyond a reasonable doubt is required. It is not necessary that circumstantial evidence exclude every possibility of the defendant’s innocence, or produce absolute certainty in the minds of the jurors.” This statement is the law in Illinois. People v. Lofton, 64 Ill App2d 238, 212 NE2d 705 (1965). The chain of evidence in the instant case was clearly sufficient for the jury to find beyond a reasonable doubt that Marino participated with the other defendants in the exercise of control over the stolen property.

Defendant’s final additional argument is that Mrs. Nowak’s testimony was not credible and is completely unworthy of belief. Just because Mrs. Nowak incorrectly identified which defendant was arrested by Sergeant Prokop does not mean the remainder of her testimony must be disregarded. This merely goes to the weight of her testimony. Secondly, the very statement of the defendant’s theory as set forth in People v. Ruffin, 406 Ill 437, 442, 94 NE2d 433 (1950), clearly shows that it is only applicable to situations where the witness knowingly, willfully, and corruptly misstates the truth. There is no indication in the instant case that Mrs. Nowak deliberately lied. Furthermore, the rule is permissive. The jury “has the right” to disregard the testimony of a witness who intentionally lies. In the instant case, the jury chose to believe Mrs. Nowak. This was their prerogative.

For the foregoing reasons and the reasons set forth in People v. Marino, 95 Ill App2d 369, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed. However, for the same reasons set forth in 50,956, this cause is remanded to the Circuit Court to conduct a hearing in aggravation and mitigation and to set the term of imprisonment accordingly.

Judgment affirmed and cause remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.