source: Caselaw Access Project

author: MR. JUSTICE BRYANT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Cloutier, Defendant-Appellant.
    Gen. No. 49,876.
    First District, Second Division.
    October 19, 1965.

      Emilie N. Wanderer, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul H. Knott, Assistant State’s Attorneys of Cook County, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a conviction of voluntary manslaughter entered June 9, 1964 in the Circuit Court of Cook County, Criminal Division. The appellant urges as grounds for reversal that he was not proven guilty beyond a reasonable doubt and that certain evidence was not properly admitted at his trial. He was tried by the court, a jury having been waived.

The appellant is accused of killing one William Neiswander on Christmas night, 1963. Richard Watt, Neiswander’s roommate, testified that the last time he saw the deceased prior to December 25,1963 was on December 22, at which time he was healthy and alive. Watt stated that on December 25 he returned to their apartment at 1430 North Dearborn, Chicago, and found Neiswander lying on the floor, and that the drapes in the apartment had been pulled down, a table broken and that lamps were on the floor. The witness identified two photographs which, he said, accurately portrayed the deceased and the room as he found them.

A police officer, Harold Grazer, took the stand and also identified the photograph of the deceased as a true and accurate portrayal of the body. Another police officer, Anthony Marubio, testified that on December 25, 1963, he and his partner, Patrick Touhy, arrived at the deceased’s apartment just prior to midnight and observed that the furniture was damaged, that the curtain from the' pullman kitchen, had been ripped loose, that there was blood all about the body of the decedent and that blood and fecal matter were on the walls. This witness also identified photographs of the deceased and of the apartment as true and accurate representation of the conditions he observed that night.

Officer Marubio further-testified that he found portions of the deceased’s clothing scattered throughout the apartment. He testified that when he saw the deceased, he was clothed solely in his T-shirt, shoes and stockings. Officer Marubio said that upon further search of the apartment, he found a key with a piece of string and a tab with the name of the Walton Hotel and a room number. During the course of the examination, this witness also identified a T-shirt and a frying pan which he described as being covered with blood when he found it in the living room of the deceased’s apartment.

Officer Marubio then testified that he and his partner went to the Walton Hotel at shortly after 3 a. m. December 26 to the room the number of which appeared on the key tab found in the deceased’s apartment. This was the room occupied by the appellant. They knocked at the door and identified themselves as police officers, and were invited in by the appellant. The appellant gave the officers permission to search his room. In the dresser were found two T-shirts of the same size and manufacture as that found in the deceased’s apartment. The search also revealed a pair of pants with what appeared to be blood on them.

The appellant was taken into custody, and Officer Marubio took a statement from him. This statement shows that it was made at 4:80 a. m. on December 26. In this statement, the appellant described the events of that night as follows:

“I left the house about 8:30 p. m. and went to Shey’s bar and I stayed till about 11:30 p. m. and went to Jamies on Clark St. about 1100 or somewhere close to that, then this guy approached me. He asked me to come to his place because I had said I was tired. The guy tried to play a little bit and I disapproved and so I hit him, after I hit him I stomped on him and from then I went to bed and when I woke up about three hours later and shook him he did not move. So I got scared and left real fast. That’s about all I went to the bar again and then went home until you guys got me.”

Upon further questioning, the appellant related that the deceased had asked to be hugged and kissed. “I refused and hit the guy; I hit him a few times and kicked him a few.” Appellant stated that he hit the deceased with-his fist from three to five times and that he kicked him from three to six times. The statement then reads as follows:

“Q. You stated after you hit him and kicked him you went to bed and slept for about three hours and when you awoke you shook William Nieswander and lie did not move; did you have an opinion of his condition at this time ?
“A. Well, I thought he was dead.”

When asked in what part of the body he kicked the deceased, the appellant stated, “The head is where I kicked him, I placed my foot on his throat afraid he would scream.”

Another statement was taken from the appellant approximately two hours later. This statement shows he was questioned by an assistant state’s attorney, and the statement was taken by a court reporter, Paul Elsing. Officers Marubio and Touhy were also present when this statement was made. This statement is substantially the same as the one made earlier that morning. The appellant identified the T-shirt found in the deceased’s apartment as being his. He described his condition on the evening in question as being “pretty stoned.”

Paul Elsing, the shorthand reporter, testified that the transcript of the second statement was a true and accurate transcription and that he recorded everything that anyone said while he was present in the room.

The appellant took the stand in his own behalf and testified that he was 26 years old, that he was raised in an orphanage and that he was honorably discharged from the army after having served for three years. He said that he had come to Chicago to look for work as a laborer on about December 20, and that he was engaged to be married. During his examination he related the same facts he told on his two statements, but his direct examination also brought out other testimony not in his previous statements. He stated that when he refused to engage in homosexual relations with the deceased, the deceased attacked him with a frying pan and put his knee to appellant’s groin. He testified that when he left the apartment, deceased was lying on the floor and was fully clothed. Appellant again stated that he either fell asleep or passed out after the fight and before he left the apartment. He also testified that he was quite sure he did not close the door all the way when he left. He stated that the photographs used by the People did not represent the state of the deceased or of the apartment when he left. He said he did not think the deceased was dead when he left.

The appellant testified that while he made the two statements attributed to him, the officers told him not to go into the full details when he made the first statement. He said he was not given an opportunity to present all the facts surrounding the incident.

Officer Marubio was recalled to the stand and denied that he had ever told the appellant not to go into the full details of his story. He also testified that neither Officer Touhy nor the assistant state’s attorney had told the appellant to leave details out of his statement. No objection was made to this testimony. It is undisputed between the parties that the deceased was about 5 foot 8 inches tall and weighed about 135 pounds. It is also undisputed that the appellant is 6 foot 1 inch tall and weighed about 195 pounds.

The appellant’s first point of contention is that he was not found guilty beyond a reasonable doubt. It is claimed in his brief, “There was no analysis of the blood on the pants of the defendant to show that it was the blood of the decedent, so as to place the defendant in the affray wherein the bloodiness occurred; there was no proof that no other person had had access to the apartment of the decedent; there was nothing to establish conclusively that the T-shirt found at the scene was that of the defendant, inasmuch as this Honorable Court may well know that there is nothing unique about a T-shirt which would make its purchase limited to any one person.”

As to the question of whether the stains on the appellant’s pants were deceased’s blood stains, we note that on page 41 of the record the parties stipulated that the microanalyst for the Chicago Crime Laboratory examined the pants and determined that the stains were human bloodstains. We recognize that proof that the stains were human bloodstains does not establish that the stains were of deceased’s blood type. No claim of error regarding this was specified in a post-trial motion. He cannot raise this point for the first time on appeal. People v. Touhy, 31 Ill2d 236, 201 NE2d 425 (1964). We also note that in his second statement, the appellant stated that the T-shirt found at the scene belonged to him.

As to the question of whether the People must prove that no one else had access to the apartment after the appellant left, we think that this is not the case. The appellant testified at the trial that he had beaten and kicked the deceased. In both of his statements made the morning of December 26, he said he thought the deceased was dead when he left the apartment. At the trial, appellant denied that he thought Neiswander was dead, but said he thought he was hurt. He further denied making that statement while he was being interrogated. We also point to that portion of the first statement where the appellant said he stood on Neiswander’s neck with one foot and kicked him about six times in the head with the other foot as evidence of acts sufficient to support a conviction for voluntary manslaughter. It is clear that if the statements made by the appellant are admissible, there is more than enough evidence from which the trial court could determine the appellant’s guilt of the crime charged. The trial court is surely not bound to believe the appellant’s retelling of that night’s events at his trial. The court need not have believed that the appellant was threatened with a frying pan or was attacked in any other way. In addition, the court could also have easily found that had the appellant been attacked he used more than necessary force to repulse the deceased. We point to the fact that the appellant was 5 inches taller than the deceased and outweighed him by 60 pounds. We hold, therefore, that the finding by the court was not against the manifest weight of the evidence.

The next question we shall consider is the admissibility of the two statements. The appellant argues that “The confession obtained from the defendant before his arraignment and while he was not represented by counsel should not have been received in evidence.” The claim is not made that the appellant was coerced, but the thrust of the argument would seem directed to Escobedo v. Illinois, 378 US 478 (1964). That case dealt with the question of what amounts to an unconstitutional deprivation of the fight to counsel. The Escobedo case was urged before the Illinois Supreme Court in People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964). The Supreme Court there pointed out that in Hartgraves there was no evidence that the accused had asked to see an attorney. The Court continued, “We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt.” It was never claimed at any point in this case that the appellant asked to have an attorney. That being so, the appellant cannot urge Escobedo as a basis for rejecting the statements which he made to the police officers. We hold that both statements made by the appellant were admissible.

The appellant next objects to the reception into evidence of the photographs of the deceased and of the apartment. It is claimed that since the cause of death was stipulated to, there was no purpose in admitting these exhibits. The People claim that the photographs were of aid in determining the manner in which the fatal wounds were inflicted and in permitting the court to judge the amount of force used against the deceased in evaluating the claim of self-defense. It is almost impossible for us to determine whether the photographs could have aided the court since they have not been included in the record on appeal. “Where the record is incomplete, a reviewing court will indulge every reasonable presumption in favor of the judgment or order. Any doubt arising from the incompleteness of the record will be resolved against the appellant.” McGann v. Lurie, 15 Ill App2d 297, 800, 146 NE2d 223, 225 (1957). We are not in a position to say that the Court below was not aided in his understanding of the case by the use of the photographs offered in evidence by the People.

Having found no reversible error, we affirm the judgment of the Court below.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Lee Hill, Defendant-Appellant.
    Gen. No. 50,175.
    First District, Second Division.
    October 19, 1965.

      Fred Bezark, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert Beranek, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Two indictments were returned, one charging Willie Lee Hill with assault with attempt to commit rape and another with assault with attempt to commit murder. On the motion of defendant, the indictments were consolidated for trial. He pleaded not guilty. A trial without a jury resulted in a finding of guilty on each charge and a judgment and sentence in each case that he serve a minimum of 5 and a maximum of 12 years in the penitentiary, the sentences to run concurrently. He appeals. Florine Lamar testified that on the morning of September 8, 1961, she resided at 6146 South Kenwood, apartment 512, Chicago, Illinois. She was lying across her bed wearing only a blouse and panties. At approximately 8:00 a. m., she awoke, turned on the radio and opened the main door to her apartment, keeping the shutter door locked and closed, and returned to bed. She looked up and saw the defendant on his hands and knees in her room. She screamed and cried out. He knocked her off the b.ed and told her to keep quiet. He dragged her to the couch, one hand in her back and the other in her hair and he tore her panties. She continued to resist and defendant kept knocking her head down and hitting her eyes and tried to put his penis into her vagina. He placed a knife around her neck. Accidently she slipped, he pulled her up and went toward the door. Just before he reached the door Carol Pittman, a tenant from across the hall, called out (on hearing the screams, crying and the sounds of falling furniture) Miss Lamar’s name. The defendant closed the door with one hand and began to strike the victim, Miss Lamar. He knocked her toward a window. He then let her drop and she was able to reach her purse where she had a loaded revolver. She pointed the revolver at him. The defendant reached for a chair. She fired and he struck her with the chair three times until she dropped the revolver. He then picked up the revolver, put it in his pocket and left the apartment. Miss Lamar was bleeding, her eyes were swollen and there were scratches on her face, neck and legs. She was hospitalized for two and one-half days. She identified the assailant as Willie Lee Hill, the defendant.

Miss Carol Pittman, a neighbor who resided in the apartment across the hall from the apartment of Miss Lamar, in the same building, testified that some time after midnight of September 8, 1961, she heard a scream coming from Miss Lamar’s apartment. Miss Lamar hollered “help me, help me, somebody’s trying to rapé me.” Miss Pittman tried to open the shuttered door but the defendant slammed the main door. She testified that she knew the defendant, and recognized his voice, as the voice saying “shut up bitch.” “Yes, I’ll kill a bitch like you,” and one time saw him standing in the apartment. She heard Miss Lamar crying and saying “If I do it, will you kill me ?” Then Miss Pittman saw defendant come out of Miss Lamar’s apartment. Before the defendant came out of the apartment, witness Pittman heard sounds as if the apartment was being wrecked and she (Miss Pittman) had sent her boyfriend Sylvester outside the building to get the police. Sylvester Robinson, Miss Carol Pittman’s boyfriend and cotenant and also a friend of the defendant, testified that he had been with Willie Lee Hill earlier in the evening in question and that defendant questioned- him concerning Miss Lamar. He also testified that he heard the sounds of a fight coming from Miss Lamar’s apartment and heard Miss Lamar shouting, “Help, he is raping me,” but that he did not see defendant in or around the apartment of Miss Lamar. Robinson identified the voice emitting from the apartment as that of the defendant. Robinson also testified that he called the police immediately upon hearing what defendant was saying and doing.

Edna Blake, a 6th floor resident of the building testified that around 3:00 or 4:00 o’clock in the morning she heard footsteps in the hallway, looked out and saw defendant standing on the fire escape. She later heard screams of a girl and a shot and. saw defendant getting off the elevator and going into his apartment. When she saw defendant, after the screams and shot, he was wearing a robe. Minutes later she saw him leaving his apartment and the building fully clothed. Kenneth E. Brooks, a police officer, testified that he was called to 6146 South Kenwood on the night in question to investigate an attempted rape. When he arrived at apartment 512, he saw Florine Lamar and she was bleeding heavily from the head. He further testified that he looked into her apartment and found it to be in a general state of disarray. He and his partner took Miss Lamar and Miss Pittman to the Woodlawn Hospital. Thereafter he and his partner returned to the building and inquired into the whereabouts of defendant. Unable to find him the officer and his partner returned to Woodlawn Hospital, where they picked up Miss Lamar and transferred her to Cook County Hospital. Officer Kobert Jennings testified to substantially the same facts as Officer Brooks. Detective Bruno Canale corroborated the testimony of the other two officers but added that in the apartment he saw a broken chair and a woman’s panties with the crotch torn out. He also found the apartment in a general state of disarray. Doctor Albert Samander testified that he treated Miss Lamar at Cook County Hospital and that he performed a pelvic to disclose the presence or non-presence of sperm in the vagina. The test was negative. The Doctor said that Miss Lamar was severely bruised about the head and body and that he stitched the scalp wound and applied medication to her badly swollen left eye. Leslie Wright, defendant’s mother, testified that her son returned home around 11:00 p. m. on September 7, 1961, ate dinner and went out again. The next time she saw him was right after the officers had left and after they had inquired as to the whereabouts of her son. She did not know whether her son was home at the time the crime took place. She testified that she was sleeping. The defendant testified that he was not at home at the time of the occurrence; that he was not in the building and that he returned as Miss Pittman and Miss Lamar were entering the squad car. It was then that he met and spoke to a girl named Joan as he got off the elevator on the 6th floor at 6146 South Kenwood. He testified that he did not know Joan’s last name. Defendant testified that after entering his apartment he left soon thereafter to return to the street. He looked up a friend by the name of McGee and remained with him for a few days. He could not give McGee’s first name or give an accurate address. On September 11,1961, defendant, having heard that he was being sought by the police, surrendered to Detective Canale.

At the close of the People’s case the defendant requested that he be given a lie test. Defendant insisted that the trial judge erred in not permitting him to take a lie test in order to introduce the results as evidence and thus add weight to his testimony that he was not at the scene when the crime allegedly occurred. Defendant says that there is no way of knowing what the test would have shown. The People reply that the trial court acted properly in refusing the defendant’s request to take a lie detector test in order to introduce such a test as evidence. Ill Rev Stats 1959, chap 38, par 736.2, in effect at the time the alleged crime was committed, reads:

“In the course of any criminal trial the court shall not require, request or suggest that the defendant submit to a polygraphie detection deception test, commonly known as a lie detector test, to questioning under the effect of sodium pentothal or to any other test or questioning by means of any mechanical device or chemical substance.”

This statute, as amended in 1961, may be found in Ill Rev Stats 1963, chap 38, par 736.2. In the absence of stipulation the courts reject the results of lie detector tests when offered in evidence for the purpose of establishing the guilt or innocence of the accused. People v. Jones, 1962, 52 Cal2d 636, 343 P2d 577; Dugan v. Commonwealth, 1960 (Ky), 333 SW2d 755; People v. Dobler, 1961, 215 NYS2d 313; Henderson v. State, 1951, 94 Okla Cr 45, 230 P2d 495, 23 ALR2d 1292. The reason most commonly assigned for the exclusion from evidence of the results of a lie detector test is that the lie detector has not yet attained sufficient scientific acceptance as a reliable and accurate means of ascertaining truth or deception to be acceptable in a court of law. See Henderson v. State, 1951, 94 Okla Cr 45, 230 P2d 495. Courts have shown reluctance in admitting stipulated lie detector tests even though the expert who gave the test was present in court to answer questions regarding his expertise. State v. Trimble, 1961, 68 NM 406, 362 P2d 788.

In People v. Nimmer, 1962, 25 Ill2d 319, 185 NE2d 249, it appears that at the close of all the evidence the trial judge, in summarizing his reaction to the testimony, remarked that under the evidence he would have no choice but to find the defendant guilty. He went on to suggest that if the defendant would take a lie detector test, that he, the judge, would follow the result of the test. Defendant’s counsel expressed his willingness to do so and the trial was continued for this purpose. When the cause came on 10 days later the defendant was adjudged guilty and sentence imposed. Whether a lie detector test had been given or whether the court was following its result does not appear. The Supreme Court, citing Ill Rev Stats 1959, chap 38, par 736.2, said at page 321:

“Under the clear direction of the statute, the validity or construction of which has not been questioned, we have no choice but to reverse the judgment of conviction and to remand the cause for a new trial.”

Following People v. Nimmer, supra, came People v. Zazzetta, 1963, 27 Ill2d 302, 189 NE2d 260. The defendant was charged with burglary and in open court he stipulated to take a lie detector test. It proved unfavorable to his cause and upon trial a report of the test was introduced in evidence over the objection of the defendant. In reversing the court stated that where the defendant, who had an eighth grade education, appeared without counsel in open court prior to his trial for burglary and agreed to take a lie detector test, orally stipulating that the results might be introduced in evidence, the trial court erred by allowing, over objection, the introduction of the results of the test where the operator and interpreter of the test was not present and qualified as an expert witness. The court also felt that it was unfair to bind the defendant by a stipulation regarding the trustworthiness of scientific opinion far beyond his ken. Reversal was granted on these narrow grounds and apparently limited to these specific facts.

In People v. Boney, 1963, 28 Ill2d 505, 192 NE2d 920, the defendant was picked up for questioning by a member of the State’s Attorney’s force and given a lie detector test, apparently at his request, or at least with his consent. At the trial the defendant testified, over the People’s objection, that the polygraph operator told the officers that the examination indicated defendant’s innocence. The court, citing People v. Zazzetta, supra, in commenting on the introduction of the evidence stated, at page 510:

“Results of the lie-detector test could not properly be introduced as evidence of either guilt or innocence of the accused, and the People’s objection thereto should have been sustained.”

The Illinois cases show a marked distrust of the value of the use of lie detection for evidence in criminal cases. The defendant urges that prejudicial error was committed because the State’s Attorney did not object to the introduction of a lie detector test. The State’s Attorney said: “The statute prohibits ordering a lie detector test at this stage of the proceeding.” The defendant admits that" there was no agreement or stipulation between the prosecution and the defense. Defendant, in effect, is saying that the statute places an affirmative duty on the People to oppose any motion for the taking of a lie detector test. We do not think that the statute requires the People to make timely objections every time a motion for the taking of a lie detector test for evidentiary purposes is tendered to the court. It will be observed that the statute does not require the trial judge to accept for evidentiary purposes the results of a lie detector test even if there is a stipulation. From the language of the trial judge it is apparent that if the People had stipulated to the lie detector test the judge would not have allowed the results in evidence. The only case of the 18 cited by the defendant where the results of the lie detector test was admitted into evidence is a 1938 New York case, People v. Kenny, 3 NYS2d 348. The Kenny case by sub silentio has apparently been overruled in that state, since in a subsequent case, People v. Forte, 279 NY 204, 18 NE2d 31, the court excluded the results of a polygraph test without noticing the Kenny case. We conclude that the trial judge ruled correctly in refusing the defendant’s request to take a lie detector test in order to introduce the results as evidence.

Finally the defendant maintains that the court erred in refusing to grant defendant’s motion for a three-week continuance. On November 2, 1961, the trial counsel for defendant answered ready. The People then put on the stand their first witness, Florine Lamar. After cross-examination by defense counsel, this witness was excused. At this time the trial judge informed the lawyers that the pending matter would have to be put over for some other date. The State’s Attorney informed the court that he would have 6 or 8 more witnesses. The court then inquired of defense counsel if November 7 would be a convenient date for him. He answered that he would be engaged on that day. November 9 was the next date tendered by the court to which defense counsel agreed. It is manifest that the court was seeking to find a day convenient for both parties. November 9 was suitable. If counsel for the defendant needed more time for the preparation of his case this would have been an opportune time to seek it. When the trial was resumed no request was made for a continuance. The record shows that defendant knew the nature of the charge and was conversant with the facts. The record shows that the trial judge gave the defendant every reasonable opportunity to introduce testimony to support his position that he was not present at the time of the alleged crime.

For these reasons the judgments are affirmed.

Judgments affirmed.

BRYANT and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Helen F. Buzinski, Defendant-Appellant.
    Gen. No. 50,311.
    First District, Second Division.
    October 19, 1965.

      Herbert F. Friedman, of Chicago, for appellant.
    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 appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

The defendant appeals from a judgment imposing a fine of $100 and costs in a complaint charging her with driving an automobile under the influence of intoxicating liquor in violation of Section 47 of the Uniform Act Regulating Traffic on Highways, Ill Rev Stats 1963, chap 95½, par 144. The defendant urges that the People did not prove her guilty beyond a reasonable doubt. The report of proceedings establishes that there was testimony that at 3:45 a. m. on April 19, 1964, an automobile driven by the defendant crashed into the back of a car operated by Sheldon Goodman at Pulaski and Milwaukee Avenues in Chicago. At the time Goodman’s car was stopped for a traffic light. Frank Visco of the Chicago Police Department was summoned. As a result of his observance of the defendant and his conversation with her, she was placed under arrest and taken to a police station and charged with driving while under the influence of intoxicating liquor. Officer Visco testified that when he arrived at the scene defendant was sitting in her car, which was in a lane of traffic and behind the automobile of Mr. Goodman. From all the evidence it appeared that defendant’s automobile crashed into the rear of the Goodman car when the latter stopped for a traffic light. According to the testimony for the People the defendant would not follow the directions of the officer, was abusive and used profane language. Officer Visco said he could smell the odor of alcohol on the defendant’s breath. He said she was antagonistic and acted “unusually.” Her eyes were bloodshot and her reaction to light was fair. Her speech was slurred. Based upon these observations Officer Visco testified that it was his opinion-that defendant was driving under the influence of intoxicating liquor. He stated that he had made 175 previous arrests of this nature. For the defense, Marie Barrett, a friend of the defendant testified that defendant was at witness’ home from 10:00 p. m. to 3:00 a. m. and that defendant had nothing to drink. The defendant testified similarly that she had only one drink that evening, which was consumed before going to Marie Barrett’s home. The determination of the credibility of the witnesses should not be disturbed unless clearly erroneous. There was evidence from which the trial judge had the right to decide that the defendant was driving her automobile while intoxicated.

The defendant states that the Traffic Violation Branch of the Court in which the case was tried was equipped with a machine for the purpose of recording testimony in the trials. The defendant appears to complain that the court reporter was hampered in transcribing the report of proceedings because of “unintelligibility of the voices emanating from the tape recorder or recording machine,” on numerous pages of the transcript. The State’s Attorney points out that the court reporter and the clerk have certified a true, perfect and complete transcript, that no motion has been made challenging the report of proceedings, requesting the trial judge to settle the report of proceedings or to certify a bystander’s report of proceedings as contemplated by Supreme Court Rule 36-1. We agree with the People that it was the duty of the defendant (appellant) to have certified a true and complete report of proceedings. The report of proceedings presented to us is unsatisfactory. We do not know whether this failure was caused by the recording mechanism in use, the tape, the operator, the placing of the microphones or the failure of the participants in the trial to speak clearly and sufficiently close to the microphones to produce an accurate recordation. This failure does not lessen the duty of the appellant to bring to this court an appropriate report of proceedings where he is relying on the report of proceedings for reversal.

The judgment is affirmed.

Judgment affirmed.

BRYANT and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Travis, Defendant-Appellant.
    Gen. No. 50,456.
    First District, Second Division.
    October 19, 1965.

      Castle, Brintlinger, Carey & Filter, of Chicago (Thomas F. Carey, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Herman Travis was found guilty by jury on a charge of the murder of James Flemming. He appeals from a judgment and sentence to a term of 16 to 30 years in the penitentiary. At about 5:30 p. m. on December 11, 1960, the defendant, Herman Travis, the deceased, James Flemming, and a group of others were present at a tavern in Chicago known as “The House on 92nd Street.” The Harlson brothers, Nelson and Hylton, purchased a half pint of whiskey and invited Flemming to join them for a drink in the back room. As the two Harlson brothers walked to the back room they observed the defendant, Herman Travis, in the rear part of the tavern talking to a young lady named Willie Ann Robinson. Nelson Harlson testified that as they passed the defendant, he heard the defendant say, “There is that no good sonofabiteh.” Nobody else said anything prior to this time. The witness then heard about 3 slaps, he turned and saw Flemming fall back to the wall. Flemming got up, straightened himself out and said “You’re wrong, man, you’re wrong.” There was nothing in the hands of Flemming, nor did he say anything other than this remark. Witness then heard a Shot and saw a little hole in Flemming’s chest and saw a gun going back into defendant’s pocket.

Hylton Harlson testified that these events took place after the three, Nelson Harlson, Flemming and himself had a drink and were returning to the front part of the tavern. This witness heard mumbling and when he turned around he saw Flemming being slapped and being pushed against the wall by defendant. Flemming straightened up and was fixing his clothes when defendant shot him in the chest, put the pistol back in his pocket and ran out. Hylton said that at no time did Flemming have anything in his hands. Both Nelson and Hylton testified that they did not see Flemming reach into his pockets at any time. Corachel Mitchell testified that defendant called Flemming an s. o. b., that defendant slapped Flemming, pushed him and then shot him. Mitchell said that he was sitting on a stool near the archway and could see the entire incident. Mitchell knew the defendant by the name of “Wyatt Earp.” After the shooting of Flemming, the defendant fired shots at the bartender as he attempted to follow defendant out to the street. Willie Ann Robinson, testifying for the defendant, said that the defendant was arguing with the deceased and that all she heard said by defendant was “Don’t say it again.” She testified that Flemming slapped the defendant; that Flemming reached into his pocket and then defendant reached into his pocket and came out with a gun; that Pearline Ray struggled with the defendant for the gun and that is when the gun went off; that Marilyn McNeil had hold of defendant’s left arm; that after the shot defendant ran out and the bartender, Dick Brisco, took a shot at defendant while he was fleeing. Pearline Ray testified that she observed the deceased and the defendant talking when she went into the washroom and arguing when she came out. She didn’t see any blows exchanged and walked behind the defendant and went out front again. She did not testify to any struggling with the defendant over the gun. The bartender (Brisco) testified that he did not have a gun or take a shot at the defendant; that when he heard the shot he started to the back, at which time Hylton Harlson told him that defendant had shot the man. The bartender gave Hylton a dime to call the police and then went to the door to look after the defendant who was already out the door. The bartender said that as he looked out the door defendant fired another shot in the direction of the door. Brisco, the bartender, identified the defendant and said that he was known to him as “Wyatt Earp.” Mary Jane Meadows and Louise Johnson testified that they were in thé front part of the tavern. Mary Jane Meadows said she did not hear the first shot but only the one fired by Brisco. Louise Johnson stated that she heard something like a loud slap, saw her brother, the defendant, come out of the back and saw Brisco fire and hit her brother, the defendant. The defendant continued out the door and Brisco rushed to the door, where, she said she grabbed Brisco and begged him not to shoot her brother. There was testimony that James Flemming came to his death from hemorrhage following bullet wounds of the “chest (lung).”

The defendant testified that he was in the back room talking with Willie Ann Robinson when the Harlson brothers and Flemming came into the back room. He did not say anything to any of them, but Flemming said to him “Leave her alone, you sonofabitch, I’ll kill you.” He replied “Don’t say it no more,” then Flemming hit him. When defendant pushed Flemming back against the wall the latter ran his hand in his pocket. Defendant pulled a gun and told Flemming not to move. Pearline Ray came out of the washroom, grabbed defendant’s arm and they started wrestling for the gun; Flemming was still coming toward defendant, who told him to get back; that is when the gun went off. He stated that when he got loose from Pearline he (defendant) made it to the front door. He said that at the time he did not know that Flemming was shot. He ran out of the tavern and went home; from there he went to Jamie Lee’s house on Dorchester Avenue until that Friday, then he hitchhiked to Louisiana where he stayed for about 6 months. Defendant was arrested on June 24, 1961, about, one week after he returned from Louisiana.

Defendant maintains that reference by the State’s Attorney and the State’s witnesses to the defendant as “Wyatt Earp” were prejudicial and prevented him from getting a fair trial. The defendant assumes that the name “Wyatt Earp” is synonymous with connotations of quick gun, killer, wild west, deadly and trigger happy and presents an evil or bad image to the jury. The People say that through the medium of television the character “Wyatt Earp” has the popular image of a heroic law enforcement officer. The record shows that when the events about which they were testifying took place the defendant was known to some of the witnesses only as “Wyatt Earp.” In response to a direct question thé defendant answered that his nickname was “Wyatt Earp.” The testimony shows that the defendant was known as “Wyatt Earp.” We do not think that reversible error was committed in calling the defendant by the name by which he was known at the time of the commission of the alleged crime.

The second point advanced by the defendant is that the court erred in not allowing defendant to explain his reasons for flight. The defendant was allowed to testify that the reason he left Chicago was that he was scared. After being in Louisiana for 6 months, he returned to Chicago. He was arrested a week after his return. He testified that he was told that “the police were calling him a maniac and going to kill him,” so he left town. An objection by the State’s Attorney to this statement was sustained but the testimony was not stricken. We are of the opinion that the defendant was permitted to explain the reason for his flight. There was no showing out of the presence of the jury, as to what further testimony by way of an explanation for the flight the defendant would like to introduce.

Finally defendant asserts that the final arguments of the State’s Attorney prejudiced him. In the argument the State’s Attorney said that the police were looking for a man known to them as “Wyatt Earp.” This was an inadvertent misstatement of the evidence, based on the testimony of witnesses Brisco, Mitchell and the assumption that the name they knew defendant under was conveyed to the police. The policeman did not testify that he knew the defendant as “Wyatt Earp.” The evidence shows that the police were looking for Herman Travis. We do not think that he was harmed by the referral to him as “Wyatt Earp.” The defendant points to other statements made by the Assistant State’s Attorneys and insists that their argument was so prejudicial as to prevent defendant from receiving a fair and impartial trial. Parts of the argument delivered by the Assistant State’s Attorneys in this case transcend the bounds of legitimate argument. Reversal is not warranted unless the improper argument influenced the jury to the substantial prejudice of the accused. The record strongly supports the verdict of the jury. We do not think that the defendant was prejudiced by the argument. See People v. Lopez, 10 Ill2d 237, 240, 139 NE2d 724; People v. Hampton, 24 Ill2d 558, 182 NE2d 698, and People v. Heywood, 321 Ill 380, 152 NE 215.

For these reasons the judgment is affirmed.

Judgment affirmed.

BRYANT and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Major Brown, Defendant-Appellant.
    Gen. No. 50,470.
    First District, Second Division.
    October 19, 1965.
    Rehearing denied November 2, 1965.

      Paul G. Stemm, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Stuart P. Shapiro, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

In a bench trial under an indictment charging robbery, Major Brown was found guilty and sentenced to imprisonment in the penitentiary for from 7 to 10 years. He appeals to reverse the judgment and to remand the cause for a new trial.

At 6:20 p. m. on Saturday, June 23, 1962, the Leader Cleaners store at 13th Street and Pulaski Road in Chicago was robbed. Patricia Irene Murphy, who was the only employee in the store at the time of the robbery, testified that at 6:20 p. m. a man entered the store, put a gun in her face and demanded her money. She gave him the money, $10 or $12 from the cash register and he left. She called the police. While the robbery was in progress she noticed that the right thumb joint of the robber was missing. On July 28, 1962, she pointed out the defendant from a lineup of 6 men as the individual who robbed her on June 23,1962. In the trial she identified the defendant as the person who robbed her. On July 27, 1962, the defendant was apprehended by Adolph Neruda, a police officer, who testified that in a response to a radiogram he arrested the defendant coming out of a currency exchange. The defendant was then brought to the police station where he was identified by Miss Murphy the next day in a lineup. James Cusack, a detective, testified that on the evening of July 27, 1962, he had a conversation with the defendant. The detective showed the defendant the case report on the Leader Cleaner robbery which according to the description given the police by Miss Murphy identified the defendant. When Detective Cusack indicated to the defendant that he had been a fool to show his right hand at the time of the robbery since the first joint of his right thumb was missing, the defendant, according to Cusack, admitted, “You got me, I know you got me.”

The defendant testified that he had not committed the crime charged. He claimed that he had never spoken with Detective Cusack and had not indicated his guilt as Cusack testified. The defendant said that at the time of the robbery he was engaged in promotional work for Mr. William Jack of Jack’s Drive-In Lounge but that he did not have any particular hours. The defendant on cross-examination admitted that he wrote Miss Murphy a letter which stated that he was not working the day of the robbery and that he was missing “the first two digits” from his right thumb. After the defense rested, the People in rebuttal, introduced (to affect the defendant’s credibility) an exhibit, stipulated to by the defense, which showed defendant’s 1955 conviction for the infamous crime of burglary and that he was sentenced to the Illinois State Penitentiary. The defendant maintains that the court erred in admitting testimony concerning the alleged commission of other crimes. He calls particular attention to the testimony of Officer Neruda that on July 27, 1962, at 8:45 p. m., he received a radiogram and was told to proceed to a currency exchange at 1624 West Van Burén Street where he observed the defendant emerging from the building, stopped him, and took him back inside where a woman identified him. Defendant was then arrested and searched. The search revealed that the defendant was carrying a toy gun. An objection to the answer was made by the defendant before the answer was completed. The court did not rule on the objection because the State’s Attorney accepted the validity of the objection. The witness, continuing, said that he brought the defendant back into the currency exchange, placed him under arrest, searched him and found a toy derringer on his person. The defendant asserts that Officer Neruda’s testimony reveals the alleged commission of another crime. At the time the instant case was being tried the defendant was under indictments for two other crimes and these cases were assigned to the same trial judge and were on his call at the time. Defendant says that the testimony of the officer could only result in prejudice against the defendant since it came at the beginning of the trial. It is well established that evidence of other crimes is inadmissible except insofar as it tends to prove identity, absence of a mistake or accident, motive or intent, presence at the scene of the crime when an alibi is interposed or a common scheme or design. People v. Battle, 24 Ill2d 592, 182 NE2d 713; People v. Davis, 14 Ill2d 196, 151 NE2d 308.

The respective briefs discuss the consideration to be given a bench trial as distinguished from a jury trial in considering the testimony. We call attention to the following excerpt from People v. Smith, 55 Ill App2d 480, 488, 204 NE2d 577:

“While it is true, in a bench trial of a criminal case, the trial judge will be presumed to have considered only competent evidence in arriving at the judgment, People v. Robinson, 30 Ill2d 437, 197 NE2d 45, if it affirmatively appears that he considered incompetent evidence prejudicial to the defendant, the judgment will be reversed. People v. Grodkiewicz, 16 Ill2d 192, 157 NE2d 16. The record shows that the trial judge gave weight to the testimony of Steven Hill in his consideration of the charge involving Vernon Hill and further gave weight to the evidence relating to the statement made by Vernon to his mother and grandmother concerning the incident with defendant. Since we are unable to determine how much weight was given to this improper evidence, the conviction must be reversed and the cause remanded.
“It is of interest to note at this point that the majority of Illinois Supreme Court decisions on the question of admissibility of evidence in a criminal bench trial hold that the trial judge is presumed to have considered only competent evidence in arriving at his judgment. This line of decisions begins with People v. Reed, 287 Ill 606, 122 NE 806, and continue down to date. Three cases exist, however, which have in no way been commented upon in any case in the Reed line and which hold directly contrary to the Reed line, namely, the trial judge in a bench trial of a criminal case is not accorded the same presumption which is accorded the chancellor in a chancery case that he will consider only competent evidence. See People v. Reichert, 352 Ill 358, 185 NE 585; People v. Arendarczyk, 367 Ill 534, 12 NE2d 2, and People v. Borrelli, 392 Ill 481, 64 NE2d 719.”

The defendant, his lawyer, the trial judge and the Assistant State’s Attorney knew and discussed the fact that there were three cases involving indictments against defendant pending on the trial calendar of the trial judge. We do not think that under the circumstances the testimony relating to the arrest of defendant was prejudicial. The defendant urges that the trial judge conducted an outside investigation to his detriment. Defendant says that the trial judge was aware of the facts concerning other indictments that were not presented in open court and that if this knowledge was the result of some outside investigation by the judge it is improper, citing People v. McMiller, 410 Ill 338, 342, 102 NE2d 128, and People v. Rivers, 410 Ill 410, 416, 102 NE2d 303. The deliberations of the trial judge are limited to the record and matters of which he may take judicial notice. In view of the statements of the trial judge we conclude that he was discussing his trial call and the remaining pending indictments against this defendant, with the defendant and his attorney. There is no evidence that any knowledge was acquired by the judge through an outside investigation. The judge„ was informed of the pending indictments. There is no indication that the court gave weight to any inadmissible evidence in the consideration of the offense charged.

A further point urged by the defendant is that he was denied his constitutional right to compulsory process by the failure of proper service. The record shows that there was an attempt to serve Melvin Burrell with a subpoena by having the writ stuffed under the door. The trial judge found this service to be inadequate and postponed the trial for a week. The defendant says that the right to compulsory process is meaningless without the requirement of service and that the two are inseparably interwoven, citing Brewer v. Hunter, 163 F2d 341; United States v. Davenport, 312 F2d 303. The trial took place on the postponed date. At this time the defendant’s attorney stated that he was ready to proceed. On the extended date the defendant did not request a continuance in order to secure the presence of Mr. Burrell as a witness. We do not think there is any merit in defendant’s point. It is reasonable to assume that defendant either did not consider the testimony of the witness material or failed to exercise diligence to command the witness to appear in court.

Detective James Cusack testified that on the evening of July 27, 1962, he showed the defendant the case report for the offense of which he was charged and that the defendant admitted, “You got me, I know you got me,” when he realized that the description given the police by his victim identified him as the offender. Defendant says that the admission of this statement without proper notice being given was reversible error, pointing out that according to Ill Rev Stats 1961, chap 88, § 729, he is entitled to a list of the names and addresses of all persons present at the time such confession was made. The legislative purpose behind these provisions was to provide the accused with protection against unfairness and inadequate preparation by requiring the disclosure, prior to the trial, of the specified information as to confessions and witnesses. People v. Ikerd, 26 Ill2d 573, 188 NE2d 12; People v. Pelkola, 19 Ill2d 156, 166 NE2d 54. These provisions have been held to be mandatory and failure to comply has been held to be reversible error. People v. DuPree, 26 Ill2d 320, 186 NE2d 237; People v. Shockey, 30 Ill2d 147, 195 NE2d 703. The People contend that the statements attributed to the accused were only admissions from which his guilt might be inferred and not a confession within the meaning of the statute, citing People v. Stanton, 16 Ill2d 459, 466, 158 NE2d 47. The People say that the defendant’s remarks did not amount to acknowledgment of the guilt of the crime charged and that defendant’s trial counsel did not consider the remarks to be a confession, nor did the trial judge consider the remarks to be a confession. The defendant answers this argument by saying there is little difference between the statement “I did it” and “You got me” in light of the fact that the officer was discussing the offense and that the statement, if made, is one from which guilt necessarily follows. We do not think that it is necessary for us to decide whether the statement was a confession or an admission. Assuming that it was a confession, the defendant was given notice of the confession. The defendant’s trial attorney stated that he had notice of the statement or confession but that it did not “take place on the 27th.” The State’s Attorney called attention to the fact that there was no date on the statement. In our opinion the proper statutory notice was given of his statement or confession, within adequate time to prepare for trial. We call attention to Ill Rev Stats 1968 (Code of Criminal Procedure), chap 38, § 121-9 (a) which states:

“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial .rights maye be noticed although they were not brought to the attention of the trial court.”

We do not think that any substantial right of the defendant was disregarded. We think that the record justified the court in finding defendant guilty beyond a reasonable doubt. Therefore the judgment is affirmed.

Judgment affirmed.

BRYANT and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    LaSalle National Bank, a National Banking Association, as Trustee Under its Trust No. 24356, et al., Plaintiffs-Appellees, v. The Village of Lombard, a Municipal Corporation in the State of Illinois, Defendant-Appellant.
    Gen. No. 64-139.
    Second District.
    October 25, 1965.
    Rehearing denied December 22, 1965.

      Jack E. Bowers, of Downers Grove (John R. Mackay, of counsel), for appellant.
    Schmid and Orstrom, of Glen Ellyn (Paul S. Schmid, of counsel), for appellees.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, wherein plaintiffs had sought a declaratory judgment that the defendant’s R-l single family district residential zoning was arbitrary and confiscatory as to the plaintiffs’ property. The only issue is the correctness of the judgment of the trial court in holding that provision of the zoning ordinance unreasonable and arbitrary insofar as said provisions apply to the property of the plaintiffs.

This suit involves Lots 1 and 2 in Oak Terrace, a subdivision of Lot 11 and part of Lot 12 in E. W. Zander and Company’s Addition to Lombard. Lot 1 is on the Southeast corner of Route 53 and St. Charles Road and Lot 2 adjoins it on the East, having a frontage on St. Charles Road. Route 53, at this point, is a four-lane highway. On the Southwest corner is an unoccupied, frame house and to the West thereof is an English type basement used as a church, a permitted R-l use under the Village zoning ordinance. Private residences are located on the Northeast and Northwest corners of the intersection. To the East of the residence on the Northeast corner of the intersection is a delicatessen and food store, which is a nonconforming use subject to the amortization provisions of the Village ordinance. To the South of the property along Route 53 five homes have been built in the last eighteen to twenty-four months. There are traffic lights at the intersection which have been functioning for the past five or six years. Approximately 1,600 feet to the North of the subject property is the right of way and tracks of the Chicago and Great Western Railway, running in an easterly and westerly direction, while the right of way and tracks of the Chicago and Northwestern Railroad is located approximately 1,100 feet to the South of the subject property. These rights-of-way tend to create boundaries separating the areas between them from the areas beyond. To the South and beyond the Chicago and Northwestern right-of-way at a point approximately 14 mile from the subject property there is located the Municipal Sewage Treatment Plant. Beyond the Village limits and to the West of Route 53 and running parallel with it Commonwealth Edison Company maintains high tension lines. Almost % mile East of the subject property on St. Charles Road is a small area zoned B-3 in which there is a gas station and a one story industrial structure. The proposed use of the subject property by the plaintiffs is that of a gas station. During one 21 hour period a total of 8417 vehicles passed this intersection, according to a traffic study survey.

Fred M. Kleinedler, who has lived at the Northwest corner of the intersection for 38 years, testified that from the Spring of the year to late Winter when the wind is from the South, objectionable odors from the Village sewage treatment plant forces them to close the doors and windows of their homes. In the 38 years he has lived at this location he has never complained to the Village about the odor. Harold Meehan, owner and lessor of the house on the Northwest corner of the intersection, had lived there about 10 or 12 years. He testified he had first noticed the odors from the treatment plant in the early 1950’s. He testified the odors were very objectionable. The other witnesses called on behalf of the plaintiff all testified to having a long familiarity with the subject property. None of them testified as to any odor from the treatment plant. Carl Petermann, Director of Public Works for the Village, testified that the digestor at the plant makes the effluent odorless. Both Kleinedler and Meehan had suits pending against the Village seeking a change in zoning of their properties from residential to business.

A short distance to the North of the subject property, at the intersection of North Avenue and Route 53, there are situated three gasoline stations, two of which were closed at the time of the trial.

The defendant contends that the plaintiffs’ evidence fails to establish (1) clearly and affirmatively that the proposed use would be in conformity with the neighborhood, (2) that there was a need in the Village for another gas station, and (3) that the volume of traffic or the odor from the sewage treatment plant were intrusions into the residential character of the neighborhood.

Plaintiffs, in urging affirmation of the trial court’s decision, rely heavily on the malodorous odors from the Village sewage treatment plant and other nonresidential uses of property location from 1,600 to 1,800 feet away from subject property, on the high volume of traffic at the intersection, and on alleged difficulties in selling the two residences located at the intersection.

A decision in this case presents no novel legal problems. It requires only the application of the well settled rules of zoning law to the facts. The general rules applicable to zoning cases are so well established and have been so often reiterated by the courts that we will not restate them here.

Of paramount importance in determining the validity of a given zoning classification is the question as to whether or not it is in conformity with the surrounding existing uses. We must also bear in mind that zoning lines must begin and end somewhere, and if the most that can be said as to whether the property should be characterized as residential or commercial is that the question is fairly debatable, then the question should be determined under the legislative authority of the Village and not by the courts. LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 31, 126 NE2d 643.

In LaSalle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 145 NE2d, the Court ruled:

“It is well established that it is primarily the province of the municipal body to determine the use and purpose to which property may be devoted, and it is neither the province nor the duty of the courts to interfere with the discretion with which such bodies are vested unless the legislative action of the municipality is shown to be arbitrary, capricious or unrelated to the public health, safety and morals.”

As already pointed out, only two of the witnesses for plaintiffs testified as to odors from the treatment plant, both of whom have zoning cases pending involving their own property. Neither the plaintiffs’ other witnesses nor the four witnesses called by defendant (all residents of the area) testified as to objectionable odors. All of the nonresidential uses within the Village were of considerable distance from the subject property. As was said in Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, at page 405, 176 NE2d 771:

“Of greater significance is the fact that the west boundary of the subject property itself faces residential property, and that westward along Northwest highway on both sides of the street and extending beyond the Park Ridge boundary line the area is entirely residential. It is these contiguous and nearby uses which should be, and are, determinative of the character of the subject property, rather than the zoning authorizing office buildings % of a mile away in Park Ridge.”

We cannot agree with plaintiffs that the high volume of traffic at the intersection imparts a commercial character to the subject property. Liberty Nat. Bank of Chicago v. City of Chicago, 10 Ill2d 137, 139 NE2d 235; River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill2d 560, 179 NE2d 671.

On the question of property values, the fact alone that the property in question may be more valuable if zoned for other uses is not decisive. This fact exists in nearly every case. First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 227, 130 NE2d 267.

Under the evidence as we view it, the most that can presently be said for plaintiffs’ case is that it presents a fairly debatable question as to the reasonableness of the restriction imposed, and under the circumstances we believe that the question should be determined by the Village authorities and not by this court.

Judgment reversed.

MORAN and DAVIS, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Glenn Jackson, Defendant-Appellant.
    Gen. No. 50,225.
    First District, Second Division.
    October 26, 1965.
    Stradford, Lafontant, & Lafontant, of Chicago (Jewel Lafontant, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Matthew J. Moran, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: STOUDER, J.

text:
    Ralph Gilmore, Plaintiff-Appellee, v. Toledo, Peoria & Western Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 64-43.
    Third District.
    October 29, 1965.
    Rehearing denied December 9, 1965.

      Cassidy & Cassidy, of Peoria, for appellant.
    James A. Dooley, of Chicago, and Robert E. Kavanaugh, of Peoria, for appellee.
   STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Peoria County in the amount of $66,650 entered pursuant to the verdict of a jury. Appellee instituted his action against Appellant for damages for personal injuries against the Appellant under the provisions of the Federal Employers Liability Act, Title 45 US Code (Railroads). From a verdict and judgment in favor of the Appellee, Appellant appeals to this Court. Both parties agree that the FELA governs the rights and liabilities of the parties hereto.

Appellee, an employee of the Appellant railroad for many years, assumed the duties of track patroller in 1952. His duties involved patrolling the track of Appellant in a small gasoline operated car for the purpose of inspecting the track and other matters related thereto. On November 27, 1957, a clear day, Appellee was patrolling an eleven mile section of Appellant’s track running generally north and south between LaHarpe and Lomax, Illinois. At about 2 p. m., while proceeding in a northerly direction in his patrol car, at a point approximately five to six hundred feet north of an intersection of the track and a gravel road the Appellee approached the crest of an upgrade. Hearing a “clatter” made by the wheels of his car, then traveling at about 15 miles per hour, he turned his head in a southerly direction and observed that a raised weld had caused the noise. After turning his head toward the direction in which he was traveling he observed an object on the track in front of him on the reverse side of the crest of the grade but was unable to stop before the car struck the object, derailing the car and throwing Appellee to the ground. Appellee was unable to move and he lay at the scene of the mishap approximately one and one half hours before he was discovered by a group of three boys and a minister who had come to the area for the purpose of getting wood and hunting. It appeared that the objects which had been placed on one side of the track were used rail anchors. The evidence further showed that approximately three weeks prior to the mishap, employees of the Appellant had replaced a four mile section of track in the area involved and that spikes, rail anchors and metal pieces were on the right of way near the tracks in the area where the mishap occurred. It also appeared from the evidence that the area was not posted against trespassers and that it was used by hunters. There was no evidence introduced as to the identity of the person placing the objects on the track.

Appellant appeals from the denial of its motions for a directed verdict at the close of Plaintiff’s evidence and at the close of all the evidence and also from the denial of its post-trial motions for a new trial and for judgment notwithstanding the verdict.

Appellant contends that the trial court erred in permitting Appellee to amend his complaint at the close of all the evidence by deleting the allegations in the complaint dealing with proximate cause. It appears from Appellant’s voluminous brief, to be his contention that pleadings may be amended at the close of the evidence only to conform such pleadings to the proof. Section 46 of the CPA does not agree. Section 46 states unequivocally that “At any time before final judgment amendments may be allowed on just and reasonable terms, . . . changing the cause of action ... or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought. . . .” This section has been declared by the courts to be very broad, necessitating a liberal construction in the absence of any showing of prejudice to defendant. Shockley v. Good, 13 Ill2d 298, 148 NE2d 763, Hinchcliffe v. Wenig Teaming Co., 274 Ill 417, 113 NE2d 707, Donnelly v. Pennsylvania R. Co., 342 Ill App 556, 97 NE2d 846, May v. Diconto Gesellschaft, 211 Ill 310, 71 NE 1001, and McGlaughlin v. Pickerel, 381 Ill 574, 46 NE2d 368. The record does not demonstrate nor does the Appellant argue that the amendment was prejudicial in any way.

Appellant also argues that deleting the allegations of proximate causation are fatal to Appellee’s cause of action and we must assume from this that Appellant considers proximate cause, in the sense of being a sole, efficient producing cause of the injury, to be a necessary ingredient of an action under the FELA. Again, the Act, Title 45 US Code (Railroads) Sec 51, itself does not support this contention. The Federal Employer’s Liability Act says “that the railroad . . . shall be liable in damages for injuries to an employee resulting in whole or in part from the negligence of any of (its) officers, agents or servants. . . .” The Supreme Court of the United States in Rogers v. Missouri Pacific R. R., 352 US 500 interpreting this section has held “The Missouri court’s opinion implies its view that this is the governing standard by saying that the proofs must show that the injury would not have occurred but for the negligence of his employer, and that the test of whether there is causal connection is that, absent the negligent act the injury would not have occurred. That is language of proximate causation which makes a jury question dependent upon whether the jury may find that the defendant’s negligence was the sole, efficient, producing cause of injury.

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” . . . “The law was enacted because the Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

Appellant further argues that the evidence in the instant case, as a matter of law, shows no negligence on the part of the railroad company. In support of this argument Appellant contends that the nature of Appellee’s employment was such that it was his duty to discover and report the very condition which gave rise to the injury complained of. The evidence is undisputed that it was Appellee’s duty to inspect the rails, ties and shoulders of the right of way, bridges and low places and to submit to his employer written reports as to the condition of the right of way. There was no suggestion that it was any part of Appellee’s duty to clean up after a repair crew. There was also evidence, submitted by Appellee and uncontroverted by Appellant, that in performance of these duties and while riding on the tracks, he turned his head to determine the source of an unusual noise emanating from the contact of the wheels on the track. In so doing, Appellee testified that he did not see the rail anchor lying on the tracks ahead of him in time to stop. Appellee’s testimony that looking back to determine the source of this unusual noise was the usual and customary manner of performing his duties was corroborated by other witnesses. The combined total of all this evidence produced a question of fact which was properly submitted to the jury. To say as a matter of law, that in performing a part of his duties Appellee’s failure to give his attention to another part at the same instant relieved the railroad from its responsibilities, would ignore the doctrine propounded by the U. S. Supreme Court in Rogers v. Missouri Pacific R. R. Co., supra. The Rogers case involved an FELA action where the employee petitioner was assigned to burn weeds and vegetation from the railroad right of way. In addition petitioner was instructed by his foreman to stop what he was doing when a train passed, take a position off the tracks and watch for hotboxes. Petitioner, having started the burning operation, heard the whistle of an approaching train and took a position where he could observe this train. The passing train fanned the flames of the burning vegetation and carried the fire to petitioner who, in attempting to escape, fell and was seriously injured. The railroad Co. argued that petitioner’s primary duty was attending the fire and that his inattention to the fire was the real and immediate cause of the injury. The Supreme Court there said “. . . when petitioner agreed that his primary duty was to watch the fire he did not also say that he was relieved of the duty to stop to watch a passing train for hotboxes. Indeed no witness testified that the instruction was countermanded. At best, uncertainty as to the fact arises from petitioner’s testimony, and in that circumstance not the court, but the jury was the tribunal to determine the fact.”

The evidence shows that the cause of the derailment which caused plaintiff’s injuries in the instant case was a rail anchor on the tracks. There is no evidence on either side showing how this anchor was put on the tracks. From this Appellant argues that it must, as a matter of law, be assumed that the anchor was placed on the tracks by a third party and that this third party must have had improper or even criminal motives in so doing. Even if Appellant’s assumption were a fact, the argument ignores the fundamental question, did the presence of the anchor in close proximity to the tracks where the railroad company knew or should have known that trespassers were frequent constitute negligence from which Appellee’s injuries resulted in whole or in part? This again, is a question of fact which is within the province of the jury. If the jury found that the presence of the anchor under those circumstances was negligence and that as a result of this negligence an injury was foreseeable, even a criminal intervening act would become immaterial. Lillie v. Thompson, 332 US 459. The evidence showed that the rail anchor was something used only by railroads, that there had been repair work in the area within a period of three weeks prior to the accident, that it was customary for the repair crew to pick up unused or replaced materials after repair work and that a rail anchor could be used to derail a train. From those facts the jury could have found, as it obviously did, that the railroad company was negligent in its failure to remove the anchor. To say that this court should determine as a matter of law that the intervention of third party should take the question from the jury would subvert the U. S. Supreme Court’s decision in Rogers v. Missouri Pacific, supra. Appellant would have us also nullify the very language of the Act itself and add to “resulting in whole or in part from the negligence of (the railroad) ” the words “unless there is an intervening act.” Appellant’s argument as to the foreseeability of Appellee’s injuries also involves a question of fact which the jury has decided against Appellant. The evidence was there from which the jury could reach the conclusion which it did.

Appellant argues at great length that Appellee’s injury was caused solely by his own negligence. In support he argues that on pretrial deposition Appellee admitted that “the sole and only cause of his injuries was the collision between the motor car he was riding and rail anchors laying over the top of the rail.” There is no dispute in the evidence that this collision was the immediate cause of Appellee’s injuries. The dispute arises as to whether Appellee’s failure to see these rail anchors constituted contributory negligence. The jury was properly instructed by the court not only as to the meaning of contributory negligence and causation but also as to how any contributory negligence which if found to exist, should affect its verdict. We must assume that the jury acted on these instructions in arriving at its verdict.

Appellant also argues that reversible error was committed in the giving of certain of Appellee’s instructions and the refusal of certain of Appellant’s instructions. Appellant objects to the giving of Appellee’s instruction 4 which in effect informed the jury that “assumption of risk” was not a defense to the claim. It is undisputed that Title 45 US Code (Railroads) 54 eliminates the doctrine of “assumption of risk” as a defense. Appellant contends that since it did not make “assumption of risk” an issue in the case it was error to give the instruction. Although Justice Frankfurter in a specially concurring opinion in Tiller v. Atlantic Coast Line R. Co., 318 US 54, 72 did suggest that such an instruction should not be used, it was not deemed reversible error. (See Larsen v. Chicago & N. W. R. Co. 171 F2d 841, 846 and Wantland v. Illinois Cent. R. Co. 237 F2d 921 (7th Cir 1956), although the question was not directly involved in either decision.) Although Appellant did not characterize the actions of Appellee in terms of “assumption of risk” it did however emphasize the duties of Appellee and the relationship of these duties to the mishap. Accordingly we find no error in the giving of this instruction.

We have considered Appellant’s objections to the Court’s rulings on other instructions but having discussed the legal grounds for said objections heretofore in this opinion it is sufficient to say that we believe that the Court’s rulings are consistent with our views. Likewise the basis for Appellant’s objection to the verdict of the jury has been elsewhere discussed in this opinion and we believe that said verdict is consistent with the views herein expressed.

We find no error in the judgment of the Circuit Court of Peoria County and accordingly it is affirmed.

Judgment affirmed.

ALLOY, P. J. and CORYN, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    Elmer Wielander, Plaintiff-Appellant, v. N. Henich, d/b/a A. Aball Roofing and Hardware, Defendant-Appellee.
    Gen. No. 49,917.
    First District, Third Division.
    October 28, 1965.
    Frank J. Toman, of Berwyn, for appellant.
    Max Segal, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff, Elmer Wielander, owner of premises at 1415 South Harlem Avenue, Berwyn, Illinois, brought suit against the defendant, N. Henich, d/b/a A. Aball Roofing & Hardware Co., upon a five-year guarantee written in an estimate submitted by the defendant to the “Owner of Property” at 1417 So. Harlem Avenue. The estimate was for roof repair work to be done by the defendant, and specified the type of work, but did not mention upon which particular property the work was to be done. The estimate was not signed by anyone, but was written on the stationery of the defendant. Further, the year when the estimate was given cannot be ascertained from the instrument since it was filled out as “November 15,195 — .”

Plaintiff, in his amended statement of claim, claimed that this estimate constituted an agreement between himself and the defendant, entered into in the year 1955, and that the work was to be done on the premises owned by the plaintiff at 1415 S. Harlem Avenue, Berwyn, Illinois. Plaintiff alleged that the work was done by the defendant in an improper manner, that the roof leaked, and that water entered his premises damaging the interior of the building in the amount of $1,000. Plaintiff did not allege when the leak occurred, either before the work was done, after it was done and within the five-year guarantee period, or after the five-year guarantee period expired.

The suit was commenced by the plaintiff on November 4, 1963. The defendant filed a motion to strike the claim on the grounds that the action was barred by the five-year statute of limitations pertaining to oral contracts. The trial court sustained this motion, dismissed the cause, and gave judgment for the defendant. The plaintiff appeals from that order.

The relevant portions of the estimate, which plaintiff contends constitutes the agreement between himself and the defendant, are as follows:

“A. Aball Roofing & Hardware Co.
3925 W. Roosevelt Road
% í|í ^ #
Chicago 24, Ill. November 15,195
TO Owner of Property 1417 So. Harlem Ave.
Estimet (sic)” ■

Then follows a description of the work, and the instrument ends with:

“and gurantted (sic) for 5 years.”

The contract was not signed by either of the parties.

The only question presented here is whether plaintiff’s action is barred by the five-year statute of limitations pertaining to oral contracts. That statute provides: “. . . actions on unwritten contracts, expressed or implied, . . . shall be commenced within five years next after the cause of action accrued.” Ill Rev Stats 1963, chap 83, par 16.

Though the exact year when this estimate was given cannot be ascertained from the face of the instrument itself, plaintiff alleges that it was given- in 1955. He contends that since this is' a written contract the ten year statute of limitations pertaining to written contracts applies, (Ill Rev Stats 1963, c 83, par 17) and therefore the suit was commenced within the proper time limit.

We do not agree with the plaintiff. Several reasons lead us to conclude that since parol testimony must be used to make the agreement complete, it is at best an oral contract and the suit is barred by the five-year statute of limitations.

The pertinent law on agreements such as the instant one, is: “A written contract is one, which, in all its terms, is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract.” Bishop on Contracts, secs 168, 164. “If it he true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony to make it complete, the law is, that in applying the statute of limitations it must be treated as an oral contract. Both reason and authority support this view.” Plumb v. Campbell, 129 Ill 101, 18 NE 790.

This estimate merely reads “Owner of Property” and nowhere on its face does it mention the plaintiff by name. Not only must parol evidence be introduced to show that the plaintiff was the party with whom the agreement was entered into, but also that plaintiff was the owner of the property, at 1417 So. Harlem at that time.

The case of Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Loomis, 142 Ill 560, 32 NE 424, concerned an action by a widow to recover benefits under the bylaws of a mutual aid society. The action was brought after five years and within ten years after the action accrued, and one of the issues was whether it was barred by the five-year statute of limitations pertaining to oral contracts. The plaintiff’s deceased husband was a member of the society, but the bylaws merely provided for “widows” to be paid a specific sum. The court said that this was not a contract in writing with the widow, as parol evidence was necessary to show that the deceased left a widow, and that the party seeking its enforcement was his widow.

One page 567 of the opinion the court said: “A contract cannot be said to be in writing, unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. If the party to a written contract is not named therein, the contract is defective as containing only a part of the agreement. In such case, the agreement is only partly reduced to writing, because parol evidence must be resorted to, in order to show with whom the bargain was made.” (Citing cases.)

The court went on to conclude that since the plaintiff was not named as a party in the certificate of membership and constitution and bylaws, the contract was an oral one and governed by the statute of limitations pertaining to oral contracts.

By analogy to the instant case, the Loomis case, supra, shows that a contract is oral if parol evidence is needed to show who is a party to a written contract. The estimate does not name the plaintiff as a party thereto, and oral evidence is needed not only to show that he was the party with whom the agreement was entered into, but also that he was the owner of the property at that time.

Cases subsequent to Loomis, supra, cite that case with approval and authority. In Novosk v. Reznick, 323 Ill App 544, 56 NE2d 318, the court referred to the Loomis case, “. . . which is the leading case in this State and has been repeatedly cited and followed.” Cf. also Mullberg v. Johnson, 340 Ill App 92, 91 NE2d 63; Kordewick v. Indiana Harbor Belt R. Co., 157 F2d 753, cert denied, 329 US 806.

Plaintiff cites certain cases which he contends demonstrate that this is actually a written contract. These cases are not applicable to our factual situation since in each of these cases both parties to the contract were named therein, and there was only a question of whether acceptance of benefits could remedy the defect of nonsignature by one of the parties. We have no quarrel with these cases since the law is clear that if a party is named in the contract, his signature is not necessarily needed to enforce that contract. However, in our case, not only do we not have a signature by the plaintiff, but he is not named on the face of the instrument.

In Plumb v. Campbell, 129 Ill 101, 18 NE 790, the instrument, held to be a written contract, contained the names of both of the parties thereto. In Memory v. Niepert, 131 Ill 623, 23 NE 431, in specifying the elements going to make up a completed written contract, it is said: “The names of the parties are given, etc.” In Ames v. Moir, 130 Ill 582, 22 NE 935, both of the parties to the contract were named therein, and the court held it be a contract even though not executed by one of the parties, since that party accepted its benefits.

The case of Staley v. Snow, 209 Ill App 452 (1918), is cited by the plaintiff in support of his .contention that if the names of the defendants do not appear on the contract, and it is necessary to introduce evidence to identify them, it does not make the contract an oral one. In that case the defendant in the contract was named as the Co-Operative Home Purchasing Society, and the only oral evidence needed to sustain the contract was evidence to identify the named defendants as copartners who did business under the name of Co-Operative Home Purchasing Society.

This case does not aid the plaintiff’s case as it is not contended that the plaintiff must prove that the defendant owned the A. Aball Roofing & Hardware Co. Rather, plaintiff must show that he was the one to whom the contract was submitted, and that he owned the property at 1417 So. Harlem Avenue. This the plaintiff is unable to do without introducing parol evidence, which would then make the contract an oral one.

Furthermore, there are additional reasons why this contract must be construed as partly oral and partly written. The plaintiff in his amended statement of claim alleged that he is the owner of premises located at 1415 So. Harlem Ave., while the estimate was addressed to “Owner of Property 1417 So. Harlem Ave.” Because of the discrepancy between the address in the amended statement of claim and the address in the estimate, it would be necessary to prove by parol evidence that the work was done on plaintiff’s property, the address at which the work was done and that the plaintiff was the owner of the property at the time the work was done.

Another omission in the contract which requires parol evidence to make it complete is the fact that the year it was entered into is not stated on the face of the instrument. The date reads “November 15, 195 — .” Since the defense interposed herein was the statute of limitations, the year the contract was entered into is most material. To make the contract complete in that respect it would be necessary to offer parol evidence as to the year it was entered into.

We conclude that the contract here sued upon is not in all its terms in writing, and since it is partly in writing and partly oral it must be considered an oral contract under the law.

The trial court correctly concluded that this action was barred by the five-year statute of limitations pertaining to oral contracts.

Affirmed.

DEMPSEY, P. J. and SCHWAETZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Richard J. Daley, Mayor, Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Kilbourn Club, Inc., Licensee, Thomas K. Gregory, President, License Appeal Commission, A. L. Cronin, Chairman, William B. Chamberlain and Howard S. Cartwright, Members.
    Gen. No. 50,111.
    First District, Third Division.
    October 28, 1965.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Allen Hartman, Assistant Corporation Counsel, of counsel), for appellant.

      William A. Murphy, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The Mayor of Chicago, as Local Liquor Control Commissioner pursuant to statute (Ill Rev Stats, c 43, § 149, (1963)) revoked the license of the defendant-licensee to operate a dramshop. An appeal was taken to the License Appeal Commission. The Commission reversed and set aside the order of the Local Liquor Control Commissioner, who then brought an action pursuant to the Administrative Review Act to review the order of the Commission. The Circuit Court heard the matter and affirmed the License Appeal Commission. The Commissioner then took this appeal.

The License Appeal Commission is limited in its review to the record of testimony presented to the Local Liquor Control Commissioner and to a determination of whether there is any substantial evidence to support the Commissioner’s findings. Charges were made that an altercation occurred in the saloon; that the bartender failed to protect one of the patrons who had been assaulted by another and failed to call the police, and that the bartender discharged a gun on the licensed premises in violation of an ordinance of the City of Chicago (Chicago, Ill. Municipal Code § 193-29 (1963)). This last charge is strongly substantiated by the evidence. One L. J. Boyd, a participant in the saloon brawl, testified that the bartender fired a gun in his direction. Another witness testified that a gun was fired by the bartender and that there was a hole in the ceiling which might have been made by a bullet. The evidence revealed that an expended cartridge had been found, although no bullet was discovered. A firearm was found in the storeroom showing one cartridge missing.

This constitutes substantial evidence sufficient to sustain the order of the Commissioner and is cause for revocation within the meaning of the statute. Ill Rev Stats, c 43, § 149 (1963) provides:

“The local liquor control commissioner may revoke . . . any license issued by him if he determines that the licensee has violated any of the provisions ... of any valid ordinance . . . enacted by the particular city council. . .

The city ordinance, supra, provides that “no person shall fire or discharge any gun, pistol, or other firearm within the City. . . .”

In Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 73, the court said (pp 425, 426):

“Aside from the language of the statute itself, there is a sound basis in public policy for vesting this discretion in the mayor as Local Liquor Control Commissioner. The retail sale of intoxicating liquors when not properly conducted is a business fraught with danger to the community. The entire Dram Shop Act, with its ofttimes described ‘harsh’ provisions, indicates the legislature’s awareness of this fact.”

In Nechi v. Daley, 40 Ill App2d 326, 188 NE2d 243, which involved the revocation of a license, the court quoted the language in Daley v. License Appeal Commission, supra, with approval, and further said (pp 337, 338) :

“The reasoning of the court in the Daley case applies with equal force to the situation now before us.”

It is obvious that the legislature in the passage of this law recognized that the operation of dramshops is fraught with danger and that the purpose of the Dram Shop Act is to protect the public against that danger. The Mayor is charged with the responsibility of maintaining peace and order in the municipality and his judgment thereon should not be disturbed where there is substantial evidence to support the charge.

The order of the Commissioner revoking the license is sustained and the judgment of the court is reversed.

Judgment reversed.

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