text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Hubbard, Junior, Defendant-Appellant.
    Gen. No. 50,316.
    First District, Fourth Division.
    October 28, 1966.

      Vernon T. Squires, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged in the Indictments

Rape and robbery.

Judgment

The causes were consolidated for trial, and after a jury verdict finding defendant guilty of both offenses, the court imposed concurrent sentences of 25 to 50 years for rape and 5 to 10 years for robbery.

Points Raised on Appeal

(1) The indictments insufficiently alleged the time and place of the crimes charged.

(2) Certain stricken testimony was so prejudicial as to require a new trial.

(3) Defendant was deprived of his right to counsel at the trial.

Opinion

(1) Defendant’s contentions as to the insufficiency of the indictments are based on the fact that the place of the crimes is designated only as being within the County of Cook, and the time of the crimes as being on “January 39th [sic], 1964.” These arguments, made in reliance upon section 111-3 of the Code of Criminal Procedure (Ill Rev Stats (1963), c 38, § 111-3), are no longer available to defendant, having been disposed of contrary to his position by the decisions in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; and People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed, 34 Ill2d 179, 214 NE2d 765.

(2) By not contending here that the evidence failed to establish his guilt beyond a reasonable doubt, defendant has conceded that there is ample proof of his guilt to be found in the record, as indeed there is. Defendant does contend, however, that he was prejudiced by the testimony of one of the State’s witnesses, Police Officer Booker T. Porter, who testified on direct examination to conversations he had engaged in with defendant at the police station shortly after his arrest. Part of his testimony follows:

STATE’S ATTORNEY: Q. What did the defendant say to you at that time and what did you say to him?
A. I asked Mr. Hubbard what was the circumstances of his arrest, and he told me that he had gotten into some trouble at a house on Peoria Street with some woman in the house and that he had had relationships with two of the women in the house.
THE COURT: The jury is instructed to disregard the last statement of the witness. That is stricken from the record.
THE WITNESS: Relative to . . .
STATE’S ATTORNEY: (Interposing) Q. Officer, did you have a conversation with him about being on 72nd and Peoria ?
A. Yes, sir.

Officer Porter then testified further concerning the events covered by the instant indictments which originated at 72nd and Peoria Streets. The other matter referred to in the above excerpt of his testimony took place near that location and involved two other rapes for which he was subsequently convicted.

Defendant contends that the reference by the witness to facts immaterial to the offenses being tried was so highly prejudicial as to be sufficient, in itself, to deny defendant’s right to a fair trial. We find nothing in this testimony to have been prejudicial to that extent. We think, rather, that the reasoning in People v. Naujokas, 25 Ill2d 32, 35, 36, 182 NE2d 700, is applicable to the situation here. In Naujokas, the arresting officer was asked on direct examination “what he did with relation to the defendant after the line-up ?” The response included reference to a conversation between the witness and the accused concerning facts pertinent to another offense. The court observed:

It is apparent that the quoted testimony . . . was incompetent and irrelevant. However, . . . the answer was not responsive and was not adduced by the question by the State’s Attorney .... In addition the prompt action of the court in interrupting the testimony, striking the answer, and admonishing the jury served to cure any possible error. In view of the fact of the court’s prompt action and the fact • that the testimony was not adduced by action of the State, we feel that the court was not in error in denying the motions for a mistrial. (Citing cases.)

The record in the instant case indicates that Officer Porter had two different conversations with defendant, and it was the second of these conversations which related to the instant offenses, the first conversation having been the one referred to in the questioned testimony. Defendant’s brief suggests that “Officer Porter was confusing the facts involved in another indictment with the indictments being tried in this case,” and we are inclined to agree with this analysis. There is nothing to indicate that the State’s Attorney consciously intended to elicit incompetent or prejudicial testimony from the witness. On the contrary, the record demonstrates not only prompt admonishment by the court to the jury to disregard such testimony, but also immediate action by the State’s Attorney to propound a more specific question designed to remove the confusion from the mind of the witness. It might also be noted that the testimony in question did not expressly refer to other criminal offenses, but, without further proof, could be said to describe only immoral behavior on the part of defendant.

In the light of the foregoing we do not find anything in this point which requires reversal.

(3) Before considering defendant’s contention that he was deprived of his right to counsel, we must review some of the trial events which preceded presentation of the State’s case. Prior to the calling of prospective jurors, defendant advised the court that he did not wish to be defended by his attorney of record, Marshall Schwarzbach, who had been appointed by the court. The judge reminded defendant that he had previously objected to being represented by Thomas Kelly, a public defender, and that the result of rejecting Mr. Schwarzbach as counsel would be that he would once again be represented by Mr. Kelly. Defendant protested that he had a basic disagreement with both counsel as to the way in which his case should be handled, and further announced that he objected to going to trial because “I haven’t got competent counsel.” The judge then stated for the record that he was aware of Mr. Schwarzbach’s qualifications and experience in the trial of previous cases before the court and considered him to be competent. At this point, Mr. Schwarzbach requested leave of the court to withdraw as counsel for defendant. This request, however, was denied.

The prospective jurors were then called, but their questioning had scarcely begun when the trial judge, Mr. Schwarzbach, Mr. Kelly and the defendant withdrew to chambers. Again being informed by defendant that he wished neither Mr. Schwarzbach nor Mr. Kelly to represent him, the trial judge advised the defendant of his rights as follows:

Now, I want to advise you what I think is in your own best interests, that you are under the law entitled to be represented by counsel who is competent and able to present your defense.

Now, I advise you that in my opinion Mr. Schwarzbach is able to do that. However, under our system, you have the right, if you want to discharge Mr. Schwarzbach, to do so with the understanding, however, that I would then appoint Mr. Kelly, the Public Defender, that if you don’t want him, I will discharge him because you have the right to discharge these lawyers if you don’t want them to represent you, but you will then be compelled to defend yourself, which I think you are undoubtedly not able to do.

At the same time, you have the right to discharge these lawyers if you want to do so because you are the one on trial and if you want to fire them, you have the right to fire them.

The following colloquy then took place between defendant and the trial judge:

The Defendant: I strictly don’t want either one of them.
The Court: Do you want Mr. Kelly to sit in the courtroom and advise you during the course of the trial?
The Defendant: Judge, Your Honor, personally, I don’t really have any choice about any of it so it doesn’t matter whether he sits with me or not because I am not going to do anything but sit there, because if I have no lawyer, how am I going to court ?
The Court: Well, you can suit yourself.
The Defendant: Yes, sir.
The Court: Mr. Kelly, I would ask that you sit there and advise the defendant. If he chooses to accept your advice or reject it, it is up to him. Mr. Schwarzbach, you will be permitted to withdraw.

Proceedings in the courtroom were then resumed and the jury was impaneled and sworn. The court asked defendant if he wished to make any opening statement. Defendant reiterated: “I object to going to trial today because I haven’t got competent counsel to represent me.” The court then observed for the record that defendant did not wish to make an opening statement, and directed the prosecution to call its first witness.

Despite defendant’s argument to the contrary, we are not confronted here with the obligation of the State to appoint counsel for an indigent under the mandate of Gideon v. Wainwright, 372 US 335. Nor is there any question that the trial court properly informed defendant of his right to be represented by counsel. In fact, defendant concedes that he was given an understandable instruction that he had the right to choose either Mr. Kelly or Mr. Schwarzbach to defend him in court, and that he also had the right to proceed as his own attorney. The gist of defendant’s claim of error is that the court failed to set before him starkly the consequences of refusing both alternatives. Defendant, relying on Johnson v. Zerbst, 304 US 458, 464, points out that because of this failure by the court, he never intelligently and understandingly made a clear-cut statement that he elected to waive counsel and defend himself. It is suggested by defendant that the following statement by the court would have avoided the alleged error in the record and squarely put defendant to a specific election: “Mr. Hubbard, do you wish to represent yourself or do you wish to be represented by Mr. Schwarzbach or Mr. Kelly?”

In support of his contention, defendant refers us to United States v. Curtiss, 330 F2d 278 (2nd Cir 1964). The record showed Curtiss’ disinclination to be represented by court-appointed counsel, but failed to show a desire on the part of Curtiss to represent himself. The court stated:

Curtiss’ statements indicate that while he was unhappy about his relationship with Mr. Kaplan, he certainly had no wish to try the case himself but felt that “he had no choice.” Of course the judge need not have appointed other counsel besides Mr. Kaplan unless Curtiss showed good cause, . . . but it was erroneous to require him to try his own case without a clear-cut statement that he intelligently wished to do so.

Defendant argues that the statements of the Curtiss court must be construed to mean that there is a failure to protect his constitutional rights if defendant is permitted to proceed pro se without having knowingly expressed his desire to represent himself. If this is the correct interpretation of the Curtiss decision (there were other grounds for reversal), then we must reject it, despite the persuasiveness of opinions customarily originating in that court.

Defendant says that there were, under the Curtiss case, only two alternatives available to defendant in this case: (1) acceptance of one or the other of the court-appointed counsel (thus conceding that the trial court was not required to appoint a third attorney), or (2) an affirmative decision to waive counsel and to defend himself. In advocating these as the only alternatives, defendant also expressly concedes that a defendant may not use his right to counsel as a device to delay trial (United States ex rel. Allen v. Rundle, 233 F Supp 633 (ED Pa, 1964)), and he may waive his right to act for himself (People v. Ephraim, 411 Ill 118, 103 NE2d 363).

Defendant then says that the two alternatives were not effectively presented to him, with the result that he never intelligently decided to waive counsel and defend himself. We cannot agree with this conclusion. We believe it fails to consider a third alternative which precisely fits the facts of this case, namely, that if a defendant knowingly rejects properly appointed counsel, he will then be required to defend himself despite protestations that he does not wish to do so. That the trial court in the instant case made this third proposition clear to defendant we have no doubt. That being true, defendant was then obliged to proceed pro se if the trial were not to be indefinitely suspended, a result which could not be countenanced; his right to counsel “may not be employed as a weapon to thwart the administration of justice.” People v. Mitchell, 33 Ill2d 603, 605, 213 NE2d 514.

In our opinion the record clearly indicates a conscious, intelligent choice on the part of defendant to proceed with his own defense. When the court told him that if he persisted in his rejection of representation by both Mr. Schwarzbach and Mr. Kelly he would be “compelled” to defend himself, the compulsion referred to was not one imposed upon defendant by the court, but rather was it the inevitable consequence of defendant’s will not to accept the competent legal services which had been made available to him.

Additional light is shed on defendant’s intentions by another colloquy with the court:

The Court: Well, you get, you are entitled to be represented by a lawyer who is competent and able to defend you.
Now, that doesn’t mean we go through lawyers until you get one that you personally like. You are entitled to a lawyer qualified to handle your case for you. You have had two of them. I am telling you, you can have your choice, either one of the two you want but I can’t keep appointing lawyers until I find one that satisfies you.
The Defendant: It is not that so much, just that these lawyers don’t — I don’t know whether they are competent or not. It doesn’t seem to me they are competent the way they present themselves to me.

The trial judge then expressly stated that in his opinion Mr. Schwarzbach was competent to represent defendant. We join in that opinion. As a matter of fact, defendant’s brief makes it clear that the competence of Schwarzbach and Kelly is not in issue on this appeal. Defendant’s statements as to their incompetency are presented here merely as a part of his expression of desire for counsel.

Pertinently, it was held in People v. Musinski, 22 Ill2d 518, 520, 177 NE2d 142, that:

Neither the constitution nor statutes give the defendant the legal right to demand the court appoint new counsel whenever defendant conceives some disagreement with counsel’s “tactics.”

For a further, rather full, discussion of this phase of defendant’s contention see People v. Gray, 33 Ill2d 349, 353-355, 211 NE2d 369, and the cases therein cited.

In conclusion, we believe that the trial court made a more-than-adequate explanation to defendant of his right to counsel as it existed before the start of this trial. The results which followed defendant’s decision in that regard were clearly foreseeable, but if not foreseen by him, became immediately apparent when the trial began. We find no error or basis for reversal.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       For those crimes he was sentenced to 40 to 60 years for each offense, to run concurrently with each other and with the sentences here being reviewed. The other sentences were affirmed in People v. Hubbard, 73 Ill App2d 302, 219 NE2d 639.

       The decision was not unanimous, Judge Medina dissenting. The majority seemed not to be strongly convinced of its conclusion on the waiver point. It said at pages 280, 281:

        Even if some doubt exists on the question whether defendant effectively waived his right to counsel, the judgment must be reversed because of improper statements made during the government’s summation, which take on special significance where, as here, the defendant has acted as his own attorney. (Emphasis supplied.)


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    Edward Green, Plaintiff-Appellant, v. No. 35 Check Exchange, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 50,460.
    First District, Fourth Division.
    October 28, 1966.
    Thomas Benz and James P. Chapman, of Chicago, for appellant.
    Robbins and Gassel, of Chicago (Harry G. Fins, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On December 30, 1959, the plaintiff filed a complaint in two counts: Count I for malicious prosecution, and Count II for false imprisonment. On his own motion the plaintiff struck the count for malicious prosecution, leaving only the count for false imprisonment. At the close of all the evidence the court directed a verdict in favor of the defendant, and judgment was entered on the verdict on October 15, 1964. At the same time the court denied the plaintiff’s motion for a directed verdict in his favor. The plaintiff’s post-trial motion was denied, and the plaintiff takes this appeal from the judgment and orders of the trial court.

In the second count of the complaint, based on false imprisonment, the plaintiff alleges among other things that the defendant, through its agents and servants, accused the plaintiff in the presence of one or more police officers of the city of Chicago of committing one or more felonies, and that the said police officer or officers, by reason of the charges preferred by the defendant “through its agents and servants, and at the request of said defendant, through its agents, did arrest and seize the body of plaintiff,” and that plaintiff was deprived of his liberty for an extended period of time. The plaintiff denies that he is guilty of any of the charges and states that he was subsequently, on May 12, 1959, after a trial, discharged in the Criminal Court of Cook County.

In its answer the defendant “admits that at the time and date stated in said paragraph, it charged and accused the Plaintiff with committing one or more of the said felonies and that the Plaintiff was then and there arrested and detained to answer said charges, . . .” and denies all the other allegations set forth in the paragraph. In its brief in this court the defendant states as its theory of the case that:

1) The plaintiff was arrested by the police, not by the defendant, and the arrest by the police was valid;

2) Since the arrest by the police officer was valid and a judge bound the plaintiff over to the grand jury which indicted him, the plaintiff’s cause of action, if any, by virtue of the fact that he was found on a trial not guilty beyond a reasonable doubt, should have been malicious prosecution, not false imprisonment.

These are the only points set out in its brief. In support of its contention the defendant cites Watkins v. Sullivan, 11 Ill App2d 134, 136 NE2d 528; People v. Jones, 16 Ill2d 569, 158 NE2d 773; and People v. Fiorito, 19 Ill2d 246, 166 NE2d 606, all of which cases deal with the question of suits against a police officer for false arrest. The defendant also cites Goodman v. Frank and Seder of Plula, Inc., 70 Pa D & C 622, in which case the charge was found to be one of malicious prosecution, and in which the court distinguished between malicious prosecution and false imprisonment, sustaining the contention of the defendant that since the action was one for malicious prosecution it was barred by the one-year limitation statute. It is difficult to see how this case is at all applicable to the case before us.

Section 57 of the Criminal Code (Ill Rev Stats, 1957, c 38, § 657) which was applicable at the time of the arrest of plaintiff provided as follows:

“An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.”

In Dodds v. Board, 43 Ill 95, an early case, the court set out a rule of law with reference to false arrest which is still the law in Illinois. The court said:

“This plea seeks to justify the arrest upon the ground that plaintiffs in error suspected defendant in error of being guilty of a larceny, and had for that reason induced a constable to make the arrest without a warrant. To hold this plea good, as a justification to the persons causing the arrest, would be to hold that private individuals might arrest on probable cause to believe that the party was guilty, as the arrest thus caused is, in principle, precisely the same as if the arrest had been made by a private person. The mere fact that they induced even an officer, without a warrant, to make the arrest does not protect them. They do not act under the direction of the officer, but he under theirs. While in such a case the officer, acting upon facts reasonably calculated to raise the presumption of guilt, would no doubt be protected, the party causing him to make the arrest would not be unless guilt were shown. There are, no doubt, cases which hold that private individuals may arrest on probable cause, but there are authorities which hold the contrary rule. And in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest. And, to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified, unless a crime has been committed and the person arrested shall be shown to be the guilty party. . . .”

In Enright v. Gibson, 219 Ill 550, 76 NE 689, a suit brought for false imprisonment, the facts were that the plaintiff was in charge of certain books for defendant’s employment agency. One night plaintiff took home an agency book containing the names and addresses of persons seeking office help, allegedly for the purpose of sewing covers on the index. Defendant suspected that plaintiff had taken the book in order to copy the names and supply them to his competitors. When the plaintiff returned to the agency with the book she attempted to explain to defendant what she had done with it, but defendant did not listen and instead, called the police, then directed the officers to arrest the plaintiff. She was arrested and taken to the police station where she was confined over night. The next morning the defendant signed a complaint charging plaintiff with larceny of the book. The plaintiff was discharged following a trial, and she sued the defendant for false imprisonment and recovered a judgment. On appeal the defendant argued that the trial court erroneously failed to instruct the jury that good faith by defendant and probable cause were a defense to the charge of false imprisonment. The court distinguished the rights of a private citizen and a police officer in causing an arrest under the statute (substantially the same as sec 57 of Criminal Code) and said:

“From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence; so, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. . . .”

The court held that if a private citizen induces an officer to make an arrest without a warrant the citizen in a subsequent false arrest action must prove that a crime has in fact been committed or attempted and that the person arrested was guilty of the crime. Also see Markey v. Griffin, 109 Ill App 212.

Lindquist v. Friedman’s Inc., 366 Ill 232, 8 NE2d 625, was a case where the plaintiff tendered to the defendant a counterfeit $5 bill in payment for a purchase. The defendant called the police who arrested the plaintiff and took her to the police station. In that case the court said:

“We cannot agree with appellants in their contention that appellees were not falsely arrested and imprisoned by or at the instigation of appellants. In our State a citizen is not permitted to take the law into his own hands and to arrest another upon suspicion or even upon probable cause. Where a citizen has knowledge that a crime has been committed it is his duty to make a complaint before a magistrate and in his complaint he should state that the particular crime has been committed and he may state, on information and belief, that the person named is the offender. The magistrate thereupon issues his warrant for the arrest of the accused. That course affords protection to the person making complaint, the arresting officer and the person arrested. To permit a private citizen, without observing the formal requirements enumerated, to become a self-constituted officer and jailer upon mere suspicion of the guilt of the accused person, or even upon probable cause to believe such person guilty, would result in more and greater evils than the possible escape of the few guilty persons occasioned by delay in obtaining warrants and officers to serve them.”

The court further said that in a false imprisonment case all that is necessary is to show that the defendant in any manner restrained the liberty of the plaintiff without sufficient legal authority.

Under the rule of law existent at the time of the arrest in the instant case, a private individual was not justified in making an arrest unless a criminal offense had been committed in his presence. Miss Abrams’ testimony on behalf of the defendant is that on October 9, 1958, the plaintiff presented the check in question at No. 35 Check Exchange, at which time the check bore the name of the plaintiff as endorser. Miss Abrams testified that she did not see him sign the check, nor is there any evidence in the record that the signature of the endorser was the actual signature of plaintiff. Miss Abrams further testified that when plaintiff came into the exchange she communicated with Mr. Allen Kite, the president of the exchange, who told her to call the police and have the plaintiff arrested. She stated that she called the police and when they arrived she told them she had a man in the lobby who had cashed a forged or bad check with her; that the police talked with the plaintiff and took him away.

Police Officer Alfred Haire testified that he was called to the currency exchange and was met there by Miss Abrams who informed him the plaintiff had cashed a bad check and that he was “to be locked up because he was the same man who had cashed the bad check.” He stated that Miss Abrams pointed out the plaintiff to him and that he relied solely on what she and the other clerks told him.

The plaintiff corroborated the testimony of Miss Abrams as to what happened when he went into the exchange on December 18, 1958, and stated that he went there attempting to cash an unemployment check which he had first tried to cash at another currency exchange where he did not have a signature card; that he told the clerk he had a signature card at No. 35 Check Exchange, and when the employee called regarding it she was told by Miss Abrams that the plaintiff was wanted as a forger on a check which had been drawn on a closed account. The plaintiff testified that when he was informed of this he went to the No. 35 Check Exchange. He denied that he was at the currency exchange in October 1958 and denied that he had ever seen the check before. The check in question had been returned to No. 35 Check Exchange with the stamped notation “Account Closed.”

Later in the day, after the arrest of the plaintiff, Kite went to the police station and signed a complaint. The plaintiff was indicted for confidence game. The lawyer who represented the plaintiff in the case testified that after being tried before a jury in the Criminal Division of the Circuit Court he was discharged. The uncontradicted evidence is that the plaintiff was arrested by the police officers under and through the directions of Kite, acting through Miss Abrams, an employee of No. 35 Check Exchange. Where one party acting for himself and his employer causes the unwarranted arrest of a third person a single wrongful act is committed. Aldridge v. Fox, 348 Ill App 96, 108 NE2d 139.

The law is that in considering a motion to direct a verdict the court must consider only the evidence favorable to the case of the resisting party, together with all reasonable intendments which may be drawn therefrom in his favor. On the record it has been proved that the arrest was made by No. 35 Check Exchange, Inc., acting through its agents. It has also been proved by the discharge of the plaintiff in the Criminal Court that at the time in question he was not committing or attempting to commit a crime in the presence of any of the said agents.

The order of the trial court directing a verdict for the defendant was error, as was its refusal to direct a verdict for the plaintiff. The case is reversed and remanded to the trial court with directions to enter a finding in favor of plaintiff on the issue of liability, and for further proceedings on the question of damages only.

Reversed and remanded with directions.

DRUCKER, P. J. and ENGLISH, J„ concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Lee Sims (Impleaded), Defendant-Appellant.
    Gen. No. 50,574.
    First District, Fourth Division.
    October 28, 1966.

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

delivered the opinion of the court.

Charge: Burglary.

Defense at Trial : Defendant denied that he was present at the time and place of the burglary, or participated therein.

Judgment : The defendant was tried before a court and jury. The jury returned a verdict of guilty and the court imposed a sentence of one to three years at the Illinois State Penitentiary.

Points Raised on Appeal :

1) The charge was not proved beyond a reasonable doubt.

2) The trial court erred in giving the jury an instruction which allegedly assumed that the defendant had exclusive possession of the stolen property.

Evidence : Testimony of State witnesses, Charles Saporito, John Thomas, Raymond Davis, Sam Gubov, and Thomas Flaherty.

Charles Saporito testified that he was president of the Saporito Plating Company, located at 1803 South 55th Avenue in Cicero; that when he closed his plant on Saturday, December 12, at approximately 3:30, the north wall of the plant was in perfect condition; that on Monday the north wall had a hole broken in it about two by three feet; that when he took inventory in the plant he found that nickel anodes were missing. He stated that the anodes were kept in a tank in burlap bags with a nickel solution which is green and turns the burlap bags green; that eventually there would be nothing but green salts on the bags, and the salt would come off. Saporito testified that about 200 anodes were missing; that he did not see them again until Monday morning when he saw them in the bed of Gubov’s truck at the police station; that he had given no one permission to remove them from his plant; and that their value was approximately $4,000. He further stated that when he saw the defendant at the police station he noticed that the nickel salts substance on defendant’s clothing was green; it was the same nickel salts that had come from the anodes in the green solution in the tanks. On cross-examination Saporito testified that the green substance was fresh and could have been on the clothes for four or five hours.

John Thomas, a police officer of the city of Chicago, testified that on the night of December 13, 1964, while he and his partner were patrolling an area near 47th Street and State Street, he noticed that the taillights on a truck were not working and signaled the driver to stop. The truck made a right turn off State Street onto 46th, then made a left turn into an alley. The police were half a block behind the truck. When the truck stopped the driver jumped out and ran; the police were unable to catch him, but a passenger in the truck who was unable to get out was identified as Charles Holiday. The officers determined that the owner of the truck was Sam Gubov. Officer Thomas testified that Holiday’s clothing was covered with a green powdery substance. He stated that he called another squad car to watch the truck while he took Holiday to the police station; that while he was at the station Officer Davis, who had been called to watch the truck, came in with the defendant, Sims; and that Sims’ clothing was covered with the same “green substance” as Holiday’s clothing contained. Officer Thomas testified that he was not able to see the face of the driver of the truck when he fled and he could only describe what he wore — a short black jacket and dark colored pants; and that when Sims was brought into the station he was wearing a short black jacket and dark green pants and a beret. Officer Thomas testified that when he questioned the defendant he said he had no knowledge of the truck or the nickel anodes which were on the truck; that when he had a conversation with Holiday in Sims’ presence, both Holiday and Sims said they did not know each other, but that later when questioned by two detectives, Holiday said he did know Sims and that Sims was present when they took the nickel anodes from the factory in Cicero.

Raymond Davis, a police officer, testified that he had been called to watch the truck while Thomas took Holiday to the police station; that he saw a green substance all over Holiday’s shirt, coat and pants; that after Officer Thomas left he pulled his squad car into an empty lot near the truck, turned off his lights and waited. He stated that in about 10 minutes he saw a man (the defendant) at the entrance of the alley; that the man stopped and looked towards the truck, walked away, then came back and walked down the alley; that he noticed the green substance on the man’s clothes and placed him under arrest. Officer Davis stated that the defendant was wearing dark clothing — work pants and dark jacket which were covered with the green substance, and had in his pocket a pair of gloves also covered with the green powder. Officer Davis testified that the defendant said he was just out for a walk; that he then took the defendant to the police station where he asked Sims and Holiday if they knew each other and they said they did; that in the presence of Sims and Officer Davis, Holiday said they broke a window in the factory, then Sims and Robinson (a third man involved) handed the stuff out to Holiday to load in the truck; that Sims admitted that he was with him. Officer Davis testified that when the detectives arrived Sims denied that he was involved and would not sign the statement.

Sam Gubov testified that the truck was his; that when he parked it the bed of the truck was empty, but when the truck was recovered there were nickel anodes in it which were not his property.

Thomas Flaherty, a police officer, testified that he spoke to Charles Holiday and the defendant, Charles Sims, in the early hours of December 14, 1964; that the defendant denied that he was involved in a burglary with Holiday and denied having anything to do with the truck and the anodes. Officer Flaherty testified that Holiday said he and Sims and a third person had gone out to Cicero where they broke into a factory and took anodes. Officer Flaherty stated that he noticed a green substance on the defendant’s clothing and as far as he knew, there were no laboratory reports in the Police Department with regard to the green substance.

Testimony of Defendant: Charles Sims testified that he lived at 5100 South State Street, and had lived there for two and a half years; that he dropped out of school, went into the navy, where he served for seven years; that he is employed by the Board of Education as a janitor and had part-time work in a gas station at 4600 South Wabash Avenue; that on December 13, 1964, at 11:00 p. m., he was working on a car which he finished at about 11:15 or 11:30, after which he dressed and walked around the corner to catch a bus. He testified that an officer then arrested him and he was taken to the police station where he was asked if he knew Charles Holiday; that he said he had seen him around because they lived in the same neighborhood, but that he did not know him personally; and that at no time did he state that he was involved in any manner whatsoever with Holiday, nor did he hear Holiday make any statement with regard to being involved with him. The defendant denied that he broke into the premises of Saporito Plating Company; denied that he was ever driving or around a truck that contained anodes of any sort; denied that he made any statement whatsoever; denied that he had stains on any of his clothing. He further stated that at the present time the clothes he had worn were at his home in a laundry bag. His wife was living in the home.

Opinion: The defendant argues in this court that the identification was not sufficient and that he was not proved guilty beyond a reasonable doubt. It is true that there was no specific identification of the defendant except by circumstantial evidence. Officer Thomas described the clothing worn by the man who jumped from the truck; when arrested the defendant was wearing clothing of the same description. There is testimony that the stolen anodes were covered with a green substance which would rub off on the clothing of any person handling them. When Holiday was arrested he had the green powder on his clothing, as did Sims. The defendant makes a point of the fact that the State did not have the clothing chemically analyzed so as to prove that the substance was the same as that on the anodes. However, we must consider that the clothes which the defendant wore at the time in question were in his possession and, as he stated, were in a laundry bag at his home. Besides that, we have the statements of Officers Thomas and Davis that defendant Sims admitted being at the scene of the burglary; and that Holiday, in Sims’ presence told them that Sims had participated in the robbery. Officer Davis further testified that Sims admitted being with Holiday. Circumstantial evidence may be used to prove the corpus delicti just as it may be used to connect the accused with the commission of the crime. People v. Jones, 382 Ill 603, 48 NE2d 364; People v. Feeley, 374 Ill 402, 29 NE2d 593. The credibility of the witnesses was a matter for the jury to determine, and we will not substitute our judgment for that of the jury.

Over the objection of the defendant the trial court gave the following instruction:

“The exclusive possession, shortly after the commission of a larceny, robbery or burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person.”

The defendant argues that giving the instruction was reversible error, and in support of his contention cites People v. Himstedt, 377 Ill 498, 37 NE2d 165, which is not applicable. In that case the court instructed the jury that “the recent and unexplained possession” of stolen goods gave rise to an inference of guilt. The defendant had admitted possession but made an explanation. The court held that the instruction under those circumstances was bad because it was for the jury to determine the truth or falsity of defendant’s explanation. In the instant case defendant did not give any explanation. People v. Stone, 349 Ill 52, 181 NE 648, is directly in point. The court gave the same instruction as the one given in the instant case, and said that counsel for the defendant stated in his brief that in a long line of cases the court had approved the principle set out in the instruction, but argued that it should only be given in cases where the defendant admits and attempts to explain the possession of the stolen property, or in cases where the possession of defendant has been conclusively proved. The court said:

“We agree that unless the evidence tends to establish one or the other of the two elements mentioned such an instruction ought not to be given. We do not mean to say that it is proper to give it only in cases where the possession is admitted or uncontrovertibly established by the proof. Whether or not the defendant was in possession of stolen property is often a question of fact, and if the proof tends to establish that possession then the instruction may be given regardless of whether the defendant has denied possession or not. The rule as laid down in the instruction objected to has long been the rule in this State. It has received judicial sanction in many cases, beginning with Jones v. People, 12 Ill 259, and has been firmly adhered to in all subsequent decisions on the question.”

In People v. Hurry, 385 Ill 486, 52 NE2d 173, with reference to a similar instruction, the court said:

“The question of whether or not the defendant is in possession of stolen property is often a question of fact, and if the proof tends to establish such possession then such instruction may be given regardless of whether possession is denied or not. (People v. Stone, 349 Ill 52.)”

In People v. Carvin, 20 Ill2d 32, 169 NE2d 260, cert denied, 364 US 923, the same instruction was given as in the instant case. The defendant argued that the giving of the instruction was prejudicial error because the factual basis of the inference that the article was stolen, was controverted. The court cited People v. Stone, 349 Ill 52, 181 NE 648, and held that the rule laid down in that case was applicable; that the jury were left free by the instructions to determine the question of fact as to whether the watch was stolen, and that the giving of the instruction was not prejudicial error.

In the case before us, if the defendant was the driver of the truck, he was in possession of the stolen property. The question as to whether he was or was not the driver was a question of fact for the jury, and there was sufficient evidence in the record to support their implicit finding that he was the driver and consequently in possession of the stolen goods. The instruction was properly given.

From the entire record it appears that the defendant was proved guilty beyond a reasonable doubt.

Decision : The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1963, ch 38, § 19-1. Burglary.
      (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.
      (b) Penalty. A person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Mike McGraw, Defendant-Appellee.
    Gen. Nos. 51,259 and 51,260.
    First District, Fourth Division.
    October 28, 1966.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellant.
    John E. McKeigue, of Oak Lawn, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal by the State of Illinois from an order dismissing its complaints of battery against the defendant.

Defendant was initially charged in separate complaints with aggravated battery against two individuals. He waived his right to be prosecuted by indictment. Subsequently a pre-trial conference was held before Judge Salerno, during which the prosecutor left the conference room and later returned with two complaints signed by Judge Krai (who apparently was unaware of the proceeding before Judge Salerno) charging the defendant with battery. The latter complaints arose from the same occurrence as did the complaints of aggravated battery. The complaints of aggravated battery were then nolle pressed upon motion of the prosecution. Also upon motion of the prosecution the cause was transferred to Judge Krai. After the cause had been transferred defendant filed a motion to dismiss the complaints of battery “on the grounds that the offense charged herein arose out of the same conduct in which the defendant had earlier been charged with aggravated battery, and pursuant to Section 3-3 of the Criminal Code of 1961 and the cases thereunder.” The motion was allowed.

Section 3-3 of the Criminal Code (Ill Rev Stats 1965, c 38, § 3-3), which provides for mandatory joinder of offenses, does not establish the consequences for failing to comply therewith. Only Section 3-4 (b) bars a subsequent prosecution for failure to comply with Section 3-3.

The issue in the instant case is identical to that recently decided by the Illinois Supreme Court in People v. Piatt, 35 Ill2d 72, 219 NE2d 481, in which the court stated at pages 73-74 that:

There is no need for extended discussion here for the result is controlled by People v. Miller, . . . [35 Ill2d 62] in which an opinion has been adopted this term holding subsequent prosecution on different charges arising from the same conduct is barred under section 3-4 (b) (1) of the Criminal Code of 1961 only if the former prosecution resulted in a conviction or acquittal. Since the former prosecution in the instant case was dismissed prior to preliminary examination of the jury, the subsequent action of the trial court in dismissing the new information . . . was clearly erroneous.

Defendant also argues that the complaint charging him with battery was properly dismissed because the action of the prosecutor in obtaining the new complaint from another judge was unethical. While the action of the prosecutor was unorthodox, the complaints charging the defendant with aggravated battery were dismissed prior to trial and the defendant suffered no prejudice thereby.

We find that the complaints charging the defendant with battery were improperly dismissed. Therefore the order dismissing the complaints is reversed and the cause remanded with directions to reinstate the aforesaid complaints of battery.

Reversed and remanded with directions.

ENGLISH and McCORMICK, JJ., concur.


text:
    Myrtle S. Farnsworth, et al., Plaintiffs-Appellants, v. The Shops Building, Joseph M. Rich, as Trustee Under Doc. No. 12879454 and 12879455 and George S. Lurie Company, an Illinois Corporation, Defendants-Appellees.
    Gen. No. 51,593.
    First District, Fourth Division.
    October 28, 1966.

      Louis M. March, of Chicago, for appellants.
    Lord, Bissell & Brook, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is a motion to dismiss the plaintiffs’ appeal.

On April 11, 1966, judgment was entered in favor of the defendants upon a verdict rendered by the jury. On May 10, 1966, plaintiffs filed an appeal therefrom requesting a reversal and a new trial. On August 24, 1966, defendants filed a motion to strike the appeal from the docket of the Appellate Court or in the alternative to dismiss the appeal, on the ground that no written post-trial motion was ever filed. In their objections to defendants’ motion plaintiffs assert that the trial judge improperly and prejudicially commented to the jury after giving an instruction and also committed various other prejudicial errors during the course of the trial. From these assertions plaintiffs contend that the written post-trial motion for a new trial need not be filed to preserve the issues for review because “to require Plaintiffs-Appellants to file a Post Trial Motion under said facts and circumstances would be an added burden and would not accomplish the requested result.”

The Illinois Civil Practice Act provides in relevant part that post-trial motions in jury cases must be filed within thirty days after the entry of the judgment or within any further time the court may allow within the aforesaid thirty days. (Ill Rev Stats 1965, c 110, § 68.1 (3).) The Act further provides that “a party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.” (Ill Rev Stats 1965, c 110, § 68.1 (2).) Moreover, the right to apply for a new trial is waived by the failure to seek a new trial in a post-trial motion. (Ill Rev Stats 1965, c 110, § 68.1 (5).)

We find that since the plaintiffs after a jury trial never filed a post-trial motion for a new trial, the plaintiffs waived their right to apply for a new trial. Therefore the judgment of the trial court is affirmed. Roberson v. Leak, 72 Ill App2d 11, 218 NE2d 819.

Judgment affirmed.

ENGLISH and McCORMICK, JJ., concur.

       No extension of time was ever granted.


author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James C. Bernard, Junior, Otherwise Called George Bernard, Defendant-Appellant.
    Gen. No. 50,548.
    First District, First Division.
    November 9, 1966.

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

delivered the opinion of the court.

The defendant, James C. Bernard, Junior, otherwise called George Bernard, was indicted under indictments No. 64-2217 and No. 64-2218, both charging armed robbery. By agreement the two indictments were consolidated for trial and a jury waived by defendant. Upon a finding of guilty under both indictments the trial judge imposed concurrent sentences of four to ten year terms in the penitentiary.

It is contended that the identifications of the defendant by witnesses were insufficient to support the convictions beyond a reasonable doubt, particularly when the defense was an alibi that he was not at the involved premises, but was at the house of a friend at the time.

In indictment No. 64-2217, Miss Van Ester Colbert testified that several minutes after 5:00 p. m. on June 22, 1964, while she was working for Flare Cleaners at 505 East 47th Street, the defendant entered the premises while she was waiting on a customer. She knew him from seeing him at church and at social parties at her home, and when she said, “Hello Bernard,” he did not answer. She also stated that she was wearing an ash-blond wig which the defendant had never seen her wear. After the customer left she said the defendant pulled out a black handle knife, held it on her wrist, and told her to open the cash register, which she did. He ordered her and another employee, Norma Jean Young, to the back room and as they walked there he took approximately $47 from the cash register and left. She gave the police a description of the defendant, but did not tell them his name or address. The next morning she told a police detective she knew the defendant by the name “Bernard” and that he attended her church. When she saw him five days later walking across the street from her house she notified a police officer who was at her home and the defendant was arrested.

Norma Jean Young, a high school student who was working part-time, testified that she saw a man whisper to Miss Colbert, who appeared open-mouthed and shocked. She said she heard the man say to her, “Go over there and open up the cash register,” while holding something on her hand or wrist. She saw him empty the cash register after it was opened. She testified further that she observed his face for around thirty seconds and noticed a long scar extending down to his neck. She described his clothing at the time as being a black suit, white shirt, black tie and white straw hat which she said he was wearing when she identified him in a lineup several days later. Previous to this she identified him from pictures shown to her by the police.

In indictment No. 64-2218, Mrs. Johnnie Mae Haymer testified that on June 22, 1964, she was employed by the Checker Cleaners at 231 East 47th Street, and at about ten minutes to 5:00 p. m. a man came in the store and holding a black handle knife in his hand, announced, “This is a stickup.” She described his clothes to be substantially the same as described by Miss Colbert and Miss Young in their robbery experience. When she was getting the money out of the cash register, as ordered, she asked him whether he wanted the pennies and he said no. She related that the lighting conditions were good and she was able to observe his face during the three minutes he was there. She identified him in a lineup several days later and also testified that he was wearing the same clothes then as he did when he held up the store.

When the two cases were called for trial the defendant’s private counsel had agreed to consolidate them, and later stated to the court the reason was that “in his mind the defendant was either guilty of both charges or of none.” Mrs. Evelyn Moore, a lifelong friend of the defendant’s, Mrs. Arletha Harris, Miss Winnetta Bernard, a daughter of defendant, and the defendant, were called as witnesses for the defense. Mrs. Moore who resided at 6406 South St. Lawrence Avenue, testified that on June 22nd, the defendant visited with her at her home from 10:30 a. m. to 4:45 p. m., and did not have an automobile. She said they were not related and she had not seen him in 14 years before then. Mrs. Harris is a widow and resides at 6616 South Kimbark. She testified she had known the defendant for four years and that the defendant was at her home on June 22nd, from 5:00 p. m. to about 9:00 p. m. He was wearing a black suit and white shirt. She had been taking care of Winnetta Bernard, the defendant’s daughter, who was present during defendant’s visit. Winnetta Bernard testified that she lived across the hall of Mrs. Harris and that she was visiting with Mrs. Harris at 5:00 p. m. on June 22nd, and she remembered the time because that is the time she and Mrs. Harris have dinner together. She said her father ate with them and was there over four hours.

The defendant testified that on the day in question he visited with Mrs. Moore from 10:00 a. m. to 4:30 p. m., and walked to the apartment of Mrs. Harris and visited with her and his daughter from about 5:15 p. m. to 9:00 p. m. He denied the charges of robbery or of being in either of the stores. He said he knew Miss Colbert from seeing her in church, or in the neighborhood, and at a party at her home. It was stipulated that the defendant had four prior convictions of robbery.

The defendant contends that where the issue is the identification of the accused, it is the duty of this court to reverse a conviction when the evidence shows that the witnesses did not have ample opportunity to observe the accused. People v. Cullotta, 32 Ill2d 502, 207 NE2d 444. He argues that in the robbery at Checker Cleaners, Mrs. Haymer did not have ample opportunity to observe the assailant. He states that her observation “was a casual glance made in passing” which lasted only 3 or 4 seconds while she was preoccupied with her work. The record shows that Mrs. Haymer when asked on cross-examination how long she actually observed the assailant, answered, “When he walked in, as the door opened I looked up as I always do when customers walk in, and I looked him straight in the face, you know, and I’d say it was about three or four minutes, really.” When questioned further as to “how long she looked in the face” she said, “I guess about three or four seconds, something like that.” Mrs. Haymer viewed the defendant while all the lights were on in the store, and when she picked him out of a lineup he was wearing the same clothes she described as being his apparel on the day of the robbery.

As to the robbery at Flare Cleaners, the defendant argues that Miss Young did not have ample opportunity to observe the assailant during the 30 seconds she saw him, as she could not describe the man’s height, weight or color of his eyes or if he had a mustache. Miss Young testified she observed his face and noticed a large scar extending down to the neck. She identified him from pictures shown to her. Her description of the clothes he wore at the time of the robbery was substantially the same as Mrs. Haymer’s description in the Checker Cleaner robbery and when she picked him out of the lineup she said he was wearing the same apparel. The defendant further argues that the conviction under this indictment must stand or fall on the strength of Miss Colbert who knew the defendant and did not tell the police his name or address on the day of the robbery. Her only explanation for failing to inform the police is that no one asked her. The record shows that she did describe the defendant to the police the evening of the robbery; that the next morning she told a police detective she had seen the defendant before and the name she knew him by; and that four days later she saw him near her home and caused his arrest. In People v. Roe, 63 Ill App2d 452, 211 NE2d 552, the conviction was reversed because the identification was predicated upon the testimony of a single witness who personally knowing the defendant did not give a description to the police. In each of the indictments at bar, the identification testimony by Miss Young and Mrs. Haymer was clear and positive and both gave a description to the police. A positive identification by only one credible witness is sufficient to convict, even though her testimony is contradicted by the accused. People v. Hicks, 22 Ill2d 364, 176 NE2d 810.

The credibility of the witnesses and the weight to be accorded to their testimony is primarily a function of the trier of the facts. People v. Mercado, 26 Ill2d 244, 186 NE2d 256. It was the responsibility of .the trial judge to determine the credibility of the witnesses whom he heard and saw. The fact is that the trial judge believed the identification testimony offered in both cases rather than the alibi evidence. A reviewing court will not substitute its opinion as to the credibility of the evidence and the weight to be given to it unless the proof is so unsatisfactory as to justify a reasonable doubt as to guilt. People v. Boney, 28 Ill2d 505, 192 NE2d 920. We find there is ample evidence for his decision.

The judgment in each indictment is affirmed.

Judgment affirmed.

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


text:
    Frank Mundo, et al., Plaintiffs-Appellees, v. Leonard DeGrazio, et al., Defendants-Appellants.
    Gen. No. 50,738. (Abstract of Decision.)
    First District, First Division.
    November 9, 1966.
    Rehearing denied November 29, 1966.

      Sherwin & Sherwin, of Chicago, for appellants; J. H. Silver and Louis P. Miller, of Chicago, for appellees.
   Opinion by PRESIDING JUSTICE KLUCZYNSKI. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Lavern Johnson, Defendant-Appellant.
    Gen. No. 50,314. (Abstract of Decision.)
    First District, Second Division.
    November 15, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Froehlich, Defendant-Appellant.
    Gen. No. 50,565. (Abstract of Decision.)
    First District, Second Division.
    November 15, 1966.
    Edward J. Calihan, Jr. and Anna R. Lavin, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, William Nellis and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BRYANT. Not to be published in full.


text:
    In the Matter of the Alleged Delinquency of James Russell Teague, a Minor. People of the State of Illinois, Petitioners-Appellees, v. James Russell Teague, et al., Respondents-Appellants.
    Gen. No. 50,899. (Abstract of Decision.)
    First District, Second Division.
    November 15, 1966.
    Garretson and Thornquist, of Chicago (James L. Garretson and Ruth Thornquist, of counsel), for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


author: MR. PRESIDING JUSTICE BRYANT

text:
    People of the State of Illinois, Appellee, v. Elvarnado Payne, et al., Appellants.
    Gen. No. 51,449.
    First District, Second Division.
    November 15, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Thomas P. Cawley, Assistant Public Defenders, of counsel), for appellants.
    William G. Clark, Attorney General of the State of Illinois, of Springfield (Daniel P. Ward, State’s Attorney of Cook County, of Chicago, Fred G. Leach, Assistant Attorney General, Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County finding the appellants guilty of the crime of murder. Appellant Payne was sentenced to the penitentiary for 25 to 40 years and appellant Friar was sentenced to the women’s prison for 20 to 35 years. It is appellants’ sole contention on this appeal that they were denied due process of law and a fair trial because of the trial court’s failure to properly instruct the jury.

The facts of the case are as follows: According to Calvin Friar, Jr., the twelve-year-old son of the deceased and appellant Virlee Friar, he was awakened at approximately 2:00 a. m. on October 8, 1963, by the arguing of his parents. He testified that he heard his mother ask the deceased if his conscience was bothering him; appellant Payne then interjecting, “I should kill you.” Payne then told Calvin’s mother to go get the gun. Young Friar, who was still in bed, and supposedly asleep, saw his mother go into her bedroom to get the gun. Shortly thereafter Calvin heard three or four shots. Appellant Friar then came in and woke up Calvin and his two brothers. They rushed into the living room where they saw a pool of blood on the couch and on the floor. The deceased’s son also saw Payne carrying his father’s body on his shoulder. Following some intermediate stops, including one where appellant made the remark, “For all the police know, it is an accident,” the appellants and appellant Friar’s boys started for Mississippi but got only so far as the vicinity of Dwight, Illinois, where they had an automobile accident.

The two appellants testified in their own behalf and told a vastly different story. Elvarnado Payne testified that he was a guest of Mrs. Friar and that they were seated on the couch talking when the deceased burst into the living room and said, “What are you doing here?” Appellant said he did not reply as the deceased had a gun in his hand. Deceased then walked towards his wife, appellant Friar and appellant Payne and said, “I am going to kill you, you son of a bitch.” Mrs. Friar then got up and went into the bedroom and the appellant Payne jumped up and grabbed for the gun-hand of the deceased. In the ensuing struggle, the gun wound up in the hand of Payne and, according to his version of the shooting, went off in the course of the struggle. Payne said that he was very frightened at this time. Appellant Payne, along with appellant Friar, then piled the children in the car, made a couple of stops, dumped the body in a wooded area off the Calumet Expressway, and started for Mississippi.

Appellants in their brief concede that there was sufficient evidence adduced at the trial to warrant the jury’s verdict. Their complaint on this appeal is that the trial court deprived them of a fair trial by refusing to give instructions which properly presented their theory of the case, i. e., the killing was in self-defense.

Appellants offered four instructions on the issue of self-defense. The trial court gave two of them and denied the other two. The defendants’ instructions which the trial court gave are as follows:

Defendant’s Instruction No. 7
“If the defendant, at the time he killed the deceased, had reasonable cause to apprehend, and did believe that the deceased was about to either kill him or do him some great bodily harm, and that the danger of his doing either was imminent, and that the defendant shot him to avert such apprehended danger, then such shooting was justifiable, and you should acquit on the ground of self-defense. And in this connection, it is not necessary, in order to acquit on the ground of self-defense, that the danger should, as a matter of fact, have been real or actually impending; all that is necessary is that the defendant had reasonable cause to believe that the danger was real and about to fall upon him; and the question for you to determine is not what you think was necessary for the defendant to have done or not done at the time he shot the deceased, but the question is what the defendant might have reasonably believed was necessary for him to do under all the circumstances acting as a reasonable person.”
Defendant’s Instruction No. 9
“The defendant is not required to prove that he killed in self-defense beyond a reasonable doubt, but it is sufficient to justify a verdict of not guilty if the defense of self-defense with all other evidence in the case, creates a reasonable doubt in the mind of the jury of the defendant’s guilt as charged in the indictment.”

The trial court refused to give two other instructions on the issue of self-defense, which instructions are the subject of this appeal. They are as follows:

Defendant’s Instruction No. 6
“The Court instructs the jury as a matter of law, that they have a right to take into consideration all previous threats or assaults made on the defendant, if any are shown by the evidence, together with all the other evidence in the case in determining whether or not the defendant, at the time he mortally wounded the deceased, reasonably believed he was about to lose his own life or about to receive great bodily harm.”
Defendant’s Instruction No. 8
“The Court instructs the jury that if they find from the evidence that the defendant was threatened by a demonstration of the deceased in such a way as to cause the defendant to have a reasonable belief that he was actually in danger of losing his life or suffering great bodily harm, and that said defendant acted under the influence of such reasonable apprehension, he was justified in killing the deceased, even though the danger was not in fact real but was only reasonably apparent to the defendant, and the defendant was reasonably and honestly mistaken as to real danger; and you are further instructed that if you find such to be a fact, it is your duty as jurors to find the defendant not guilty.”

We find the Circuit Court did not commit error when it refused the instructions set out above. From a reading of the instructions, it is clear that the instructions which were given correctly, informed the jury on the issue of self-defense, and that the refused instruction on the matter of self-defense was a repetition of the instruction which was given on this subject. It has long been the law in this state that it is unnecessary to give repetitious instructions. People v. Bakutis, 377 Ill 386, 36 NE2d 724; People v. Stevens, 11 Ill2d 21, 141 NE2d 33; People v. Cavaness, 21 Ill2d 46, 171 NE2d 56. And in regard to the instruction concerning the consideration of past threats and assaults upon the appellant Payne by the deceased, we find there was not a scintilla of evidence in the record which would have justified the giving of this instruction. While even very slight evidence upon a given theory of the case will justify the giving of an instruction, People v. Matter, 371 Ill 333, 20 NE2d 600, we repeat, that on a review of the record in this case, there was no evidence on which to base the requested instruction.

Appellants lastly contend that the trial court erred by refusing to properly instruct the jury as to the weight to be given to oral admissions which they made, which instruction is as follows:

Defendant’s Instruction No. 3
“Statement of a witness as to verbal admissions of a defendant should be received by the jury with great caution, as such evidence is subject to imperfections and mistakes, and it is only when such admissions are deliberately made, that the evidence afforded by such admissions is of a satisfactory character.”

The correctness of the trial court’s refusal to give an instruction identical to the one in this case was considered by the First District, Fourth Division, Illinois Appellate Court in People v. Wade, 71 Ill App2d 202, 217 NE2d 329. In that case the court held that it was not error to have refused to give this instruction. Such instruction constituted an invasion of the province of the jury in that it indicates to the jury the weight and credit which should be given to verbal admissions, and such instruction was open to being misunderstood as an opinion of the court concerning the credibility of the evidence of the appellant. We see no reason for differing from this recent opinion and hold that it was not error for the trial court to have refused to give this instruction.

After carefully considering the instructions in issue, it is our opinion that the jury was accurately and fully instructed as to the law applicable to this case and that the appellants have no just cause for complaining about those instructions which were refused by the trial court.

For the above reasons the judgment of the trial court is affirmed as to both appellants.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Phillip Moore, Defendant-Appellant.
    Gen. No. 50,191.
    First District, Third Division.
    November 17, 1966.

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

delivered the opinion of the court.

The defendant, Phillip Moore, who was convicted of attempt with intent to rape in a non jury trial and sentenced to five to ten years in the penitentiary, contends in this appeal that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt and that, at best, the evidence would only sustain a finding of assault, not of attempt with intent to commit rape.

The complaining witness testified that on a rainy morning, April 27, 1964, she spent an hour in a tavern near Wilson Avenue and Sheridan Road, Chicago. She entered the tavern about 9:00 a. m., had three or four drinks of whiskey, played the jukebox, petted the bartender’s dog and otherwise amused herself. When she left, the defendant, whom she had seen in the tavern but whom she did not know, followed her. He crossed the street behind her and after a few words about having some “booze” she would like, grabbed her by the throat and dragged her into a gangway. He ripped her raincoat, tore the buttons from her sweater, ripped her dress to pieces, snatched at her breasts and said: “You’re going to give me some or I’ll kill you.” She said she struggled with him, struck him with everything she had including her shoe and kicked his legs.

She escaped from him and screamed for help. A half block away she came upon a patrolling police car. The officer halted his car and went to her assistance. He testified that her dress and sweater were torn, that she was wearing only one shoe, that she was hysterical and had been drinking. She told him that a man had just tried to rape her and she led the officer to the gangway. A large bay of an adjoining building hung over the gangway; under the bay there were four or five steps which went down to the door of a wooden enclosure leading to the basement. In the enclosure he found her coat which was torn to shreds, one of her shoes, a couple of paperback books which belonged to her and two letters which bore the return address of the defendant.

Other officers were summoned. The officers and the complaining witness went to the address which was on the envelopes. The defendant was there and the complainant identified him. He admitted that the letters were his and said he thought he had mailed them. He denied assaulting the woman but said that he had seen her in the tavern that morning. He told the officers that he did not talk to her or have anything to do with her. His shins had fresh abrasions upon them; he did not know how they became bruised. He was placed under arrest and he and the complaining witness were taken to a police station. On the way there the defendant maintained his innocence and repeated that he had never spoken to her in the tavern.

At his trial he told a different story. He testified that the rain prevented him from working as a roofer the morning of April 27th and after reporting for work he went to the tavern and was there when the complaining witness entered. He said she asked him to buy her a drink, that he bought her three and gave her money to play the jukebox. After playing some records she returned to the bar where he was drinking beer, hugged him and took two letters from his pocket. (On cross-examination he said he did nothing to get the letters back and, when pressed, said he did not know that she had taken the letters but that “she must have.”) According to the defendant she suggested that they go to a hotel. He replied that he was not interested and got up to leave; she followed him out of the door and held his jacket. He pulled loose and crossed the street but she came after him and again hung on to his jacket. He jerked away and as he did so she fell to the sidewalk and one of her shoes came off. He left her lying on the walk and went to his apartment which was a half block away.

Section 8-4 (a) of the Criminal Code of 1961 (Ill Rev Stats, c 38, § 8-4(a) (1963)) provides: “A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Section 11-1 of the same Code states that a male person commits rape when he has sexual intercourse with a female, not his wife, by force and against her will. An attempt with intent to rape includes every element of the crime of rape except penetration. To commit this offense the male person must have an intent to have carnal knowledge of the female and the purpose of carrying out this intent by means of force and against her will, and must take a substantial step toward accomplishing his purpose. People v. Stagg, 29 Ill2d 415, 194 NE2d 342 (1963).

Section 4-4 of the Criminal Code defines intent as follows:

“A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

Intent is a state of mind and if it is not admitted it can be shown only by surrounding circumstances. People v. Coolidge, 26 Ill2d 533, 187 NE2d 694 (1963). An intent to commit rape need not be expressed. People v. Bush, 19 Ill2d 151, 166 NE2d 91 (1960). It may be inferred from the conduct of the accused, the character of the assault, the words spoken, the acts done and the time and the place of the occurrence.

In a prosecution for the offense of attempt with the intent to rape, the testimony of the complainant alone, if clear and convincing or if substantially corroborated by some other fact, evidence or circumstance, is sufficient to convict. People v. Stagg, supra.

Although the complainant had been drinking her testimony at the trial was not only convincing, it was corroborated in many respects: by her immediate complaint that a rape had been attempted, her disheveled appearance, her hysteria, her torn clothing, her scattered belongings, the defendant’s flight, his letters, the bruises upon his legs and his statements to the arresting officer which differed from his testimony at the trial. The issue, therefore, is whether her testimony and the evidence supporting it were sufficient to prove the crime charged. An indecent assault, however aggravated, will not warrant a conviction of attempt with intent to rape without proof of an intention to have intercourse by force and against the will of a woman. People v. Hiller, 7 Ill2d 465, 131 NE2d 25 (1955); People v. Jenkins, 342 Ill 238, 174 NE 30 (1930).

Despite the fact that the initial assault took place in daylight and on a public street the intention behind it can be inferred from the acts of the defendant. His purpose was not money; he did not snatch her pocketbook when he accosted her nor attempt to rob her later. He seized the complainant by the throat and dragged her to a place of concealment. There, away from passersby, he tried to overcome her resistance by force. He did not desist when she fought him off. He kept mauling her when she hit him with the few things she had at hand: her purse, her books, her shoe. His was not just an amorous advance. He did not claw at her clothing just to kiss her lips; he did not threaten to kill her just to feel her breasts. By his demand that she give him “some” it is clear what he meant and he took substantial steps toward obtaining it. If his purpose had been accomplished he would have raped his victim.

The testimony of the prosecuting witness and the attendant circumstances establish the elements of the offense for which the defendant was indicted and his conviction will be affirmed.

Affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George P. Irish, Defendant-Appellant.
    Gen. No. 50,342.
    First District, Third Division.
    November 17, 1966.

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

delivered the opinion of the court.

In a non jury trial the defendant was convicted of the unlawful sale of narcotic drugs and sentenced to serve ten years to ten years and one day in the Illinois State Penitentiary. He presents four points for reversal, as follows:

(1) The State failed to bring him to trial within the 120-day time limit;
(2) The court should have suppressed certain verbal and physical evidence as the fruit of an illegal search and seizure;
(3) The evidence was insufficient to prove guilt beyond a reasonable doubt; and
(4) The trial court unduly restricted cross-examination of one of the witnesses for the prosecution.

Defendant was arrested on March 31, 1964, following a controlled purchase of narcotics arranged by the Chicago Police Department. Edward Palmer, an addict-informer, advised the police that he could purchase drugs and in accordance with the usual practice he was searched, found to be free from the possession of any narcotics, and provided with marked money with which to complete the transaction. Three policemen accompanied Palmer to the vicinity of 43rd Street and Prairie Avenue in Chicago. One of the arresting officers testified that he followed the informer while the other officers remained in the squad car, that he observed the informer conversing with defendant and saw them as they stepped into the vestibule of a building and exchanged “something.” The informer returned to the squad car with three tinfoil packets subsequently found to contain heroin. The police then proceeded across the street to a sweet shop where they arrested defendant. Although the arresting officers did not recover any marked money, an ultraviolet examination of defendant revealed traces of the fluorescent powder (used to mark the bills) on his face and hands. One officer testified that at police headquarters defendant said, “I wasn’t really selling. I was doing the guy a favor.”

The defendant, who was not then represented by counsel, appeared at the preliminary hearing on April 1, 1964. At that time the State asked that the case be continued for a day or so in order to secure a chemical analysis of the confiscated property. The court explained to defendant that the State was entitled to a short continuance, but that if defendant wanted a longer continuance on his own behalf to have an opportunity to make bond, he was entitled to one. Defendant said he thought he could raise the money and that he did want a continuance, which the court granted. The case thereupon was continued to May 19. Defendant failed to make bail, although the continuance was charged to him, thereby tolling the 120-day time limit. Defendant now contends that the continuance was granted on the court’s motion and that the statute should not have been tolled.

Every person in custody for an offense must be tried within 120 days from the date he was taken into custody, unless a delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal. Ill Rev Stats, ch 38, § 103-5 (a) (1963). Defendant contends that the delay was not occasioned by him and he cites as authority People v. Wyatt, 24 Ill2d 151, 180 NE2d 478. In the Wyatt case, the defendants appeared for arraignment without counsel. They were accompanied however, by two lady friends, whom the trial court took to be the fiancees of the prisoners. The women offered to employ legal counsel for the prisoners and the court continued the case for that purpose. The prisoners’ participation was apparently limited to their acquiescence in the arrangement made. It was not made on their motion, and on that basis the Supreme Court held it was not chargeable to them.

In the instant case no outside interference exists. The judge carefully explained defendant’s rights in simple language, and it is apparent from the dialogue which followed that the defendant understood that if he so desired he could get a continuance for a reasonable time to enable him to make bail; that he expressed his desire to do so and a continuance was granted. It was properly chargeable to him. People v. Brown, 74 Ill App2d 56, 220 NE2d 24; People v. Faulisi, 34 Ill2d 187, 215 NE2d 276.

The case was again delayed on September 11, 1964, when the State filed a petition for an extension of time, alleging that a material and essential witness, a chemist in the crime laboratory, was on furlough and out of the State, although the State’s Attorney had exercised due diligence in an effort to produce him as a witness to establish that the substance sold was narcotics, which was an essential part of the State’s case. People v. Harrison, 26 Ill2d 377, 186 NE2d 657. The statute vests the trial court with discretion to grant a continuance not exceeding sixty days when the circumstances demand such action, and his decision will not be disturbed unless there has been a clear abuse of discretion. People v. Poland, 22 Ill2d 175, 174 NE2d 804. The facts here do not show any abuse of discretion.

We proceed to the second point, that certain oral and physical evidence should have been suppressed. During the trial counsel for defendant objected to some of the testimony relating to the results of an ultraviolet examination, but at no time did counsel make a motion to suppress evidence. Since the objection is raised for the first time on appeal, we do not find it necessary to consider the legality of the arrest or the search. People v. King, 26 Ill2d 586, 188 NE2d 11; People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849.

Defendant further contends that the State failed to prove him guilty beyond a reasonable doubt. The arresting officers testified that they observed the meeting between Palmer and the defendant, and one officer testified that he had seen “something pass” between them. The informer returned with narcotics shortly after the conversation with defendant, and when defendant was arrested, the officers found traces of fluorescent powder on his hands and face. The evidence is adequate to support a finding of guilt beyond a reasonable doubt.

The final point raised on this appeal is that the trial court unduly restricted the cross-examination of one of the arresting officers. Defendant’s counsel sought to prove a prior inconsistent statement allegedly made by a witness for the State during the preliminary hearing. On an objection by the State, the court ruled that the defense was required to read the exact questions and answers made at the hearing in order to lay a proper foundation for the admission of the inconsistent testimony. This is not the law in Illinois. In People v. Dixon, 28 Ill2d 122, 190 NE2d 793, the Supreme Court held that the defense could lay the foundation for impeachment without reading back the exact questions asked at an earlier trial. The court said, at 124:

“The court therefore should have permitted defense counsel to lay a foundation for impeachment without requiring him to repeat the specific questions and answers from the former trial. After laying the foundation, the impeachment could have been completed, in the absence of a transcript, by calling the reporter at the former trial to prove the prior inconsistent testimony.”

The cross-examiner may direct the attention of the witness to the time, place and substance of an alleged inconsistent statement and ask the witness if he made such a statement. This lays the foundation for subsequent impeachment. If the witness denies that he made such a statement, it is the duty of the defendant and his lawyer to produce evidence that the conflicting statement was actually made. It sometimes happens that such questions are asked solely for the purpose of sowing suspicion in the minds of the jurors. This is an impropriety, and the trial court should deal with it by admonishing the lawyer that he must not ask the question unless he has evidence to support its implications and by an instruction to the jury if so desired by counsel. In this case, however, defendant could not produce impeaching evidence because he had not been permitted by the court to lay the foundation for it. We must therefore, under the decision in People v. Dixon, supra, hold that this was error and reverse and remand the cause for a new trial.

Judgment reversed and cause remanded.

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

       Ill Rev Stats, ch 38, § 22-40, par 3 (1963).
      “Whoever violates this Act by traffic in, selling, prescribing, administering, or dispensing any narcotic drugs, shall be imprisoned in the penitentiary for any term from 10 years to life, and for any subsequent offense shall be imprisoned in the penitentiary for life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs or of a felony under any law of the United States or of the District of Columbia relating to narcotic drugs. No probation or suspension of sentence shall be granted to any violator convicted under this paragraph.”

       Ill Rev Stats, ch 38, § 103-5 (a) (1963).
      “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.”

       Ill Rev Stats, ch 38, § 103-5 (c) (1963).
      “If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”