author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Appellee, v. Anthony Gallas, et al., Appellants.
    Gen. No. 50,921.
    First District, Second Division.
    November 29, 1966.
    Julius Lucius Echeles, of Chicago, for appellants.
    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. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction, for the crime of theft, after a jury trial. Defendant Gallas was sentenced to 4 to 10 years and defendant DiDonato to 2 to 10 years in the Illinois State Penitentiary.

Defendants were indicted on four counts of theft, .said indictments charging defendants with unauthorized control over four television sets, in violation of Chap 38, § 16-1, Ill Rev Stats (1961).

The testimony on behalf of the State showed that a driver for Maloney’s Wabash Motor Service, Inc., picked up some television sets from Zenith Radio Distribution Corporation, in Chicago, on February 14,1963. The driver then went to a restaurant for coffee and when he returned to his truck someone held him up and took his tractor and trailer.

One Raymond Shampo testified that he was employed by the Admiral Automotive Company, 2858 Archer Avenue, Chicago; that Admiral Automotive is a generator and starter rebuilding plant; that the store also sells television sets, clothes, whiskey, women’s dresses, coats and topcoats; that a Mr. Gruse was his supervisor; that on February 14, 1963, at about 9:00 a. m., he saw Gruse talking to a man by the name of Dee, after which six men, the witness and five others, unloaded a truck; that about sixty pieces were taken off the truck and put in the basement of the store; that the next day he saw defendants around 2:00 p. m., at which time he gave them three television sets; that later that day, around 6:00 or 7:00 p. m., he saw the men again; that a television set had been broken and one of defendants wanted to exchange the set for another; that the witness gave them three more sets from the basement; that FBI agents were present on the premises while all this occurred; and that after the witness brought up three television sets from the basement, the FBI agents arrested defendants while they were placing them in the trunk of their car. Shampo further testified that he had taken a television set from the premises but brought it back after he learned it was stolen.

FBI agent Bennett testified that he was watching the building at 2858 Archer Avenue on February 15, 1965, and that about 6:00 or 6:30 p. m. he was inside the building and saw defendants get out of their car and take a carton out of the trunk; that thereafter, he saw defendants load three cartons into the trunk and get into the car, after which other FBI agents arrested them; and that several other people came into the premises during the day and left with various cartons but these other persons were not arrested. Later, defendants made an offer of proof that they could show, through the agent, that two Silvertone televisions were recovered by another agent, which had previously been part of a stolen load of Silvertone televisions and that the persons who had purchased these two television sets were not arrested or charged with the crime of receiving stolen property. The offer of proof was denied.

FBI agent Moore testified that at about 6:30 p. m. on the evening of February 15, 1965, he was on the premises of the Admiral Automotive Parts and heard someone say to Ray Shampo, “I am returning one of the sets”; that he also heard the same person say, “We want three more sets”; that he saw defendants take the cartons out the back door to their car; that defendants were then arrested; that the witness was on the premises pursuant to a search warrant issued by a United States Commissioner, relating to stolen Silvertone television sets; that a large number of Silvertone television sets were recovered on the premises of the Admiral Automotive store; and that the four television sets recovered from the possession of the defendants were Zenith sets.

Defendant Anthony DiDonato testified that he was 52 years of age, and operated a restaurant in Plano, Illinois; that he knew Gruse for about three months before February 15, 1965; that Gruse was the operator of both a general merchandising and generator rebuilding business; that before the date of his arrest, he had been at the place of business and he purchased some items of personal wear; that on February 15, he went to the place of business to buy a generator for this car, which was then parked at 621 South Loomis; that he called codefendant Anthony Gallas to drive him there; that he arrived before noon and bought a generator; that he also bought three more jackets for $2 apiece and gave Gruse $10.50 for a generator; that Gruse asked if he would be interested in buying a couple of television sets, because Gruse said he had just bought a “job lot”; that the sets would cost $100 apiece; that he did not buy a television set at this time, but just picked up the jackets and the generator; that he then went home, talked to his wife who agreed to the purchase; that Gallas also decided he wanted one; that he and Gallas returned at about 2:00 or 3:00 in the afternoon and bought two sets from Gruse and paid him for them; that he understood that a “job lot” meant merchandise left over which stores could not sell; that he took his television set home but the set would not work; that around 6:00 p. m. he and Gallas returned to the store; that he took the television set from his car, brought it into the store and told them it would not work; that at that time, he asked for three television sets because Gallas’ sister wanted one, as did his oldest son; that he also required a set to replace the one he purchased earlier which he had returned; and that he did not pay for the sets at that time. DiDonato also testified that he had no knowledge that the television sets had been stolen.

At the close of the People’s case, defendants moved for a directed finding of not guilty on all counts. The following took place:

The Court: As to the first count I am directing that one out.
Mr. Martwick: (Assistant State’s Attorney) On what basis ?
The Court: On the basis that there is — I don’t think that you proved recent possession.
Mr. Martwick: They have possession. It is stipulated those are the sets they had, not even 24 hours later.
The Court: The second count as to receiving, that will stand. We will continue on the receiving.
Mr. Martwick: 24 hours later isn’t recent possession?
The Court: Not in this case, not on the circumstances.
Mr. McDonnell: (Defense Attorney) I can finish this tomorrow, Judge. I will have one witness.
The Court: All right.
Mr. Martwick: Well,—
(WHEREUPON THE PEOPLE RESTED THEIR CASE IN CHIEF.)
Mr. McDonnell: I would ask the jury be instructed that the first count has been dismissed. I am entitled to that.
Mr. Martwick: Why don’t you instruct them tomorrow morning ?
The Court: You get together and write the instruction. We will adjourn until 10:30 o’clock. The jury will come in before 10:30. I again caution you not to have any conversation among yourselves or with any others concerning this case.

A memorandum order entered by the court on this date (April 8,1965), stated in part:

And the Court hearing Counsel for each Defendant in support of said Motion as well as the State’s Attorney, Counsel for the People in opposition thereto and the Court being fully advised in the premises doth ALLOW said Motion and orders that said Motion be and the same is hereby ALLOWED accordingly as to Count #1 of the Indictment.

(WHEREUPON THE FURTHER TRIAL OF THIS CAUSE WAS ADJOURNED UNTIL FRIDAY, APRIL 9, 1965, AT THE HOUR OF 10:30 O’CLOCK A. M.)
(FRIDAY, APRIL 9, 1965, 10:30 O’CLOCK A. M. COURT CONVENED PURSUANT TO ADJOURNMENT.)
The Clerk: Anthony Gallas, Anthony DiDonato.
Mr. McDonnell: Defense is ready.
The Court: We will have a short recess.
(AFTER A RECESS IN THIS CAUSE.)
Mr. Martwick: Judge, for the purposes of the record there was a discussion yesterday. I think it would be proper for us to proceed on Count 1.
Your Honor is familiar with the exercising of unauthorized control. The Court: The other three counts are nolled.
Mr. Martwick: You have rescinded the order, Judge, you previously thought you might have entered ?
The Court: That’s right.

A memorandum order entered by the court on this date (April 9,1965), stated in part:

And the Court being fully advised in the premises that the State’s Attorney, Counsel for the People shall proceed in this cause on Count #1 and the Court, having jurisdiction over the subject matter and parties thereto, doth order that the order heretofore entered in this cause on April 8th, 1965, allowing each defendants Motion for a directed verdict of not guilty as to Count #1, be and the same is hereby rescinded.
And the State’s Attorney, Counsel for the People now proceed in Count #1 in this cause.
And the State’s Attorney, Counsel for the People now says he will not further prosecute the 2nd, 3rd and 4th, Counts of the indictment in this cause; Thereupon it is ordered that said 2-3-and 4th Counts of this indictment be and the same are hereby dismissed out of this Court.
(JURY IN JURY BOX.)
Mr. McDonnell: May I proceed, your Honor ?
The Court: You may.
It is defendants’ contention:
(1) that the order of rescission, entered on April 9, 1965, of the order of not guilty as to count one, entered on April 8, 1965, violated their constitutional rights against double jeopardy;
(2) that there was insufficient evidence to justify the verdict of the jury in that there was total absence of proof showing that defendants knew the four television sets, which were bought, had previously been stolen;
(8) that defendants’ constitutional right to a fair trial was violated when the prosecutor brought out, over defense objection, that defendant Di Donato refused to answer questions when interrogated after his arrest; and (4) that prejudicial error was committed by the prosecutor in his final argument.
The People respond:
(1) that the order of not guilty entered on April 8, 1965, which was later vacated on April 9, 1965
(a) was not a valid order in that the jury was not instructed on the finding of not guilty,
(b) did not result in double jeopardy in that the jeopardy took place in the same trial as the conviction sought to be set aside,
(c) could not be used as a basis for double jeopardy since it was not raised in the trial court and as a result was waived,
(2) that there was evidence that defendants knowingly exerted unauthorized control over the property of another and were properly convicted of theft;
(3) that defendant DiDonato refused to answer questions and this was properly received into evidence as an admission by silence. Furthermore, no timely objection was raised at the time the evidence was introduced;
(4) that the prosecutor’s final argument was justified as a reply to provocative remarks made by defense counsel.

We find no case directly in point in response to defendants’ first contention. We feel, however, that the judgment of the lower court should be reversed.

We disagree with the People’s contention that the first count could not be dismissed by the court without the submission of a jury instruction. In Jarman v. State, 178 Miss 103, 172 So 869 (1937), the court held that where the accused is entitled to a directed verdict, judgment can be rendered by the trial court without the useless formality of having the jury return the verdict. Therefore, we hold that the court had the authority to dismiss the charges contained in count one without the submission of a jury instruction. The court made the determination as a question of law and the followup by an instruction was a formality.

We likewise do not find merit in the People’s contention that, assuming a valid finding of not guilty, it could be rescinded prior to the discharge of the jury. The closest case in point to the instant situation is Menton v. Johns, 151 Colo 276, 377 P2d 104 (1962), (a petition for a writ of prohibition arising out of a criminal case). In that case the defendant’s motion to dismiss was allowed. The jury was discharged. Subsequently, the State petitioned for a new trial. The court held that a grant of the State’s petition would constitute double jeopardy and the defendant, Menton, was ordered discharged. We do not find any reason to vary the rule in a case where a rescission of the order is asked by the State prior to the discharge of the jury. We hold that a defendant, who has been placed in jeopardy and who has charges dismissed by the trial court, cannot have the charges reinstated either before or after the jury has been discharged.

The People rely on the case of State v. Vigil, 33 NM 365, 266 P 920 (1928). We do not believe that case applicable to the present situation. In that case the court held that erroneous instructions, withdrawing charges of first and second degree murder and submitting manslaughter charges, could be recalled before the jury finally retired and new instructions, excluding manslaughter charges and submitting first and second degree murder charges, could be substituted without raising the question of double jeopardy. The reasoning of the court was based primarily on the proposition that instructions may be changed by the court during a trial any time prior to the discharge of the jury. That case can be distinguished from the instant case in that we are not dealing with an instruction but with a judgment of not guilty.

We likewise find no merit in the People’s contention that the question of double jeopardy was waived since it was not raised in the trial court. Under the authority vested in us by virtue of Chap 38, § 121-9 (a), Ill Rev Stats (1963), we feel that substantial justice requires that defendant not be placed in jeopardy twice for the same crime and that such an infringement on defendant’s rights can be raised for the first time on appeal. We do not have to consider the other contentions raised by defendant in that the judgment is reversed. The judgment is reversed.

Judgment reversed.

BRYANT, P. J. and BURKE, J„ concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MORAN

license: Public Domain

text:
    James L. Hanegan, a Minor, by Lyle Hanegan, His Father and Next Friend, Plaintiff-Appellee, v. Horace Mann Mutual Insurance Company, a Mutual Company, and The Farmers Automobile Insurance Association, Defendants-Appellants.
    Gen. No. 65-122.
    Second District.
    November 30, 1966.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, and Maynard and Maynard, of Rockford, for appellants.
    Boyles & Cordes, and John Castle, all of DeKalb, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Defendant insurance companies each appeal from judgments rendered against them in favor of the minor plaintiff. The judgment against defendant, The Farmers Automobile Insurance Association, was for Three Hundred Forty-three and 54/100 Dollars ($343.54) and costs of suit and the judgment against defendant, Horace Mann Mutual Insurance Company, was for One Hundred Seventy-one and 77/100 oo Dollars ($171.77) and costs.

This controversy arises out of an automobile collision which occurred April 1, 1961, between vehicles driven by plaintiff James Hanegan and one Geraldine Hart.

At the time of the collision Hanegan was driving a 1950 Pontiac automobile which was owned by Mr. Charles Mellinger. Mellinger was the owner of a policy of insurance issued by The Farmers Automobile Insurance Association. This policy contained the usual clause defining persons insured as follows:

Persons Insured The following are insureds under Part 1:

“a. With respect to the owned automobile, (1) the named insured and any resident of the same household (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.”

The “Other Insurance” clause of the policy provided:

“If the insured has other insurance against a loss covered by Part 1 of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.”

On the morning of the accident Charles Mellinger’s seventeen-year-old son Gary was using his father’s automobile. He picked up the plaintiff, James Hanegan, and two other young men and drove to the University Shopping Center in DeKalb, Illinois. They went to the barber shop in the Shopping Center where Gary Mellinger intended to get a haircut. The plaintiff, Hanegan, asked Gary if he might borrow the car to get something to eat. Gary consented and gave the car keys to the plaintiff. The plaintiff, with one of the other boys as a passenger, drove out of the Shopping Center and collided with a car driven by Geraldine Hart and owned by Robert Hart.

The plaintiff’s father, Lyle Hanegan, had insurance with defendant Horace Mann Mutual Insurance Company. That policy contained a provision defining insured with respect to a nonowned automobile as, “. . . the named insured, any relative, . . . provided the actual use thereof is with the permission of the owner, . . .” The Horace Mann policy contained an “Other Insurance” provision identical to the corresponding provision in the Farmers policy.

Robert Hart filed action against James Hanegan for property damages to his automobile. Plaintiff submitted the defense of the case to each of the defendant insurance companies and each refused to accept the defense.

The plaintiff then retained private counsel to defend him and upon trial of that cause Robert Hart recovered judgment and this action against the insurance companies followed.

This case was tried before the court and resulted in a finding that plaintiff was entitled to recover the amount of the Hart judgment plus interest, plus Two Hundred Dollars ($200) for attorney’s fees and plus costs. The court assessed one-third of the damages against Horace Mann and two-thirds of the damages against Farmers and each company has appealed.

At the trial before the court plaintiff James Hanegan testified that he was sixteen years old, a high school student and a licensed driver. He testified that he rode with Gary Mellinger in the automobile in question on many occasions and that Gary would drive the car to school two or three times a week as well as to social and athletic functions on weekends. He testified that Gary had the car key on a key chain with his house key and a key to his school locker. He also testified that on the day of the accident Gary picked him up at his home and that while they were in the barber shop Gary granted him permission to take the car to get something to eat and gave him the car keys.

Charles Mellinger, Gary’s father, testified that Gary only occasionally drove the car to school and that Gary was given the key whenever he was to use the car. Mr. Mellinger was not certain whether there was a set of keys for Gary. He had no conversation with his son on the day of the accident concerning the use of the car by himself or anyone else and he had never given his son any specific instructions concerning the automobile’s use by someone else.

Approximately a year before the accident when Gary first received his driver’s license there was a conversation to the effect that Gary had to have the permission from either his mother or father to use the car. He stated that so far as he knew Gary had never permitted any of his friends to drive the car.

The trial court in commenting on the facts stated that it believed the son Gary had a set of keys to the automobile, that Gary was not prohibited by his parents from allowing other persons to drive the automobile and that Gary had expressly permitted the plaintiff to drive the car at the time of the accident.

The trial court reviewed both Hays v. Country Mut. Ins. Co., 28 Ill2d 601, 192 NE2d 855 (1963), and Fireman’s Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill App2d 69, 173 NE2d 543 (1961), and came to the conclusion that the facts of this case were closer to the facts in the Fireman’s Fund case than in the Hays case and, therefore, ruled in favor of the plaintiff and against the insurance companies on a pro rata basis.

In the Fireman’s Fund case the proofs were that the automobile was being used for a social purpose; that the son permitted his girl friend to drive the car while he and a friend were in the automobile rehearsing a play; that the father had purchased the car for his son and had given his permission to use the car at anytime the son desired; that the son had his own key to the car, but the father also had a key and occasionally drove the car but had another automobile for his own use; that he did not know that the son was on the particular trip until after the accident; and that the father knew the son was dating the young lady who was driving the car at the time of the accident but had never discussed with his son whether or not anyone else would be permitted to drive the vehicle.

The Appellate Court sustained the trial court’s holding that the young lady had implied permission of the father-owner to drive the vehicle. The court commented that permission would be more readily assumed where the general use is for social rather than business purposes and will also be more readily assumed where the permittee has general custody of the car rather than a limited permission. The court went on to hold that the son had the general use of the car with his father’s permission and that this general permission includes the authority to delegate the driving to another while the permittee is using the car.

On the other hand, in Hays v. Country Mut., supra, the factual situation was somewhat different and the Supreme Court held that there was no permissive use. In that case the automobile was owned by a man who permitted his sixteen-year-old daughter, fifteen-year-old son and a younger daughter to take the family car into town on a Saturday evening. The sixteen-year-old daughter had a date and the two younger children were planning to see a movie. The sixteen-year-old daughter had just received her driver’s license and after some hesitation her father permitted her to take the car for the evening with specific instructions that she was to do the driving and that the car was to be driven into town and parked at the square and was not to be driven around. They were to go into the show and come out and return home. Shortly thereafter, the daughter with her brother and sister riding in the car drove the car into town. After they arrived, the fifteen-year-old son granted permission to another young man to take the automobile. This young man had no driver’s license. He took the automobile with three other young people to an adjoining town and on the return trip he lost control of the car and the accident occurred resulting in injuries to one of his passengers.

The Supreme Court held that the evidence established that the original permission had been granted for a specified and limited purpose only and that the use of the car at the time of the accident was totally disassociated from the original use.

We feel that although the facts of this case bear some relationship both to the Fireman’s Fund case and the Hays case, the facts are not substantially similar with either of these decisions. This case is dissimilar from the Fireman’s Fund case in that the automobile there was purchased specifically for the use of the son, that he could use it whenever he wished and that he was riding in the car as a passenger at the time of the accident. This case likewise differs from the Hays case in that there the sixteen-year-old daughter did not have the keys to the car, did not usually drive the car for social purposes and she was under quite explicit instructions from her father as to the use of the car on that occasion.

However, in the Hays case, the Supreme Court laid down guidelines for determining the question of implied permission. The Supreme Court stated commencing at page 608 as follows:

“In the light of the purposes of the requirement of permission, the authorities relied upon by the plaintiff are distinguishable. The interests both of the insured and of the insurance company center upon the identity of the permittee, his relation to the insured and his ability and responsibility as a driver. The use to which he puts the vehicle while it remains in his control may be regarded as of secondary importance to the question of coverage. Decisions holding that coverage persists despite a deviation from the permitted scope in route, purpose, or duration of use do not therefore compel the conclusion that coverage should also extend to third persons whom the original permittee has, without authority, allowed to use the car. The rule that initial permission will suffice applies in reason only when that permission was granted to the user sought to be brought within the coverage of the policy. Of course the named insured may by express authorization delegate to his permittee the power to grant permission to others, and circumstances surrounding the original permission may support an implication of such an authorization. Thus where the permittee is in every practical sense the owner of the car, and the named insured holds title for convenience, the general custody and control of the permittee is usually held to empower him to grant permission to others within the scope of an omnibus clause, at least in the absence of express prohibition. (See, e. g. Hinckley v. National Surety Co. 99 NH 373, Ill A2d 827 (1955); Fireman’s Fund Indemnity Co. v. Freeport Insurance Co. 30 Ill App2d 69; cf. Norris v. Pacific Indemnity Co. 39 Cal2d 420, 247 P2d 1 (1952).) If the original permittee retains control of the car, but turns over its physical operation to a third person while remaining a passenger, an implied permission has been found in the continued use and control of the original permittee. (See Standard Accident Insurance Co. v. New Amsterdam Casualty Co. 249 F2d 847 (7th cir 1957); Fireman’s Fund Indemnity Co. v. Freeport Insurance Co. 30 Ill App2d 69.) Even where the original permittee is not a passenger, an inference of permission has been sustained where the third person is engaged on some errand or activity for the benefit, advantage, or purposes of the original permittee. (See Aetna Life Insurance Co. v. Chandler, 89 NH 95, 193 A 233 (1937).) A course of conduct, establishing that the original permittee was allowing third persons to drive with the knowledge of the named insured and without his objection, may also support a finding of implied permission. See, e. g., Odden v. Union Indemnity Co. 156 Wash 10, 286 Pac 59 (1930); Shoup v. Clemans, (Ohio App) 31 NE2d 103 (1939); cf. Goff v. New Amsterdam Casualty Co. 318 Ill App 586.
“No such circumstances are revealed by this record. The insured had not given general custody and control, akin to ownership, to Eleanor and Roger; he allowed them to use the ear only for a limited and specified purpose. Nothing in the circumstances suggests that if the question had been put to him he would have approved the use of his car for a joy ride by an unlicensed 15-year old. No member of the Daily family was present as a passenger, and there was no benefit or advantage to Eleanor or Roger. Nothing has been shown to establish a course of conduct by which Thomas Hargis used the car with the insured’s knowledge and without his objection. We are unable to discern any basis to support a finding of permission.”

The record reveals no evidence that Gary Mellinger, the original permittee, was in every practical sense the owner of the car, or that Gary retained control of the car while remaining a passenger therein.

Plaintiff contends that the use of the Mellinger car at the time of the accident was for the benefit of Gary Mellinger and Third Nat. Bank v. State Farm Mut. Auto Ins. Co. (Ky), 334 SW2d 261 (1960), is cited in support of this argument. We do not believe that Gary Mellinger had any obligation either social or otherwise to accommodate the desire of the plaintiff and the other boy to have something to eat and we cannot see that their taking the car to a restaurant while Gary was getting a haircut was in any way a convenience for him.

The remaining category found in the Hays case as to implied permission would be evidence that Gary had allowed third persons on other occasions to drive his father’s car, coupled with the fact that his father, the insured, had knowledge of such fact and did not object. The record is void of any such evidence.

The best that can be said from the evidence in this case is that since the insured did not expressly prohibit the permittee from allowing third persons to drive his automobile, an implied permission should be found. Such a result would not only add to the categories enumerated by our Supreme Court in the Hays case, but go beyond what to date has been the law in Illinois.

In absence of permission by Charles Mellinger, either expressed or implied, neither defendant owed coverage.

In light of this decision it is not necessary for us to consider the question of assessing the judgment as between the respective defendants; however, we note that this problem has been resolved by the recent decision of the Supreme Court in New Amsterdam Cas. Co. v. Certain Underwriters at Lloyd’s, London, 34 Ill2d 424, 216 NE2d 665 (1966), and by this court in Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 415, 416, 213 NE2d 141 (1966).

Judgment reversed.

ABRAHAMSON and DAVIS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Howard H. Lerch, Defendant-Appellee.
    Gen. No. 66-42M. (Abstract of Decision.)
    Second District.
    November 30, 1966.
    William G. Clark, Attorney General of the State of Illinois, of Springfield (William A. Bomp and Fred G. Leach, Assistant Attorneys General, of counsel), and William R. Nash, State’s Attorney, of Rockford (Alfred W. Cowan, Jr., Assistant State’s Attorney, of counsel), for appellant; Berry and Simmons, of Rockford, for appellee.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Ace Alexander, Defendant-Appellant.
    Gen. No. 50,386.
    First District, Third Division.
    December 1, 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 James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was found guilty of arson and was sentenced to a term of one to five years in the penitentiary. He contends (1) that the State failed to prove the necessary intent; (2) that the court erred in allowing a witness to answer improper hypothetical questions ; and (3) that it erred in refusing to give an instruction tendered by defendant with respect to flight. The facts follow.

Defendant was charged with setting fire to the apartment of Clara Martin with whom he had lived for six months prior to the event in question. The fire started shortly after 4:00 a. m. on September 1, 1963, and did extensive damage to Mrs. Martin’s apartment and to other apartments in the building. Defendant was arrested on May 5, 1964. At that time he gave the police a signed statement in which he admitted starting a fire in the closet of Mrs. Martin’s bedroom on the night in question, but denied that it was done intentionally. In the statement he said he was using his cigarette lighter to search for money in the closet when a neoprene clothes bag caught fire, that he stamped on the bag to put out the flames and shut the closet door to prevent the spread of the fire. He said the fire was extinguished when he left the premises. The written statement was admitted in evidence during the course of his cross-examination.

Mrs. Martin testified that she and the defendant had quarreled some days before the fire and that defendant had moved to a hotel, but that on the night in question he returned to her apartment to pick up certain belongings he had left there. Knowing that he was coming, she placed the items outside the door because she did not want him to come in. Defendant insisted on being admitted and kicked'in a door panel, and she then allowed him to enter because she wanted to avoid further disturbance of her neighbors. Inside the apartment, defendant became violent and hit and kicked her and she ran to a neighbor’s apartment, returning about ten minutes later to find the apartment on fire. She further testified that some months earlier, defendant in a burst of anger had threatened to start a fire and had started to pile up papers in a closet preliminary to taking such action when he was restrained by a third person. She also stated that a few days before the fire, the defendant had severed her telephone wires.

George Healy of the Chicago Fire Department testified on behalf of the State that the fire had started in the bedroom area of the apartment, but that the exact place of its origin could not be pinpointed because of “the intense burning throughout the entire bedroom.” He said that in his opinion had the fire been started in the closet, it could not have spread as it did unless the closet door had been open.

Joseph Bergan of the Chicago Police Department testified that he investigated the fire and learned from Mrs. Martin that she suspected the defendant; that she gave him defendant’s description and information concerning his usual whereabouts, but had no known address for him and hence he (Bergan) and his partner were unable to locate the defendant in the neighborhood to which they were directed. He said a stop order for defendant was placed about a week or two after the fire. On cross-examination he testified that he had not looked for defendant at the two specific addresses which the defendant later testified were his permanent residences from the date of the fire until his arrest.

Defendant testified on his own behalf and in substance repeated the narration he had given the police with respect to the fire and the events preceding it. He further testified that he learned of the fire about two days after it occurred, at which time he had heard that the police were looking for him and that he then went to the Racine Avenue Police Station, where he was told he was not wanted as a suspect for any offense. He further testified that he had been working in the city and was available for most of the time between the date of the fire and his arrest.

Defendant’s first contention is that there was no showing that he intended to start a fire. The evidence establishes his presence on the premises immediately before the fire, his previous threat to burn the apartment and his violent encounter with Mrs. Martin that night. This evidence, although circumstantial, is very persuasive and was adequate proof of criminal intent.

Defendant’s second point is that the hypothetical questions asked of the State’s expert witness, Healy, were based on a fact not in evidence, that is, that the door to the closet was open. The questions propounded to the witness were as follows:

“Q. Mr. or Fireman Healy, if a fire had been started in the closet and the door of that closet had been closed would that fire be able to spread through that apartment within a few minutes ?
Mr. Friedman: Object. Just a minute.
A. No, it could not.
The Court: It may stand.”
“Q. Based on your examination of this apartment, based on your experience with the fire department investigation unit, do you have an opinion as to whether or not the closet door in that apartment had been closed ?
A. If the closet door was closed the fire would be confined to the closet. Whereas it was my opinion it was open, which spread out to the bedroom and to the living room.”

At this point in the trial, there had been no direct testimony with respect to whether the closet door was open or closed, but counsel for the defense in his opening statement had stated that defendant had closed the door to extinguish the fire. Defendant’s statement to the police, in which he had said that he closed the door was also later admitted in evidence. The State properly undertook to refute the defense position that the door was closed, and the deviation in the order of proof was not harmful error.

As to the propriety of the questions, it is true that a hypothetical question should be based on facts in evidence, but the questions in issue here were not hypothetical in the ordinary sense. The witness had personally investigated the fire and had seen that the entire bedroom area was gutted, and on the assumption that the fire began in the closet, a fact not in dispute, he stated his conclusion that the door must have been open or the fire would not have spread through the rest of the apartment as quickly as it did. The hypothetical questions did not rest on the assumption with respect to the door, but rather were framed in such a way as to elicit the witness’s conclusion as to whether the door was in fact open or closed. Insofar as those questions were based on facts in evidence, that is, that the fire began in the closet and spread rapidly, the questions were proper.

Finally, defendant argues that the court erred in failing to give an instruction tendered by him with respect to flight. The instruction follows:

“Before the jury can consider flight by the defendant as a circumstance in determining the guilt or innocence of the defendant, the jury must be satisfied from the evidence beyond all reasonable doubt that the defendant did in fact flee from the scene where a crime was committed. And if the jury find from the evidence that he did not flee from the scene of the crime, but remained within this jurisdiction in the City of Chicago, then the jury are not justified in considering flight as a circumstance tending to show the guilt of the defendant.”

Defendant argues that references by the police to their inability to find him were calculated to leave the impression with the jury that he fled the scene of the crime and that therefore he was entitled to an instruction negating this prejudicial effect. The State contends that it offered this evidence to explain the delay in bringing charges against defendant and that there is no issue of flight present in the case. We do not reach this question, however, because defendant’s instruction improperly stated the applicable law in the following respects:

The first sentence of the instruction says that the fact of flight must be proved beyond a reasonable doubt. This is error. The material allegations of an indictment must be proved beyond a reasonable doubt, but an incriminating fact or circumstance, such as flight, need not be so proved. People v. Dolgin, 415 Ill 434, 114 NE2d 389; People v. Jordan, 18 Ill2d 489, 165 NE2d 296.

Secondly, the instruction contained only a partial statement of the law, and no other instruction supplied the missing part. The jury was instructed only as to what it might consider if it found that defendant did not flee. There was no instruction as to the significance of flight if it found that he had fled. On this ground the instruction was properly refused. People v. Robinson, 14 Ill2d 325, 153 NE2d 65.

Finally, the instruction erroneously assumed that an individual could not have fled from the scene of the crime if he remained within the jurisdiction, and as defendant remained in the city, he was not in flight. In People v. Autman, 393 Ill 262, 65 NE2d 772 (quoted in Words and Phrases under “Flight,”) the court said that flight is:

“[T]he evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest.”

It is consistent with this definition that an individual might remain within the jurisdiction and still have fled from the scene of the crime. The instruction offered was properly refused.

We find no reversible error in the trial of this case. The judgment will be affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ben Florman, Defendant-Appellant.
    Gen. No. 51,104.
    First District, Third Division.
    December 1, 1966.
    Rehearing denied December 19,1966.

      Jack G. Stein, of Chicago (Francis X. Riley, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from a conviction of burglary by the court sitting without a jury. He was sentenced to the penitentiary for a term of one year to one year and a day.

The defendant contends that the court erred in finding the defendant guilty of burglary, because the evidence did not show that he entered a building, or participated in a burglary or conspired with those who did, and that the evidence did not show that the defendant was at any time in exclusive possession of the stolen goods.

The defendant, together with Abe Reeder and Joseph Sender, was indicted for the crime of burglary. The indictment charged them with knowingly entering into the dwelling house of Mary Fudala at 4250 North Marine Drive in Chicago, without authority and with intent to commit the crime of theft, contrary to section 19-1 of the Criminal Code (Ill Rev Stats 1963, c 38, par 19-1). The defendant and Abe Reeder were tried together and were represented by separate counsel. Reeder was acquitted, and the defendant Florman was found guilty of the charge of burglary.

Mary Fudala, the victim of the burglary, testified that on September 25, 1964, she lived in apartment 2101 at 4250 Marine Drive. She knew Joseph Sender, whom she had hired to paint her apartment on three occasions. At about 6:00 or 6:30 that evening she went with Joseph Sender and her son to a restaurant. They returned about 10:30 or 11:00 o’clock p. m. She further testified that she had jewelry, valued at about $25,000, exposed in trays on the dresser, a chinchilla wrap and a mink jacket in the apartment when she left for dinner. Upon her return the trays with the jewelry, plus the fur wrap and jacket, were missing. She further testified that on October 15, 1964, she saw Joseph Sender and his wife, Shirley, on separate occasions. She had talked to Mrs. Sender several times that day on the telephone. On October 16, 1964, at about 9:00 a. m. she met Shirley Sender in Sender’s apartment. Later that same day, at 8:00 p. m., they again met at the Lincoln Village, at which time Shirley gave Mrs. Fudala a key. The next morning Mrs. Fudala went to the Northwestern Station to a box where Mrs. Sender said she would find her things. She opened the box with the key and took out a plastic bag which she had purchased. The bag was stuffed with her furs and about half of the stolen jewelry. On October 19, 1964, Mrs. Sender gave Mrs. Fudala another key at the Wilson Avenue Station. Mrs. Sender took Mrs. Fudala to a locker and Mrs. Fudala opened the locker. There she found “something similar to a cigar box in it.” Nearly all of the balance of the jewelry was in the box.

Margaret Davis, a waitress at the Imperial Towers on Marine Drive, testified that while at work on September 25, 1964, in the morning, she saw Joseph Sender and the defendant Florman and Reeder sitting in a booth. She served them four coffees while they were in the restaurant that morning. She did not hear what they were saying but they remained in the restaurant for about an hour and a half talking. She testified she did not notice what anyone was wearing but she did identify Reeder as being present with Florman and Sender. She did not know the names of the people who were charged in this case excepting that of Sender.

Joseph Sender was called as a witness for the People and testified that he had been previously convicted in this matter. He testified that on October 15, 1964, he saw the defendant, Ben Florman, in the Imperial Towers restaurant; that he talked to him about painters. He also had a telephone conversation with the defendant on October 15, 1964, at which time he told Florman that his, Sender’s, life was threatened and he told the defendant Florman that if he knew anybody who had any connection with the burglary he wanted “that stuff” given back to Mrs. Fudala. He also testified that the defendant Florman said he didn’t know. “But if he has any information, if he has it, he’ll try to get it back for me.” On the afternoon of October 16, 1964, Sender met the defendant at Kimball and Bryn Mawr Avenues. He further testified that the defendant brought a package and that the defendant said, “This is it.” Sender went to the Northwestern Station at Canal and Washington and put the package in a box and then told his wife, “Please, get a hold of Mrs. Fudala. Here’s the stuff back.” He gave the key to the locker to his wife.

Shirley Sender, the wife of Joseph Sender, testified that on October 16, 1964, her husband gave her a key. She then got in touch with Mrs. Fudala and turned the key over to her.

Abe Reeder, was called as a witness in his own behalf. He testified that he did not burglarize the Fudala apartment and did not participate in the burglary of that apartment. He also stated that he was a partner of the defendant Florman in the B & F Construction Company, and that Joseph Sender is his brother-in-law. Shirley Sender is his sister. He also testified as follows:

“Q. Did you overhear a conversation by Mr. Florman that he had the goods ?
A. Yes.
Q. When was this ?
A. Sometime in October, the early part of October.
Q. During the conversation — who did Mr. Florman have the conversation with ?
A. I don’t know; probably a conversation came in. Our desks are very close together.
Q. You heard him talking on the phone ?
A. Yes.
Q. What did you hear him say ?
A. Something about jewelry. I couldn’t be specific, because first of all, it wasn’t in English.
Q. Well, was it in Hebrew ?
A. No. It was in Yiddish.
Q. Did you understand Yiddish ?
A. Very little.
Q. But you did understand enough to know that it was about jewelry, is that right?
A. I caught one or two words.
Q. Now, how did you know it was about the jewelry that was taken from Mary Fudala’s apartment?
A. I didn’t know.”

Reeder further testified that on the afternoon of October 15, 1964, he talked to the defendant Florman at his place of business about going to get this jewelry back. He told the defendant that he had met a man whom he thought was a hoodlum, and that he had threatened Reeder. This alleged hoodlum had also threatened Florman and said that if the defendant Florman had any jewelry he wanted it back. Florman said he didn’t know what they were talking about.

John J. Gallagher, Chief Investigator for the Illinois Crime Commission, testified that on October 14, 1964, he received two telephone calls. The first one was from the informer and the second was from the informer and Mr. Reeder. During the time he saw the defendant, Reeder and Ferdman, who was the informer, he impersonated a syndicate hoodlum known as Mr. “J.” During his conversation with Abe Reeder he conveyed to him the fact that if something wasn’t done about the return of the stolen goods he, Reeder, would be thrown in the river. He further said, “In effect, he would be killed.”

During this time another representative of the Illinois Crime Commission, Mr. Walker, also impersonated a syndicate hoodlum.

The defendant argues that the evidence against him is only that Sender met the defendant, who gave Sender a package; that Sender put the package in a locker and told his wife to tell Mrs. Fudala that “the stuff is back.” The locker was at the Northwestern Station and the key was given to Sender’s wife, who is Reeder’s sister. She, in turn, gave the key to Mrs. Fudala.

The State argues that the recent, exclusive and unexplained possession of stolen property gives rise to an inference of guilt sufficient to sustain a conviction of burglary. People v. Owens, 23 Ill2d 534, 179 NE2d 630; People v. Pride, 16 Ill2d 82, 156 NE2d 551; People v. Malin, 372 Ill 422, 24 NE2d 349.

In People v. Bennett, 3 Ill2d 357, 363, 121 NE2d 595, the court said:

“This court has often announced the rule that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant’s guilt.” (Emphasis supplied.)

The defendant did not testify in this case, nor is there any evidence in the record which in any way attempts to explain his possession of the stolen goods. The defendant contends that the evidence, at most, shows that he was an accessory after the fact or receiver of stolen goods.

In People v. Francis, 362 Ill 247, 199 NE 100, the court said that a burglary can seldom be proved by direct evidence of the actual breaking and entry, and that the inference of guilt, in most cases, must necessarily be drawn from other facts satisfactorily established. In that case certain important links in the chain of the People’s evidence were supplied by circumstances. In the Francis case, supra, the defendant testified and attempted to explain his possession to overcome the presumption of guilt, but failed to do so to the satisfaction of the jury.

In the instant case no effort was made to explain defendant’s possession of the stolen property.

In People v. Pride, supra, the court held that no definite time can be fixed as to when, as a matter of law, possession is or is not recent. The defendant was seen before the crime in the company of Sender, who was convicted of the crime. When Sender and Reeder were threatened with death unless the stolen goods were returned, they immediately called Florman. Why would they have immediately called Florman unless they knew that he had the stolen goods? When Florman was told that he also had been threatened, he promptly produced a portion of the stolen goods. We do not believe that the argument of the defendant, to the effect that the positive evidence failed to show that he entered the building and therefore could not be guilty of burglary, is well taken. Under the circumstances and inferences to be drawn, we believe that the State satisfactorily proved a case of burglary against this defendant.

The defendant also argues that under the evidence there is no showing that the defendant was in exclusive possession of stolen goods. However, the evidence positively showed that he did possess the goods, and whether he had sole possession, or whether it was shared, does not affect the inference of guilt. People v. Reynolds, 27 Ill2d 523, 190 NE2d 301.

The defendant also argues that there was some confusion as to the use of the words “box,” “locker,” “package” and “plastic bag.” However, from reading the record there can be no question but that the defendant Florman produced a part of the stolen property, and the use of the various words above mentioned could not in any manner change the conclusion reached by the trial judge, that when Florman heard that he was threatened he immediately produced at least a portion of the stolen goods. The remainder of the goods were returned two days later as a result of the same threat against Florman. The evidence that the second key was given to Mrs. Sender by Mrs. Florman was stricken out and cannot be considered in this case, but possession of only a part of the goods does not create a reasonable doubt. People v. Clark, 30 Ill2d 216, 195 NE2d 631. The fact that Florman responded so quickly, when he learned that he had been threatened, by returning the stolen goods is, in itself, a most incriminating fact.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Ray, Defendant-Appellant.
    Gen. No. 50,770. (Abstract of Decision.)
    First District, Third Division.
    December 1, 1966.
    Frank J. Ferlic, of Park Ridge, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE DEMPSEY. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    County of DuPage, a Body Politic and Corporate, Plaintiff-Appellee, v. C. B. Robinette, Rose Robinette and American National Bank and Trust Company of Chicago, an Illinois Banking Corporation, as Trustee Under Trust No. 18962, Defendants-Appellants, v. City of Elmhurst, City of Oakbrook Terrace and Village of Villa Park, Intervenors-Appellees.
    Gen. No. 66-77.
    Second District.
    December 3, 1966.

      Raymond, Mayer, Jenner & Block and Thomas W. McNamara, of Chicago, for appellants.
    Thomas F. Pierce, of Chicago, William V. Hopf, State’s Attorney, and Popejoy, Bowman, Unverzagt & Nelson, all of Wheaton, and Peter Ernest, of Elmhurst, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an interlocutory appeal from a temporary injunction order of the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, entered on July 13, 1966, that restrained the defendants from “dumping or depositing, in any manner, any material” on property owned by the defendant “other than clean and inert earth cover which is free of organic matter and which is relatively free of stone greater than six (6") inches in diameter and other bulky material” until further order of court.

The defendants C. B. Robinette and Rose Robinette are the beneficiaries of a land trust established at American National Bank and Trust Company under a trust agreement numbered 18962. The trust holds legal title to a sizable tract of land located near the intersection of State Route 83 and Roosevelt Road in the Village of Oakbrook Terrace in DuPage County. Apparently the Robinettes, sometime prior to August, 1964, began to fill the low places on the tract with large quantities of diverse materials, including garbage and sewerage. On August 28.1964, the County of DuPage filed a complaint against the Robinettes and the Bank as Trustee, that alleged the deposit on the property of “nauseous matter or substance, or waste from sewerage disposal facilities, which by reason of its quantity or decomposition, would become foul, odorous, or tend to breed harmful bacteria to become detrimental to public health or conducive to the spread of disease.” The complaint further alleged that these actions violated paragraphs 26 and 27 of chapter 100% of the Blinois Revised Statutes, and the DuPage County Health Ordinance, and requested a “Mandatory Permanent Writ of Injunction without bond” enjoining and restraining them from depositing “any septic waste material” on the property. Pursuant to that complaint and presumably after a hearing, although the record before us contains no evidence of one, the court, on September 1, 1964, ordered the issuance of a Mandatory Permanent Writ of Injunction “enjoining the Defendants and their agents and employees and all persons acting or claiming by, for, and through or under the Defendants from the further permitting, allowing or depositing of any septic waste material on the aforesaid property, and from using or permitting the use of the said land as a receptacle for the septic waste, filth and noisome and offensive substances.”

On July 13, 1966, pursuant to notice, the County filed a motion that asked that the prior order of September 1.1964, be “supplemented and amended” to require Robinette to grade his property in conformity with an attached topographical map and that he be further enjoined from the deposit of any “putrescible matter or any commercial or industrial waste (whether solid or liquid) which by its nature is capable of emitting odors which are detectable by human sense organs.” Two affidavits, filed with the motion, state that strong, unpleasant odors flow from the property to the surrounding areas. Although the defendants personally appeared on July 13, 1966, it was only to file a special appearance to object to the jurisdiction of the court over them at that time. No pleadings or affidavits responsive to the motion of the County were filed.

On that same day, the court indicated that it would create “an engineering committee consisting of five (5) members” to recommend a solution to the “health and nuisance” problem that existed on the property and ordered the issuance of a temporary injunction, already described, from which this appeal was immediately prosecuted.

Ordinarily, a court will issue a temporary injunction where it appears that irreparable harm might be done in the event that the status quo is not maintained pending the disposition of a lawsuit. It is generally employed only in matters of emergency and then only with considerable caution by the trial court. Triangle Sign Co. v. Randolph & State Property, Inc., 16 Ill App2d 21, 29, 30, 147 NE2d 451. The application for a temporary injunction must specify the facts that require the unusual relief sought. Phelan v. Wright, 54 Ill App2d 178, 181, 203 NE2d 587; Hope v. Hope, 350 Ill App 190, 194, 112 NE2d 495. It must allege that irreparable harm will result if the status quo is impaired. McFetridge v. First Commercial Bank, 28 Ill App2d 512, 524, 171 NE2d 791. The application should be verified. Phelan v. Wright, supra.

In addition to these requirements, the Injunction Act, chapter 69, Illinois Revised Statutes, 1965, provides that a bond be given before an injunction may issue upon such penalty, conditions and securities as required by the court. A bond may not be required where, for good cause shown, the court is of the opinion that the injunction ought to be granted without bond. However, it is necessary that the excuse of the bond for good cause be justified by facts evident in the record. Town of Cicero v. Weilander, 35 Ill App2d 456, 469, 183 NE2d 40; Grossman v. Grossman, 304 Ill App 507, 513, 26 NE2d 678.

Aside from the unusual procedure involved in the issuance of a temporary injunction almost two years after a permanent injunction had been ordered, the record before us indicates that the injunction order of July 13, 1966, failed to meet the requirements enumerated in almost all respects.

The original complaint charged the defendants with the unlawful deposit of septic material on their property and a permanent injunction issued that enjoined and restrained them from continuing to do so. There is no indication or allegation that the defendants violated that injunction. Almost two years later, the County sought to expand the strictures of the injunction order to preclude the defendants from the deposit of any material other than “clean and inert earth cover” on their property. There is nothing in the motion of the County to indicate that the defendants’ activities were harmful or unlawful. It did not recite that a temporary injunction was necessary to preserve the status quo, since, in fact, the injunction order was not designed to preserve, but to radically alter, the status quo by the order of an immediate cessation of defendant’s landfill operations except for the earth cover. No facts were presented to indicate that an emergency existed or that irreparable harm would result if an injunction did not issue. The County did not request that a bond be excused, nor was there any evidence or finding by the court that good cause existed for that excuse.

Under the circumstances, we cannot but hold that the injunction of July 13, 1966, was improvidently issued. That portion of the order directing the issuance of the temporary injunction is reversed and the cause remanded to the trial court for further action.

Reversed and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


text:
    The Farmers Automobile Insurance Association, an Inter-Insurance Exchange, Plaintiff-Appellant, v. Iowa Mutual Insurance Company, an Insurance Corporation; Tilden Meyers, Individually and d/b/a Meyers Sales & Service, also d/b/a Belvidere International Harvester Company; Rockford Trailer Sales & Service Company, Inc., a Corporation; Douglas E. O’Dell, et al., Defendants-Appellees.
    Gen. No. 66-31.
    Second District.
    December 3, 1966.
    Rehearing denied December 23, 1966.

      Maynard, Maynard and Brassfield, of Rockford, for appellant.
    Miller, Thomas, Hickey and Collins, of Rockford, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. Plaintiff brought a Declaratory Judgment suit for a determination of the rights, duties and obligations of the plaintiff, The Farmers Automobile Insurance Association (hereinafter called Farmers) and Iowa Mutual Insurance Company (hereinafter called Iowa Mutual), defendant, to Douglas E. O’Dell, in a common lawsuit against him for personal injuries arising out of an accident when a truck-tractor owned by Tilden Meyers, a dealer in trucks and driven by O’Dell collided with a vehicle driven by Albert Goldberg. The trial court entered a declaratory judgment in substance finding that plaintiff owed O’Dell the duty of defense and payment of the full amount of settlement and that Iowa Mutual owed no obligation to defend O’Dell or to pay any part of the settlement.

On April 29, 1963, Tilden Meyers operated a truck sales and service garage in Belvidere. Douglas E. O’Dell, a trucker, was interested in purchasing from Meyers the truck-tractor involved in the accident with Goldberg. Meyers was insured by Iowa Mutual. The policy provided, among other things, coverage for other persons operating an owned vehicle with the insured’s permission. O’Dell was insured by Farmers. On April 29, O’Dell sought permission to use the truck-tractor owned by Meyers for purposes of a demonstration. Meyers testified that when he gave permission for the demonstration he knew O’Dell wanted to try out the truck with a trailer attached and that the closest trailers would be in Rockford, Illinois. Meyers testified he was told O’Dell would use the truck about two hours. O’Dell testified that he did not tell Meyers anything about how long he would be gone or where he was going. O’Dell took the vehicle to Rockford where he attached a trailer to it. He then drove the truck and trailer to his home in Roscoe, Illinois. The next morning, April 30, he drove the truck and trailer into Chicago where he intended to pick up a load of merchandise. The merchandise was not ready and O’Dell started back to Belvidere.

The accident occurred as O’Dell was leaving Chicago. He called Meyers, informed him of the accident, and told Meyers he would see him the next day.

On the next day, the truck was returned to Meyers. As a result of the accident, Goldberg and his wife sued O’Dell for personal injuries. Farmers tendered a defense of the Goldberg suit to Iowa Mutual, which refused to recognize any liability to O’Dell. Farmers assumed the defense of O’Dell, under a reservation of rights and thereafter filed this action.

During the pendency of this action, the Goldberg suit was settled for $4,000. Farmers and Iowa Mutual each paid half the settlement under an agreement that their contributions would in no way affect their rights and positions in this suit.

Plaintiff’s theory is that Iowa Mutual insured Tilden Meyers at the time of the accident as its named insured and also insured Douglas E. O’Dell as a permissive user of said vehicle, under the omnibus clause of their policy and that the coverage afforded O’Dell was primary. Plaintiff also contends that at the time of the accident the coverage, if any, afforded by its policy to O’Dell was excess insurance and secondary to that provided by Iowa Mutual.

Iowa Mutual contends that O’Dell’s use of the truck in question was limited to a “demonstration trip” within the Belvidere-Rockford area for a period of about two hours and that O’Dell’s departure from him limited permission was a material deviation of the permission granted to him resulting in an unauthorized use, thereby relieving the defendant of any liability.

The basic question is whether at the time of the accident, O’Dell was using the vehicle within the express or implied permission of Meyers, the named insured in Iowa Mutual’s policy and was himself, hence, an additional insured under that policy. Illinois has adopted and adhered to the so-called “initial permission” rule. Under that rule, the decisions have held that coverage is not destroyed when the permittee exceeds the scope of his permission by deviating from the route or purpose for which he was permitted to use the vehicle so long as an initial permission was, in fact, granted to him. Konrad v. Hartford Acc. and Indemnity Co., 11 Ill App2d 503, 514, 515, 137 NE2d 855; Landis for Use of Talley v. New Amsterdam Cas. Co., 347 Ill App 560, 566, 107 NE2d 187; Jefson v. London Guarantee & Accident Co., Ltd., 293 Ill App 97, 11 NE2d 993. The defendant argues that the “initial permission” rule should be applied only to cases where the relationship between the vehicle owner and the user is that of employer-employee or a social relationship and not to this case where the relationship was one of seller and prospective purchaser. We can conceive of no justification for such a distinction. The rule is based on the theory that the insurance contract is as much for the benefit of the public as for the insured and that it would be undesirable to permit litigation as to the details of the permission and use. Konrad v. Hartford Acc. and Indemnity Co., supra, page 515. In applying the rule to the facts before us, we hold that O’Dell was within the coverage afforded by the omnibus clause of the Iowa Mutual policy.

Both policies of insurance involved here contain “other insurance” clauses. Under a similar factual situation, we recently held that the policy insuring the vehicle involved provided the primary coverage and that the policy issued to the permissive driver provided secondary or excess coverage. Until such time as the limits of the primary coverage are exhausted, the secondary coverage does not provide any collectible insurance. Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 413, 213 NE2d 141.

We conclude that O’Dell was within the scope of the coverage afforded by Meyer’s policy with Iowa Mutual and that this policy was primary. The plaintiff, Farmers, is entitled to recover the $2,000 paid by it toward the Goldberg settlement.

Finally, plaintiff contends that it is entitled to recover the costs of its defense of O’Dell in the Goldberg suit, including attorneys’ fees and also its costs and attorneys’ fees in the Declaratory Judgment action and this appeal. We do not agree that the plaintiff is entitled to recover attorneys’ fees in this action. As to whether it is entitled to costs and attorneys’ fees in defending O’Dell is a question for the trial court to determine. Mullen v. Farm Bureau of LaSalle County, 21 Ill App2d 280, 289, 157 NE2d 679; Ostrowsky v. United States Fidelity & Guaranty Co., 4 Ill App2d 202, 124 NE2d 18; ILP (Insurance) § 579. The judgment of the trial court is hereby reversed and this cause remanded for further proceedings consistent with this decision.

Reversed and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Pollard, Defendant-Appellant.
    Gen. No. 50,701. (Abstract of Decision.)
    First District, First Division.
    December 5, 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, Morton Friedman and Joseph W. Smith, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Tatum, Defendant-Appellant.
    Gen. No. 50,774.
    First District, First Division.
    December 5, 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, Eugene Tatum, was convicted of attempted robbery after a bench trial and was sentenced to a period of one to five years in the penitentiary. Prior to this trial, defendant filed a petition for a preliminary competency inquiry under Ill Rev Stats 1963, c 38, § 104, and a hearing was held before a jury to determine whether the defendant was competent at the time of the hearing. The inquiry resulted in a directed verdict of competency by the trial judge, and the later bench trial resulted in defendant’s conviction. On appeal, the defendant contends that it was error for the trial judge to direct a verdict of competency.

The only evidence presented at the brief hearing was the testimony of Dr. William Haines. He is the Director of the Behavior Clinic which is the psychiatric unit of the criminal court charged, upon order of court, with the responsibility of examining individuals as to their mental ability. Dr. Haines, who has personally examined about 8,000 individuals, testified that he had examined the defendant on three different occasions and was of the opinion that the defendant knows the nature of the charge against him and is able to cooperate with counsel. On cross-examination he stated that he had considered the medical history of the defendant and that these records indicated the defendant was committed to the Galesburg State Hospital between March 3, 1960, and July 6, 1960, and was later admitted to the Jacksonville State Hospital which he left without consent on October 27, 1962. He testified that the defendant’s disease was classified at these institutions as a schizophrenic reaction, which Dr. Haines described as a chronic mental condition characterized by disassociation of ideas.

On redirect examination Dr. Haines testified that he had taken the medical history of the defendant into consideration before rendering his opinion, and then he was asked:

Q. Now, did you find at the time you examined Mr. Tatum any schizophrenic reaction at that time?
A. I didn’t consider him as a schizophrenic reaction at that time. I called him a sociopathic personality.
Q. What is a sociopathic personality ?
A. An individual that is living on the fringe of society, that is able to control his actions if he so wishes.

The Public Defender argues that the evidence of defendant’s prior commitment raises a prima facie case of defendant’s incompetency and therefore the issue of competency should have been submitted to the jury. In support of this contention he relies principally on People v. Rednour, 33 Ill2d 278, 211 NE2d 281, People v. Samman, 408 Ill 549, 97 NE2d 778, and People ex rel. Wiseman v. Nierstheimer, 401 Ill 260, 81 NE2d 900. These cases are readily distinguishable from the case at bar on the facts. In Rednour, the defendant was found insane before trial and while in a security hospital he filed a petition for a writ of habeas corpus in the circuit court, in which he alleged that he had recovered his sanity and prayed for a jury trial to determine both his sanity and his capacity to stand trial for the criminal charge pending against him. The motion for a jury trial was denied and the court, after hearing the evidence, quashed the writ of habeas corpus. In reversing, the Supreme Court held that it was the legislative intent to extend the right of a jury trial to such a hearing, and that it was error to deny the defendant a jury trial. The court also stated that proof of a prior adjudication of insanity raises a presumption the condition continues citing People v. Samman, 408 Ill 549, 554, 97 NE2d 778 and People ex rel. Wiseman v. Nierstheimer, 401 Ill 260, 275, 81 NE2d 900. The court rejected the relator’s contention that all evidence of his prior mental condition was inadmissible and went on to say that such evidence was admissible to create a rebuttable presumption that the condition existed at the time of the hearing.

The sole issue here is whether it was error for the trial judge to direct a verdict of competency based on the testimony in the case at bar. It is hornbook law in Illinois that upon a motion for a directed verdict, the trial judge must construe the evidence most strongly in favor of the party against whom the motion is directed, and where there is evidence which either supports his side of the case or upon which reasonable minds might reach different conclusions the motion must be denied.

This question was considered in the recent cases of People v. Woods, 26 Ill2d 557, 188 NE2d 1, and People v. Brown, 31 Ill2d 415, 201 NE2d 409, in which the Supreme Court upheld directed verdicts of sanity under circumstances similar to those in the present case. In both cases Dr. Haines was the only witness and testified that, in his opinion, the respective defendants could understand the nature of the charge against them and could cooperate with counsel. The medical history in each case indicated that the defendants had been previously committed to the Dixon State Hospital.

The Supreme Court in Woods stated that:

Commitment to a mental institution indicates that a person needs mental treatment, but it does not necessarily indicate that he lacks the mental capacity to stand trial. (Withers v. People, 23 Ill2d 131.) We have held, therefore, that commitment to a mental institution some years prior to trial may not of itself raise a bona fide doubt to overcome the presumption of sanity even though there has never been a restoration order. (People v. Richeson, 24 Ill2d 182.) P 561.

The Court in Brown also concluded that no bona fide doubt existed as to the defendant’s insanity and said, “the only relevant factors in determining whether a defendant is competent to be placed on trial are that he understand the nature of the charges against him and that he be able to cooperate with counsel.” P 421.

In the case at bar Dr. Haines, after three examinations and consideration of defendant’s medical background, was of the opinion that he was mentally competent to stand trial. On this record we conclude that the trial court committed no error in directing the jury to return a verdict finding the defendant competent.

The judgment of the Criminal Court is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie A. Martin, Defendant-Appellant.
    Gen. No. 50,998.
    First District, First Division.
    December 5, 1966.

      Block, Levy & Becker, of Chicago (Alvin R. Becker, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Eddie A. Martin, together with defendants Plezola White and Edward Watson were indicted on the charge of burglary. After a waiver of a jury trial, the court found all three defendants guilty and sentenced defendant Martin to serve three to five years in the penitentiary.

Defendant Martin brings this appeal contending that the State failed to prove beyond a reasonable doubt that he entered the premises in question with intent to steal.

The record establishes that on June 20, 1964, at about 11:30 a. m., Officers Boyle and Buscemi, responding to a call, proceeded to a building owned by the Des Plaines Paper Company located at 4114 South Packer Avenue. Officer Boyle testified that their search produced nothing unusual on the first two floors- of the building, but on the third floor they found and apprehended defendant White after a brief pursuit. With White in custody of Officer Buscemi, Boyle proceeded to the fourth floor and saw defendants Martin and Watson, who turned to run, but stopped at his command. He said Watson had a large wire cutter in his hand, and that a box of tools was found on the stairway between the third and fourth floors. He testified that Martin and Watson told him that they were “junking” thinking the building to be abandoned. He said that at the police station they told him that they were only looking for wire and bathroom fixtures.

The police department notified the manager of the Paper Company, George Uldrych, and he testified that he could not ascertain whether anything was taken, but that they discovered property taken from the building in a barrel outside of the building. He said on that day the Company was engaged in electrical and plumbing renovation of the building and that the plant was partially operating with about 20 employees working.

After the State rested its case the defendant, Plezola White, testifying in his own behalf, said he and codefendants Martin and Watson were looking for work at a company which was next door to the Paper Company. He testified that it was a hot day and they saw a building which was being torn down and walked in without any intention of stealing, and only drank some wine before the police came. No further evidence was offered by the defendants.

Defendant’s counsel concedes that the defendant was unlawfully on premises which were not abandoned. He maintains, however, that:

The evidence taken in the best light for the prosecution shows only that three unemployed vagabonds in search of employment, to avoid the extreme heat of a summer day, and in the presence of over twenty of the Des Plaines Paper Company employees, illegally entered the premises to drink and wait to the noon hour to seek employment. Their entry was peaceable and nonviolent. They broke nothing, and took nothing during the four-hour stay.

It is urged that if Eddie Martin ever formed an intent to commit a theft, it was long after his entry had been effected and the wine had been consumed.

The gist of the offense of burglary is the unlawful entry into the premises of another with intent to commit a felony or theft. People v. Clark, 30 Ill2d 216, 195 NE2d 631. Defendant relies on People v. Kelley, 274 Ill 556, 113 NE 926, People v. Hutchinson, 50 Ill App2d 238, 200 NE2d 416, and People v. Soznowski, 22 Ill2d 540, 177 NE2d 146, to support his contention that the intent to steal was not proved beyond a reasonable doubt. We find these cases to be distinguishable from the case at bar on the facts. In Kelley the defendant entered a public drug store where circus tickets were being sold to a queue of people. He was observed picking the pocket of a patron who was leaving the store and then he joined the queue. The Supreme Court held there was insufficient evidence to prove that he entered the store with intent to commit larceny. In the instant case, the defendants were unlawfully on property which was not abandoned and which was not open to the general public, as is a drug store.

In Hutchinson, the defendant openly parked his car in front of a dwelling, entered the kitchen through an unlocked door, and left about five minutes later without disturbing or taking anything with him. The court reversed his conviction of burglary holding that:

[Tjhese facts are sufficient to raise a reasonable doubt of the guilt of defendant and require the application of the “maxim of our law that where an act may be attributed to a criminal or to an innocent cause it will be attributed to the innocent cause rather than to the criminal one. People v. Wilson, 400 Ill 461, 475, 81 NE2d 211.” Page 242.

In the case at bar the defendants had a wire cutter and were on two separate levels of the upper floors of the Paper Company when apprehended.

The defendant in Soznowski, entered a dwelling at night, woke a sleeping woman by beating her on the face, and then fled. The court reversed the conviction of larceny, commenting that the act of beating appeared inconsistent with an attempt to steal. The court found no overt act of defendant toward accomplishing his alleged intent to steal and stated, that it did not follow that because the defendant did not intend rape, he must therefore have intended larceny. The facts in this case are clearly distinguishable from the facts in the instant case.

Here, Officer Boyle testified that the defendants were found on two of the upper floors of the building; that they attempted to run, but stopped when ordered to; that Watson had a wire cutter and that a box of tools was found on the stairway. He testified that Watson and Martin told him they thought the building was abandoned and they entered for the purpose of junking, and they later said they were mainly looking for wire and bathroom fixtures. It is clear that the trial judge gave little weight to the testimony of White that they entered the building to avoid the heat and to drink some wine. The credibility and weight to be given such testimony is for the court who saw and heard the witnesses testify. People v. Cox, 22 Ill2d 534, 177 NE2d 211.

Criminal intent must ordinarily be proven circumstantially by a chain of inferences deducted from the evidence. People v. Johnson, 28 Ill2d 441, 192 NE2d 864. Each link of the chain of circumstantial evidence, when considered alone, may not be conclusive of the intent of the defendant, but when all the evidence in the case is considered, we find no foundation to the contention that the defendant was not proven guilty beyond all reasonable doubt. We also find no merit to the claim that the tool box was improperly admitted into evidence.

The judgment of the Criminal Court of Cook County is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. L. D. Gregory, Defendant-Appellant.
    Gen. No. 51,270.
    First District, First Division.
    December 5, 1966.

      Calvin D. Trowbridge, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, L. D. Gregory, was indicted and tried by the court for the crimes of burglary and rape. He was found guilty of both crimes and sentenced to not less than seven nor more than fifteen years in the penitentiary. On appeal he does not contest the sufficiency of the evidence but advances certain procedural and constitutional errors as grounds for reversal.

Defendant contends that the indictment was insufficient in law. The indictment charged in count one that “the defendant at and within the County of Cook committed the offense of burglary, in that he without authority, knowingly entered into a building, to wit: dwelling house of Robbie Roberts, with the intent to commit therein rape” and in count two that “the defendant at and within the County of Cook committed the offense of rape, in that he, had sexual intercourse with Linda Roberts, not his wife, by force and against her will.” Neither count gave the street address at which the crimes occurred and defendant argues that this failure to specify the street address renders the indictment insufficient “because it fails to state an offense as prescribed by statute. Ill Rev Stats 1963, ch 38, § 111-3 (a) (4).” Defendant further argues that the failure to state the place of the alleged offenses with greater specificity deprived him of his right to due process of law under the Constitution of Illinois, art II, § 9, as he is entitled “to be apprised of the nature and cause of the accusation against him.”

At trial defendant did not move to quash the indictment or to obtain a bill of particulars but" proceeded to defend on the merits. An unobjected to oral motion in arrest of judgment was made and denied and defendant asserts that this latter motion preserves the question of the sufficiency of the indictment for review.

However, whether the defendant may now for the first time raise the question of the sufficiency of the indictment is irrelevant since our Supreme Court has passed upon the statutory requirement relied on by defendant and effective at the time of his trial, section 111-3 (a) (4), ch 38 of Ill Rev Stats 1963, and specifically held that this requirement is satisfied when the county wherein the offense occurred is stated in the indictment. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965); People v. Reed, 33 Ill2d 535, 213 NE2d 278 (1965).

Moreover, the holding in these cases and in others that have followed, see People v. Teague, 66 Ill App2d 338, 214 NE2d 522 (1966), make it clear that the constitutional requirement of advising defendant of the nature and cause of the charge against him is likewise satisfied by stating the place of the offense by county only. Therefore, we find no error in this regard.

Defendant next contends that he “has a constitutional right under due process of law to be apprised of the crime for which he is incarcerated” and that this right was violated due to a conflict in the record rendering it uncertain for which crime he was imprisoned.

The common-law record, including the mittimus, indicates the finding, sentence and commitment on the burglary count alone. The Transcript of Proceedings, however, discloses that defendant was indicted for the crimes of burglary and rape; that evidence was heard on both counts, and that the trial judge made an oral pronouncement as follows: “I find the defendant guilty of burglary and rape in manner and form as charged in the indictment.” Thereafter, the court sentenced the defendant “on the finding and judgment to the Illinois State Penitentiary for a term of not less than 7 years nor more than 15 years,” a sentence which is within the statutory limits prescribed for both burglary and rape. See Ill Rev Stats 1965, ch 38, §§ 11-1 (c), 19-1 (b). Defendant argues that since the penalty imposed could be for either burglary or rape, or both, he does not know the crime or crimes for which he has been imprisoned and that this is violative of due process of law.

In the alternative defendant argues that due to the failure of the common-law record to recite an adjudication on the charge of rape he should be adjudged innocent of that crime and his case remanded for re-sentencing on the ground that the sentence imposed was too severe for burglary alone. In this regard defendant urges that when a conflict exists between the common-law record and the bill of exceptions (the Transcript of Proceedings) the former controls. People v. Barg, 384 Ill 172, 51 NE2d 168 (1943). Therefore, since the adjudication in the common-law record makes no reference to the rape count, defendant claims that this is equivalent to an acquittal on that latter count.

With this latter contention of defendant we do not agree. When a conflict exists between the common-law record and the bill of exceptions the former does not necessarily control. As our Supreme Court held in People v. Williams, 27 Ill2d 327, 189 NE2d 314 (1963) at page 329:

Although the common-law record imports verity and is presumed correct, where other facts appearing in the bill of exceptions are contradictory, this court will consider the matter upon the record as a whole.

A consideration of the record as a whole herein discloses that the defendant was indicted for both burglary and rape; that evidence, the sufficiency of which is not questioned here, was introduced as to both counts; that the trial judge made a finding of guilty on both counts, and that the court sentenced the defendant in accordance with these findings. Hence, the common-law record which does not reflect the adjudication on the rape count is in error but clearly this error does not prejudice defendant and he is not entitled to an acquittal on that charge nor to a reduction in sentence.

We do, however, consistent with the proposition that a record in a criminal prosecution may be amended after term in which it was made if amendment is based on adequate memorial, People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965), remand this case with directions to correct the common-law record to conform to the truth: that the defendant was adjudged guilty of rape and sentenced on that judgment. In addition, although the record reads as though the trial judge had imposed one sentence of not less than seven nor more than fifteen years for a finding and judgment of guilty on two crimes, it is apparent, since each finding and judgment of guilty must be accompanied by an individual sentence, that the defendant was sentenced to two identical terms of not less than seven nor more than fifteen years, one term for each offense. We therefore further direct that the record be corrected to show explicitly that the defendant received two sentences of not less than seven nor more than fifteen years in the penitentiary, the sentences to run concurrently. People v. Horodecki, 15 Ill2d 130, 154 NE2d 67 (1958).

In view of our consideration of the record as a whole which yielded the above ordered corrections of the record, we believe that defendant’s constitutional objection concerning his right to be apprised of the crime for which he has been incarcerated has been answered.

Finally, defendant contends that he was unconstitutionally denied “the assistance of counsel” during the interim between his arrest and arraignment.

Defendant was arrested on February 16, 1963, and arraigned on March 6, 1963, and at that time the public defender was appointed to represent him. Defendant asserts that this two and a half week interim period constituted a “critical stage” of the proceedings against him and that, therefore, the failure of the court to provide him with counsel during this period violates the Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 US 335 (1963).

In support of this contention defendant argues that the lack of counsel during the interim period “substantially hindered the preparation of his defense” because he did not have an equal opportunity to have a factual investigation made on his behalf. Defendant cites the Escobedo v. Illinois, 378 US 478 (1964), case as buttressing his contention that the interim period was a critical stage of the proceedings against him since he contends that the legal process had shifted from “investigatory to accusatory.”

With this we cannot agree. Clearly, Escobedo is limited to a situation involving a confession or admission of defendant made without assistance of counsel and the record shows that the defendant herein made no such statement. During the interim period no evidence of any kind was secured from him and, therefore, he lost no rights prior to appointment of counsel at his arraignment. We hold that defendant was not unconstitutionally deprived of his right to assistance of counsel.

Judgment affirmed and remanded to correct the record as herein provided.

MURPHY and BURMAN, JJ., concur.