author: GOLDENHERSH, J.

text:
    The Department of Public Works and Buildings of the State of Illinois, for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Daisy Diel, et al., Defendants-Appellees.
    Gen. No. 67-62.
    Fifth District.
    November 20,1967.
    Rehearing denied December 28, 1967.

      William G. Clark, Attorney General, of Chicago (Harold G. Andrews and G. W. Howard, III, Special Assistant Attorneys General, of counsel), for appellant.
    Dowell & Dowell, N. Yates Dowell, of Mt. Vernon, for appellees.
   GOLDENHERSH, J.

Petitioner, The Department of Public Works and Buildings, appeals from the judgment of the Circuit Court of Jefferson County entered upon a jury verdict in an action to condemn land for use in the construction of Interstate Route 57, north of Mt. Vernon.

The judgment awards petitioner fee simple title to a strip of land approximately 360 feet wide, 1,850 feet long, and containing 15.3 acres, except “all right, title or interest in and to the coal, oil, gas or other minerals underlying said tract, provided that such exception shall not be construed to grant, reserve or leave to the owners of said coal, oil, gas and other minerals the right of ingress and egress to the surface of said tract for the purpose of drilling for, mining, exploring for, producing or removing said coal, oil, gas and other minerals, or the right to otherwise break or disturb the surface of said tract”; .... As just compensation, the jury assessed the sum of $7,787.80.

The land condemned is part of a 55-acre tract owned by defendant, Daisy Diel, and leased for limestone quarry purposes to the defendants, Randall. After the taking, the remainder consists of two parcels, one containing 14.3 acres lying to the west, and the other 25.4 acres, lying to the east of the strip.

Access to Interstate Route 57 will be limited, and the only route between the two parcels remaining will be over a frontage road to an elevated township road which will cross Route 57 one-quarter mile north of the north boundary of the Diel tract.

In addition to the land taken in fee simple, petitioner sought, and the judgment grants, an easement over and upon 5.5 acres of the land on the east side, and 7.4 acres of the land on the west side of the strip, “for the right, privilege and easement to enter upon said tract for the purpose of performing roadway excavation and embankment construction, grading existing waste piles of overburden from quarry operations to provide a better profile for right of way fence, and for the purpose of straightening an existing stream channel, such easement rights to terminate upon completion of construction project on Federal Aid Interstate Route 57 across Tracts 136B and 136B-CE, or three years from July 1, 1966, whichever shall be sooner”; . . . .

As just compensation for the easement, the jury assessed the sum of $2,954.10.

A cross petition alleging damages to the land not taken was filed by the defendant, Diel; defendants Randall filed a separate cross petition, and upon demand of petitioner, filed a bill of particulars. The jury assessed damages to land not taken in the sum of $20,582.24.

The record shows that shortly after the action was filed, petitioner moved for, and the court ordered, immediate vesting of title. Prior to trial the parties stipulated that from the moneys awarded defendants, defendant, Diel, would receive an agreed sum and defendant, Diel, did not participate in the trial. Any reference hereafter to defendants, is to the defendants, Randall.

Petitioner contends that the trial court erred in admitting into evidence certain exhibits offered by defendants. Included in these exhibits, are drawings prepared by an engineer witness as overlays for an aerial photograph of the Diel tract and several adjacent parcels. They demonstrate the boundaries of the land owned by defendant, Diel, the proposed right of way, the construction easements, the location of defendants’ scale and crusher, the boundaries of lands lying adjacent to the Diel tract and on which defendants hold mineral leases, the locations at which the witness made soil borings, and the cores procured in the borings.

The other exhibits complained of are mineral leases running to the defendants, as lessees, for the parcels contiguous to the Diel land.

It is defendants’ theory that these exhibits are relevant and admissible to show that the Diel tract is part of an operating unit comprised of all of the lands under lease to defendants, and its fair cash market value is to be determined in its capacity of a part of the larger unit, and not as a single isolated parcel, as contendéd by petitioner.

It appears from the testimony of defendant, Harvey W. Randall, that the Diel tract is a part of a mining operation comprised of all of the leased tracts, that the condemnation will eliminate his haul roads to the face of his present operations on the Diel tract and to proposed operations on the adjacent parcels, that as a result he will be required to move the rock from the site of the quarries to his crusher and scale over the county and frontage roads above described, a distance of approximately one and one-fourth miles, rather than as at present, a distance of one-fourth mile.

In City of Chicago v. Cruse, 337 Ill 537, 169 NE 322, at page 539, the Supreme Court said: “Where a parcel of land used as a part of an entire property is sought to be taken for public use, and the land sought to be taken is of greater value, considered as a part of the entire property, than if taken as a distinct and separate piece entirely disconnected from the residue, the just compensation for the part so taken is its fair cash or market value when considered in its relation to and as a part of the entire property and not simply what may appear to be its value as a separate and distinct piece.”

The fact that defendants were lessees and not owners of the parcel does not preclude the application of the above stated rule. In Chicago & Evanston R. R. Co. v. Dresel, 110 Ill 89, the condemnor sought to take a portion of 4 lots leased by defendant, and used in the operation of his business along with 10 lots to which he held title in fee simple. In rejecting the petitioner’s contention that the jury were improperly instructed the Supreme Court said, at page 91: “It is also claimed by appellant that the court erred in giving instructions one and two, on behalf of appellee. The complaint is, that the jury were, in substance, directed that if by virtue of the lease of certain lots, and Dresel’s ownership of certain other lots in block 10, he is entitled to the exclusive use and en joyment of these lots and improvements thereon, as one entire tract or parcel, until the expiration of the lease, and if said tract, in its present condition, has a special capacity, as an entirety, for the purposes of flower-gardening, and as an entirety is devoted to such purpose, and if the value of such tract, for the residue of the leasehold term will be depreciated and lessened by the taking of the portion of said land proposed to be taken, then Dresel is entitled to recover a sum equal to such depreciation of value. We perceive no valid objection to the instruction. As before observed, appellee occupied the fourteen lots as one tract of land, as an entirety. He owned a portion of the lots, and held the others under a lease. Appellant proposed to take a portion of the lots held by the lease. If by so doing the market value of the whole tract was lessened during the two years which appellee had the right to hold and use the same, to that extent he was damaged, and while no part of the lots he owned in fee was taken, still, by the taking, as his property held in fee and by lease was damaged, he, in justice, ought to be entitled to recover so far as the market value of his property was depreciated.”

Petitioner argues that the trial court erred in admitting the exhibits because they pertain to lands not described in the cross petition. Neither the cross petition nor the bill of particulars are included in the excerpts from the record. We have, nevertheless, examined them and find that the lands covered by the leases, and the sites of the soil borings, are not therein described. We have also examined the objections to which petitioner refers in its brief and find that the objections are on grounds other than those argued here. The rule has long been that a specific objection to evidence based solely on a particular point is a waiver of objections to all other points not specified or relied on. Village of Prairie Du Rocher v. Schoening-Koenigsmark Milling Co., 248 Ill 57, 93 NE 425; Spencer v. Burns, 413 Ill 240, 108 NE2d 413.

Under the circumstances here, and in view of the authorities cited and quoted, the court did not err in admitting the exhibits.

Petitioner argues that the trial court erred further in admitting the overlays because they purport to name the owners of the parcels of land shown thereon, and as to the witness who prepared them, the testimony was hearsay. Assuming, arguendo, that the petitioner is correct in this contention, these matters are shown by the testimony of defendant, Harvey W. Randall, and the leases, and any error under these circumstances was harmless. The court instructed the jury to disregard any portion of the exhibits not supported by testimony, and petitioner was not prejudiced by their admission.

Petitioner contends that the court erred in permitting the defendant, Harvey W. Randall, and two witnesses called by defendants, to state their opinions as to the fair cash market value of the land taken in fee, and of the easement, and the amount of damage suffered by the remainder.

Defendants argue that the witnesses are shown by the evidence to be qualified to express opinions, and the court correctly admitted their testimony.

An examination of the record shows that on both the direct and cross examination of the defendant, Harvey W. Randall, much testimony was elicited which is not relevant or material to the issue of fair cash market value of the land. With respect to his testimony, petitioner’s contention of error is stated as follows:

“It is clear that the defendant Harvey W. Randall was not qualified as a witness to testify as to values and had made no investigation as to the market for real estate in the vicinity of the tract involved.”

Much of the testimony of which petitioner now complains would have been inadmissible had proper objection been made, but in the absence of proper objection, or a motion to strike the testimony, the alleged errors are not available as grounds for reversal. Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873.

Petitioner argues that the court erred in permitting defendants’ witness, Gillespie, to testify as to his opinion of the fair cash market value of the strip, the easement and the amount of damage sustained by the remainder. Its principal contention is that the witness made no investigation of sales of comparable land, and it further contends that the witness considered improper elements in arriving at his opinion. With respect to the first contention, the rule here applicable is found in Illinois, I. & M. R. Co. v. Humiston, 208 Ill 100, 69 NE 880, wherein at page 103, the Supreme Court said: “But while it is true, that a witness may base his opinion as to value upon the fact that sales have been made at a certain figure in the neighborhood of the property in controversy, yet such fact is only one of the grounds, upon which a witness may base his opinion of value. The fact of sales is not always the only factor in determining the weight of the testimony of a witness as to value. A witness may, in forming his opinion, consider the uses and capabilities of the property, as well as the prices at which like property in the neighborhood has been sold. He may also base his opinion of value upon his knowledge or observation of the growth and development of towns and cities, a general knowledge of trade and business, rental value, the interest which the land would pay upon an investment, its productiveness, ease of cultivation, its situation in a particular community, and other elements.”

Regarding petitioner’s remaining contentions of error with respect to the testimony of this witness, an examination of the record fails to show either proper objection or a motion to strike, and they will not be further considered.

We have examined the testimony of the witness, Paul Allen, and although petitioner’s contention that this witness had never handled a sale of real estate situated similarly to the Diel tract is borne out in the record, he is shown to be sufficiently qualified to state an opinion. His testimony demonstrates a knowledge of the value of this type of real estate, and although the fact that he had never been involved in a sale or purchase in the immediate vicinity might affect the weight of his testimony, it does not render him incompetent to testify.

Petitioner contends that the argument of defendants’ counsel was so improper and prejudicial as to deprive petitioner of a fair trial. The record shows two objections were made during the argument, both of which were sustained. Petitioner did not request the court to instruct the jury to disregard counsel’s comments, nor did it move for a mistrial. In Wells v. Gulf, M. & O. R. Co., 82 Ill App2d 30, 226 NE2d 662, at page 34, this court said: “The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322,163 NE 17.”

Upon review of the argument, we conclude that the trial court did not err in refusing to grant a new trial on this ground.

The record shows that the jury viewed the premises, and the sums awarded are within the limits of the values to which the witnesses testified. In Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267, 191 NE 2d 245, at page 269, the Supreme Court said: “The jury heard this testimony and viewed the premises. The verdict is within the range of the testimony. Under these circumstances, we have repeatedly refused to disturb a verdict in the absence of a clear showing that it was the product of passion or prejudice or was affected by palpable error. (Citing cases.) ”

Based upon our review of the record we conclude that the case was fairly tried, and the verdict was neither the result of passion or prejudice, nor affected by palpable error.

For the reasons set forth, the judgment of the Circuit Court of Jefferson County is affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Richard Walker, a Minor, by His Mother and Next Friend Gwynne Mayfield, Plaintiff-Appellant, v. Fidel C. Salinas, Defendant-Appellee.
    Gen. Nos. 51,940, 52,118. (Consolidated.) (Abstract of Decision.)
    First District, Second Division.
    November 22, 1967.
    Louis P. Miller and Unger & Unger, of Chicago, for appellant; George L. Barrett, of Chicago, for appellee.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Carmen M. Stein, Plaintiff-Appellant, v. Hugo C. Baum and Presbyterian Hospital of the City of Chicago, a Corporation, Defendants-Appellees.
    Gen. No. 51,381.
    First District, Second Division.
    November 22, 1967.
    John J. Quan and Rathje, Kulp, Sabel and Sullivan, of Chicago (John J. Quan, of counsel), for appellant.

      William P. Nolan of Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), and Wildman, Harrold, Allen & Dixon, of Chicago, for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was a medical malpractice action brought to recover damages for injuries allegedly occasioned by the negligence of the defendants in the administration of radiation treatments. The trial court granted defendants’ motions for summary judgment and plaintiff appeals.

The complaint, filed on August 12, 1960, consisted of two counts. Count I alleged that on August 21, 1955, plaintiff Carmen Stein employed defendant Dr. Hugo Baum to treat her for what Dr. Baum later diagnosed as carcinoma of the cervix. Beginning a few days later and continuing to October of 1955, Dr. Baum prescribed internal and external radiation treatments which were administered by both Dr. Baum personally and by defendant Presbyterian Hospital of the City of Chicago through its duly authorized agents in accordance with Dr. Baum’s instructions. Count I further alleged that Dr. Baum negligently permitted plaintiff to receive excessive doses of radiation resulting in radiation burns; that the effects of the excessive doses of radiation first became apparent to plaintiff in January of 1956; that commencing in March of 1956 plaintiff consulted Dr. Baum concerning the condition so caused; that on each occasion of consultation thereafter, Dr. Baum “fraudulently concealed from the plaintiff the negligent acts or omissions” above referred to in that he ascribed the cause of her condition “in March of 1956, to the normal effects of radiation therapy, in May of 1956 to a colonic stricture, and in June of 1956 to radiation colitis”; and that plaintiff discovered the existence of her cause of action “on or about June [sic July] 23,1956.”

The allegations contained in Count II were substantially those contained in Count I with the further allegation that Presbyterian Hospital maintained and operated a radiology department which was involved in the radiation treatments administered to plaintiff and that the hospital negligently permitted excessive doses of radiation to be applied to plaintiff.

The answer of Dr. Baum admitted he prescribed X-ray treatments to plaintiff in the form of two insertions of radium packs and 21 X-ray treatments during the period alleged in the complaint and that the treatments were administered by himself and by the radiology department of the defendant hospital, but denied the treatments administered by the hospital were administered in accordance with his instructions. Defendant hospital in its answer admitted that it is a hospital located in Chicago and that it had a radiology department, but denied the remaining allegations of the complaint.

Plaintiff’s answers to interrogatories and her testimony at a discovery deposition revealed the following facts:

Beginning in August of 1955 and continuing until October of 1955, radiation treatments were administered to plaintiff by or under the instruction of Dr. Baum at the defendant hospital. Two of the treatments consisted of internal insertions of radium packs, performed by Dr. Baum and removed by the hospital’s employees, and the remaining treatments consisted of X-ray administrations by the hospital. These treatments were prescribed pursuant to a diagnosis by Dr. Baum of carcinoma of plaintiff’s cervix.

Plaintiff was forewarned that the radiation treatments would cause discomfort, nausea and diarrhea, all of which plaintiff in fact suffered. Blisters and soreness developed on plaintiff’s abdomen which were cared for and eventualIy healed. On October 8, 1955, plaintiff was examined by Dr. Squires, head of the radiology department at the hospital, and this doctor ordered a stop to the radiation treatments. Three weeks later Dr. Squires and an intern examined plaintiff and told her to keep in touch with Dr. Baum. Plaintiff thereafter saw Dr. Baum once a week until December of 1955 when she was admitted to defendant hospital where a hysterectomy was performed by Dr. Baum.

In January of 1956, during the course of her postoperative treatment by Dr. Baum, plaintiff complained of rectal burning. Dr. Baum told her it was nothing to worry about as it was quite common following a hysterectomy. Plaintiff continued to complain of rectal burning, nausea and abdominal pain, but Dr. Baum told her that it frequently occurs after radiation treatments and that it was nothing to worry about. Plaintiff stated that Dr. Baum explained that taking radiation was like “going out in the sun and getting a sunburn and you peel.”

In May of 1956, on orders of Dr. Baum, plaintiff received diagnostic X rays of her colon and lower back at defendant hospital. Plaintiff had been given a slip of paper by Dr. Baum upon which appeared the writing “bone shifting” followed by a question mark.

The conditions complained of above continued throughout the month of June, to which were added complaints of lameness and swelling of the buttocks. Dr. Baum examined plaintiff on June 1st and June 13th, and then referred plaintiff to Dr. O’Brien who also examined plaintiff. Plaintiff testified that Dr. O’Brien stated that it was his opinion that plaintiff’s difficulties were caused by abscesses that were forming or by the inability to pass feces and that she should be hospitalized to see if something could be done to correct it.

Plaintiff was hospitalized by Drs. Baum and O’Brien in July of 1956. The hospital admitting clerk typed the words “radiation colitis” on her admission card, which plaintiff testified was not the true reason for her admission because the hospital records showed it was for “radium and rectal burns.”

Plaintiff testified that it was during this hospitalization that she first learned she had suffered any ill effects from the radiation treatments of the previous summer and fall. Dr. Gilchrist was brought into the case and ordered a proctoscopic examination of plaintiff. The examination, which was performed in the presence of Drs. Baum and O’Brien, revealed internal burns which plaintiff testified caused Dr. Gilchrist to comment that “the rectum looked like a blow torch had been applied to it and no doubt felt the same.” Plaintiff thereafter underwent a series of 13 operations which continued until 1960.

Defendants filed motions for summary judgment, attached to which was plaintiff’s discovery deposition, alleging the complaint was filed more than two years after the injuries alleged therein occurred, thereby failing to comply with Paragraph 15 of the Limitations Act (Ill Rev Stats 1965, c 83, Par 15,) and further alleging that the deposition and pleadings filed in the action failed to show any fraudulent concealment on defendants’ part of plaintiff’s cause of action which could give rise to the application of the five-year statute of limitations under Paragraph 23 of the Limitations Act. (Ill Rev Stats 1965, c 83, Par 23.)

Summary judgment was entered for both defendants, the court specifically finding that no fraudulent concealment was practiced by defendants upon plaintiff and that if such fraudulent concealment existed there was no reason to apply the section of the Limitations Act relied upon by plaintiff to extend the time for filing her cause of action. The court further specifically found there was no issue of material fact as to the pleaded limitation of action question.

Plaintiff maintains that the discovery deposition established a genuine issue of material fact as to fraudulent concealment of the cause of action, that plaintiff is entitled to have a jury determine this question, and that since fraudulent concealment of the cause of action exists, plaintiff was entitled to bring her action within five years from the date of the discovery of her cause of action, which was in fact done.

A motion for summary judgment will be allowed where the pleadings, depositions, admissions and affidavits, if any, on file in the case give rise to no genuine issue of material fact, and where the moving party is entitled to judgment as a matter of law. Ill Rev Stats 1965, c 110, Par 57; Giampa v. Sunbeam Corp., 68 Ill App 2d 425, 216 NE2d 233. Unless the record in this case discloses a triable issue relating to fraudulent concealment on the part of the defendants of plaintiff’s cause of action, which would give rise to the application of the 5-year statute of limitations, the trial court properly entered summary judgment for defendants. We are of the opinion the record shows no fraudulent concealment of plaintiff’s cause of action on the part of either defendant, nor any intention on their parts to deceive her.

Plaintiff was forewarned that she would suffer discomfort, nausea and diarrhea as a result of the radiation treatments, which in fact she did suffer in addition to blistering of the abdomen, all of which cleared up sufficiently for her to undergo a hysterectomy some two months after the treatments had stopped. During plaintiff’s post-operative treatments by Dr. Baum, she complained of rectal burning, nausea, abdominal pain and, eventually, swelling of the buttocks and lameness. Dr. Baum at first attributed these symptoms to the effects of the hysterectomy and later to the normal effects of radiation treatments, colonic stricture and arthritis, and radiation colitis. There is no allegation or evidence that these were not the causes of plaintiff’s condition and no evidence that Dr. Baum knew plaintiff’s condition was caused by excessive doses of radiation. The statements by Dr. Baum concerning the causes of her condition appear to be no more than medical opinions, not intended to deceive plaintiff. Merely alleging that a thing said was fraudulently said does not make it a fraudulent statement.

Inconsistent with plaintiff’s position that Dr. Baum intended to conceal the true cause of her condition is the fact that he ordered a diagnostic X ray of plaintiff’s colon and lower back in May of 1956, the fact that he referred plaintiff to Dr. O’Brien for consultation in June (who ascribed plaintiff’s condition to the formation of abscesses or the inability to pass feces) and the fact that, with Dr. O’Brien, hospitalized plaintiff in July and caused her to be examined by Dr. Gilchrist who for the first time determined the cause of plaintiff’s condition by way of protoscopic examination. The examination was attended by both Drs. Baum and O’Brien who also examined plaintiff at that time. The record clearly shows no fraudulent concealment or intention to deceive plaintiff by Dr. Baum with regard to plaintiff’s cause of action.

With respect to the allegation of fraudulent concealment on the part of the defendant hospital, Dr. Baum was not alleged to be its agent. Consequently, the negligence of Dr. Baum, if any, in the treatment of plaintiff cannot be imputed to the hospital. Furthermore, plaintiff testified in her deposition that no person other than Dr. Baum concealed anything from her. She did state that the admitting clerk at the hospital admitted her for radiation colitis in July of 1956, which she testified was not true since the hospital records show she was admitted for “radium and rectal radiation burns.” Not only is this hearsay on plaintiff’s part which she would be unable to testify to on a trial of the issues (see Ill Sup Court Rule 191), but plaintiff stated in an answer to an interrogatory that the operation performed on her in July of 1956 was a “temporary colostomy,” an operation pertaining to the colon.

As the pleadings and the deposition do not disclose a triable issue of fact with respect to fraudulent concealment of plaintiff’s cause of action by either defendant, plaintiff is not entitled to the application of the five-year statute of limitation. The trial court properly entered summary judgment for both defendants as a matter of law since the complaint was not filed within two years after the accrual of plaintiff’s cause of action.

Therefore the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


text:
    C. H. Johnson, Plaintiff-Appellant, v. Raymond M. Bondy, as Trustee; Raymond Bondy; George Hoy; George Hoy, Trustee Under Trust Deed Recorded as Document No. 10991881, and Unknown Owners, Defendants. Jennie Wasserman and Louis Shapiro, Intervener Defendants-Appellees.
    Gen. No. 51,589. (Abstract of Decision.)
    First District, Second Division.
    November 22,1967.
    Rehearing denied December 18, 1967.

      Arnold M. Flamm, of Chicago, for appellant; Louis Lebin, of Chicago, for appellees.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


text:
    Coleman Financial Corporation, Plaintiff-Appellant, v. Kielman A. Schuddekopf, Eastern Seaboard Clearance Company, Inc., a New York Corporation, Eastern Seaboard Management Co., a Corporation, Eastern Seaboard Realty, Inc. of Texas, a Corporation, and Eastern Seaboard of Dallas, Inc., a Corporation, Defendants, and Kirkeby-Natus Corporation, a Maryland Corporation, Garnishee-Appellee.
    Gen. No. 52,152.
    First District, Second Division.
    November 22, 1967.

      Greenberger, Krauss & Jacobs, of Chicago (Leon C. Baker, of counsel), for appellant.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (John B. Angelo, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

On October 23, 1964, in the Circuit Court of Cook County a judgment by confession in the amount of $89,-332.50 was entered for Coleman Finance Corporation and against Kielman A. Schuddekopf and others. Following the filing of an affidavit for garnishment, a summons was served on Kirkeby-Natus Corporation in New York City. The garnishee failed to answer or appear on the return day. A conditional judgment for $57,537 was entered against it and a scire facias issued to make the conditional judgment final. A summons calling upon the garnishee to show cause why the conditional judgment should not be made final was also served on the garnishee in New York City. The garnishee appeared specially and moved to quash the return of service of the summons on the ground that the garnishee was not amenable to process issued by a court of Illinois because it was a foreign corporation and had not transacted any business in Illinois from which plaintiff’s cause of action had arisen. The court overruled garnishee’s motion to quash the return. On motion of the garnishee the court vacated the conditional judgment, and garnishee answered the garnishment interrogatories. Immediately upon the entry of the order vacating the conditional judgment plaintiff filed a jury demand. Thereafter on motion of the garnishee, the court quashed the jury demand and set the case for trial. Following a hearing without a jury the court entered an order finding that the garnishee had no property or funds subject to garnishment at the time of the service of the summons and discharged the garnishee. Plaintiff has appealed from the orders vacating the conditional judgment, quashing plaintiff’s demand for a jury trial and discharging the garnishee. The garnishee has cross-appealed from the order overruling its motion to quash the service of the garnishment summons.

We shall first consider the garnishee’s contention that service of the garnishment summons on it in New York did not subject it to the jurisdiction of Illinois courts. At the hearing on the motion to quash the service of process on it the garnishee’s counsel did not confine himself to matters of jurisdiction. We agree with plaintiff that this excursion into the merits constituted a general appearance by the garnishee. We turn to plaintiff’s contention that since the garnishee offered no excuse for its default in answering the garnishment interrogatories the conditional judgment should not have been vacated.

We agree with the garnishee that Section 5 of the Garnishment Act (Ill Rev Stats 1965, c 62, § 37 (a)) states that when the garnishee appears and answers before final judgment he is entitled to a hearing as in other cases and is not barred by his prior default. Jenner and Davenport in their Historical and Practice Notes (SHA c 62, § 37, 1966 Cumulative Annual Pocket Part, p 136) say that this section retains the practice of conditional judgments which has been a feature of Illinois Garnishment law since 1872 and that the single purpose served by the conditional judgment is the protection of a garnishee from the consequences of one oversight. The trial court has discretionary authority to vacate a conditional judgment. In Chicago Catholic Workers’ Credit Union v. Rosenberg, 346 Ill App 153, 104 NE2d 568, where the garnishee, having appeared but being in default for want of an answer, suffered a judgment which was subsequently vacated with leave to file an answer, the plaintiff appealed. Having decided that the judgment entered was a conditional judgment the court said that the order did not finally determine the rights of the parties, which remained to be determined on further hearings on the answer of the garnishee and its contest, if any, by the plaintiff. The Appellate Court dismissed the appeal because the order was not a final or appealable order. We cannot find anything to criticize in the action of the trial court in the case at bar vacating the conditional judgment.

Plaintiff insists that the court erred in quashing its demand for a jury trial. Within minutes after the court opened the conditional judgment and permitted the garnishee to answer the interrogatories plaintiff filed a demand for a jury trial. The opening pleading of a garnishment action is the affidavit for garnishment wherein the plaintiff alleges that the garnishee is indebted to or has in his control property of the garnishment debtor. Plaintiff did not file a jury demand at the time it filed its affidavit in garnishment. It filed the demand 18 months later. We are of the opinion that the plaintiff in garnishment must file his jury demand with his affidavit or be deemed to have waived a jury. Plaintiff’s argument that the trial court should have given plaintiff leave to file a late jury demand under section 59 of the Civil Practice Act and Rule 8(5) of the Supreme Court Rules is unavailing because it was not raised or argued before the trial court. The trial judge had before him a letter of Nov. 21, 1966 from the attorney for plaintiff in which he presented additional reasons “that this action should be tried by a jury.” We do not find any abuse of discretion in the action of the trial judge in quashing plaintiff’s tardy jury demand filed without authority.

Finally plaintiff maintains that the court erred in deciding that the garnishee had no property or funds subject to garnishment. Plaintiff states that the garnished property was sufficient to satisfy its judgment when the garnishment summons was served, that because of hostility to plaintiff and a desire to obtain the property for itself the garnishee frustrated plaintiff’s efforts to preserve the property from foreclosure and that it is no defense to the garnishee that the property was foreclosed and had become worthless at the time of trial. We are satisfied that the court was right in deciding that the garnishee had no property or funds subject to garnishment at the time of the service of the garnishment summons or thereafter. Schuddekopf purchased from the garnishee’s predecessor a $144,000 subordinated participating interest in a note. The written agreement whereby Schuddekopf acquired his interest provided that garnishee’s predecessor owned a $200,000 superior interest in the note and that Schuddekopf owned a $144,000 subordinated interest. The agreement further provided that garnishee’s predecessor was entitled to receive its interest and principal before anything was payable to Schuddekopf and that garnishee’s predecessor had the exclusive right to accept or collect payment and to initiate proceedings. Before service of the garnishment summons the note went into default and was declared due and payable when $329,600 in principal remained unpaid, of which garnishee was entitled to $187,600 in principal plus interest and reimbursement for fees and costs before, Schuddekopf, the defendant, was entitled to anything.

At the time of the service of the garnishment summons the effect of the note, Schuddekopf’s guaranty thereof, and his subordinated interest therein, was that the maker of the note and Schuddekopf as guarantor owed the garnishee $329,600 in principal on the note plus interest, fees and costs. Only after the garnishee had collected its superior share of the note or the first $185,600 plus interest, fees and costs was Schuddekopf, the defendant, entitled to receive any payment whatsoever on his $144,000 subordinated interest. Schuddekopf’s subordinated interest in the note was contingent on prior payment in full of garnishee’s superior lien. Because the existence of Schuddekopf’s interest depended on garnishee being first paid in full, Schuddekopf’s interest was a contingent interest and not subject to garnishment. National Homes, Inc. v. American Nat. Bank & Trust Co., 16 Ill App2d 111, 114-115, 147 NE2d 412; Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 228 Ill App 1, 5-10. The garnishee as the holder of the note on default of payment thereon, declared the entire indebtedness due and payable and filed a complaint in foreclosure against the subject properties. The prosecution of the foreclosure complaint resulted in the garnishee receiving only $40,000 and leaving a deficiency of $145,000 unpaid of the garnishee’s superior interest plus interest, fees and costs and leaving defendant Schuddekopf’s entire subordinated interest in the note unpaid. It is not disputed that the garnishee proceeded diligently to foreclose the mortgage.

We disagree with plaintiff’s contention that the garnishee, because of hostility to plaintiff and the desire to obtain the property for itself, frustrated plaintiff’s efforts to preserve the property from foreclosure. The record shows that the garnishee exercised its right to file a special appearance and to contend that the Illinois court lacked jurisdiction. The record does not indicate at whose request the numerous postponements were made. There is nothing in the record to indicate that at the time either party objected to the postponements. We agree with the garnishee that the personal exchange of words between two persons interested in the proceedings did not prove that garnishee’s part in the proceedings wrongfully frustrated plaintiff’s efforts to reach the judgment debtor’s property. The record shows that plaintiff knew as early as December 1964, shortly after the entry of the conditional judgment that the garnishee did not have money or property of the judgment debtor but that the judgment debtor owed the garnishee money. Plaintiff knew that the note was in default and that there was little chance of recovering anything.

For these reasons the judgment discharging the garnishee is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ray McKenzie, Defendant-Appellant.
    Gen. No. 67-64.
    Fifth District.
    November 21, 1967.
    Russell Baird, of Belleville, for appellant.
    Otto E. Funk, State’s Attorney, of Hillsboro, for appellee.
   EBERSPACHER, J.

This is an appeal from judgments entered by the Circuit Court of Montgomery County on pleas of guilty by the defendant, Ray McKenzie, to the charges of Driving While Intoxicated in violation of chapter 95½, section 47, Ill Rev Stats 1965, and Disorderly Conduct in violation of chapter 38, section 26-1, Ill Rev Stats 1965.

A court reporter was not present at any of the proceedings and therefore this appeal is founded on the common-law record.

It appears from the common-law record that the defendant Ray McKenzie, 18 years of age, was arrested on the 16th day of March, 1967, by an Illinois State Police Officer in Montgomery County. The defendant was charged with Disorderly Conduct and Driving While Intoxicated in violation of chapter 38, section 26-1 and chapter 95%, section 144, Ill Rev Stats 1965, respectively. He was incarcerated in the Montgomery County Jail in Hillsboro, Illinois until March 20, 1967, at which time he was brought before the court. The record does not disclose why defendant was not taken before a judge without unnecessary delay, as is required by chapter 38, section 109-1, Ill Rev Stats 1965.

On the same date the State’s Attorney of Montgomery County filed an information charging the defendant with Driving While Intoxicated. It appears from the record that upon the defendant’s appearance he signed two documents entitled “Jury Waiver and Plea of Guilty,” one for each of the charges against him; and that a verdict of guilty was entered on each charge, and the cause continued to the following day for hearing on aggravation and mitigation, and bond set at $5,000 in each case. The defendant was then returned to the county jail for failure to post bond of $5,000 in each of the two causes. The record does not disclose why the statute, chapter 38, section 110-5 (c) was disregarded in fixing bail. The next day, March 21, 1967, the defendant was brought before the court for a hearing on aggravation and mitigation. It is alleged by the defendant in his brief and not controverted by the People in their Answer that the defendant was sentenced for both offenses, one year to the Illinois State Farm as to the offense of Driving While Intoxicated and a maximum fine of $500 as to the offense of Disorderly Conduct. The defendant was not represented by counsel at any appearance or at the hearings in mitigation or aggravation and as stated before, there is no verbatim record as to what transpired at any of them.

Subsequent to the defendant’s judgment and sentence counsel appeared for the defendant and filed motions to vacate the judgments and to withdraw the pleas of guilty, all of which were denied by the court.

The defendant alleges that the pleas of guilty were improperly accepted by the court. In this regard it is alleged that the defendant did not knowingly and understandingly waive his right to counsel or that he was ever informed of his right to counsel. In the alternative he alleges that the sentence imposed was excessive and seeks a reduction thereof pursuant to chapter 38, section 121-9 (b) (4), Ill Rev Stats 1965.

The former involves the substantial rights of the defendant guaranteed by the Sixth Amendment of the U. S. Constitution, and Article II, section 9 of the Constitution of Illinois. Aside from the constitutional question presented, the Criminal Code of Procedure clearly provides that the judge shall advise the defendant of his right to counsel upon his first appearance before the court. Chapter 38, section 109-1 (b) (2), Ill Rev Stats 1965.

We will not presume that a waiver of a constitutional right is intelligently and understandingly made from a record that does not contain an allegation and showing that an accused was offered counsel, but intelligently and understandingly rejected the offer.

We are cognizant of the fact that hearings had on misdemeanor offenses, in many cases, are not reported and transcribed. However, under Supreme Court Rule 323 (c), (d), chapter 110A, § 323(c), (d), Ill Rev Stats 1967, which became effective January 1, 1967, this void may now be rectified, thereby, alleviating any guess or conjecture on the part of the reviewing court as to what actually transpired at the trial proceedings. Neither party has sought the benefit of this Rule. See Supreme Court Rule 612 (c).

Where there is a material question in controversy upon a material issue and the record fails to disclose all of the evidence on that issue, this court has the power to reverse the judgment and remand the cause for further evidence. People v. McGrath, 85 Ill App2d 388, 229 NE2d 14 (1967).

Since the record submitted to us in this case is insufficient upon which to base a considered opinion, we are compelled to reverse the judgments of the trial court and remand with directions to reinstate this cause for further proceedings consistent with the views expressed herein.

This court appreciates the efforts of appointed counsel who has ably and expeditiously proceeded with the appeal in this matter.

Reversed and remanded with directions.

MORAN and GOLDENHERSH, JJ., concur.


text:
    Robert Geaschel, Plaintiff-Appellant, v. Donald Rokita, Defendant-Appellee.
    Gen. No. 67-53. (Abstract of Decision.)
    Fifth District.
    November 28, 1967.
    Sprague and Bock, of Belleville (John A. Bock, Jr. and Nicholas G. Byron, of counsel), for appellants; Brady, Donovan & Hatch (C. B. Brady and Michael B. Constance, of counsel), for appellee.
   Opinion by JUSTICE GOLDENHEBSH. Not to be published in full.


author: MORAN, P. J.

text:
    The People of the State of Illinois, Plaintiff, v. Donald Ring, Defendant.
    Gen. No. 67-51.
    Fifth District.
    November 28, 1967.

      Robert D. Albright, of Salem, for appellant.
    William E. Hall, State’s Attorney, of Salem (William P. Crain, Assistant State’s Attorney, of counsel), for appellee.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Marion County, Illinois, finding the defendant guilty of the crime of burglary, and from the sentence imposed by the court on that judgment.

The defendant was charged with burglary of the Langenfeld Motor Company, Centralia, Illinois. The State’s first witness was Charles Linder, an employee of the West Side Motor Company, a business firm in the same city. He testified that on the night of the alleged crime he saw one William Dugger attempting to gain entry into the West Side Motor Company. According to the testimony, Dugger, upon being discovered, got in the passenger side of a 1956 Oldsmobile with a light top and dark bottom, bearing Missouri license plates, and having taillights which flickered.

The next witness was the Sheriff of Clinton County, who testified that he received a radio report of this incident and shortly thereafter stopped a car fitting the above description. The driver of the car was William Dugger and the defendant was a passenger. There was one television set in the back seat and three more in the trunk. The Sheriff testified that the defendant at first stated that he had purchased the television sets from a stranger, but later admitted that he had taken them. The State’s last witness,'a partner of Langenfeld Motor Company, testified that his firm owned the sets and that they were missing from his place of business.

The defendant then took the stand in his own behalf. He related that he had received approximately $135 in cash that morning from his employer. The testimony of the employer substantiated this. He further related that he had been drinking beer in St. Louis most of the afternoon and he and Dugger went to Centralia where the defendant intended to visit his sister. His testimony indicated that upon arriving in Centralia he was intoxicated and thus unable to visit his sister. He stated that he stopped at a coffee shop (across the street from Langenfeld Motors) where he was approached by a stranger who offered to sell the four television sets for $100. The defendant states that he paid the $100, transferred the sets from the stranger’s car to his car, and left Centralia to return to St. Louis. He also testified that during this transaction Dugger was “passed out” in the car and that shortly after leaving Centralia he awoke Dugger who took over the driving. This occurred shortly before they were stopped by the Sheriff.

During cross-examination the Assistant State’s Attorney asked the defendant: “Have you ever been convicted of a felony?” The defendant’s counsel objected and the objection was sustained. The jury found the defendant guilty and he was sentenced to the penitentiary for not less than six years nor more than twenty years.

The defendant first contends that a new trial should be granted on the grounds that the reference to a prior felony conviction was prejudicial error. Defendant relies on Levinson v. Fidelity & Casualty Co. of New York, 348 Ill 495, 181 NE 321, wherein questions were asked of one of the defendant’s witnesses relating to the witness’s past. These questions included references to prior arrests, trials, etc. The court held that even though the objections to the question were sustained, they were improper and highly prejudicial.

The State, in its brief, admits that the question was improper but denies that it was prejudicial. The State contends that there was no indication that the jury was or was likely to be prejudiced against the defendant. Referring to the Levinson case, the State admitted that if it had continued in the improper line of questioning, then the jury might have been prejudiced, but that the one question in itself, did not so prejudice. The State also relies on the case of People v. Cichon, 320 Ill 111, 150 NE 647, in which the State’s Attorney asked the defendant if he had ever been previously arrested. An objection was sustained. The court stated: “We do not see how it can reasonably be claimed that defendant was prejudiced by the State’s Attorney asking a question which he should not have asked . . . but which the court did not permit the witness to answer. . . .” Id. at 116.

It is the rule in Illinois that proof of a prior conviction of an infamous crime for the purpose of impeaching the defendant’s testimony shall be by the record of conviction or on authenticated copy of the record. People v. Moses, 11 Ill2d 84, 142 NE2d 1; People v. Bennett, 413 Ill 601, 110 NE2d 175; People v. Halkens, 386 Ill 167, 53 NE2d 923. In the Bennett case the court stated:

“A defendant has a right to be tried by the law of the land, and a conviction secured through the use of improper questions designed to prejudice the jury in disregard of the law cannot be condoned.” Id. at 605-606.

In People v. Decker, 310 Ill 234,141 NE 710, the State’s Attorney asked the defendant questions relating to whether he had ever been in trouble or had charges against him. The court ruled that such action would necessarily cause a reversal unless the evidence so clearly and conscientiously showed the defendant to be guilty that the court could say that such misconduct did not substantially prejudice the rights of the defendant.

There is no doubt that the question, “Have you ever been convicted of a felony?” was improper. The question remains — did the evidence, apart from the improper question, clearly and conscientiously show the defendant to be guilty? In a recent case, People v. Osborne, 78 Ill App2d 132, 223 NE2d 243, the defendant was asked whether he had ever been in a penal institution. There was an objection, a conference, the question was withdrawn and the judge instructed the jury to disregard it. The court, in affirming the conviction, condemned the practice of asking such questions, but concluded from the evidence presented, as well as the record as a whole, that the jury’s verdict could not have been affected by the question. A judgment of conviction will not be reversed merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. People v. Cavanaugh, 13 Ill2d 491, 150 NE2d 592.

In the present case, the evidence discloses that the defendant was arrested with stolen television sets in his possession. The State claims he took them from the showroom of Langenfeld Motor Company. The defendant claims he purchased them for a sum of $100. In support of this contention he shows that he had $135 in cash the morning of the alleged offense and approximately $18 in his possession that evening when he was arrested. It is possible that he spent in excess of $100 or gave it away, or lost it. It is also possible that with this money he may have purchased four television sets from a stranger. We cannot say that the evidence conclusively shows him guilty. The question, “Have you ever been convicted of a felony?” could have been very influential on the jurors. Although the objection was sustained, the objection could only indicate to the jurors that the reason for the objection was that the answer would be in the affirmative. Such a conclusion could be very influential on their verdict. In the Decker case, supra, the court concluded: “There is no question more damaging to a defendant with a jury than one that suggests or intimates that he is a criminal or has been charged with criminal offenses.” Id. at 243.

In Bartholomew v. People, 104 Ill 601, improper evidence regarding a prior conviction was introduced. In reversing the conviction the court stated: “(T)he jury might not have decided differently from what they did if this evidence had been excluded; but they might have done so, and plaintiff in error was entitled to the benefit of that chance.” Id. at 609-610.

We believe that the question asked was a reversible error that might have affected the jury’s decision.

The defendant also contends that the court erred in admitting the testimony of the witness Linder. At the trial the defendant objected to the testimony upon the ground that it was unconnected with the defendant. This objection was overruled subject to the condition that the evidence would be connected up to the offense charged against the defendant. The State contends that the reason for Linder testifying first was to present a chronological sequence of events leading up to the arrest and that this evidence was such that a jury could find that the defendant was the driver of the car fleeing from the West Side Motor Company.

The general rule is that evidence of other crimes wholly independent and disconnected from the crime for which the defendant is being tried is not admissible. People v. Tranowski, 20 Ill2d 11, 169 NE2d 347. However, in that case the court went on to say that there is a corollary to the general rule which allows evidence which serves to place the defendant in proximity to the time and place, or helps to establish identity and tends to prove design or motive. Here, the evidence elicited from the witness Linder, indicated that Dugger was attempting to break into a business firm in the vicinity of the place from where the television sets were stolen, identified a car which later proved to be that of the defendant, and thereby created circumstantial evidence from which the jury could conclude that the defendant was the driver. This evidence of a similar offense is admissible to place the defendant in proximity to the time and location of the offense charged. In People v. Cione, 293 Ill 321, 127 NE 646, the court stated: “The party cannot by multiplying his crimes diminish the volume of competent testimony against him.” Id. at 332. We believe the testimony of Linder was properly admitted upon the condition of connecting up and that the State sufficiently connected up this testimony with the offense charged against the defendant.

The defendant further contends that the order in which the proof was entered was prejudicial and improper and therefore, grounds for reversal. The defendant relies upon the case of People v. Livermore, 390 Ill 85, 60 NE2d 413, where the court ruled that proof of other alleged similar offenses should not be admitted until there has been proof of the offense charged. Further reliance is placed on People v. Folignos, 322 Ill 304, 153 NE 373, which held that evidence of collateral offenses should never be admitted until evidence has been produced to implicate the defendant in the offense charged. As a basis for this rule the court cited Wharton on Criminal Evidence, 10th Edition. The 12th Edition of Wharton on Criminal Evidence, section 233, repeats the general rule that evidence implicating the defendant in the crime charged must be shown prior to evidence of other crimes. The section goes on to state: “The admissibility of such evidence, however, is within the discretion of the trial court, and will not be reversed in the absence of clear error, or of proof that prejudice has resulted from the error.”

Although it was error for the court to admit the evidence in the order in which it was presented, we do not believe that prejudice resulted from the error. The State could have first shown that the defendant was arrested with the stolen television sets in his possession and then the testimony of Linder which would circumstantially place the defendant in the vicinity. The net result, we believe, would not be different.

The defendant further contends that when the Sheriff testified that the defendant admitted that he took the television sets, a hearing should have been granted to determine the voluntariness of the alleged admission. The defendant concedes that his counsel failed to make a motion for such a hearing but contends that the court should invoke Supreme Court Rule 615 and remand so as to give the defendant an opportunity to file a motion. Rule 615 reads in part: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

In People v. Diggs, 81 Ill App2d 361, 225 NE2d 665, a police officer testified as to what the defendant had admitted. No objection was made nor was there a motion for a hearing on the admissibility of the confession. The defendant argued that it was the court’s responsibility to see that procedural due process was not denied. The Appellate Court held that since the defendant did not object to the confession in the trial court, he could not now raise it on appeal. The only possible grounds for such a contention would be that counsel was incompetent, and that was neither alleged nor was there any evidence in the record for such an allegation.

The final point raised by the defendant is that he was convicted by and through his own testimony and therefore he should have been apprised of his right to remain silent and thereby avoid the possibility of self-incrimination. This contention fails for two reasons. First, it rests on the assumption that the only evidence incriminating the defendant was his own testimony. This assumption is false since there was evidence that the television sets were taken and that they were found in the possession of the defendant. Thus there was evidence other than the testimony of the defendant from which a jury could conclude that the defendant was guilty.

Secondly, defendant cites the case of People v. Jackson, 23 Ill2d 263, 178 NE2d 310, as authority for the proposition that the court must inform the defendant of his right to refuse to testify. In that case the defendant made a confession without counsel at a preliminary hearing. The court held that where an accused is unattended by counsel and gives a judicial confession, it may not be used at the trial unless he was aware of or was advised by the court of his right to refuse to testify or that he knowingly and intelligently waived his privilege against self-incrimination. Id. at 268. In the present case the defendant was represented by counsel who was fully qualified to apprise the defendant of his rights and there is no indication that counsel failed in its duty. Under the circumstances of this case, we conclude that the trial court had no duty to advise the defendant of his right to remain silent.

For the foregoing reasons the judgment of the Circuit Court of Marion County is reversed and remanded for a new trial.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.

       In arriving at this conclusion we have not considered defense counsel’s statement that “the State’s Attorney made repeated references to the defendant’s alleged previous convictions in his final argument, thus compounding the prejudicial damage already so well inflicted during the State’s cross-examination of the defendant.” However, chapter 37, section 655 of the Ill Rev Stats 1965, provides that “(t)he court reporter shall make a full reporting by means of stenographic hand or machine notes, or a combination thereof, of the evidence and such other proceedings in trials and judicial proceedings to which he is assigned by the chief judge, . . .” It would appear that the arguments are part of the proceedings of the trial and should be reported in both civil and criminal cases.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Philip Kurtz and James H. Grogan, Defendants-Appellants.
    Gen. No. 67-98.
    Fifth District.
    December 5, 1967.

      Meyer and Meyer, of Greenville, for appellants.
    Douglas Marti, State’s Attorney, of Greenville, for appellee.
   GOLDENHERSH, J.

Defendants, Philip Kurtz and James H. Grogan, appeal from the judgment of the Circuit Court of Bond County sentencing them to the penitentiary for terms of not less than 1 nor more than 5 years.

Defendants were convicted of the crime of theft of property exceeding $150 in value, (c 38, § 16-1, Ill Rev Stats 1965) and sentenced to the penitentiary for terms of not less than 1 nor more than 10 years. On appeal, (69 Ill App2d 282, 216 NE2d 524) this court affirmed the judgment insofar as it found the defendants guilty of theft of property, reversed the judgment insofar as it purported to adjudge the defendants guilty of theft of property in excess of $150, and remanded the cause, with directions, for imposition of sentence. Defendants’ petition for leave to appeal was allowed and the Supreme Court (37 Ill2d 103, 224 NE2d 817) affirmed the judgment of this court that defendants were guilty of theft of property not exceeding $150 in value, reversed the judgxnent insofar as it directed the sentence to be imposed, and remanded the cause to the circuit court for resentencing. The circuit court conducted a hearing, imposed sentence, and this appeal followed.

At the hearing, the court admitted into evidence, over defendants’ objections, an authenticated copy of the record of conviction in the State of Alabama of one Hilton Grogan of a criminal offense which, under our statutes, would constitute the crime of theft.

Over defendants’ objections, the court admitted into evidence authenticated copies of the records of conviction of one Philip Kurtz, in the Circuit Court of Cook County, of two charges of Larceny of a Motor Vehicle.

Defendants’ sole contention of error is that there is no evidence which identifies these defendants as the persons previously convicted, that the identification must be proved beyond a reasonable doubt, and in the absence of evidence to identify the defendants as the persons previously convicted, the court erred in admitting the exhibits.

The People contend that “the rules of evidence are relaxed at a hearing in aggravation and mitigation,” that the “defendants do not deny the accuracy of the evidence of their past convictions” and the rule enunciated in People v. Casey, 399 Ill 374, 77 NE2d 812, and followed in People v. Stewart, 23 Ill2d 161, 177 NE2d 237, is not here applicable.

The situation here presented is clearly distinguishable from a hearing in aggravation and mitigation conducted in compliance with section 1-7 (g) of the Criminal Code (c 38, sec 1-7 (g), Ill Rev Stats 1965). The hearing conducted under section 1-7 (g) is to determine what punishment, within a permissible range, should be imposed. Here the result of the hearing determines whether the offense is a felony or a misdemeanor. (Sections 2-7, 2-11, and 16-1 of the Criminal Code of 1961.)

Aside from the difference in the punishment which may be imposed, the far reaching effects of conviction of a felony, as distinguished from conviction of a misdemeanor, are so clearly apparent as to require no further discussion.

Under the circumstances we hold the rule of People v. Casey, supra, to apply here. It is not incumbent upon defendants to deny the accuracy .of the evidence of prior convictions, they are clothed with the presumption of innocence and this presumption applies to the fact of a former conviction. There is no evidence to identify these defendants as the same persons who are named in the exhibits and, absent such evidence, the trial court erred in imposing the penalty permissible only on proof of a second or subsequent conviction.

For the reasons set forth, the judgment of the Circuit Court of Bond County is affirmed, and the cause is remanded to the Circuit Court of Bond County with directions to vacate the sentences imposed, and impose sentences in accordance with the provisions of chapter 38, section 16-1, Ill Rev Stats 1965, applicable to a first conviction of theft of property not from the person, and not exceeding $150 in value.

Judgment affirmed and cause remanded with directions.

EBERSPACHER and MORAN, JJ., concur.


text:
    Oliver K. Halverson, et al., First National Bank of Murphysboro, a Corporation, Not Personally, But as Trustee Under Trust Dated February 15, 1965, Known as Trust No. 50-A, Robert L. Morgan, et al., Plaintiffs-Appellants, v. County Board of School Trustees of Jackson County, Illinois, Murphysboro Community Unit School District #186 Jackson County, Illinois, Carbondale Elementary School District 95 Jackson County, Illinois, Carbondale High School District #165 Jackson County, Illinois, James C. Blackwood, et al., Defendants-Appellees.
    Gen. No. 67-86. (Abstract of Decision.)
    Fifth District.
    December 6, 1967.
    Kenneth B. Powless, of Marion, and W. Troy Barrett, of Carbondale, for appellants; Wolff, Jones & Lawder, of Murphysboro, for appellees.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roy Clifford Swafford, Defendant-Appellant.
    Gen. No. 66-108.
    Fifth District.
    December 7, 1967.
    Cohn, Cohn & Korein, of East St. Louis (Sandor Korein, of counsel), for appellant.
    Robert N. Gandy, State’s Attorney of Perry County, of Pinckneyville, for appellee.
   MORAN, P. J.

The sole question on this appeal is whether a sentence of not less than fifty or more than seventy-five years in the penitentiary following a plea of guilty to burglary with intent to commit a theft is so excessive that we should reduce the sentence imposed by the trial court, pursuant to the power granted courts of review in Illinois under chapter 38, section 121-9 (b) 4 of the 1963 Illinois Revised Statutes.

An information was filed by the State against the defendant charging him with knowingly and without authority entering the domicile of one Betsy Smith without her permission with intent to commit a felony or theft. He was brought before the Court of Perry County for arraignment and an attorney was appointed to represent him. His attorney advised the court that the defendant wished to enter a plea of guilty. The court thereupon admonished the defendant as to the consequences of his plea and advised him that the punishment on his plea could be no less than one year in the penitentiary nor more than any term set by the court. After being so admonished by the court, the defendant signed a form waiving trial by jury and pleading guilty to the offense charged. He further waived the right to be indicted by a grand jury and consented to be prosecuted under the information. The court then accepted his plea of guilty and sentenced him to the penitentiary for a term of not less than fifty years nor more than seventy-five years.

After this occurred, the court advised the defendant that before the execution of the mittimus he had a right to bring in witnesses to testify in mitigation of the offense and the State’s Attorney had a right to show facts in aggravation. The court then asked the defendant if he cared to testify, but the defendant did not answer. The court then interrogated the defendant who testified as follows: He last got out of the penitentiary, which was March 22,1965, from Menard, Illinois, and that there was no job waiting for him when he got out; that he was employed in Rockford, Illinois, making $2.47 an hour as a pump operator where he worked a month. Then he went back to Centraba and looked for steady employment, but was only able to get odd jobs. He was in Centraba for two or three months. The last time he had an odd job was sometime in August; that he had continued hunting for steady employment, and went to Johnson City where his uncle had no work and could not help him, and he tried to get a place to stay, but he didn’t know anyone who lived there; that he did everything he could, tried to help recover everything, that his people were not able to help him; that he tried to get a job in the coal mine, but couldn’t find any work. He was involved in another crime in 1946, and he got a year in Louisiana for theft, got out for good behavior in ten months and eight days; that next was the Federal Government where he was sentenced for eighteen months and got off for good behavior in fourteen months. Then he was sentenced for nine years in the State of Missouri for burglary and larceny of a motor vehicle, and in 1957 sentenced to Statesville for theft for five to ten years. He served six years and eight months and was out on good behavior. He is presently out on bond in Rockford, Illinois. He did not know what he was charged with there, but thought that it was for not having a driver’s license; that in the crime he was presently accused of, he took a vacuum cleaner and one Treasury Department income check. He had taken checks sometime before but he was not convicted. This was back in 1949. He has spent half of his life in prison; that he was twenty-two at the time he was first convicted, having just gotten out of the Navy; that in being around Johnson City, he had slept the last few weeks in the car; that when he had money and could afford it, he stopped at a hotel; that he bought a 1958 Edsel in Rockford, paid down $20, having made one payment since.

The court then stated it found no mitigating circumstances here, and affirmed the sentence confining the defendant to the Illinois State Penitentiary for not less than fifty years nor more than seventy-five years. The court stated, “Don’t think for one moment I hold malice toward you; this is the first time I ever saw you. It is not in my heart to hate you; certainly one I don’t know. I feel I have no alternative. I think it is my sworn duty to see you confined. That is all.”

The record includes a judgment order signed by the trial judge and filed August 26, 1965, a two-page document titled “Official Statement,” with no file mark, denoting name of the defendant, his age, the date of the plea, the name of the judge, date of sentence, the name of the State’s Attorney, defense attorney, the crime committed and a listing of a previous criminal record with the places of confinement, and another untitled statement submitted by the trial judge and signed by the State’s Attorney in which the goods that were taken in the burglary were set forth. The statement also disclosed that the defendant had burglarized three other homes in Monroe, Williamson and Clinton Counties.

The general purposes of the criminal code as set forth in chapter 38, section 1-2 are to prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition of the rehabilitation possibilities among individual offenders, and to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.

We find no precedent in this State for the imposition of so harsh a sentence as was imposed in this case. In People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, the trial court, after hearing in aggravation and mitigation, sentenced the defendant to a minimum of twelve years and a maximum of eighteen years in the penitentiary on his plea of guilty to a charge of burglary. This court reduced that sentence to a minimum of five years and a maximum of eighteen years. In People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498, the trial court imposed a sentence of not less than five years nor more than fifteen years in the penitentiary following a plea of guilty to a charge of burglary with intent to commit a theft. The defendant was a first offender, 27 years of age, but there were some aggravating circumstances. This court reduced the sentence in that case to a minimum of two years and a maximum of five years. In People v. Stevens, 68 Ill App2d 265, 215 NE2d 147, the Appellate Court held that a sentence to the penitentiary for a term of not less than two years nor more than six years was not an excessive punishment to impose on a defendant who had been in various penal institutions since 1941 under charges including burglary, petty larceny, drunkenness, forgery and shoplifting, and who was addicted to the use of alcohol.

Based on the record before us, we conclude that the general purposes of the criminal code would be best carried out by a minimum sentence of seven years and a maximum sentence of twenty years. In our judgment this imposes a penalty proportionate to the offense committed and gives a great deal of discretion to the parole authorities.

For the reasons herein set forth, the judgment and sentence of the Circuit Court of Perry County are modified to provide.that the sentence imposed on the defendant be confinement in the penitentiary for a term of not less than seven years nor more than twenty years and as so modified, the judgment is affirmed.

Judgment modified and as modified, affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Napoleon P. Barney, Defendant-Appellant.
    Gen. No. 50,723.
    First District, First Division.
    November 27, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert A. Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Napoleon P. Barney, was charged with unlawful possession of narcotics. He was found guilty in a bench trial and sentenced to five to eight years in the Illinois State Penitentiary. He prosecutes this appeal contending (1) the evidence does not establish that defendant knowingly possessed narcotics; (2) that possession was not proven beyond a reasonable doubt; (3) that use for impeachment purposes of defendant’s prior conviction for unlawful sale of narcotics should not have been allowed because that conviction was pending on appeal; and (4) that the aggravated penalties provision was improperly invoked.

A police officer assigned to the Vice Control Division, Narcotics Unit, observed defendant standing on a corner in the company of two men and a woman. As the officer, who was known to the defendant, approached the group, the defendant saw him and turned to walk away. When the officer was about eight feet away from defendant, he saw him throw away a gum package. The package was retrieved and inside were four tinfoil packages which field tested positive and were later proven to contain heroin. After picking up the package, the officer approached defendant and exhibited the narcotics to him. Defendant told the officer, “This is for my own use, but I am not selling any narcotics.” He was placed under arrest.

The defense version of what happened makes one wonder if the defendant and the officer are talking about the same occurrence. Defendant testified that he was standing in front of his apartment building with five or six other persons. As the officer approached them, the group dispersed. The officer walked past defendant to the curb, stooped over, arose with a package in his hand and accused defendant of possession of narcotics. This officer was the same person who testified against defendant in a prior trial where defendant was found guilty of sale of narcotics. He now wanted defendant to inform on other suspected violators of the narcotics laws. When the defendant refused, he was placed under arrest.

We deal first with defendant’s first two arguments, reasonable doubt of his guilt and that the evidence does not show he knowingly possessed narcotics. This court will not substitute its judgment on the matter of credibility of witnesses and the weight to be given their testimony. The trial judge saw and heard the testimony and unless his judgment rests on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, we will not substitute our judgment even though the evidence below is conflicting and irreconcilable. People v. Smith, 57 Ill App2d 74, 206 NE2d 463 (1965), cert den, 383 US 910 (1965). The trial judge chose to believe the police officer’s testimony with respect to possession of the narcotics. The officer observed defendant discard the package containing the heroin and related the admission of such possession.

It is argued that a person would not have thrown away a package if he knew it contained narcotics. However, the defendant recognized the police officer coming toward, him and undoubtedly did not wish to be caught with narcotics on his person. We cannot say that the trial judge erred in finding the defendant guilty as charged.

Defendant’s next argument is that introduction of his prior conviction for impeachment purposes was erroneous, since that conviction was pending on appeal. If the defendant chooses to take the stand, he opens the door to the introduction of prior convictions for the purpose of affecting his credibility. People v. Webb, 80 Ill App2d 445, 225 NE2d 679 (1967); Ill Rev Stats 1965, c 38, § 155-1. In the Webb case, a division of our district was presented with this precise issue of introduction for impeachment purposes of a prior conviction pending on appeal. The court stated:

“The defendant also argues that a prior conviction on which appeals are pending cannot be used for the purpose of impeachment of a witness, and cites in support of that contention People v. Shook, 67 Ill App2d 492, 214 NE2d 546, which case is not applicable since the prior conviction had been held void. In dictum in that case the court referred to Campbell v. United States, 176 F2d 45, in which the court took the view that it was illogical and unfair to permit a defendant to be questioned about a previous conviction from which an appeal was pending. The court did not rely on that case in reaching its decision. It is worthy of note that the great majority of jurisdictions have not accepted the Campbell case and the courts of three Federal circuits have rejected the rule therein laid down.” (P 450.)

Relying on the case of People ex rel. Keenan v. Mc-Guane, 13 Ill2d 520, 150 NE2d 168 (1958), cert den 358 US 828 (1958), the court concluded that “in a criminal case, when the defendant testifies, it is proper to introduce the record of his prior conviction, even though an appeal is pending in the case.” This position was concurred in by the Fourth District of this court in People v. Spears, 83 Ill App2d 18, 226 NE2d 67 (1967). See also 16 ALR3d 726.

The final argument raised by defendant is that his prior conviction having been reversed, People v. Barney, 60 Ill App2d 79, 208 NE2d 378 (1965), he was improperly sentenced as a subsequent offender. It was for this “conviction” that the trial judge imposed an aggravated penalty.

We feel that the defendant is entitled to resentencing. The aggravated penalties are applicable to persons who are convicted of previous offenses. It would be patently unfair to apply this provision to anything other than a proper conviction. This court has already ruled that defendant’s prior conviction was improper.

The sentence imposed by the Criminal Division of the Circuit Court of Cook County is vacated and the cause remanded for resentencing. People v. Kurtz, 37 Ill2d 103, 224 NE2d 817 (1967).

Conviction affirmed and cause remanded for resentencing.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Arnold, Defendant-Appellant.
    Gen. No. 51,100.
    First District, First Division.
    November 27, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Chester P. Majewski, Marshall J. Hartman, and Jerome Wexler, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for murder. In a bench trial, jury having been waived, he was found guilty and sentenced to not less than 14, nor more than 20 years in the Illinois State Penitentiary. He prosecutes this appeal contending that the State failed to prove the corpus delicti; that the evidence shows justifiable homicide; and that incompetent evidence was introduced.

The evidence showed that defendant’s “common law” wife, Juanita Arnold, was a prostitute. Rodolfo Silva came to her basement apartment for the purpose of engaging in sexual intercourse. Silva had a drink with her and then started to undress. Upon being reminded that he had not given her any money, Silva threw Juanita Arnold on the bed and grabbed her by the throat. She screamed and defendant rushed into the room and a fight ensued. Juanita Arnold testified that Silva had a knife and that Silva and defendant were grappling for it. She further testified that, by prearranged plan, defendant was always close by when she engaged in acts of prostitution, to prevent any trouble with her patrons.

A resident of the building, William Davis, was summoned to the basement by Juanita Arnold. He observed defendant and Silva scuttling and fighting. Davis screamed at both of them to break it up and defendant ran upstairs and Silva ran out the door. Silva’s stomach was bleeding and his clothes were smeared with blood. Davis did not know who had the knife.

Eight hours after the above described events took place, Silva was being operated on in Cook County Hospital. He had a laceration on the right upper forehead and stab wounds on the abdomen. The abdominal wound was being surgically closed when Silva suffered a “cardiac arrest” and died. The doctor who performed the post mortem examination concluded that a condition precedent to the cardiac arrest was the stab wound in the abdomen. A toxicologist concluded that Silva had been under the influence of alcohol at the time of his death.

The testimony upon which the trial judge heavily relied was that of Jack Brent. Brent had been a customer of Juanita Arnold on the previous evening. When Brent had refused to pay more than the agreed price, defendant burst into the room and struck Brent with a lead pipe and stabbed him with a knife. Brent had so testified in another case against Paul and Juanita Arnold and they were convicted of aggravated battery and armed robbery. That conviction was affirmed on appeal by this court, the opinion appearing at 84 Ill App2d 81, 228 NE2d 130 (1967).

The defendant’s first point is that the State failed to prove the corpus delicti in that there was no proof of causal connection between the altercation and the ensuing death of Silva. The evidence shows that Silva suffered lacerations in both the head and the abdomen from his fight with the defendant. During surgical treatment of these wounds, Silva died. The medical expert stated that the wounds were a condition precedent to the cardiac arrest which caused his death. The eight-hour lapse of time does not relieve the defendant from the consequences of his act. One who inflicts an injury on another is guilty of homicide where the injury causes death mediately or immediately. Wharton, Criminal Law & Procedure, § 197. The medical evidence established the connection between the injury and Silva’s subsequent death. Consequently, the corpus delicti was proved.

Defendant next contends that the evidence established that his acts were justified in that he went to the assistance of his wife and was attacked by Silva. In connection with this argument, we must also deal with the defendant’s third contention that the testimony of Jack Brent was inadmissible. Defendant relies on People v. Cage, 34 Ill2d 530, 216 NE2d 805 (1966), to support this argument. Cage was convicted of the murder of a candy store proprietor. He was granted a new trial because witnesses were permitted to testify that Cage had been in their stores near closing time. The State claimed this showed a common design to rob stores. The Supreme Court rejected this because the witnesses “say nothing about customers or closing times other than fixing the appearances of Cage and others at late afternoon hours as contrasted with the 1:00 a. m. hour of the candy store robbery and murder.” (P 534.)

There is, however, another quote from Cage which is more pertinent:

“The general rule, of course, is that evidence of commission of other crimes by an accused, in addition to that for which he is on trial, is inadmissible unless its relevancy in . . . tending to prove design, motive or knowledge is so closely connected with the main issue as to justify admission.” (P 533.)

In the instant cause, Jack Brent was with Juanita Arnold the prior evening. When he refused to pay more money, defendant came into the room, beat him with a pipe and stabbed him. The following evening, Silva was also asked for money. When he refused, defendant appeared and a fight ensued during which Silva suffered several lacerations which subsequently caused his death. The similarity of the facts, the probative value of Brent’s testimony as to who commenced the attack against Silva, and its tendency to show the design and motive of defendant justifies admission of such testimony in this cause. The effect of Brent’s testimony dissolves the defense of justifiable homicide and the trial judge was not in error in finding the defendant guilty of murder.

For the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter D. Justice, Defendant-Appellant.
    Gen. No. 51,615.
    First District, First Division.
    November 27, 1967.
    Rehearing denied December 14, 1967.
    Edward A. Biggs, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for murder. In a jury trial he was found guilty of voluntary manslaughter and sentenced to 4 to 15 years in the Illinois Penitentiary. He prosecutes this appeal contending that his statement to a police officer was improperly admitted in evidence and that he was not proven guilty beyond a reasonable doubt.

Defendant and several others were enjoying an afternoon of watching the football games on television followed by a poker game. Marshall Williams and another player became embroiled in an argument as to who had won a particular hand. Defendant injected himself in the argument and attempted to reach into a drawer for a copy of Hoyle. According to defendant’s testimony, Williams slammed the drawer on his hand causing it to bleed. Williams became very abusive and was throwing furniture around, so defendant went into his bedroom and emerged with a loaded rifle. He further testified that, Miss Young, who had come to the apartment to pick up Williams, was pushed against him and Williams then grabbed him from behind. The rifle discharged and Williams was killed. Defendant claimed he did not aim at Williams, nor did he know the gun was loaded.

Miss Young testified that she did not hear Williams threaten defendant. On the contrary, Williams left the apartment before defendant emerged from his bedroom with the rifle. Defendant struck Miss Young and she screamed. Williams returned to the apartment and defendant aimed the rifle at him and fired.

The other card player also testified that Williams did not threaten defendant. During the dispute at the card game, defendant told Williams to “learn to play cards.” Williams told defendant to “shut up,” to which defendant responded, “you don’t tell me to shut up in my house.” Defendant then went to his bedroom to get the rifle.

After the shooting, the police were summoned. The investigating officer related his conversation with defendant at that time, in which defendant admitted shooting Williams after Williams attempted to tear up his house. Defendant fired the shot to protect his home.

Defendant argues that the police officer’s testimony should not have been admitted because the policeman did not first advise defendant of his right to an attorney. Defendant relies on Escobedo v. Illinois, 378 US 478 (1964) and Miranda v. Arizona, 384 US 436 (1966). Miranda is not applicable to the instant case because the entire proceedings were completed prior to June 13, 1966. Johnson v. New Jersey, 384 US 719 (1966). Escobedo is also inapplicable, it being limited to the peculiar facts of the case. People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964); People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965) .

The case of Lynumn v. Illinois, 372 US 528 (1963) is also cited by defendant. In Lynumn three police officers obtained an oral confession from the defendant after telling her she would get ten years and her children would be taken away and strangers would have them. The police said they would recommend leniency if she would confess. There is no hint in the instant case of any police harassment or intimidation. We find nothing in the testimony that in any way shows defendant’s statement to the police was anything but voluntary.

The other point raised by defendant is that the conflicting testimony should mitigate in his favor and he should be found not guilty. The jury was properly instructed as to whether the homicide of Williams was murder, voluntary or involuntary manslaughter. No error is alleged with respect to these instructions. The rule is well established that credibility of witnesses and the weight to be given their testimony are matters for the jury. This court will not disturb their verdict unless the evidence is so unreasonable, improper or unsatisfactory to justify our conclusion that there is reasonable doubt of the defendant’s guilt. People v. Bailey, 76 Ill App2d 310, 222 NE2d 268 (1966). We feel there is sufficient evidence, if believed, to prove the charge of voluntary manslaughter.

For the foregoing reasons the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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