text:
    Rosetta Harris, Plaintiff-Appellant, v. The City of Edwardsville, Defendant-Appellee.
    (No. 72-245;
    Fifth District
    May 21, 1973.
    Edward L. Welch, of Edwardsville, for appellant.
    No brief filed for appellee.
   PER CURIAM:

Appeal from a judgment of the Circuit Court of Madison County in favor of the defendant, City of Edwardsville, Illinois. The plaintiff, Rosetta Harris, brought this action to recover the one-half time of the allegedly time and a half due to her for work performed in excess of the 40-hour week.

Hereinafter, the plaintiff-appellant, Rosetta Harris, shall be called the plaintiff and the defendant-appellee, City of Edwardsville, shall be called the City.

This action was filed by the plaintiff seeking the overtime wage in a two count complaint. The first count of the complaint was based on allegation that the plaintiff was entitled to recover because the employment agreement “must be construed to include the customary additional rate of pay for overtime work paid to all other employees of the City of Edwardsville, Illinois, during the period * * The second count was based upon denial of the equal protection clause of the fourteenth amendment to the U.S. Constitution because she was not paid on the basis as others in the same very general capacity. The City answered by way of a general denial.

Trial was held to the court and at the conclusion, the court, after taking the matter under advisement for a period of almost five months, entered judgment against the plaintiff and in favor of the City.

The facts are not basically in dispute. It is agreed that the plaintiff worked for the City in the police department as a clerk-dispatcher. She started work on the 4:00 P.M. to 12:00 A.M. shift in June, 1965, and in May, 1966, she not only worked the 4 to 12 shift, but also worked the 8:00 A.M. to 4:00 P.M. shift. Thus she performed the 16 hour, five day a week double shift until August 1968. She received pay for the double shift at the regular rate, but did not receive time and a half for the second shift.

The plaintiff did not make demand or expect “overtime” pay until July 31, 1968, when she apparently discovered that others employed by the City in clerical positions were receiving time and a half for “overtime”.

The parties have agreed that the number of hours worked by the plaintiffs is at least the number of hours stated in the plaintiff’s complaint, i.e., 2480 hours. The City stipulated the number of hours to be 2600 at a rate of pay of $1.59 per horn.

There is a dispute as to whether the plaintiff was requested to work the extra shift. The record is clear that she was willing to and desirous of working the second shift. The record is also quite clear that during the period of the plaintiff’s employment she was considered a valuable employee and her supervisors said that she was happy with her job.

The record further clearly indicates that the plaintiff did not expect to receive time and a half until she discovered others in the City Clerk’s office were so paid. Further, it is clear from the record that in the City, employees covered by union contract received time and a half for overtime, as did those working in the City Clerk’s office. However, the record is also clear that no employee of the City’s police department received overtime pay.

The plaintiff contends that she was not paid overtime because the City’s former Mayor was prejudiced against Mrs. Harris’ race. Mrs. Harris bases this contention on an occurrence which took place prior to her having been employed by the City. The plaintiff alleged that the Mayor, then an official with the Boy Scouts, refused to get one of the plaintiff’s children into scouting because of his race. The child was able to become a scout due to the efforts of another individual. Other than this single allegation, the record is without any evidence of discrimination against the plaintiff. Quite to the contrary, the plaintiff received such written accolades as “is very conscientious in her duty and has earned the respect of all officers of this department”. This having been written by the Police Chief to the Alderman who was Chairman of the Police & Health Committee when it was first requested that the plaintiff be allowed to work the double shift.

Therefore, other than for minor differences, the facts are not in dispute.

The plaintiff brings this appeal asserting that the court below erred in two particulars. First, that the case should have been decided in favor of the plaintiff based on the facts presented; and second, that the fourteenth amendment of the United States Constitution prohibits State officials from using race as a criteria for taking, or in this case, not taking action.

Plaintiff’s counsel has prepared an excellent brief and we have been greatly aided by the brief in our consideration of the issues herein presented. The City has not filed a brief and thus we have considered reversing the court below because of the failure of the City to file a brief. However, after due deliberation, the ends of justice would in this case not have been served by our so doing. Metcoff v. Metcoff, 4 Ill.App.3d 160, 280 N.E.2d 572; Vesely v. Prestige Casualty Co., 4 Ill.App.3d 726, 281 N.E.2d 724.

The general rule of law is clear with respect to overtime compensation for municipal employees.

8 Illinois Law and Practice, paragraph 301:

“In the absence of a valid ordinance or agreement providing for additional pay, a municipal employee cannot recover compensation for work done outside his regular hours of employment or for work done outside the scope of his duties.”

62 C.J.S. 1463, paragraph 720(b):

“IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE OR OF AN AGREEMENT TO PAY, A MUNICIPAL EMPLOYEE CANNOT RECOVER COMPENSATION FOR WORK DONE OUTSIDE HIS REGULAR HOURS OF EMPLOYMENT OR OUTSIDE HIS REGULAR DUTIES.
A municipal corporation may properly agree to pay an employee additional money for additional work unless such payment is prohibited by ordinance. An employee of a municipality cannot recover compensation for work done outside his regular hours of employment or for work done outside the scope of his regular duties unless there was an agreement by the municipal authorities to make compensation at such extra time or for such extra services or unless a statute or charter provisions requires extra pay for overtime work.”

Plaintiff contends that the facts of her situation differ from the above in the following particulars; she is seeking to recover only the one-half premium pay and not the “overtime”; she did not “volunteer” to work the second shift but was requested by the City to work the extra shift; and she made “immediate” request for payment when she determined that other City employees were being paid time and a half for overtime.

We have reviewed the cases cited by the plaintiff and cannot agree that they support her contentions. As the plaintiff points out, the Illinois cases on this issue stress that governmental control over expenditures is a necessity.

The fact that the Mayor offered to pay the plaintiff for the period of from June, 1968, to October, 1968, is not controlling of the City’s responsibility so to do. This offer of payment may well have been in the nature of a settlement offer which is not an admission of liability.

In the case of Mitchell v. City of Chicago, 259 Ill.App. 301, the plaintiff claimed overtime compensation for 5,385% hours of overtime services which he had rendered during a period of over four years. He had made no claim for compensation while employed by the City but only did so a year after he left the City’s employment.

The evidence of Mitchell reveals that the plaintiff worked from 4:00 P.M. till 6:00 A.M. seven days a week. He had been told by the union that it was attempting to get an eight hour schedule for the plaintiff. The court reversed the trial court’s findings for the plaintiff. The language of Mitchell is particularly appropriate to the case at hand. At page 303 “The facts of this case clearly indicate that it was not contemplated by the parties that the plaintiff was to be paid for time in excess of eight hours of work. The plaintiff voluntarily worked more than eight hours a day, accepted the pay, and at no time during the four years or more of service, claimed pay, or made demand for pay for the extra time.” (Emphasis ours.) The plaintiff urges that the case is distinguishable because the present plaintiff received straight time for extra hours. We find that the determining point is that neither the plaintiff nor the City contemplated overtime and it was not part of any employment agreement. As the court states in the Mitchell case at page 304, “In this case it is clear that extra compensation was not contemplated by either party.” See also Sanitary Dist. of Chicago v. Burke, 88 Ill.App. 196.

The other cases cited by the plaintiff do not support her contention and indeed the plaintiffs brief only cites the cases so that she may distinguish them. The plaintiff has not cited any authority for the assertion which may be paraphrased as: The plaintiff is entitled to overtime because she worked the hours at straight time and other City employees in other departments received overtime pay in spite of the fact neither she nor the employer contemplated overtime.

The second contention of the plaintiff is that she was denied equal protection of the laws as provided by the fourteenth amendment and that tire record suggests race was or may have been used as a criteria in determining whether to act favorably on her claim. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, is cited in support of such contention. There the Court found that application of a Texas statutory scheme resulted in a practical elimination of those of the defendant’s race from the grand jury and held that, “If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.” Here the record would not support a finding of discrimination and there is a plethora of evidence that plaintiff did not receive discriminatory treatment. The findings of the trial court will not be disturbed as they are not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald William Lono, Defendant-Appellant.
    (No. 56329;
    First District (3rd Division)
    April 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The trial court found Donald Lono guilty of the murder of Guy Thompson and. sentenced him to the penitentiary for a term of 14 to 20 years. He contends that unrebutted evidence of insanity created a reasonable doubt of his guilt.

The events preceding Lono’s indictment occurred around 8:30 P.M. on August 25, 1969. As Lono walked along a Chicago street, he approached Thompson who was drunk and lying in the doorway of a vacant building. Lono paused at the doorway and without words or apparent provocation, produced a gun, shot Thompson in the head, and walked away at a faster pace.

Carole Piets, a high school student, was the only witness to the shooting. She was standing in front of her house with her mother and the janitor of the building, William Martin, when Lono, previously unknown to her, came by waving a newspaper. Carole’s dog, which was on a leash, jumped at Lono. A conversation ensued between Lono and Martin which Carole did not hear. Lono then continued down the sidewalk and was soon followed by Carole and her dog. Half a block from her home, she saw Lono, who was about six feet in front of her, take a gun from his pocket and shoot Thompson. He said nothing to her as he hurried away. After looking at the victim, Carole returned to her mother and Martin and told them what she had seen.

Mrs. Piets corroborated her daughter’s testimony as to what transpired when Lono approached them. She did not participate in the conversation between Lono and Martin but she observed that nothing appeared to be wrong; Lono talked in a low voice, was pleasant, and smiled. As the colloquy ended, she heard him say something about karate and tell Martin, “I see you take care of your wife.” She did not hear the shot, but after talking to her daughter she went to the doorway, saw Thompson’s body, and returned home and called the police. No other people were around. In about ten minutes, a squad car arrived and an ambulance came for Thompson. In the meantime, a crowd had gathered and she testified, as her daughter did, that Lono was in its midst. She did not tell the police of Lono’s presence. Her explanation for not having done so was that she had been instructed not to say anything.

William Martin testified that Lono started waving his arms and kicking his feet after the dog lunged at him. The conversation began with Lono’s mumbling something which wasn’t clear to him. He guessed that Lono was talking about karate or judo because he thought that was what he had been demonstrating. During the conversation Martin understood Lono’s words but had no idea what he was talking about. Although Lono’s motions to the dog did not appear normal, he walked away in a straight manner. After the authorities removed Thompson, Martin saw Lono walking at a fast pace on the other side of the street; a group of children were chasing him and throwing tilings at him.

Shortly thereafter, police officers, responding to a radio message concerning a man with a gun, saw Lono enter a building with a revolver in his hand. They pursued him to the third floor and into an apartment. He ran through the apartment, opened a door and threw the revolver onto a balcony before they apprehended him. Although an odor of alcohol was on his breath an officer testified that, in his opinion, Lono was sober. The apartment, which was occupied by Lono and his mother, was not far away from where Thompson was killed.

Lono testified that he was 31 years old, single, a high school graduate and had spent 16 weeks at a school for computer operators. He was employed as an assembler of door adjusters and had been working for the same employer for approximately two and a half years. He said that occasionally he had to be re-taught how to do his work. His parents were separated and he lived with his mother. In 1964 he was hit on the side of the head with a large beer bottle, suffered a concussion and was hospitalized for two weeks. Glass from the bottle cut his lip and a scar resulted. In 1956 he fell while he was hopping freight trains, hit his head on a steel girder and was taken to a hospital. He said he remembered nothing about the day of the shooting except that he talked to some police officers.

The defendant’s brother-in-law testified that Lono acted normally most of the time; however, he was not rational on two occasions. In 1956 he suddenly started talking about becoming an astronaut. The conversation lasted ten or fifteen minutes but when he was questioned a few moments later about the possibility of entering the space program he did not know that the conversation had taken place. In 1967 he asked the witness, who was driving him home about 1:30 A.M., to drive him to his bank so that he could withdraw his money for the purpose of taking an extended international trip. Afterwards, he denied having money in the bank and when asked if he was serious about taking a trip said, "What trip?” The witness said that during the two conversations, Lono looked as if he were staring beyond him and talking to somebody else.

The defendant’s sister observed him talking to himself on many occasions and, when she addressed him, he did not seem aware that he had been spoken to. She had written to her father about him and had contemplated taking him to a social worker because of the frequency of his self-conversations.

A second sister testified that her brother didn’t make sense at times, was erratic in conversation and mumbled to himself. He was a placid person, slow to anger but easily frustrated and depressed. She had seen him intoxicated but did not think he drank excessively. At one time, during a phone conversation, he remarked that his sisters and mother had bad marriages and that he should have been more of a man and should have taken care of them. During the same discourse he wondered if he could fly out of the window; when reminded that he was on the third floor, he remarked “with my luck I would probably break a leg.”

His mother stated that her son worked the day of the homicide at his regular place of employment. Almost daily he would go to the mirrors in their apartment, look at his scar and feel it. She did not know the substance of his words when he talked to himself but when she confronted him he said everything was fine and not to worry about him. He did not drink much but when he did he drank cheap wine and frequently locked himself in his room.

Before the trial Lono had been examined by psychiatrists and a competency hearing had been held. The psychiatrists reported that he had a sociopathic personality disturbance, knew the nature of the charge and was able to cooperate with counsel. He was found to be competent. Lono did not give notice that he would rely on the defense of insanity at his trial, the evidence, insofar as it was known to tire State, did not indicate that such a defense would be raised and the State did not request that he submit to a psychiatric examination. (Ill. Rev. Stat. 1969, ch. 38, par. 115—6.) At his trial, the defendant presented neither expert nor medical testimony as to his mental condition at the time of the homicide and none of his lay witnesses was asked to express an opinion as to his sanity. Thus, there was a total absence of medical conclusions or lay opinions either couched in the terms of the statutory definition of insanity or in language even approximating that definition.

The trial judge, after reviewing the law and analyzing the evidence at the end of the trial, said that he did not believe there had been a real attempt to raise the issue of insanity and that the presumption of sanity had not been overcome. He said there was no real evidence that the defendant had any mental disorder — there was just evidence of bizarre behavior.

In arguing that the judge was mistaken, the defendant asserts that the evidence was sufficient to raise a reasonable doubt of his sanity; that the State presented no contrary evidence and thus did not prove him sane beyond a reasonable doubt. The defendant points to his behavior prior to the day of the crime and to his conduct on that day: his head injuries, talking to himself, periods of depression and frustration, memory loss, irrational ideas about flying out a window and grandiose schemes of becoming an astronaut and a world traveller; his kicking his feet and waving his arms, his incoherent mumblings, his killing a man without motive or reason, his returning to the scene of the offense and being chased by children, his not remembering firing the gun, working, or the other things he did on the day of the crime.

The Criminal Code defines insanity as follows:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.” Ill. Rev. Stat. 1969, ch. 38, par. 6 — 2.

The law presumes all men to be sane. (People v. Groves (1968), 100 Ill.App.2d 171, 241 N.E.2d 622.) The affirmative defense of insanity at the time of a crime must be raised at the trial; once evidence of insanity is introduced by either the State or the defendant, the presumption ceases and it becomes the State’s burden to prove beyond a reasonable doubt that at the time of committing the crime the defendant was legally sane. Ill. Rev. Stat. 1969, ch. 38, par. 3—2(a), (b); People v. LeMay (1966), 35 Ill.2d 208, 220 N.E.2d 184.

The issue of insanity is usually raised, at least in part, by the expert testimony of psychiatrists, by the testimony of physicians based upon their observations, or by the opinions of laymen who have had the opportunity to observe the accused and whose opinions are based on what they have seen. However, neither psychiatric testimony nor medical or lay opinion is essential if the evidence itself portrays serious mental defects or reveals a substantial history of mental illness. See e.g., People v. Childs (1972), 51 Ill.2d 247, 281 N.E.2d 631; People v. Haun (1966), 71 Ill.App.2d 262, 217 N.E.2d 470.

Although we might disagree with the trial court’s opinion that the defendant’s evidence did not overcome the presumption of sanity, we cannot disagree with its finding that the defendant was sane at the time of the crime. The defendant’s evidence brought his criminal responsibility into question and it became the State’s burden to prove that he was sane when he killed Thompson. To meet this burden it was not necessary for the State to produce additional evidence or to offer expert testimony; it could, if it chose to do so, rely upon the facts already in evidence and the inferences to be drawn from these facts. First, the State had little, if any, opportunity to gather rebuttal evidence. There had been no advance warning by either formal notice or opening statement that the affirmative defense of insanity would be raised. The State’s own evidence showed odd behavior on the defendant’s part immediately before the offense, perhaps intoxication, but no serious mental defect which would indicate his substantial incapacity to appreciate the criminality of his subsequent conduct. Second, the defense testimony was of dubious quality. It seemed to have been offered more in the way of mitigation of sentence than in aggressive defense. No witness, expert, medical or lay, expressed an opinion as to Lono’s mental condition at the time of the crime. There was no evidence of prior psychiatric treatment or confinement in a mental institution. Members of his family only detailed his peculiar traits and unusual behavioral characteristics, some of which had occurred years before the offense. His own testimony that he did not remember shooting Thompson placed his credibility in issue.

Although the State offered no rebuttal evidence, under the facts of this case, none was required. When the presumption of sanity has been overcome the question of a defendant’s sanity or insanity is to be determined from the whole evidence, without reference to the presumption. (People v. Saylor (1925), 319 Ill. 205, 149 N.E. 767.) It was for the trial judge, sitting without a jury, to determine Lono’s sanity. The whole evidence justified the court’s conclusion that he was sane. The evidence presented in his behalf fell far short of establishing a mental disease or mental defect within the statutory definition of insanity. Evidence more indicative of mental aberration than that presented here has been held insufficient to establish insanity. Evidence that a defendant has been disturbed in mind and excited do not justify a reasonable doubt of sanity. (Montag v. People (1892), 141 Ill. 75, 30 N.E. 337). Evidence of idiosyncratic behavior and irresponsibility of conduct are insufficient to raise the issue. (People v. McBride (1970), 130 Ill.App.2d 201, 264 N.E.2d 446.) Evidence of personality disorders does not constitute a mental defect within the meaning of the statute (People v. Williams (1967), 38 Ill.2d 115, 230 N.E.2d 224) and neither does testimony that a defendant forms unrealistic judgments and is unable to evaluate situations that confront him. (People v. Miller (1965), 33 Ill.2d 439, 211 N.E.2d 708.) Depravity of character, abandoned habits, or the commission of atrocious crimes are not in themselves evidence of insanity. (People v. Robinson (1961), 22 Ill.2d 162, 174 N.E.2d 820). Blackouts or amnesia may or may not be a sign of insanity. People v. Bacon (1920), 293 Ill.210, 127 N.E. 386; People v. Conrad (1967), 81 Ill.App.2d 34, 225 N.E.2d 713.

There was no testimony which related Lono’s alleged lapse of memory to insanity, and his mere statement that he could not recollect the events of the day cannot be taken to raise a reasonable doubt of his sanity. The trial court heard his testimony and was under no obligation to believe him. As the trier of the facts the court was the judge of the credibility of the witnesses and it could have believed that Lono was conscious of what took place.

Among the facts and the reasonable inferences the court could have considered in determining that Lono knew what he was doing were these: When Lono shot Thompson he was unaware that he was being observed. He scurried away as soon as the shot was fired. Not knowing that he had been seen, he returned to the scene of the crime. He mingled in the crowd, finding security in its numbers. When the crowd dispersed he again scampered away. For some reason, unexplained in the record, children tried to impede his escape. A short time later, when police approached him, he ran into a building and up the stairs to his home on the third floor. He ran, although he had not been accused, because he was conscious of guilt. Before the police could reach him, he attempted to rid himself of incriminating evidence by discarding the gun he was carrying. There was no testimony that he was incoherent, disoriented or out of touch with reality after his arrest and there was no testimony by his mother, employer, fellow-employees or anyone else that he was in this condition the day of his arrest.

Under the evidence and inferences from the evidence the court could properly conclude that the defendant at the time of the crime was sane beyond a reasonable doubt.

The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Jones, (Impleaded), Defendant-Appellant.
    (No. 56866;
    First District (1st Division)
    April 9, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Suzanne M. Kohut and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The defendant, Larry Jones, was found guilty of murder in a bench Mal and sentenced to a term of 15 to 30 years. He contends that the evidence failed to prove beyond a reasonable doubt that he was accountable for the criminal act of his co-defendant.

Jerome Robinson, fifteen years old at the time of Mai, testified that he and Nathaniel Nelson were walking south on the 6400 block of South Greenwood about 5:30 P.M., December 30, 1970, when Ulysses Murphy approached them on the same side of the street. Murphy stopped in a gangway and talked to Joe Thomas, Keith Williams, and the defendant. Murphy went across the street and stopped a cab. Robinson heard someone, whom he could not identify, say, “Let’s get this cab.” Williams came out of the gangway and fired a rifle once at the cab; the cab kept going, and Williams fired two more shots. Joe Thomas and the defendant were in the gangway at the time the shots were fired. Williams, Murphy, Thomas, and the defendant ran through the gangway after the shots were fired.

Nathaniel Nelson testified that Ulysses Murphy said, “Let’s get this cab,” and Williams fired the shots.

PaMck McNally, an Assistant State’s Attorney, testified that he took a statement in the presence of a shorthand reporter from the defendant, whose mother was also present, on January 4, 1971. The defendant was apprised of his right to remain silent, to consult with a lawyer, to have a lawyer present during the questioning, and that anything said could and would be used against him in court. The statement, which was unsigned, was received in evidence. In that statement, the defendant, who was sixteen at the time, said that he had gone to Keith Williams’ house and later went to a show with Williams, Thomas, and Murphy. Afterward, all four went to a candy-grocery store across the street from his home. When they were ready to leave, Keith said, “Let’s go rip them off,” which, the defendant explained, “Means go rob.” He and the other two agreed and went in front of the defendant’s house. Williams, who lived in the same building, went inside and returned with an automatic shotgun. The defendant did not know if Williams had shells in the shotgun. All four went through a gangway. When asked who talked about robbing a cab, the defendant said, “Keith. We were walking through the gangway and I said what are you going to get, and he said let’s get a cab, and everybody went along.” When asked how everybody agreed, he said, “Nobody disagreed.” Murphy flagged a cab, the cab started slowing down, and they walked toward it, Williams with the shotgun; the cab sped away and Williams fired once; the defendant ran home. He had previously seen the cab leave a lady passenger off. He had seen Williams fire the shotgun before at street lights and dogs.

The cab driver, Ernest Bradley, was dead when the police arrived a few minutes after the shooting. The cause of death was a gunshot wound of the heart.

The defendant testified that when Murphy said, “Let’s get a cab,” he said nothing except to tell Williams and Murphy to “count him out.” Joe Thomas also told Murphy to “count him out.” The defendant then started walking back to the gangway away from the street. After he had taken about five or six steps, he heard the shot and started running. On cross-examination, he said that he originally intended to share in any money they got in a robbery, but not after he decided he wanted to be counted out. He did not tell the police or the Assistant State’s Attorney that he had decided to pull out of the robbery. He did not walk toward the cab and did not see a lady passenger alight from the cab before the shooting.

The Criminal Code provides:

“A person is legally accountable for the conduct of another when:
# #
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * Ill. Rev. Stat. 1969, ch. 38, sec. 5—2.

To summarize the defendant’s position, he maintains that there is no proof that he agreed to aid in the commission of the offense, other than mentally; and the evidence shows that he withdrew from the plan, if he ever participated in it. He relies on the following cases: People v. Shields, 6 Ill.2d 200, 127 N.E.2d 440; People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284; People v. Barnes, 311 Ill. 559, 143 N.E. 445; Jones v. People, 166 Ill. 264, 46 N.E. 723.

In Shields, the two defendants walked past a man seated on a park bench; one of the defendants asked the man what he was looking at and then struck him several times and kicked him, injuring him severely. The other defendant simply stood there and later said; “Come on; leave him alone; he has had enough; let’s get out of here.” The Supreme Court affirmed the conviction of the defendant who struck the man and reversed the conviction of the other, holding that since there was no evidence implicating him in the assault and no affirmative act of assisting, abetting, or encouraging the assault his mere presence was insufficient to sustain a conviction. In Ramirez, the defendant went to an apartment where a man was tied up. He was asked by one Bradford to help take the bound man out, and he refused. He was then asked to come along for a drive. Bradford carried the bound man out of the apartment and put him in a car. The defendant rode in the car and was dropped off at a tavern.. Bradford picked him up later, but the bound man was not in the car. The bound man’s body was later found in a quarry. The court reversed the murder conviction for a number of reasons: there was no proof that the bound man was alive while in the car; there was no proof that the defendant aided or abetted; and there was no proof that the defendant shared the criminal intent of the principal or that there was a community of unlawful purpose. In Barnes, the defendant and her five-year-old child were passengers in a stolen car. She had asked the driver where he had picked up the car and was told that it was none of her business. The court held in reversing that her presence was not enough, and there was no evidence of aiding and abetting. In Jones, the father of the defendant shot and killed his son-in-law while the defendant was present. The court, in holding that there was no evidence of aiding and abetting, pointed out that the defendant warned the deceased of the danger and attempted to prevent him from going into the barn where he knew his father was, armed with a gun. None of the cases cited by the defendant is factually apposite.

More in point are those cases dealing with “the long established common-design rule, i.e., that where defendants have a common design to do an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed.” People v. Armstrong, 41 Ill.2d 390, 398, 243 N.E.2d 825. See also People v. Rybka, 16 Ill.2d 394, 158 N.E.2d 17.

By his own testimony, as well as his statement, the defendant has established a common design to commit robbery. He argues that, since he did not expressly agree, the proof fails to establish more than a negative acquiescence. But proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by the group. (People v. Richardson, 32 Ill.2d 472, 476, 207 N.E.2d 478.) Proof that a person was present at the commission of a crime without disapproving or opposing it may be considered with other circumstances. People v. Hill, 39 Ill.2d 125, 135, 233 N.E.2d 367.

The facts of this case are similar to those in People v. Johnson, 35 Ill.2d 624, 221 N.E.2d 662. The defendant was fourteen years of age, and the evidence consisted mainly of his own statements. He joined a group of boys, and they agreed to go out and get some money. As they were walking down the street, one of the group said: “There is a man, a Puerto Rican — I’m going to get some money.” That boy crossed the street and the defendant followed him; the other boy struck the man; at that point other members of the group crossed the street and joined in beating the victim, who died as a result of the beating. The defendant did not strike the victim. The court pointed out, in upholding the conviction for murder, that “the defendant did not detach himself from the group but * * * was one of the first to cross the street toward the victim.”

The defendant in this case agreed, if not in words, to participate in a robbery and to share in the proceeds. He went with the others to the scene and watched Murphy try to hail the cab. He walked toward the cab with Williams knowing he was armed with a shotgun and left only after the shot was fired. Under these facts the trial court could properly find that the defendant “assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the same.” People v. Hill, 39 Ill.2d 125, 135, 233 N.E.2d 367.

The defendant argues further that, assuming sufficient proof of his participation in the original plan to rob, the evidence shows that he had withdrawn from the plan. The general rule is that “one who withdraws from a criminal enterprise is not responsible for the acts of another subsequently committed in furtherance of the enterprise, provided the fact of withdrawal is communicated to the other conspirators.” (14 Am.Jur., Criminal Law, sec. 80; see also 22 Corpus Juris Secundum, Criminal Law, sec. 94.) As was pointed out in People v. Rybka, 16 Ill.2d 394, 406, 158 N.E.2d 17:

“However, it is the communication of intent to withdraw and not the naked fact of withdrawal that determines whether one who advised, encouraged or incited another to commit a crime is to be released from liability as an accessory before the fact.”

The only proof of withdrawal is contained in the defendant’s testimony which, if believed, could support such a finding. If, on the other hand, his statement is believed, the factfinder could conclude that he had not withdrawn. The accuracy and truth of the statement was a fact question, like the credibility of the defendant, to be determined by the trial judge. (People v. Nicholls, 42 Ill.2d 91, 96, 245 N.E.2d 771; People v. Hiller, 7 Ill.2d 465, 469, 131 N.E.2d 25.) The trial court in his summation clearly addressed himself to this issue:

“The question is whether or not * * * he withdrew, and he indicates by his testimony that he told Keith "Count me out.’ That, of course, is impeached by the fact that he gave a statement in which he talked freely and that portion of his later testimony does not appear in the statement, and he indicated quite candidly he didn’t say anything about counting himself out at that time, and that only thought about it two days after he was arrested and when he was in the Juvenile Home.
The statement, the Court believes, is true and correct, that he didn’t leave until after the first shot which, of course, was, if he was withdrawing far too late.”

We see no reason to gainsay the trial court’s determination of fact. The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Nicholas Roth, Plaintiff-Appellant, v. Avenue State Bank, Defendant-Appellee.
    (No. 55093;
    First District (1st Division)
    April 9, 1973.
    Erwin M. Pearl and Leonard V. Solomon, both of Chicago, for appellant.

      Frank Glazer, of Chicago, (John W. Purney and James A. Swanson, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This appeal is based on a personal injury action brought against the defendant-bank for damages suffered when the plaintiff fell while crossing a snow-covered driveway leading to the bank’s drive-up facilities. The case was tried before a jury, but after introduction of the plaintiff’s evidence, the court granted the defendant’s motion for a directed verdict.

On January 19, 1964, at about 5:30 P.M., the plaintiff was on his way to a camera shop located on Oak Park Avenue in Oak Park, Illinois. He parked his car on North Boulevard, east of the defendant’s building, which was on the northeast corner of Oak Park Avenue and North Boulevard. The plaintiff walked on the north side of North Boulevard in a westerly direction towards Oak Park Avenue. His path was slightly to the right of the center of the public sidewalk. He started across the driveway which runs north and south, leading to the bank’s drive-up facilities. The driveway is flush with the public walk on the east side, but there is a curb on the west side of the drive, where the driveway portion ends and the public sidewalk resumes. As the plaintiff approached the west side of the driveway, he stepped on what felt like a ridge. He slipped and fell.

It had been snowing steadily during the day, and the driveway and sidewalk were covered with snow. The plaintiff was helped to his feet by passersby and continued on to the camera store. He drove himself home, but thereafter he went to a doctor who treated him for a fractured leg. This and other medical expenses were documented.

The plaintiff’s prayer for relief is based on the alleged faulty construction or maintenance by the defendant of its driveway and of a private sidewalk, which runs north and south along the east side of the bank’s building between the building and the driveway. The private sidewalk leads from the public sidewalk on North Boulevard to a rear entrance to the bank building. The plaintiff claims that this private sidewalk, which appears in the exhibits to be approximately the same height as the public sidewalk at the bank building line, slopes precipitately downward from the building line south into the driveway and constitutes a hazard to pedestrians when it is, as it was on the day in question, covered with ice and snow.

The plaintiff introduced evidence that the defendant owned the building at 104 North Oak Park Avenue. In the early 1950’s the bank acquired from the Village of Oak Park ownership of the public alley running north and south along the east side of its building. The alley was converted by tire bank for access to its drive-up facilities. The private sidewalk was installed for access by pedestrians to the rear entrance of the bank. A bank officer testified that the bank hired a construction company to do the work on the drive from the bank’s south property line north into the alley. He further testified that the private sidewalk extended only to the building line, but that he did not know if the bank constructed or maintained the sloping area which plaintiff designates as a hazard. The officer stated that bank employees kept the drive-up area and sidewalk free of ice and snow when the snowfall was light. When more than one inch of snow fell, an independent contractor kept the area clear. There was no evidence of snow removal operations on the day in question, but the bank officer testified that the independent contractor had removed snow on a number of occasions in January 1963.

The plaintiff’s expert witness, an architect, testified as to the slope of the area where the plaintiff claimed to have fallen. At the end of the plaintiff’s evidence, the trial judge directed a verdict for the defendant.

A directed verdict is not permissible unless all of the evidence, viewed in its aspects most favorable to the plaintiff, so overwhelmingly favors defendant, that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Applying this standard, we find that the trial judge correctly decided that the plaintiff in this case did not sustain his burden of proof, and that a verdict in his favor was not possible on the evidence.

Proof of negligence consists of showing a duty to the person injured, a breach of that duty, and an injury proximately resulting from the breach. (Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497). The plaintiff in this case failed to establish that the defendant owed any duty to the plaintiff. Although he alleged that the bank owned the private sidewalk to a point approximately one-half the width of the public sidewalk, no evidence was introduced to support this claim. Hence, the plaintiff never showed that the defendant owned the property where the plaintiff fell.

Even assuming that the defendant had to be at least the abutting property owner, tire plaintiff failed to satisfy his burden of proof. The plaintiff’s attempt to impose liability is based on the premise that the defendant was responsible for a dangerous condition (that is, the sloping extension of the private sidewalk when it was covered with ice and snow). (Calhoun v. Corning, 328 Ill.App.493, 66 N.E.2d 303.) But tire plaintiff failed entirely to link the defendant with either construction or maintenance of the slope which extends beyond the bank building line. Especially in this case, where the alley existed before the bank adapted it to its own use, it was incumbent upon the plaintiff to present evidence fixing the defendant’s responsibility in order to recover.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, J J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curtis L. Moore, Defendant-Appellant.
    (No. 56533;
    First District (3rd Division)
    April 12, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Thaddeus L. Kowalski and Ronald P. Katz, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earnest W. Hope (Impleaded), Defendant-Appellant.
    (No. 56465;
    First District (5th Division)
    April 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE HALLETT

text:
    Ernest D. Rizzo, Plaintiff-Appellee, v. The Board of Fire and Police Commissioners of the Village of Franklin Park et al., Defendants-Appellants.
    (No. 57332;
    First District (1st Division)
    April 16, 1973.

      Henry J. Hyde and Richard E. Dowdle, both of Chicago, for appellants.
    Walter C. Wellman, of Lyons, for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The trial court, on a sworn petition under section 72 of the Civil Practice Act alleging perjured testimony, entered a final order vacating its own previous order under the Administrative Review Act (affirming the findings and decision of the Board of Fire and Police Commissioners of the Village of Franklin Park finding policeman Rizzo guilty of certain charges and discharging him from the force) and remanded the matter to said Board for a hearing de novo. The Board has appealed from this order and the court’s subsequent refusal to vacate it.

The plaintiff was a policeman of the Village of Franklin Park and charges were filed before its Board of Fire and Police Commissioners alleging in substance that he was guilty of improper conduct in that he had in his possession a 1967 Chevrolet automobile, stolen from Avis Rent-A-Car, under circumstances where he knew or should have known that it had been stolen.

The Board heard the matter and, in March of 1968, found him guilty and discharged him from the force. The trial court, on Administrative Review, referred the matter back to the Board for further hearings and, in August of 1968, the Board, after such hearings, affirmed its earlier findings and decision. The trial court, in November of 1968, affirmed and Rizzo appealed to this court.

In October of 1968, after said hearings had been completed, Rizzo was tried in the criminal court and was found not guilty of stealing the automobile but guilty of having possessed it “without knowledge of the fact” that its manufacturer’s serial number had been altered and he was fined $200. During the pendency of these charges Rizzo attempted to take depositions of Sergeant Zahn, Patrolman LaGioia and Joseph Miller of Avis Rent-A-Car but, on the motion of the State’s Attorney, his subpoenas were quashed and he was enjoined from taking such depositions. In June of 1970, after the criminal trial, depositions were taken of these witnesses. In December of 1970 the trial court’s order of 1968, affirming the Board’s findings and discharge, was affirmed by this court and in January of 1971 rehearing was denied. (Rizzo v. Board of Fire & Police Commrs., 131 Ill.App.2d 229, 267 N.E.2d 7.)

In June of 1971 Rizzo filed his sworn petition under section 72 asldng the trial court to vacate its 1968 order and to remand the cause to the Board to hear further evidence and enter new findings and a new decision. The Board moved to dismiss and Rizzo amended his petition to add paragraphs 17 through 26, setting out in considerable detail the allegedly perjured testimony, and why its perjurous character could not have been discovered and presented earlier.

The Board again moved to dismiss and Rizzo again amended. On January 17, 1972, the tidal court denied the Board’s motion and the Board elected to stand on it. The court in the same order found that the petition was sufficient under section 72, vacated its own previous order of 1968 and remanded the cause to the Board for hearing de novo. After the court denied the Board’s motion to vacate, it appealed to this court.

Before reaching what we deem to be the three main issues, we shall dispose of certain preliminary matters.

The Board’s original motion to dismiss the petition as amended raised only the ground that the petition had not been filed within two years from November 25, 1968, as required by section 72(3) of the Civil Practice Act, which ground has, of course, been waived by its failure to urge it here. (People ex rel. Davis v. Chicago, Burlington & Quincy R.R. Co., 48 Ill.2d 176, 268 N.E.2d 411.) After said motion had been denied, the Board stood on that motion and the remandment order here under attack was entered. The Board within term time, did, however, move to vacate said order and in that motion raised the grounds now urged on this appeal. The trial court, in denying said motion to vacate expressly ruled on these contentions.

Rizzo has moved to dismiss the appeal or to affirm the order below on the ground that, by these actions, the Board is precluded from now raising these grounds because they "were not raised in the trial court”, citing City of Chicago v. Sunnyside Properties, Inc., 6 Ill.App.3d 921, 287 N.E.2d 58, where the contention was not raised in the trial court. His motion was taken with the case. Matters going to the sufficiency of the petition are not so readily waived (Schuman v. Dept. of Revenue, 38 Ill.2d 571, 232 N.E.2d 732), and, as already pointed out, these matters were, within term time, raised and the trial court not only had the opportunity to but did pass upon them. The contention lacks merit and the motion to dismiss the appeal or to affirm on this ground is denied.

Rizzo also contends that the trial court’s order vacating its earlier order and remanding the cause to the Board must be affirmed because no report of proceedings has been filed. This argument is unsound in that such an order, under the Administrative Review Act, is based not on evidence heard by the trial court but on the petition under section 72, the allegations of which are admitted by the action of the Board in standing on its motion to dismiss after said motion had been denied. The cases cited (Vail v. Vail, 98 Ill.App.2d 234, 240 N.E.2d 519, and People v. Markley, 340 Ill.App. 191, 91 N.E.2d 630), do not support his position and the argument is not well founded.

Rizzo also contends that the failure of Sergeant Zahn to plead or answer or appeal constitutes an admission that his (Rizzo’s) petition is well founded. The proceeding in the trial court court was an action, under the Administrative Review Act, to review the Board’s discharge, and Sergeant Zahn, although named, was not and could not have been a proper defendant. Counsel and the trial court were justified in ignoring him. The Board’s motion to dismiss were made on behalf of all of the members of the Board, who were the only proper defendants.

Turning now to the Board’s contentions, while one of the older cases cited (People v. Touhy, 397 Ill. 19, 72 N.E.2d 827), does say, among other things (p. 25), that the writ of error coram nobis (now replaced by section 72) did not lie “for alleged false testimony at the trial nor for newly discovered evidence”, the later cases, such as People v. Lewis, 22 Ill.2d 68, 174 N.E.2d 197, hold (p. 70) that:

“section 72 does afford a remedy, in a proper case, to obtain relief from a judgment based on perjured testimony.”

The Board also relies on the said Touhy case for certain language (397 Ill. 19 at 27, 72 N.E.2d 827), to the effect that a petition based on perjured testimony must be “supported by affidavits showing the per- | jury”, but, in our view, a sworn petition setting out in detail the original testimony and in what respects its perjurous character is demonstrated in subsequent testimony at the criminal trial and in later despositions is sufficient under section 72.

The Board also contends, for the first time in its reply brief, that Section 11 of the Administrative Review Act, (Ill. Rev. Stat. 1967, ch. 110, par. 274), which prohibits the trial court from hearing any “new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency”, prohibits the trial court from hearing such a petition and from remanding a matter to the agency for further hearings. On such a petition the court does not itself hear new evidence; it merely remands the cause to the agency to do so, which is precisely what the next section (ch. 110, par. 275) expressly empowers the trial court to do. The contention is unfounded.

This brings us, then, to what we regard as the first main issue — is the petition under section 72 legally sufficient — i.e.: does it set out in sufficient detail the allegedly perjured testimony, and is that testimony of such a character that its correction on a subsequent hearing might well result in substantially different findings and decision?

The petition, as amended sets out, inter alia, as follows:

“18. That during the criminal trial before the Honorable Sydney Jones, in which your Petitioner was indicted for the theft of an automobile, Sergeant Zahn testified that he had located the burned car bearing Serial No. 164478F114850 on February 29, 1968, but failed to so testify before the Board of Fire and Police Commissioners, and that said burned car was not the same one found by Northlake police and its ownership was not traceable to your Petitioner, Ernest D. Rizzo, as Zahn had testified to before the Fire and Police Commissioners it was, but that said automobile had been traced by said Sergeant Zahn to a Jerry Wilson of River Grove, Illinois, as he testified in the criminal hearing aforesaid, and a transcript will so show.

19. That both Sergeant Zahn and Patrolman LaGioia testified at the hearing before the Board of Fire and Police Commissioners that it was your Petitioner Rizzo who arranged a meeting for John Campbell on the telephone, as transcripts of said hearing will show, but that during the civil deposition taken subsequent to the acquittal of Petitioner of said criminal charges, both admitted it was Campbell who called on the telephone and not your Petitioner.

20. That at the hearing before the Board of Fire and Police Commissioners, Joseph Miller testified that Avis owned Black vinyl cars, but during the criminal trial admitted that Avis had never owned a car with a black vinyl top, as transcripts of said hearing will show.

21. That Sergeant Zahn testified at the Board of Fire and Police Commissioners’ hearing that he checked Petitioner Rizzo’s car with the Chicago Police Department on January 12, 1968, and was told that the car was stolen from Avis-Rent-A-Car, but that during the deposition taken after the conclusion of the criminal case, Joseph Miller of Avis testified it was Zahn who told them to report the car stolen after supplying them with the confidential numbers of Rizzo’s car two months prior to January 12,1968, the date Rizzo was arrested, as the transcript and deposition will indicate.-

22. That during the hearing before the Board of Fire and Police Commissioners, Duane Reitz of Avis testified that the alleged stolen car was sold to John Campbell on January 18, 1968, and that a certified copy from the office of the Secretary of State of Illinois shows the automobile was purchased on December 12, 1966, a photocopy of said certified copy being hereto attached, marked Exhibit 1, dated August 6, 1971.

23. That the testimony of Joseph Miller of Avis at the Board of Fire and Police Commissioners’ hearing stated their records would show that they lost possession of the car on December 16, 1966, and whereas in truth in fact the record shows “no movement of the vehicle” after that date, but when their records were produced in evidence at the criminal trial it was discovered that Avis had possession of the car as late as September 27, 1967, nine (9) months after Rizzo was charged with stealing the car, and that at that time they applied for a transfer of license plates for the car, and that said car was returned to O’Hare Field as shown by the application for license plates from the alleged car to a 1968 Chevrolet, Serial No. 164478J110423, a photostatic copy of which application for change of plates is hereto attached marked Exhibit 2.”

The trial court, in its denial of the motion to vacate concluded that:

“t> t> « tins alleged perjurous testimony was material and probably would control the result on the charges as they exist. # & #
Therefore, I conclude that the allegations of the motion, if bue, would support relief under Section 72. * *

We agree. We are particularly impressed by the allegations that both Sergeant Zahn and Patrolman LaGioia testified at the Board hearing that it was Rizzo who arranged a meeting for John Campbell on the telephone but that, during civil depositions taken subsequent to the acquittal of Rizzo of the charge of stealing the car, both admitted that it was Campbell who called on the telephone and not Rizzo. This goes to the very heart of the charge that his possession of the automobile was with knowledge that it had been stolen, and might well, on another bearing, result in different findings and a different decision.

As for the second main issue, it is, of course (as the Board contends), necessary that such a petition demonstrate that it was through no fault or neglect on the part of Rizzo that the grounds now relied upon were not previously made to appear to the Board or to the trial court. (See People v. Lewis, 22 Ill.2d 68, 174 N.E.2d 197.) Hence the second real issue on this appeal is whether he had done so.

Obviously Rizzo could not have known, until the criminal trial, that the testimony of Sergeant Zahn and Patrolman LaGioia would contradict materially their testimony before the Board; and his delay in taldng their depositions is explained by par. 17 of his petition which alleges:

“17. That he was unable to secure information upon which his petition was filed due to the fact that during the pendency of the Criminal Court indictment against him from April 8, 1969, until he was found not guilty on October 10, 1969, he sought to take the deposition of William Zahn, John LaGioia, and Joseph Miller, and that this Circuit Court issued an Order restraining your Petitioner from taking the deposition of said deponents by Order entered May 30, 1969, and quashing the subpoenas calling for the deposition of said witnesses, and that by reason thereof, the limitation against filing this Petition was stayed from the date of the issuance of said Order on May 20, 1969, until the acquittal of your Petitioner on October 10, 1969.”

It is not surprising, therefore, that the trial court took the view that “the plaintiff exercised due diligence,” with which contention we also agree.

This brings us to the third and last real issue before us which is whether, in an appeal to the circuit court under the Administrative Review Act (Ill. Rev. Stat. 1967, ch. 110, pars. 264-279), the trial court may, as it did here, reverse and remand the cause for a trial de novo before the Board, or whether, as the Board contends, the trial court can only reverse and remand the cause to the Board “for the purpose of taking additional testimony”.

In its brief the Board cites only subparagraph (g) of section 12 of the Administrative Review Act as follows:

“(g) where a hearing has been held by the agency, to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just. However, no remandment shall be made on the ground of newly discovered evidence unless it appears to the satisfaction of the court that such evidence has in fact been discovered subsequent to the termination of the proceedings before the administrative agency and that it could not by the exercise of reasonable diligence have been obtained at such proceedings; and that such evidence is material to the issues and is not cumulative;”

but it fails to note subparagraph (f) of said section, which provides as follows:

“(f) where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper.”

In our opinion, said provision fully authorizes the action here taken by the trial court which, it seems to us is particularly appropriate here, where the Board’s first decision was (March, 1968) some five years ago and it is now quite probable that most of the earlier members of the Board (Secor, Alund and Hamilton) are no longer members of said Board and the matter must be heard and decided by members who have not heard or observed the witnesses testify.

We therefore find no error and the order of the trial court is affirmed.

Order affirmed.

BURKE, P. J., and GOLDBERG, J., concur.


text:
    Beatrice Chappell, Plaintiff-Appellant, v. Frederic J. Juergens, Defendant-Appellee.
    (No. 56258;
    First District (1st Division)
    April 16, 1973.

      Sydney N. Pearl, Morris D. Whitney, and Frank, Levin & Rubin, all of Chicago, for appellant.
    John A. Hutchings, James J. Hoffnagle, and Alfred C. Tisdahl, Jr., all of Chicago, (Taylor, Miller, Magner, Sprowl & Hutchings, of counsel,) for appellee.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

This was a suit for common law negligence which was heard in a bench trial. At the close of the plaintiff’s case the trial judge found that the plaintiff was guilty of contributory negligence as a matter of law and entered judgment for the defendant. The sole issue is whether the judge could properly make such a finding at the close of the plaintiff’s case.

The evidence offered by the plaintiff consisted of certain medical bills, the testimony of the plaintiff and an exhibit identified as a Traffic Signal Timing Schedule prepared by the City of Chicago Bureau of Street Traffic purporting to show, among other things, the location of traffic signals at the intersection of Melrose Avenue, Sheridan Road and Lake Shore Drive. The answer of the defendant admitted that he was driving in a northerly direction on Lake Shore Drive and was in the process of turning left to go west on Melrose Avenue on the day of the accident, April 14, 1965.

The plaintiff testified that she left her employer’s apartment at 3240 Lake Shore Drive a little before 8:00 P.M. She left the Melrose Avenue side of the building and walked to the comer of the intersection of Melrose and Lake Shore Drive. It was raining. She started across Mel-rose going south from the northwest comer; she was in the painted crosswalk; when she was about three-quarters of the way across the street she heard a car sound; she loooked to her left and then was hit by the defendant’s car. There was a traffic control device at the southwest comer. She said: “* * * There was a walk light. The walk light was on for me as I started to cross Melrose.” The walk light did not change at any time as she was crossing Melrose. She was knocked about ten feet and wound up near the south curb of Melrose.

On cross-examination she said that she was carrying an -umbrella over her head at the time; the traffic was stopped as she started across Mel-rose; when asked if she noticed traffic going north or south on Lake Shore Drive, she said: “I noticed traffic going south.” It was then stipulated that she had testified at her deposition on September 3, 1969, as follows:

“Q. When you got at the comer of Lake Shore Drive and Mel-rose, you would be on the northwest comer; is that correct?
A. That is correct.
Q. And you would be facing south going toward Melrose?
A. I would be facing south.
Q. Was there a traffic light on the other comer; that would have been on the southwest corner?
A. Yes.
Q. What color was the light for you?
A. Well, red.
# # #
Q. When you started to cross, was the light green?
A. You mean, when I crossed Melrose?
Q. When you started across Melrose, yes.
A. The light was red.
Q. What did you do? Step out into Melrose on a red light?
A. Yes.
# # *
Q. And at Lake Shore Drive is Melrose a one-way westbound street?
A. Melrose is a one-way street east.
Q. Toward the lake?
A. Coming into the lake.
Q. Toward the lake?
A. Yes, yes. Am I right or am I wrong?”

On re-direct examination she was asked what color the traffic light on the southwest comer was when she “reached the comer, before [she] started across.” She answered: “I don’t know; I don’t remember. I only remember the walk light.”

Before resting, the plaintiff’s attorney informed the court that he had issued a subpoena for a traffic engineer who had the original of the traffic time schedule. He told die court he wanted a recess until the afternoon so he could get the engineer “in to testify as to the time schedule.” The court said: “Let me see it. I can’t see how this is going to help you.” When the defendant’s attorney said he had no objection, the exhibit was received. The plaintiff then rested. Her attorney argued that the exhibit showed that northbound cars can make left-hand turns off Lake Shore Drive onto Melrose at the same time that pedestrians are crossing Melrose. Therefore, since the plaintiff saw no cars going north or south, the exhibit demonstrated that she could not have seen a red light because the one device facing her was a walk sign. Moreover, he maintained, the deposition testimony is not evidence, but could “only impeach her testimony.” The plaintiff has apparently abandoned this latter argument in this court. He does, however, still urge that the exhibit leaves no doubt that the plaintiff’s deposition testimony was incorrect and, he now adds, she misunderstood the question.

First, the exhibit does not erase any question of the condition of the light at the time the plaintiff crossed the street. Rather, it begs for expert explanation. It contradicts the plaintiff’s testimony that Melrose was one-way at the intersection; it shows that Melrose becomes one way westbound starting approximately 250 feet west of Sheridan. The box marked “A” shows arrows indicating when northbound traffic may make left-hand turns to go west onto Melrose. The conclusion is not inescapable to us from the box marked “A” and the other cryptic entries on the exhibit that the light facing the plaintiff could not have been red when she was struck. It is apparently undisputed, judging from the arguments of counsel, that the walk signal cannot be facing the pedestrian at the same time a red light is facing the pedestrian.

Second, if she misunderstood the question asked at the deposition, there was no attempt either at the deposition or at trial to explain or modify her answer and thus rehabilitate her testimony.

Therefore, the sole question is whether the trial judge had the right to weigh her testimony and reject it at the close of the plaintiff’s case. We conclude that he did. The Civil Practice Act provides:

“(5) In all cases tried without a jury, defendant may, at the close of plaintiffs case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence. * * " Ill. Rev, Stat. 1971, ch. 110, par, 64(5),

It is now well settled that a trial judge may weigh the evidence in ruling on a motion for a finding at the close of the plaintiff’s evidence in all cases, and he need not view the evidence in the light most favorable to the plaintiff. Allfree v. Estate of Rosenthal, 113 Ill.App.2d 90, 251 N.E.2d 792; Miller v. Heller, 106 Ill.App.2d 383, 246 N.E.2d 150; Brubaker v. Gould, 34 Ill.App.2d 421, (Dissenting Opinion) 440-450, 180 N.E.2d 873.

In determining the propriety of a trial court’s ruling on a motion based on section 64(5), the standard to be used by an appellate court is whether it is manifestly erroneous. (Bilyeu v. Plant, 75 IIl.App.2d 109, 220 N.E.2d 513.) In this case, the trial court could have concluded that, since the plaintiff mistakenly thought Melrose was one way eastbound, she neglected to look to her left and that she started across Melrose while the light facing her was red. Even accepting the contention of the plaintiff that the exhibit shows that left-hand turns may be made by northbound traffic only when the light is green, we cannot say that the trial court was incorrect. Not all left-hand turns are made in one continuous movement. Quite often automobiles are required to stop in an intersection before turning because of traffic traveling in the opposite direction; and then turn after the light turns red. Based on this evidence, we cannot say that the trial court’s ruling on the motion was manifestly erroneous.

The record does not support the plaintiff’s contentions that the expert was prevented from testifying. The plaintiff argues that this was a “case in which the knowledge and understanding of the location and timing of traffic signals is essential to a proper finding.” Yet after the exhibit was received, the plaintiff rested without any further request made to the court to continue the matter until the expert could be brought in.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE, P. J., and GOLDBERG, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Walter J. Crosby, Petitioner-Appellant.
    (No. 58015;
    First District (2nd Division)
    April 17, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Kelly, Defendant-Appellant.
    (No. 56290;
    First District (4th. Division)
    April 18, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James E, Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Johnny Kelly, was convicted of aggravated battery by a jury in the Circuit Court of Cook County. He was sentenced to the penitentiary for a term of not less than three nor more than seven years.

On appeal he argues he was deprived of counsel of his own choice; the evidence was insufficient to find him guilty beyond a reasonable doubt; and the instructions to the jury failed to correctly state an essential element of the crime of aggravated battery.

On June 21, 1970, a plain-clothes officer, Sam Wilson, came on the scene of an accident at 47th Street and Evans Avenue in the City of Chicago. He stated the defendant was acting strangely and someone told him he was the driver of the car which had gone out of control. When a marked squad car arrived on the scene, Wilson told Kelly to get in. The defendant protested he was not involved, but Officer Wilson insisted everything be resolved at the station. Officer Wilson testified that after walking him to the car he had to “sort of shove him in,” but he was not handcuffed.

According to police testimony the squad, with Kelly in the back seat alone, was proceeding toward the Second District Station when he screamed, reached over the seat with both hands, and began gouging Officer Miller’s eyes with his thumbs and long fingernails. He also bit him on the head.

Officer Miller grabbed Kelly’s wrists, pushed himself over into the back seat and began struggling with the defendant, who then bit him on the nose. Officer Ferguson was driving in heavy traffic, and it took some time to maneuver tire car to the side of tire road, where he stopped and was able to pull the defendant off Miller, assisted by Officers Woo and Szudarski, who arrived on the scene in another squad car. Officer Woo took Miller to Michael Reese Hospital, where he was given a tetanus shot, had his face bathed, given an eye test to determine whether his eyeballs were damaged, and then had some X-rays taken of his head.

Officers Szudarski and Ferguson handcuffed Kelly and once more began transporting him to the station, whereupon he first opened the back door and several blocks later raised his feet up and kicked Officer Ferguson in the head.

The defendant contends he was a passenger in a car involved in the accident after which the driver fled the scene. Kelly stated he got out of the car and was holding a baby when he was grabbed by Officer Miller, causing the baby to fall to the ground. He argued heatedly with the officer about their refusal to take the child to a hospital. Kelly said he was handcuffed and placed in the back seat of the squad car, and Miller leaned over from the front seat and hit him repeatedly with a blackjack or billy club. When the car stopped and his handcuffs were removed, he thought he was being released, but Miller began hitting him again. At this point he struck Miller three or four times but did not scratch or bite him.

The defendant was charged with aggravated battery and was represented by private counsel at the arraignment on August 19, 1970. On November 25, 1970, the attorney was granted leave to withdraw from the case because of the defendant’s lack of cooperation. The public defender was then appointed and was ready for trial on March 29, 1971. On the morning of that date, immediately before trial, a second private attorney telephoned and informed the court he could not represent the accused. The court directed the public defender to continue as defendant’s counsel, and the case proceeded to trial.

The defendant first contends he was deprived of his right to choose his own counsel because on the day of trial his own private counsel was not able to appear, and the public defender was directed by the court to defend him.

It is fundamental a defendant has a right to employ counsel of his own choosing. (People v. Cohen (1949), 402 Ill. 574; People v. Green (1969), 42 Ill.2d 555.) However, in the instant case, there is nothing in the record to indicate the defendant had retained a second private counsel, as the public defender had been appointed four months prior to trial, had prepared the case, and was ready for trial. Upon advising the court he would not be present, the second attorney asked that his statement be made in open court, especially to the public defender, thus indicating the defendant’s reliance on the public defender.

In United States v. Cozzi (1965), 354 F.2d 637, the court stated that the Sixth Amendment right of a defendant to select his own counsel does not permit an arbitrary action which obstructs orderly procedure in the courts:

“It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence.”

The start of a trial is not an “appropriate stage” for the selection of new counsel, especially in the light of the public defenders preparation of the case over a period of four months.

The defendant also maintains it was error for the court to appoint the public defender because he was not indigent, as evidenced by the employment of two previous attorneys, and he should have been allowed a continuance in order to select still another private attorney. We find no merit in this contention since he failed to object when the public defender was initially appointed and failed to object at trial when the court directed the public defender to go ahead with the case.

The defendant next complains the evidence when taken as a whole does not establish his guilt beyond a reasonable doubt because of certain alleged inconsistencies in prosecution testimony. The determination of the credibility of the witnesses is the function of the trier of fact and its finding will not be disturbed unless the evidence is so unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. (People v. May (1970), 46 Ill.2d 120.) This case was tried before a jury which found the defendant guilty, and after examining the record we find that whatever inconsistencies in the testimony which may exist only involve minor points which do not furnish the basis for a reversal.

Finally, the defendant asserts the instructions given to the jury were not sufficient to sustain a conviction. Specifically, he contends the court erred by omitting the term ‘legally” when discussing justification. The statute requires that the battery be “without legal justification” and he argues the inclusion of the term “legal” is essential, because without it the jury is uninformed as to what “justification” means in the battery statute.

Because no objection to the instruction was made at trial, the defendant is deemed to have waived his objections and cannot complain in this court. (People v. Velez (1966), 72 Ill.App.2d 324.) Even if a timely objection had been made, we believe the instruction was sufficient as given. Although the term ‘legal” was omitted, the instructions given the jury contained an adequate definition of “justification” under the laws of the State of Illinois, such that it could determine what constituted the offense. Furthermore, the absence of the term “legal” could only give the jurors a broader definition of “justification” than could be had with the insertion of the term. The defendant could not have been prejudiced by its omission.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Alfred Lynch, Defendant-Appellant.
    (No. 57577;
    First District (4th Division)
    April 18, 1973.

      William E. Barrows, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Rick L. Petrone, and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The petitioner, William Lynch, was indicted for armed robbery, and at a jury trial in the Circuit Court of Cook County he was convicted of robbery and sentenced to nine to fifteen years in the State Penitentiary. This conviction was affirmed by the Appellate Court in People v. Lynch (1969), 111 Ill.App.2d 52.

On March 3, 1970, Lynch filed a pro se petition for post-conviction relief, amended by counsel on November 10, 1970, in which it was alleged the petitioner was denied the effective assistance of counsel in that his court-appointed counsel did nothing to prepare for trial; that he did not investigate the facts of the case; that he had only one brief conference with petitioner before trial; that he did not interview any witnesses before trial and refused to subpoena witnesses essential to petitioner’s defense; and that because of his lack of preparation, counsel tried to talk petitioner into taking a bench trial, and also tried to persuade petitioner to plead guilty.

On February 5, 1971, the State filed a motion to dismiss the petition stating the petitioner’s allegations failed to raise any constitutional questions within the purview of the Illinois Post-Conviction Hearing Act; the allegations are merely bare allegations; and the doctrine of res judicata precluded the petitioner from obtaining relief. The State’s motion was sustained and the petitioner appeals from that judgment.

The sole issue on appeal is whether the petitioner is entitled to an evidentiary hearing on the basis of his allegations concerning the incompetence of his court-appointed counsel.

The petitioner argues he was denied effective assistance of counsel in the trial court and that this issue can be raised in a proceeding under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, art. 122). In People v. Morris (1954), 3 Ill.2d 437, the court held that evidence of incompetency of court-appointed trial counsel may be received by affidavits, depositions, oral testimony, or other evidence which relates to an alleged deprivation of a constitutional right.

The petitioner concedes that a mere allegation of incompetency is not sufficient to invoke the act but maintains his allegations were sufficiently specific to necessitate an evidentiary hearing.

In People v. Morris (1969), 43 Ill.2d 124, the Illinois Supreme Court specified the requirements a petitioner must meet under the act:

“The Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, Ch. 38, par. 122—2) requires that a petition be accompanied by affidavits, records or other evidence in support of its allegations or by a statement of the reasons for their absence. Unsupported conclusionary statements in a petition are not sufficient to require a post-conviction hearing under the Act. (People v. Arbuckle, 42 Ill.2d 177; People v. Collins, 39 Ill.2d 286; People v. Ashley, 34 Ill.2d 402.)”

In the instant case, there were no affidavits or evidence of any kind to support the petitioner’s allegations. We hold that petitioner’s bare statements are conclusionary and insufficient to require an evidentiary hearing under the act.

Neither do the allegations meet the test for establishing the incompetency of a court-appointed counsel set forth in People v. Morris (1954), 3 Ill.2d 437, where the court held that in order to show a deprivation of a constitutional right to counsel the petitioner “must clearly establish: (1) actual incompetency of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.”

In the case at bar there has been no showing the outcome would have been different even if those things complained of had been performed to his satisfaction.

Finally, it is well settled that the doctrine of res judicata includes issues which might have been raised on direct appeal but were not. (People v. Derengowski (1970), 44 Ill.2d 476; People v. Price (1970), 44 Ill.2d 332.) Following his conviction the petitioner filed a timely appeal in which he could have included the allegations which form the basis of this appeal. He is, therefore, deemed to have waived his present contention.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Respondent-Appellee, v. Theodore Kotwaskinski, Petitioner-Appellant.
    (No. 56888;
    First District (3rd Division)
    April 19, 1973.
    Kenneth L. Gillis, of Defender Project, and Steven Clark, both of Chicago, for appeHant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Bernard S. Armel, and James E. Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Jordan, Defendant-Appellant.
    (No. 56712;
    First District (1st Division)
    April 23, 1973.

      Ronald P. Alwin, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Patricia C. Bobb, and Peter Costa, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

James Jordan was charged with possession of a depressant drug in violation of section 802(c) of the Drug Abuse Control Act. (Ill. Rev. Stat. 1969, ch. 111½, par. 802(c).) After a bench trial he was found guilty and sentenced to 60 days in the House of Correction. The only error assigned is the failure to suppress the evidence found on his person.

Officer Ernest Harris testified that, after the defendant was stopped for making an illegal left hand turn, he could not produce a driver’s license, but only a prior driving citation. The defendant was then placed under arrest and informed that he would have to accompany the officer to the station to post the proper bond. The defendant was given a pat-down search prior to being placed in the squad car which was to transport him to the police station. At that time, the officer discovered a small vial of pills which were analyzed as a depressant drug, barbituric acid. The record does not disclose where the officer found the vial. At the hearing on the motion to suppress, the defendant sought to prove that he drove his own car to the police station. The court said: “I don’t care how he got there. He is in this man’s custody. I don’t care if he drove in his own car.”

The rule governing admissibility of evidence seized after traffic arrests has an erratic history. Beginning with People v. Edge (1950), 406 Ill. 490, 94 N.E.2d 359, the Supreme Court held that an arrest for a traffic violation (obstructing an alley and failure to have a safety-inspection sticker) justified a search of the defendant. That rule was followed in People v. Clark, 9 Ill.2d 400, 137 N.E.2d 820 (illegal parking), and People v. Berry, 17 Ill.2d 247, 161 N.E.2d 315 (failure to have State license plates and city vehicle sticker).

In People v. Watkins, 19 Ill.2d 11, 18-19, 166 N.E.2d 433, the Supreme Corut held that not every traffic violation justifies a search, overruling Clark and Berry. The court said: “A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent the prisoner from escaping, or to discover fruits of a crime. * * * Some traffic violations would justify a search.” A parting violation alone, the court held, would not have justified the search, but because the officers were members of the gambling detail who had previously arrested the defendant and because he ran back into a building after he saw them, they had the right “to assume that they were dealing with a situation more serious than a routine parking violation.” See also People v. Mayo, 19 Ill.2d 136, 166 N.E.2d 440.

In People v. Zeravich, 30 Ill.2d 275, 195 N.E.2d 612, the defendant was arrested for driving with obstructed vision. The time was 4:30 A.M., and the temperature was fifteen degrees below zero. He was seen coming from a private parking lot. The officers noted that the defendant matched the description of a man wanted for other violations in the area. In People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413, the defendant was arrested at 5:00 A.M. driving without proper lights. The officers learned that he did not have a driver’s license and had just been released from jail. In People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530, the defendant was arrested at 1:20 A.M. for mating an improper turn and driving with no light on the rear license plate. After stopping him, the police saw a tin foil package on the floor at the driver’s side and opened the package, which contained white powder. They searched the car and found another tin foil package which contained narcotics in the crack of the front seat. The search in these three cases was upheld because the evidence showed that the police officers could reasonably conclude that they were dealing with a criminal rather than an ordinary traffic violator.

In People v. Lewis, 34 Ill.2d 211, 215 N.E.2d 283, the defendant was driving a 1959 Cadillac sedan at 8:30 P.M. when he was stopped for going through a red light. The officers noticed that the defendant and a similar 1959 Cadillac bearing the defendant’s license number were listed in the Daily Police Department Bulletin as wanted in connection with a burglary. While the defendant was kept in a squad car, one officer searched the trunk of the Cadillac. The Supreme Court interpreted Watkins to mean that a search is permissible only when it is reasonably necessary to protect the officer from attack, to prevent the prisoner from escaping, or to discover fruits of a crime. The court pointed out that at the time of the search there was no danger of attack nor the likelihood of escape. In reversing the conviction, the court construed “fruits of a crime” to be restricted to the fruits of the crime for which he was arrested, i.e., the traffic violation. It should be pointed out that this case does not hinge on the propriety of the search but, rather, what was seized.

Over a year later, the court decided on the same day People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577, and People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580. In Brown, the officers had stopped the car because it had no State license plates. They learned then that the car had no city sticker and that the driver had no driver’s license. He showed the officers a title which was not dated or signed and did not contain his name. The officers noticed a set of golf clubs and some clothing for which the driver could give no explanation. The search of the trunk was upheld. In Jones, the arrest was not based on a traffic violation, but the Supreme Court expanded the right to seize property to include “mere evidence” and not just weapons or fruits of the crime for which the defendant was initially arrested. (See also Ill. Rev. Stat. 1969, ch. 38, sec. 108—1(d).) Both cases overruled People v. Lewis, Jones expressly and Brown by implication.

In People v. Reed, 37 Ill.2d 91, 227 N.E.2d 69, the defendant was stopped around noon because his rear license plate was missing; he produced his driver’s license and proof that he had purchased both license plates; the defendant behaved in a nervous fashion, moving his hands around and looking from side to side and “toward his car.” The officers searched him and found no weapon. They decided to take him to the police station “to check him out.” A search of the car disclosed a bag containing heroin under the front seat. The court reversed a denial of the suppression of the evidence on the ground that the defendant’s “nervous” behavior at the time he was stopped did not warrant the search of his automobile.

In People v. Holloman, 46 Ill.2d 311,263 N.E.2d 7, the defendant made an improper turn; he was unable to produce a driver’s license or motor vehicle registration certificate; he started backing away from the officers, was placed under arrest and searched “for weapons for [the officer’s] protection.” In making a cursory pat-down for weapons, the officer felt, hidden inside the defendant’s belt at the small of his back, a hard object which was a large manila envelope containing heroin. The court upheld the search, noting that the police had justification to believe from the defendant’s furtive behavior that criminal activities were involved and the evidence seized was not discovered in an apparently innocuous place.

Reading these cases together, we conclude that the standard imposed by Watkins, Mayo and Davis, followed in People v. Tate, 38 Ill.2d 184, 188, 230 N.E.2d 697, requires that “circumstances reasonably indicate that the police may be dealing not with the ordinary traffic violator, but with a criminal.” We further conclude that the police may properly seize pursuant to a reasonable search more than weapons or the fruits of the crime for which he has been arrested.

The defendant here was driving under a traffic citation, which was an accepted procedure after he had surrendered his driver’s license on a previous violation. No other circumstance appears to have justified the search. Significantly, the defendant sought to prove that the police permitted him to drive his own car to the station. The trial judge ruled that such proof was immaterial, that the only relevant fact was that the man was in custody. If that position is correct, in every case where a motorist does not wish to surrender his driver’s license after a traffic violation but wishes to post a bond at the station, or whenever a motorist does not have his driver’s license, the police are justified in searching him. Such a holding flies in the face of the clear meaning of Watkins. If the police did not intend to convey the defendant in a police vehicle, what would be the basis of their right to search? A failure to have a driver’s license or a preference to posting a bond rather than surrendering the license are not such facts, standing alone, that reasonably indicate to an officer that he may be in danger of an attack.

A more troublesome question is presented by the State’s argument in support of the search here that, whenever circumstances require the transportation of a defendant in a police vehicle, the officer is always justified in making a search. However, the determination of the right to search at all does not end the problem. The scope of any search, of course, is always subject to the standard of reasonableness, regardless of the underlying justification. For example, under some circumstances a search requiring removal of all of the defendant’s clothing might be justified. But who would say that such a search would be justified under the facts of this case? Assuming the validity of the State’s argument, which is based on understandable concern for the safety of the officer, the question then becomes to what extent may the officer search. A more

. .......... ........ . ---------- thorough search of a man seized in a commission of a felony would be permitted than of a man who failed to have a driver’s license. The final question then is whether the search of the defendant here was of unreasonable scope. We conclude that it was.

The officer “conducted a pat-down” search “for his own safety,” and found a small vial “that [was] like a pharmacist puts pills in.” At that time he did not know the chemical make-up of the pills in the vial. The motion for a new trial discloses that the vial was found in the defendant’s pocket, which, unlike the facts in Holloman, is an “apparently innocuous place.” In Tinney v. Wilson, 408 F.2d 912, 916, the Ninth Circuit Court of Appeals reversed the conviction based upon a search where the officer in “the normal course of his ‘frisk’ felt only a small object, which was not, in his mind, a potential weapon.”

While we make no determination whether the police had the right to make any search in this case, we conclude that, even if they did, the search was unreasonable, and the motion to suppress should have been sustained. The judgment of the circuit court is reversed.

Judgment reversed.

BURKE, P. J., and GOLDBERG, J., concur.