author: JUSTICE ROMITI

text:
    FINANCIAL MANAGEMENT SERVICES, INC., Plaintiff-Appellee, v. SIBILSKY AND SIBILSKY, INC., et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—2369
    Opinion filed January 31, 1985.

      Russell J. Hoover, of Chicago (Jenner & Block, of counsel), for appellants.
    Roderick J. Bergin, James J. Romberg, and Matthew J. Egan, all of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Robert Sibilsky, Diana Sibilsky, and Darlene Sibilsky (the Sibilskys), corporate officers of Sibilsky & Sibilsky, Inc. (SSI), a Michigan corporation, appeal from the judgment of the circuit court of Cook County which denied their motion to vacate a judgment by confession previously entered against each of them personally in Cook County and denied their motion to quash summonses served upon them to confirm the judgment. On appeal, the Sibilskys contend that the judgment by confession was void for lack of Illinois in personam jurisdiction. They raise the following questions for our review:

1. Whether they were individually insulated from suit in Illinois under the fiduciary shield doctrine.

2. Whether they lacked sufficient minimum contacts with Illinois to be subject to suit here.

3. Whether the judgment by confession was invalid on the ground that the application to confess judgment was not made in the county in which the note was executed.

4. Whether the warrant of attorney under which judgment was confessed was legally insufficient on the ground that at the time the instrument was created it failed to establish a certain and liquidated amount for which judgment could be confessed.

We affirm.

The Sibilskys attack the jurisdictional basis of a judgment by confession against each of them individually obtained by Financial Management Services, Inc. (FMSI), which is incorporated in Illinois and has an office in Rosemont. Judgment was confessed in the Cook County Circuit Court in the amount of $94,464.34 on June 10, 1981. Summonses to confirm the judgment were served upon Diana and Robert jointly on December 13, 1982; a similar summons was served upon Darlene on December 4,1982.

On February 14, 1983, the Sibilskys filed a special appearance in the Cook County Circuit Court, accompanied by their petition to vacate the judgment by confession and their motion to quash service of process, solely and specifically for the purpose of objecting to the court’s jurisdiction over them when the judgment by confession had been entered. The petition to vacate alleged in substance that the facts did not support assertion of in personam jurisdiction of the Illinois circuit court because they were not citizens or residents of Illinois, owned no property in Illinois, and had transacted no business in Illinois. The affidavit of Robert Sibilsky was included in support of the motion to vacate, as were a copy of the promissory note to FMSI, its accompanying security agreement between the parties, and supporting documents.

The promissory note on which FMSI obtained judgment was dated May 8, 1980, in the amount of $136,646.77. The note itself was not signed by any of the Sibilskys, but instead was executed by David No-well, who was general manager of FMSI at the time, as attorney-in-fact for the Sibilskys. He was granted this authority by virtue of a power of attorney form which appeared immediately below the note and stated that Nowell was given the authority “to execute [the] promissory note set forth above at any location within the State of Illinois *** in the capacities] with respect to such note as [are] set forth with [the] namefs] below, and to deliver said note to Financial Management Services, Inc.” The power of attorney was dated April 15, 1980. In the capacity of makers on the note, there appeared upon the power of attorney the typewritten names of “Sibilsky and Sibilsky, Inc.,” “Robert Sibilsky,” and “Diana Sibilsky.” In the capacity of guarantors on the note, there appeared upon the power of attorney the typewritten names of “Robert Sibilsky,” “Diana Sibilsky,” and “Darlene Sibilsky.” The Sibilskys signed the instrument on the blank spaces above their typewritten names. Thus, Robert and Diana each signed the document twice, as makers and as guarantors on the note. Darlene signed only as guarantor.

On the promissory note itself, there appeared as guarantors the names of Robert, Diana and Darlene in printed handwriting. As makers on the note, there appeared in similar fashion the names of SSI, Robert, and Diana. The note contained the following pertinent language of cognovit:

“The Undersigned hereby, jointly and severally, irrevocably authorize any attorney of any court of record to appear for them, or either or any of them, in such court in term time or vacation, at any time and from time to time after payment is due, whether by acceleration or otherwise, and confess a judgment without process against them, or anyone or more of them, in favor of the holder of this note for such sum as may appear to be unpaid and owing thereon together with interest, costs, and attorney’s fees, and to waive and release all errors which may intervene in such proceeding and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU AND YOUR EMPLOYER REGARDLESS OF ANY CLAIM YOU MAY HAVE AGAINST THE CREDITOR, WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.”

The promissory note clearly indicated that the offices of FMSI were located at 9575 Higgins Road, Rosement.

The security agreement which accompanied the promissory note showed SSI as the debtor and Robert, Darlene, and Diana as “Individual Applicants] or Guarantorfs].” The document was signed by Robert as president of SSI and dated April 30, 1980. It further recited that there was an account owing from SSI to Wittock Supply Co. (Wittock) in the amount of roughly $100,000 as of April 1980 for supplies sold to SSI by Wittock, and that SSI requested, consented to and acknowledged that the debt of said account was being assigned and sold by Wittock to FMSI. The agreement indicated that the total indebtedness of SSI, including closing costs and 11% interest over the period of 36 months, was $136,646.77. Documents supporting the security agreement specified those items of property pledged as security on the note (e.g., land, inventory, life insurance policy).

Robert’s affidavit stated that he was married to Diana and brother-in-law to Darlene and that each of them had been a corporate officer of SSL It further recited in substance the following pertinent information: For a number of years prior to September 1979, SSI had purchased plumbing and heating supplies from Wittock, a Michigan wholesaler, on a 90-day credit line. At that time Wittock informed SSI that it would no longer provide such a line of credit. At some time prior to April 1980, however, Wittock informed SSI that Wittock had access to a financial source which could be used to bring its account current and that thereafter Wittock would continue to deal with SSI on a 30-day credit line. As of April 1980, none of the Sibilskys was personally obligated to Wittock in any amount.

On April 30, Wittock’s credit manager, Marek, had a meeting in Marquette, Michigan, with the Sibilskys and their corporate accountant and presented to them the promissory note, security agreement, and supporting documents. The portion of the promissory note which specified the amount of the loan was not completed. The Sibilskys had had no previous communication with any representative of FMSI.

According to Robert’s affidavit, before the Sibilskys agreed to execute the instruments they “advised Marek that [they] would sign the documents only in [their] capacities as officers and agents of SSI and that [they] were not agreeing to and would not agree to any personal liability for the obligation referred to in the instruments.” Robert further stated that Marek “acknowledged” that by signing the documents, the Sibilskys were not obligating themselves personally for the debt. He also stated that he, Diana and Darlene signed only the power-of-attorney portion of the note in the spaces immediately above their typewritten names on the form; at some date and place unknown to the Sibilskys, the blanks in the promissory note were filled in by someone not known to them and their hand-printed names were entered on the note by a person unknown to them. Lastly, Robert claimed that none of the Sibilskys individually authorized Nowell or any other person to bind them personally on the note. The Sibilskys became aware of their individual liabilities when Wittock brought suit against them in Michigan.

In opposition to the Sibilskys’ motion, FMSI presented the affidavit of Marek. He contradicted the statements in Robert’s affidavit to the extent that Marek claimed that the Sibilskys did not ask him any questions about the instruments after reviewing them nor before signing them. He also stated that they did not ask him any questions concerning the terms or conditions of the power-of-attorney provisions, nor did they ask why they had to sign as both makers and guarantors. Marek further stated that Nowell’s name had been typed onto the power-of-attorney portion of the note before it was signed by the Sibilskys.

Based on the parties’ pleadings, documents, affidavits, and written and oral argument, the trial court denied the Sibilskys’ motions to vacate the judgment by confession and summonses to confirm judgment on August 29, 1983. The Sibilskys’ notice of appeal was timely filed.

I

The Sibilskys first contend that Illinois lacked jurisdiction over them because they acted only in their corporate capacity when they signed the power of attorney and security agreement; consequently, under the fiduciary shield doctrine, these acts could not support the assertion of jurisdiction over them in order to obtain their personal liability for any default on the promissory note. We disagree.

Under the fiduciary shield doctrine, “the conduct of a person in a representative capacity cannot be relied upon to exercise individual personal jurisdiction over that person.” (Hurletron Whittier, Inc. v. Barda (1980), 82 Ill. App. 3d 443, 447, 402 N.E.2d 840; see also Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 797, 383 N.E.2d 1379; State Security Insurance Co. v. Frank B. Hall & Co. (N.D. Ill. 1981), 530 F. Supp. 94, 97.) Here, however, it is disputed between the parties whether the Sibilskys acted in only their corporate capacities when they signed the power of attorney and security agreement. Both these documents explicitly indicate that Robert, Diana and Darlene were guarantors on the note. Robert’s affidavit stated that he informed Marek that he was signing in his corporate capacity only, while Marek’s affidavit claimed that they asked no questions regarding the terms of the instruments. It is well established that factual conflicts appearing from “the affidavits and pleadings must be resolved in plaintiff’s favor for purposes of determining whether a prima facie case for in personam jurisdiction has been established.” (Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 247-48, 421 N.E.2d 231.) For purposes of analysis, therefore, we must assume as jurisdictional fact that the Sibilskys signed the power of attorney in their personal capacities as guarantors. As a result, they would not be protected from the assertion of Illinois jurisdiction over each of them individually by virtue of the fiduciary shield doctrine.

The Sibilskys stress on appeal that although Marek stated that he “understood” that by signing next to the word “guarantor” the Sibilskys were “personally guaranteeing the loan,” he does not deny being told by them that they were signing only as representatives nor of acknowledging to them that they were assuming no personal liability. On this basis, they seek to establish that their signature solely in their corporate capacities is an undisputed fact. We find this interpretation of the affidavits to be strained and overly technical, however, when viewed in the context of all of the factual matter presented. Regardless of whether the Sibilskys’ specific remark could be characterized as a “question” or a “statement,” it is nevertheless clear that their understanding of their liability when they signed the instruments is a disputed fact between the parties.

II

Next, the Sibilskys claim that the facts were insufficient to assert jurisdiction over them individually. We disagree.

Section 2—209 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—209) provides in relevant part:

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State ***.”

The standard set forth in this section is not identical to the minimum-contacts test of the due process clause of the fourteenth amendment. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197-98, 429 N.E.2d 847; Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203.) Thus, the construction and application of the Illinois long-arm statute does not “depend entirely upon decisions determining in what circumstances due process requirements would permit long-arm jurisdiction.” (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203.) Consequently, we are called upon to engage in a two-step analysis: first, we must determine whether the Illinois statute embraced FMSI’s claim to confess judgment; if so, we must determine whether the assertion of jurisdiction was prohibited by due process. (See People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 597, 461 N.E.2d 658; Veeninga v. Alt (1982), 111 Ill. App. 3d 775, 777, 444 N.E.2d 780; Vena v. Western General Agency, Inc. (N.D. Ill. 1982), 543 F. Supp. 779, 784.) Here, the Sibilskys raise no question of whether they engaged in the “transaction of any business within this State” (Ill. Rev. Stat. 1981, ch. 110, par. 2—209(a)(1)), but instead argue only that they lacked sufficient minimum contacts with Illinois to be amenable to suit here. Nevertheless, we address both aspects of the applicable criteria.

Under section 2—209(a)(1) of the Code, even a single act of a defendant or his agent may be sufficient to find that business was transacted within this State (People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 597, 461 N.E.2d 658), so long as it is this act which forms the basis of the plaintiffs claim. (Ill. Rev. Stat. 1981, ch. 110, par. 2—209(c); Empress International, Ltd. v. Riverside Seafoods, Inc. (1983), 112 Ill. App. 3d 149, 152, 445 N.E.2d 371.) The provision requires essentially that the plaintiffs claim lie “in the wake of the commercial activities by which [the] defendant [allegedly] submitted to the jurisdiction of Illinois courts.” Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 557, 447 N.E.2d 919; see also Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 198-99, 429 N.E.2d 847; Colnar v. The Baldknobbers, Inc. (1982), 107 Ill. App. 3d 234, 239, 437 N.E.2d 718; Deluxe Ice Cream Co. v. R.C.H. Tool Corp. (7th Cir. 1984), 726 F.2d 1209, 1214-16.

The record here shows that a significant portion of the parties’ commercial dealings centered around acts to be performed by the Sibilskys or their agent in Illinois. First, by the express terms of the power of attorney which the Sibilskys executed, Nowell was granted the authority to sign the promissory note on their behalf in Illinois. In addition, they were obligated to make payments to FMSI in Illinois. Further, pursuant to the terms of the agreement, no contract was formed until it was accepted and signed by FMSI in Illinois, and the funds loaned to the Sibilskys were transmitted from FMSI in Illinois. In short, the parties’ agreement was formed and performed in substantial part in Illinois; their meeting in Marquette, Michigan, on April 30, in comparison, was more in the nature of preliminary negotiations. Consequently, the facts establish that the Sibilskys “transacted business” "within Illinois and that this transaction gave rise to FMSI’s claim against them.

We also conclude that assertion of Illinois jurisdiction comported with due process. The due process clause “requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) The acts of the defendant which establish such minimum contacts must evidence that “the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” (Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240.) Relevant factors to determine minimum contacts include the nature of the business transaction, the applicability of Illinois law, and the contemplation of the parties (Coca-Cola Co. v. A. Epstein & Sons International, Inc. (1980), 89 Ill. App. 3d 253, 258, 411 N.E.2d 917), as well as who initiated the agreement, where the contract was formed, and where it was to be performed. Empress International, Ltd. v. Riverside Seafoods, Inc. (1983), 112 Ill. App. 3d 149, 153-54, 445 N.E.2d 371.

The facts here demonstrate that the Sibilskys had sufficient minimum contacts with Illinois to render them amenable to suit here. The promissory note and security agreement both prominently indicated that Illinois law governed their terms and enforcement. The security agreement further recited that the instruments would not form a binding contract until signed and accepted by FMSI in Illinois. Robert’s affidavit also established that the agreement was necessary for the continued business vitality of SSI. Thus, the Sibilskys relied upon and invoked the benefits and protections of Illinois law in order to achieve the financial stability of their corporate enterprise.

Ill

The Sibilskys further argue that the judgment by confession was invalid because the application to confess judgment was not made in compliance with section 2—1301 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1301.) We disagree.

Section 2—1301 provides in pertinent part that the “application to confess judgment shall be made in the county in which the note or obligation was executed ***. A judgment entered by any court in any [other] county *** has no force or validity ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 2—1301(c).) Where the documents contain no language to the contrary, a promissory note is deemed executed when it is signed by the payee and delivered to the payor. (Investors Commercial Corp. v. Metcalf (1957), 13 Ill. App. 2d 99, 104-05, 140 N.E.2d 924.) Where the instruments state that no agreement is formed until the note and its accompanying documents are accepted and signed by the payor, however, no contract is formed and thus no note executed until this is accomplished. (Nationwide Commercial Co. v. Knox (1973), 10 Ill. App. 3d 13, 15, 293 N.E.2d 638.) In this latter instance, the proper place for confession of judgment upon the note is the court of jurisdiction where the note was accepted and its accompanying instruments signed by the payor. Nationwide Commercial Co. v. Knox (1973), 10 Ill. App. 3d 13, 293 N.E.2d 638.

The facts here disclose that Cook County Circuit Court was the proper forum for confession of judgment against the Sibilskys. The note was executed here, since by its express terms it became binding only upon acceptance by FMSI and upon its acceptance and signature of the security agreement. The trial court properly entered the confessed judgment against the Sibilskys.

IV

Lastly, the Sibilskys contend that the warrant of attorney under which judgment was confessed was legally insufficient because at the time they signed the instrument it failed to establish a certain and liquidated amount for which judgment could be confessed. We do not agree.

A warrant of attorney in a promissory note “is to be strictly construed against the party for whose benefit the instrument was executed.” (Ninow v. Loughnane (1981), 103 Ill. App. 3d 833, 840, 431 N.E.2d 1267.) The extent of liability undertaken must be ascertainable from the face of the instrument in which the warrant is granted or in its accompanying documents which also formed the basis of the parties’ agreement. (Ninow v. Loughnane (1981), 103 Ill. App. 3d 833, 839-40, 431 N.E.2d 1267; Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 455-56, 417 N.E.2d 621; State National Bank v. Epsteen (1978), 59 Ill. App. 3d 233, 234-36, 376 N.E.2d 40.) Where the extent of liability can be established only on the basis of evidence dehors the note and its accompanying instruments, however, the power to confess judgment is invalid and any judgment entered pursuant thereto is void. Grundy County National Bank v. Westfall (1971), 49 Ill. 2d 498, 501-02, 275 N.E.2d 374; State National Bank v. Epsteen (1978), 59 Ill. App. 3d 233, 376 N.E.2d 40; Ninow v. Loughnane (1981), 103 Ill. App. 3d 833, 431 N.E.2d 1267; Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 417 N.E.2d 621.

The promissory note in the instant case did not show a specific dollar amount when the Sibilskys signed the power of attorney and security agreement. Nevertheless, the security agreement had been fully completed, indicating the amount of principal and interest, the interest percentage, the time period in which repayment was required, and the total amount of indebtedness. The extent of the Sibilskys’ liability was consequently ascertainable by them from the face of the security agreement when they signed the power of attorney and was specifically incorporated by reference therein. The power of attorney and the judgment entered thereon were therefore valid.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

      The record discloses that FMSI has assigned its interest in the confessed judgment to Wittock and that Wittock has filed an action in Michigan to confirm that judgment. Because the Sibilskys have challenged confirmation in the Michigan proceeding on the grounds that the Illinois court lacked in personam jurisdiction over them to enter such a judgment, that cause has been continued pending final adjudication of Sibilskys’ present action to vacate the judgment in Illinois.

      Sibilskys rely upon this portion of the Marek affidavit in spite of the fact that the trial court struck this statement from the affidavit based upon the Sibilskys’ motion to strike.

      In the proceedings before the Michigan court, a transcript of which is part of our appellate record in this cause, Robert further testified that SSI had unsuccessfully attempted to obtain funds from lending institutions in Michigan in its attempts to bring current its account with its plumbing supplier, Wittoek.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    INTERNATIONAL HARVESTER CREDIT CORPORATION, Plaintiff-Appellant and Cross-Appellee, v. BENNY H. HELLAND et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 84—0096
    Opinion filed February 7, 1985.

      Robert W. Hallock, John R. Teitgen, and Thomas D. Graber, all of Kirkland & Ellis, of Chicago, and Richard Solomon, of Tyler, Solomon & Hughes, of Aurora, for appellant.
    Paul E. Root and Roger B. Gomien, both of Gomien, Root & Masching, of Morris, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is a statutory replevin action (Ill. Rev. Stat. 1983, ch. 110, par. 19—101 et seq.) filed by the plaintiff, International Harvester Credit Corporation (IHCC), to obtain possession of two tractors and one disk harrow purchased by the defendants from a third party, Leaders Equipment Company of Dunlap, Iowa.

Pursuant to section 19—106 of article XIX (the Replevin Act) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 19—106), on March 11, 1983, an ex parte order was entered by the circuit court of Kendall County granting a writ of replevin to the plaintiff, which writ was executed the same day.

At the bench trial on the merits, the trial court granted the defendants’ motion for a directed finding made pursuant to section 2-1110 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2—1110), and entered judgment “for defendant [sic] and against plaintiff.” Plaintiff appealed, and the defendants filed a cross-appeal from evidentiary rulings made by the trial court admitting certain documentary evidence.

Because the record at bar fails to show the entry of a final, appealable order, and none of the interlocutory appeal provisions apply, we conclude we lack jurisdiction to consider the issues raised, and the appeal and cross-appeal must be dismissed.

A judgment is final if it decides the controversy between the parties on the merits and fixes their rights, so that if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution. (In re J.N. (1982), 91 Ill. 2d 122; People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167; Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716.) A replevin action is to recover possession of goods wrongfully distrained or otherwise wrongfully taken or detained, brought by the owner or person entitled to their possession. (Ill. Rev. Stat. 1983, ch. 110, par. 19—101.) Replevin is a statutory proceeding, and the statute must be strictly followed. (Jim’s Furniture Mart, Inc. v. Harris (1976), 42 Ill. App. 3d 488; Blum v. City of Chicago (1970), 126 Ill. App. 2d 228; O’Toole v. Klimek Boat & Engines Works (1960), 24 Ill. App. 2d 111.) The plaintiff in a replevin action must allege and prove that he is lawfully entitled to possession of the property, that the defendant wrongfully detains the property and refuses to deliver the possession of the property to the plaintiff. Hanaman v. Davis (1959), 20 Ill. App. 2d 111; Ill. Rev. Stat. 1983, ch. 110, par. 19—104.

If the plaintiff in a replevin action does not prevail, as here, and “if the right of property is adjudged against the plaintiff, judgment shall be entered for a return of the property if such property has been delivered to the plaintiff, and damages for the use thereof from the time it was taken until a return thereof is made, ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 19—123.) As in civil actions generally, the issues in a replevin action are confined to those raised by the pleadings (31 Ill. L. & Prac. Replevin sec. 41 (1957)), and an order for the return of the property and damages shown by the evidence is proper. (Stein v. Traeger (1920), 218 Ill. App. 122, 128-29; National Contract Purchase Corp. v. McCormick (1931), 264 Ill. App. 63, 67; MacLachlan v. Pease (1896), 66 Ill. App. 634, 636, aff’d (1898), 171 Ill. 527.) This is particularly so where, as here, the defendants in their responsive pleadings alleged their right in the property, requested return of the property, and requested damages against the plaintiff. (Cf. Chonowski v. Sikora (1968), 93 Ill. App. 2d 53 (where the defendant was not entitled to return of the property despite a verdict against the plaintiff where the defendant did not ask for its return either in his answer or during trial and, further, the jury found he was not entitled to it); Lucas v. Gansler (1929), 335 Ill. 274 (a judgment for possession and writ for return of property is not authorized unless there is a plea of property in the defendant and the facts found at the trial); Watkins v. Dunbar (1925), 318 Ill. 174 (in order to have a judgment of restitution entered in a replevin action, an application for it must be made in a court where the cause is pending and which has jurisdiction of the parties); American National Bank & Trust Co. v. Mar-K-Z Mo tors & Leasing Co. (1973), 11 Ill. App. 3d 1046, aff’d (1974), 57 Ill. 2d 29 (the court’s order to plaintiff to assign the certificate of title to the defendant was proper even though the defendant did not pray for such relief in his counterclaim, where his answer alleged he was the owner of the property and demanded return of the property, damages, and costs).) Further, where the judgment in a replevin action was for the defendant, but no order was issued for the return of the property, it was held that such an order does not automatically follow the judgment and the court at a subsequent term has no power to amend the judgment so as to order return of the property. Troutman v. Hills (1879), 5 Ill. App. 396; see also Watkins v. Dunbar (1925), 318 Ill. 174, 177-78.

When the defendant moves for a directed finding pursuant to section 2—1110 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 2—1110), the court first considers as a legal question whether the plaintiff has made out a prima facie case, and will grant the defendant’s motion if the plaintiff has failed to do so. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151.) If the plaintiff has presented a prima facie case, the court may proceed to weigh all the evidence, and it need not view the evidence in the light most favorable to the plaintiff, but may consider evidence favorable to the defendant as well. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151; City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40.) If the court finds the evidence diminishes or negates some of the evidence necessary to the plaintiff’s prima facie case, the court should grant the defendant’s motion and enter judgment in the defendant’s favor. (McHenry State Bank v. City of McHenry (1983), 113 Ill. App. 3d 82; Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107.) The decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. (Proctor v. Handke (1983), 116 Ill. App. 3d 742, 748.) If the cause is reversed on appeal, however, the cause is to be remanded with directions to proceed as though the motion had been denied by the trial court or waived. 87 Ill. 2d R. 366(b)(3)(iii).

A judgment has been traditionally defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Wold v. Bull Valley Management Co. (1981), 97 Ill. App. 3d 516, aff’d (1983), 96 Ill. 2d 110.) Affirmance of the case at bar, however, would leave unresolved the issues of the return of the property and the damages owed the defendant by the plaintiff. A reversal as requested by the plaintiff would not allow entry of a judgment for plaintiff nor the award of damages for plaintiff as requested in its complaint, first, because the cause would necessarily be remanded according to Supreme Court Rule 366 (87 Ill. 2d R. 366), for presentation of the defendants’ case, and second, because the record contains no evidence as to the issue of damages as claimed by the plaintiff. It has been held that the damages allowed in a replevin action are damages for the use of the property from the time it was taken until its return. (National Contract Purchase Corp. v. McCormick (1931), 264 Ill. App. 63, 68-69; Roberts v. Perrine (1928), 247 Ill. App. 259, 262; Ill. Rev. Stat. 1983, ch. 110, pars. 19—123, 19—125.) Additionally either an affirmance or a reversal of the cause would render the defendants’ cross-appeal of the court’s evidentiary rulings improper. Defendants’ cross-appeal here is improper because they prevailed below, and a party may appeal only if he is injured by a judgment or will be benefited by a reversal. (Newark Electronics Corp. v. City of Chicago (1970), 130 Ill. App. 2d 1021; Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 909.) If reversed, the court’s evidentiary rulings would be merely nonfinal rulings in a pending case. They would not be appealable until the final judgment was entered in the resumed proceeding, at which time the final judgment would draw into question all prior nonfinal orders and rulings which produced the judgment. Shelton v. Andres (1984), 122 Ill. App. 3d 1089; Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427.

Because our jurisdiction is confined to reviewing appeals from final orders or judgments (87 Ill. 2d R. 301), unless one of the exceptions for interlocutory appeals is applicable (Supreme Court Rule 304, as amended April 27, 1984, effective July 1, 1984; 87 Ill. 2d Rules 307, 308; cf. Novak Food Service Equipment, Inc. v. Moe’s Corned Beef Cellar, Inc. (1984), 121 Ill. App. 3d 902 (where the court rejected plaintiff’s claim the interlocutory appeal should be allowed under Supreme Court Rule 307(a))), we conclude the appeals at bar must be dismissed because the record does not show a final judgment has been entered which finally determines the parties’ rights or which, if affirmed, would terminate the litigation. See Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053.

Accordingly, the appeals are dismissed.

Appeals dismissed.

LINDBERG and STROUSE, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN DEAN CRANDALL, Defendant-Appellant.
    Fourth District
    No. 4—84—0257
    Opinion filed February 15, 1985
    Rehearing denied March 18, 1985.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Benson, State’s Attorney, of Paxton (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Pursuant to a request for extradition by the Governor of Texas, the Governor of Illinois issued a warrant for the arrest of the defendant, Alan Dean Crandall. After being taken into custody, Crandall petitioned for a writ of habeas corpus, but the circuit court of Ford County denied his petition. Crandall appeals, contending he has not been substantially charged with a crime in Texas.

Illinois has adopted the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1983, ch. 60, par. 18 et seq.). The legislation is designed to furnish an expeditious and summary procedure for returning a fugitive to the demanding State. (People ex rel. Kubala v. Woods (1972), 52 Ill. 2d 48, 53, 284 N.E.2d 286, 289.) Section 3 of the Act outlines the form of a demand which the Governor can recognize. Insofar as that section applies to the instant case, the demand must be in writing and allege that the accused was present in the demanding State at the time of the commission of the alleged crime and that he thereafter fled from the State. The demand must also be accompanied by a copy of an indictment, information supported by affidavit or affidavit made before a magistrate, which must “substantially charge the person demanded with having committed a crime under the law of that state.” Ill. Rev. Stat. 1983, ch. 60, par. 20.

Once the Governor has recognized the demand, a court considering release on habeas corpus is limited to inquiring only whether: (1) the documents are in regular form; (2) the accused is the person named in the warrant; (3) the accused is a fugitive; and (4) the accused has been charged with a crime in the demanding State. (People v. Koren (1983), 114 Ill. App. 3d 421, 423, 449 N.E.2d 191, 193.) These questions involve “historic facts readily verifiable.” (Michigan v. Doran (1978), 439 U.S. 282, 289, 58 L. Ed. 2d 521, 527, 99 S. Ct. 530, 535.) Crandall raises only the final issue in this suit.

A copy of an indictment accompanied the demand for extradition. The charge listed on the indictment is “Sex Abuse Child.” At the time of the indictment, Texas law stated a person committed the offense of “Sexual Abuse of a Child” “if, with intent to arouse or gratify the sexual desire of any person, he engages in deviate sexual intercourse with a child” under the age of 17 and not his spouse. (Tex. Penal Code Ann. sec. 21.10 (Vernon 1974).) “Deviate sexual intercourse” was defined as “any contact between any part of the genitals of one person and the mouth or anus of another” or “the penetration of the genitals or anus of another person with an object.” (Tex. Penal Code Ann. sec. 21.01 at 183 (Vernon Supp. 1985).) The body of the indictment against Crandall states that he:

“[D]id unlawfully, knowingly and intentionally, engage in deviate sexual intercourse with *** complainant, a person not the spouse of the Defendant, by contact between the genitals of the complainant and the genitals of the defendant and with the intent to arouse and gratify the sexual desire of the defendant; and the said complainant was younger than seventeen (17) years of age, and furthermore, the said complainant was younger than fourteen (14) years of age.”

Thus, while the indictment speaks in the language of the statute proscribing sexual abuse of a child, the acts described do not constitute that offense.

For extradition purposes, there is no requirement that the indictment specify with particularity the nature of the crime or the factual basis. (People ex rel. Banks v. Farner (1968), 39 Ill. 2d 176, 179, 233 N.E.2d 360, 361; Michigan v. Doran (1978), 439 U.S. 282, 289-90, 58 L. Ed. 2d 521, 528, 99 S. Ct. 530, 535-36.) Crandall, however, argues the discrepancy between the charge and the conduct described renders the indictment fatally defective under Texas law. He cites cases from that jurisdiction which hold that an indictment cannot be amended either by reducing, changing, or adding to the facts alleged. (See, e.g., Brasfield v. State (Tex. Crim. App. 1980), 600 S.W.2d 288.) Crandall concedes the conduct described in the indictment would fall under the Texas statute proscribing indecency with a child, also a felony (Tex. Penal Code Ann. sec. 21.11 (Vernon 1974)); but he asserts Texas case law also prohibits an amendment of the offense charged. Crandall concludes he has not been substantially charged with a crime. We disagree.

Crandall is simply attacking the sufficiency of the indictment as a criminal pleading. The issue, however, is not whether the indictment is good enough, over a seasonable challenge, to bring the accused to trial, but whether the indictment satisfactorily shows that the accused has in fact been charged, however inartificially, with a crime in the State from which he has fled. The phrase “charged with a crime” is to be understood in a broad and practical sense. (Pierce v. Creecy (1908), 210 U.S. 387, 401-02, 52 L. Ed. 1113, 1120-21, 28 S. Ct. 714, 718-19.)

“[T]he indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. *** If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriages of justice.” 210 U.S. 387, 405, 52 L. Ed. 1113, 1122, 28 S. Ct. 714, 720.

The court in People ex rel. Abeles v. Elrod (1975), 27 Ill. App. 3d 155, 326 N.E.2d 443, faced the same issue we now face. The relator in Abeles contended a Wisconsin indictment was insufficient to charge him with a crime because it charged him under the wrong section of the statute. The Abeles court, however, had the benefit of a Wisconsin trial court’s decision sustaining the same indictment against the same objection made by the relator’s co-defendants. Thus, the Abeles court easily dispensed with the relator’s appeal without interpreting Wisconsin law.

In the present case, we have no such benefit. In order to decide whether Crandall’s contention that the indictment is fatally deficient is correct, we would have to interpret Texas law. To avoid such a result, the law is well settled that the technical sufficiency of an indictment is not open to consideration in a habeas corpus proceeding. (People ex rel. Banks v. Farner (1968), 39 Ill. 2d 176, 179, 233 N.E.2d 360, 361.) The indictment charges Crandall with deviate sexual intercourse with a child. While the facts outlined do not support that charge, they substantially charge Crandall with indecency with a child. Whether Crandall can be prosecuted under the indictment for either charge is a question for the courts of Texas, not of Illinois. People ex rel. Halley v. Willis (1970), 46 Ill. 2d 29, 32, 262 N.E.2d 480, 482.

For the foregoing reasons, the order of the circuit court of Ford County is affirmed.

Affirmed.

GREEN, P.J., and WEBBER, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IVORY TOWNES, Defendant-Appellant.
    Fourth District
    No. 4—84—0008
    Opinion filed February 7, 1985.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On September 9, 1983, following a jury trial in the circuit court of Vermilion County, defendant, Ivory Townes, was convicted of two counts of attempted murder, two counts of home invasion, and one count each of rape, robbery, and deviate sexual assault. (Ill. Rev. Stat. 1983, ch. 38, pars. 8—4, 12—11, 11—1, 18—1, and 11—3.) Defendant was sentenced to extended terms of 60 years’ imprisonment on the attempted murder, home invasion, rape, and deviate sexual assault convictions, and to seven years on the robbery conviction. The sentences on the attempted murder convictions were ordered to run consecutively to the remaining sentences, which were to run concurrently with each other.

On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred by denying defendant’s motion for change of place of trial; (3) the court erred during voir dire by refusing defendant’s challenge for cause of one juror and by insufficiently examining another juror regarding exposure to pretrial publicity; (4) defendant’s right to an impartial jury was denied by the prosecutor’s peremptory challenge of the only three prospective black jurors; (5) the court erred by admitting evidence seized from defendant’s apartment following his arrest; and (6) the court erred by admitting evidence of defendant’s refusal to comply with a search warrant to compel the taking of body specimens. We affirm.

As defendant has challenged the sufficiency of the evidence supporting his convictions, it is necessary to recite the facts of this case in some detail.

The complaining witnesses in this case, John and Jacqueline Hazel, husband and wife, lived in a second-floor apartment in Dan-ville. Mr. Hazel testified that he was awakened about 12:30 or 12:45 a.m. the morning of June 8, 1983, by noises in the kitchen of the Hazels’ apartment. Upon investigation, Mr. Hazel discovered a black man standing inside the kitchen door whom he described as being about 5 feet 9 inches tall, weighing about 160 to 165 pounds, and whom he identified in court as being the defendant. The intruder was wearing blue jeans and a light blue shirt and had a plastic “perm cap” (or shower cap) on his head and a slight amount of facial hair; he was not wearing eyeglasses.

The intruder first stated he was looking for a party and then demanded to use a telephone, but was told that there was no phone in the apartment. When the intruder advanced into the apartment, Mr. Hazel and Jacqueline Hazel, who had been awakened by voices and had joined her husband, attempted to push the intruder out of the kitchen door, and a scuffle ensued during which the intruder struck Mr. Hazel in the right eye and Mr. Hazel sustained serious lacerations on his wrist from broken glass on the kitchen door. The intruder sprayed the Hazels’ faces with a substance which temporarily blinded them. Mr. Hazel was not wearing his glasses during the incident.

The kitchen was illuminated by the light emanating from the television in the living room and by a small fluorescent light over the kitchen sink. Initially, the only other light in the apartment was provided by a neon beer sign which was located about eight or 10 feet away from the dining room window.

After subduing the couple, the intruder forced Mr. Hazel into an unlocked bedroom closet where he remained for 30 to 40 minutes. During this period Mr. Hazel heard the intruder striking Mrs. Hazel and demanding money. At one point Mr. Hazel handed out his wallet, which contained no money, to the intruder.

Mr. Hazel thereafter heard water running in the bathroom and was forced to get into the filled bathtub, where Mrs. Hazel was already standing. The intruder then handed Mr. Hazel an electric mas-sager, which was attached to an extension cord plugged into an outlet over the sink, and told Mr. Hazel to drop it into the bathwater. Mr. Hazel did so and received a slight shock.

During this period the bedroom lights shined into the bathroom. The intrader stood inches away from the Hazels. Mr. Hazel’s right eye was swollen shut, but he had vision in his left eye; the blinding effect of the substance which was sprayed in his face had largely worn off.

During the bathroom episode, Mr. Hazel was still bleeding profusely from his wrist wounds. He asked the intruder to give him something to wrap around his wrist to stop the bleeding, and the intruder provided a pair of Mr. Hazel’s blue jeans. The intruder also advised Mr. Hazel to seek medical attention for the wounds, which he told Mr. Hazel to say were the result of an accident. After threatening to kill the Hazels if they contacted the police, the intruder left the apartment. The Hazels later discovered that in addition to the wallet, two sets of keys were missing, including a set which fit locks at Dan-ville Beverage, where Mr. Hazel was employed. Mr. Hazel estimated that the incident lasted V-k to l3k hours.

Jacqueline Hazel also testified for the State, and much of her testimony coincided with that of her husband. In court, she identified defendant as the intruder. After her husband was forced into the bedroom closet, she dumped out the contents of her purse on the living room table in an attempt to satisfy the intruder’s demands for money. Although she was struck repeatedly in the face and had been sprayed twice by this time, she was able to observe the intruder in the lighted living room while he was examining the contents of her purse. She particularly noticed the intruder’s “drooping eyelids.” Mrs. Hazel normally wore eyeglasses to read but was not wearing them during the incident.

Mrs. Hazel attempted to escape the apartment by running down the outside stairs, but the intruder caught up with her at the bottom and threw her to the ground. At this point her vision was not impaired, and the area was lighted by an outside beer sign. The intruder dragged Mrs. Hazel back into the apartment and turned on the bath water. The light in the bedroom was off, but the bathroom light provided some illumination. The intruder forced Mrs. Hazel to engage in fellatio and then in intercourse on the bedroom floor, while her husband remained in the bedroom closet.

Mrs. Hazel recalled that after the intruder had obtained an extension cord and forced the Hazels to stand in the bath water, the electric massager was dropped in the bathtub twice; she was unsure of who dropped it in the second time. While in the unlighted bathroom, Mrs. Hazel could see the intruder “real good” because the lights were on in the adjoining bedroom.

After the Hazels notified police of the incident, they were taken to the hospital, where they were treated for their injuries. A vaginal swab was taken from Mrs. Hazel which revealed the presence of sperm. Further testing by a State forensic serologist indicated that the sperm could have been donated by defendant.

Each of the victims subsequently identified defendant as the intruder, first in photographic identification sessions conducted on June 8, 1983, and later in corporeal lineups. An investigator with the Dan-ville police department testified that he conducted a photographic identification session with the Hazel couple in their apartment on June 8, 1983. Mr. Hazel examined 790 photographs of black males over a period of about IV2 hours while his wife was being interviewed in another room. Mr. Hazel selected the photograph of defendant, which was the last one in the group, and stated that he was positive that it was the intruder. Mr. Hazel also testified at trial that he was positive at the time that his identification was correct. After Mr. Hazel left the room, Mrs. Hazel examined approximately 200 photographs before selecting a picture of defendant as the intruder.

Another Danville police investigator testified that he was present at a lineup conducted on June 9, 1983, for Mr. Hazel. After several minutes, during which Mr. Hazel eliminated three of the five subjects, Hazel identified defendant as the intruder. Hazel testified at trial that he was looking in the lineup for the person whose picture he had previously selected, but stated he was positive of his identification. On June 14, 1983, a lineup of the same five subjects was conducted for Mrs. Hazel. Mrs. Hazel viewed the lineup for about five minutes before selecting defendant, stating “I believe that’s him.” Mrs. Hazel also testified that she was positive of this identification.

Two keys which were taken from the Hazels’ apartment were recovered by the Danville police. A workman testified that he found two keys on June 8, 1983, while repairing the roof of a Georgetown building and turned them over to a Danville police officer who was searching the area. The Danville chief of police testified that he was searching the area around defendant’s apartment on June 8, 1983, for items taken from the Hazels’ apartment when some workmen inquired if he was looking for keys. He was given two keys, which one of the men stated had been found on the roof of a building approximately 75 feet away from defendant’s residence. Mr. Hazel identified the keys at trial as the ones which were taken from his apartment. Police determined that the keys fit locks at Danville Beverage, where Mr. Hazel was employed.

Ivory Townes’ defense consisted almost entirely of the testimony of Debra Nelson, defendant’s girlfriend, with whom he lived; defendant did not testify in his own defense. Nelson testified that defendant picked her up from work at midnight on June 7, 1983, after which they drove around Danville and returned to the apartment which they shared in Georgetown at about 1:45 a.m. She stated that no one left the apartment after they returned. Nelson stated that defendant was wearing a brown shirt and green pants on the night in question.

Defendant contends that the evidence was insufficient to prove his guilt of any offense beyond a reasonable doubt because of weakness in the proof that he was the intruder. He also maintains that the evidence that the intruder intended to kill either of the Hazels was too weak to support the attempted murder convictions.

We examine first the issue of the identification testimony. The test for this type of testimony is whether the witness was close enough to the accused for a sufficient length of time under conditions adequate for observation. (People v. Brown (1982), 110 Ill. App. 3d 1125, 443 N.E.2d 665.) More particularly, consideration should be given to (1) the opportunity of a witness to observe the accused at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of the identification; and (5) the length of time between the crime and the identification. Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.

According to Mr. Hazel, the episode lasted for approximately IV2 to ls/4 hours. During this time both victims had ample opportunity to observe the intruder. The first opportunity came when the Hazels confronted the intruder in the kitchen, which was lighted by a small fluorescent light over the sink, as well as the light from the TV in the living room and from the outside beer sign. Additional opportunities were afforded when Mrs. Hazel dumped out her purse in the lighted dining room, when she attempted to escape the apartment but was caught by the intruder in an outside area illuminated by the beer sign, and when the intruder sexually attacked her in the bedroom, at which time a bathroom light provided illumination. During the bathroom episode, light was provided from the bedroom, and the Hazels both observed the intruder at close range. Although neither of the Hazels wore their eyeglasses during the incident, both testified that they required glasses only to read or see clearly at close range.

As to the second factor, the circumstances of the incident were such that the victims would have been attentive to the features of the intruder. Mrs. Hazel particularly noticed the intruder’s “drooping eyelids.” Mr. Hazel described the intruder’s clothing and the “perm cap” which he wore; this latter description was corroborated by the testimony of other witnesses at trial who saw defendant prior to the incident.

As regards to the third factor, defendant cites the discrepancy between Mr. Hazel’s initial description of the intruder and defendant’s actual height and weight—a discrepancy of some three inches and 30 pounds. This discrepancy can only be characterized as minor (see People v. Brown (1982), 110 Ill. App. 3d 1125, 443 N.E.2d 665), and the Hazels’ descriptions were in all other regards accurate. '

Fourth, the Hazels’ identifications of defendant at the photo display and at the later lineups were unequivocal. The testimony of a Danville police investigator verified the Hazels’ own testimony regarding the certainty of their identifications. Finally, the Hazels selected the defendant’s photograph from among hundreds on the same day of the incident. Mr. Hazel identified defendant at the lineup one day later; the lineup for Mrs. Hazel was conducted six days later. Thus there was not a significant passage of time which would cloud the victims’ memories of the intruder’s features.

Moreover, there was substantial evidence corroborating the Hazels’ identifications. Testimony from a forensic serologist established that blood on the shoes defendant was wearing when arrested was of the same blood type as Mrs. Hazel’s blood. The sperm tested from the vaginal swab could have been donated by defendant. Two keys stolen from the Hazel’s apartment were found 75 feet away from the defendant’s residence.

The foregoing testimony fully refutes defendant’s contention that the victims’ identifications were unreliable because the Hazels’ ability to observe the intruder was hampered by the substance sprayed in their eyes, by injuries to their eyes, by the “poor lighting conditions,” and by their failure to wear eyeglasses. The proof that defendant was the invader was strong and fully sufficient for a reasonable juror to find beyond a reasonable doubt that this was so.

Attempted murder is committed when a person, with specific intent to kill, performs any act which constitutes a substantial step towards the commission of murder. (Ill. Rev. Stat. 1983, ch. 38, par. 8— 4(a); People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) Such specific intent can rarely be proved by direct evidence but may be inferred from the surrounding circumstances, such as the character of the assault and the use of a deadly weapon. People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446, overruled on other grounds by People v. Nunn (1973), 55 Ill. 2d 344, 349, 304 N.E.2d 81, 84.

The attempted murder charges arise from the intruder’s conduct in requiring the Hazels to stand in the bath water and then requiring Mr. Hazel to drop an operating electrical massager into the water. The danger of electricity is common knowledge to all persons of ordinary intelligence and experience. (Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 442 N.E.2d 338.) Because of the obviously great danger resulting from the act of Mr. Hazel required by the intruder, the jury could infer that the intruder intended to kill the Hazels. (People v. Koshiol (1970), 45 Ill. 2d 573.) The obvious motive for intending to kill the Hazels would be to prevent them from testifying against him. The intruder’s removal of certain objects that might have borne his fingerprints would indicate that he was thinking of eliminating evidence that might convict him. The fact that the intruder both ran the water well ahead of the time that he required Mr. Hazel to drop the massager in the tub and then sought out an extension cord so that the power line to the massager would reach the tub indicates that the intruder acted with premeditation. Also of relevance is the defendant’s warning, after the unsuccessful attempt, that he would return and kill the Hazels if they notified the police.

Defendant contends that evidence that he complied with Mr. Hazel’s request for something to wrap his wounds and advised Mr. Hazel to seek medical attention indicates a concern inconsistent with an intent to murder the Hazels. However, these actions followed the bathtub episode and are not conclusive of defendant’s intent at the time he ordered Mr. Hazel to drop the massager in the bathtub. Evidence that defendant may have vacillated in his desire to kill the Hazels is not compelling, since once the elements of attempt are established, abandonment of the criminal purpose is no defense. People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

As with the question of the proof of identification, a reasonable jury could have determined beyond a reasonable doubt that the intruder intended to kill both of the Hazels.

The next two issues raised by defendant are interrelated; both involve the underlying question of whether pretrial publicity of the instant case and of defendant’s prior convictions on similar charges was so prejudicial as to affect his right to a fair trial before an impartial jury. Defendant first claims that the trial court erred by denying his motion for change of place of trial made before trial and renewed during voir dire. Second, defendant argues that the court erred by impanelling one juror who was exposed to information concerning defendant’s prior convictions during voir dire and by seating another juror without individually examining that juror regarding his exposure to pretrial publicity and any resulting prejudice towards defendant.

Prior to trial, defendant filed a motion for change of place of trial pursuant to section 114—6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 114—6). The motion alleged that publicity concerning defendant’s prior convictions and relating to the pending charges, including newspaper, radio, and television accounts, resulted in such prejudice against defendant that he could not receive a fair trial in Vermilion County. The trial court denied this motion, after hearing arguments at the pretrial hearing, but indicated a willingness to entertain the motion again during voir dire proceedings in the event that additional information bearing on the issue became available. Defendant did in fact renew his motion on September 7, 1983, during voir dire, after it became evident that several prospective jurors had been exposed to some publicity regarding defendant’s prior convictions and the pending case against him; the motion was again denied.

In support of the written motion for change of venue, several newspaper articles from the Danville Commercial News were attached. These articles dated back to April 30, 1980, when defendant was on trial for rape, deviate sexual assault, and home invasion. Defendant’s convictions for these crimes were reversed and remanded by this court on March 31, 1981 (People v. Townes (1981), 94 Ill. App. 3d 850, 419 N.E.2d 604), and the reversals were upheld by the Illinois Supreme Court on April 16, 1982 (People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, cert. denied (1982), 459 U.S. 878, 74 L. Ed. 2d 143, 103 S. Ct. 174). Shortly before defendant was to be retried, the Vermilion County State’s Attorney’s office decided to move for the dismissal of the charges against Townes, citing the lack of admissible evidence. Both of these decisions were reported in the Commercial News.

Defendant also referred in his motion to purportedly prejudicial radio and television broadcasts; however, such broadcasts are not documented in the motion or anywhere else in the record. Moreover, only one of the prospective or actual jurors exposed to publicity regarding the charges or prior convictions identified such broadcasts as the source of the information.

Section 114—6 of the Code of Criminal Procedure of 1963 provides in pertinent part:

“A defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.” (Ill. Rev. Stat. 1983, ch. 38, par. 114—6.)

The rule in Illinois is that a defendant is entitled to a change of place of trial when, as a result of adverse pretrial publicity, it appears that there are reasonable grounds to believe that the prejudice alleged by defendant actually exists and, as a result, there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645, cert. denied (1969), 393 U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004.

The United States Supreme Court stated in the landmark case of Irvin v. Dowd (1961), 366 U.S. 717, 723, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639, 1642-43:

“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

Similar sentiments have been expressed in many other cases. See People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629.

Here, in addition to the normal reportage of facts concerning the offenses in issue, newspaper articles cited by defendant contained articles concerning defendant’s prior convictions of other similar crimes and the history of that prior litigation. This information would not have been admissible at trial. However, we do not deem these stories or other matters brought to public attention sufficient to establish community prejudice against defendant or to have deprived him of a fair trial. The publicity was not particularly voluminous or pervasive despite defendant’s attempts to characterize it as such. Over two months passed between the last report of defendant’s prior convictions and the date scheduled for voir dire. Moreover, the news accounts were accurate and noninflammatory. The mere fact that pretrial publicity includes references to a defendant's past crimes is not sufficient to presume bias on the part of prospective jurors. People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208, cert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179; People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608.

The recent Illinois Supreme Court decision in People v. Taylor (1984), 101 Ill. 2d 377, 462 N.E.2d 478, also involved pretrial publicity of inadmissible and prejudicial information concerning the defendant’s failure to “pass” a polygraph examination, contrasted with the dismissal of charges against a codefendant who also took a polygraph. The news coverge was “unprecedented” and included frequent articles in two area newspapers as well as daily radio and television broadcasts.

Voir dire in the Taylor case lasted three days, and virtually all of the prospective jurors had some prior knowledge of the case. Of the 12 eventual jurors, six were aware that the codefendant had been released. Five of these were seated over defendant’s challenges for cause, and two of the five were seated after defendant had exhausted his peremptory challenges. The trial judge twice denied defendant’s motion for a change of place of trial, denied many of defendant’s challenges for cause, and denied defendant’s motion for additional peremptory challenges.

The Taylor court found that under these circumstances the jurors’ bare assertions that they could set aside any preconceived notions of the defendant’s guilt were insufficient. The trial court erred by refusing to allow a change of venue when the widespread knowledge of prejudicial and inadmissible information became evident during voir dire. The trial court also erred by refusing challenges for cause as to jurors who had been exposed to the publicity.

The Taylor court reaffirmed the standard of review established in People v. Yonder (1969), 44 Ill. 2d 376, 388, 256 N.E.2d 321, 328:

“Our basic consideration here is not necessarily the correctness of the trial court’s rulings on the defendants’ motions for change of venue ***, but whether upon the record as a whole the defendants received a trial before a fair and impartial jury since these rulings were proper if defendants actually received such a trial.”

The court reiterated that examination of prospective jurors’ exposure to prejudicial publicity undertaken during voir dire was the best method of determining whether they can set aside any bias and decide the case based solely upon the evidence at trial.

Applying the Taylor standard, an examination of the whole record reveals that defendant received a fair trial before an impartial jury. The trial court was well aware of the potential for juror prejudice and expressed his intention to liberally allow defendant’s challenges for cause of those jurors exposed to information regarding defendant’s prior convictions; The veniremen were admonished at the outset of voir dire, and repeatedly throughout the examination process, that they were required to set aside any prior knowledge of the case and decide the issue of defendant’s guilt solely on the evidence presented.

Of the 36 veniremen examined in all (three as alternate jurors), 14 had never heard or read of the case. The majority of those with some familiarity of the case expressed only a dim recollection or sketchy knowledge of the facts. Of the 20 veniremen who expressed some prior knowledge, only three indicated that they might have formed opinions as to defendant’s guilt. Of the 12 eventual jurors, eight had no prior knowledge of the case. The other four jurors related only a generalized or vague knowledge, and each affirmed that he could set aside any knowledge or bias and decide the case solely on the evidence.

Other factors in the instant case serve to distinguish it from Taylor. Chief among these is the fact that defendant did not find it necessary to exhaust his peremptory challenges before jury selection was completed. Further, defendant exercised only two challenges for cause, only one of which was exercised on the grounds of pretrial publicity.

Irvin and its progeny require only a determination that the jurors exposed to pretrial publicity are able to set aside any resulting opinions or impressions and render a verdict solely on the evidence. It is apparent that the trial judge below used even a stricter standard by excusing, sua sponte, those jurors who indicated that they had formed such an opinion. (See People v. Driver (1978), 60 Ill. App 3d 381, 376 N.E.2d 803.) In summary, it cannot be said that the trial court clearly abused its discretion in denying defendant’s motions for a change of place of trial. See People v. Myers (1974), 20 Ill. App. 3d 83, 312 N.E.2d 741.

Defendant next contends that the impaneling of two particular jurors, Livesay and Soloman, deprived him of his right to a fair trial before an impartial jury. Specifically, defendant complains that juror Livesay was prejudiced by her exposure to information that defendant has previously been convicted of rape and that juror Solo-man was not individually examined regarding his prior knowledge of the case.

As to juror Livesay, defendant argues that her exposure to another venireman's recollection that defendant had previously been convicted of rape denied defendant his right to an impartial jury. The venireman’s revelation came about as a result of defense counsel’s continued examination of the venireman bringing out the details of the information he had concerning the defendant’s previous trial and reversed conviction. The trial court dismissed the venireman for cause but refused to dismiss, for cause, the other three members of the panel. The defense then exercised peremptory challenges as to two of the panelists but left Livesay on the panel. The failure to exhaust all peremptory challenges precludes defendant from asserting prejudice in Livesay’s presence on the jury. (People v. Ford (1960), 19 Ill. 2d 466, 168 N.E.2d 33, cert. denied (1960), 364 U.S. 848, 5 L. Ed. 2d 72, 81 S. Ct. 93; People v. Feagans (1983), 118 Ill. App. 3d 991, 455 N.E.2d 871.) Furthermore, the record does not establish any indication that Livesay could not have put any prejudicial information she had out of her mind and decided the case upon the basis of the matters properly before her. Defense counsel could have examined her on this issue.

Similarly, defense counsel could have examined Soloman about any prejudices he might have had but did not do so. Defendant has the burden of showing that a juror is prejudiced. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) No such showing was made here. Soloman did answer affirmatively when asked whether he would hear all the evidence before deciding whether defendant was guilty of any offense. Soloman also stated there was no reason to prevent him from being fair. No error resulted from the presence of Soloman on the jury.

Next, defendant asserts that he was denied his right to a jury drawn from a fair cross-section of the community by the prosecutor’s peremptory challenge of the only three prospective black jurors. This issue is controlled by the decision in People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, which held that prosecutorial use of peremptory challenges to exclude blacks does not raise a constitutional issue unless there is a systematic and purposeful exclusion of blacks in case after case. Defendant here does not attempt to make such a showing. Moreover, each of the three black veniremen excluded from defendant’s jury had contacts with defendant’s family or with potential defense witnesses. Thus it appears that there were legitimate reasons unrelated to the race of the veniremen for excluding them. Consequently, defendant’s argument in this regard is without merit.

Another claim of error by defendant arises from the trial court’s refusal to suppress two items of defendant’s clothing. It is uncontroverted that these items were initially seized pursuant to defendant’s valid consent to search the apartment where he lived with his girlfriend. The issue arises because, after seizing these items, the police officers forgot to remove them after the search was completed, necessitating a second entry of the apartment without defendant’s express authorization.

Initially, we note that any error in the ruling on the motion to suppress was harmless beyond a reasonable doubt. No testimony was presented by the State that the intruder was wearing that clothing at the time of the offense. Rather, that evidence corroborated defense testimony as to what defendant was wearing on that evening.

In any event, the slight intrusion upon the privacy of the defendant to take possession of that clothing shortly after its possession had previously been obtained by consent was, as the trial court found, justified by limited exigency of the circumstances. (See People v. Morrow (1982), 104 Ill. App. 3d 995, 433 N.E.2d 985.) The police were aware at that point that at least two other people, defendant’s mother and his girlfriend, had access to the apartment. There was the danger, therefore, that the evidence would be altered or destroyed before police could obtain a warrant. Significantly, no search was necessary to obtain the items. At most, only a seizure was made. See People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.

Defendant’s final argument is that he was denied a fair trial when the trial court, over defendant’s objection, admitted testimony by investigating officers that defendant failed to comply with a search warrant which required him to submit to the taking of body samples, such as blood and hair samples. The testimony received indicates that after defendant’s arrest on June 8, 1983, defendant was presented with a copy of a search warrant, but twice refused to submit to the sample-taking. The samples were eventually taken two days later after counsel was appointed to represent defendant.

Supreme Court Rule 413 (87 Ill. 2d R. 413) provides for judicial orders compelling the taking of body samples. Defendant concedes that his right against self-incrimination was not violated by requiring him to submit to these examinations (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826) and does not attack the validity of the search warrant. Defendant claims, rather, that his refusal to submit to the examinations was not relevant to any issue at trial and that the prejudice to him outweighed any probative value.

The State maintains that the defendant’s refusal to take the tests evidenced a consciousness of guilt as would evidence of his flight, escape, false alibi or attempt to suppress evidence. (People v. Gambony (1948), 402 Ill. 74, 83 N.E.2d 321; People v. Ellis (1966), 65 Cal. 2d 529, 421 P.2d 393, 55 Cal. Rptr. 385.) Evidence of the refusal of a defendant to submit to a field test for sobriety has been held to be evidence of the defendant’s guilty conscience. (People v. Roberts (1983), 115 Ill. App. 3d 384, 450 N.E.2d 451; People v. Miller (1983), 113 Ill. App. 3d 845, 447 N.E.2d 1060.) Admission of such testimony does not violate the right of an accused against self-incrimination. South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916.

The evidence of the defendant’s noncompliance with the State’s requests here has similarities both to that held to be inadmissible in People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414, and People v. Warner (1984), 121 Ill. App. 3d 322, 459 N.E.2d 1053, and that held to be admissible in Gambony and Ellis. We consider its probative value to have been greatly impaired because the warrant was served so soon after defendant’s arrest and because defendant later submitted to the tests. The testimony showed that defendant qualified his refusal by indicating that he was only refusing to submit to the tests at that time. Even though defendant was required to submit to the requirements of the warrant, his refusal to do so was reasonably consistent with the response of a cautious innocent person who would want to seek the advice of counsel before submitting. The introduction of the evidence was obviously prejudicial.

Because the prejudice outweighs the slight probative value of the evidence, its admission was error. Notably, the prejudice bears more heavily upon the issue as to whether defendant was the intruder than upon the question of whether defendant intended to kill the victims. The evidence was very strong on the former issue, while a close question existed as to whether the evidence was sufficient on the latter issue. Accordingly, we hold that the error in the admission of the evidence was not reversible.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    MINNIE A. HASTY et al., Plaintiffs-Appellants, v. JOAN KILPATRICK, Defendant-Appellee.
    Fourth District
    No. 4—84—0490
    Opinion filed February 7, 1985.

      Knuppel, Grosboll, Becker & Tice, of Petersburg (R. John Alvarez, of counsel), for appellants.
    Rammelkamp, Bradney, Hall, Dahman & Kuster, of Jacksonville (Forrest G. Keaton, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This litigation arises out of an intersection collision in the city of Rushville on December 5, 1980. Suit was filed by the plaintiffs in the circuit court of Schuyler County, and defendant filed a counterclaim. Plaintiffs’ suit was for personal injuries and property damage; defendant’s counterclaim was for property damage only. The case was tried to a jury which returned verdicts in favor of the defendant on both the complaint and the counterclaim. Plaintiffs have appealed.

Before proceeding to the merits of the appeal, we are called upon to untangle a procedural snarl which has little reason for being. The jury returned its verdicts on June 5, 1984, and upon receiving them, the trial judge announced in open court, “Judgment will be entered on the verdict. [S-ic.]” No mention was made of a written order. Nevertheless, a written order was prepared; according to counsel, it was done by the trial judge himself; it was filed-stamped by the circuit clerk on June 8. 1984.

Along with the written order there also appears the following docket entry:

‘6-08-84 Welch Evans
ORDER SIGNED
JUNE 5,1984.
Cause comes on for hearing as to jury trial on June 4, 1984. Twelve jurors selected and parties and counsel agree to no alternate. Evidence adduced on June 4 and 5, and arguments heard on June 5. Jury retires to deliberate at approximately 2:14 P.M.. At approximately 4:28 P.M. the jury returns with a verdict. The jury finds on the complaint for the defendant and against the plaintiffs. On the counter-complaint the jury finds for the counter-complainant and against the defendant, Minnie Hasty, in the amount of $570.24. Judgment is entered on the verdicts, signed.”

The question posed is: when did the judgment order become appealable? The notice of appeal was filed July 9, 1984; if the order became appealable on June 8, 1984, the notice is timely (July 8, 1984, being a Sunday); if the order became appealable on June 5, 1984, the notice is not timely. The appellee filed a motion to dismiss based upon the latter hypothesis. That motion was denied by this court on July 16, 1984. The appellee renewed the motion on November 2, 1984, and it was ordered taken with the case. We now deny the renewed motion.

The matter is controlled by Supreme Court Rule 272 (87 Ill. 2d R. 272), which provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

The rule admits of only two possibilities: (1) a written order is required, or (2) it is not and judgment is entered when it becomes of record. There is nothing in this record to indicate that the trial judge ever required a written order. Therefore, the order prepared by him becomes a nullity. Its only value is to corroborate by the file stamp which it bears the docket entry of the same date.

This court held in Drulard v. Country Cos. (1981), 99 Ill. App. 3d 1031, 426 N.E.2d 347, that in counties in which record keeping is governed by a general administrative order of the Illinois Supreme Court (of which Schuyler County is one), entry in the record sheet, or docket, is the judgment of record. It follows in the case at bar that the entry date is June 8, 1984, as indicated by the docket. The fact that the docket also indicates that a written order was signed on June 5, 1984, is immaterial since no written order was required.

Attached to the appellee’s motion to dismiss is a document entitled “Money Judgment.” Included on that document is this case with the date indicated as June 5, 1984. From this, appellee argues that judgment in the instant case was entered of record on that date. We disagree.

Part I(C)(12) of the “General Administrative Order on Record-keeping in the Circuit Courts” (Ill. Ann. Stat., ch. 25, par. 16, at 26 (Smith-Hurd Supp. 1983)) provides for a “Money Judgment Index” (emphasis added). The judgment itself is provided for in Part I(D)(2)(b)(6) of the same general administrative order. By its very nature, an index is a list of references together with a notation as to where they may be found in its related work. Apart from the work to which it is related, it is itself meaningless.

We hold that an entry in an index is not an entry of record of a judgment within the meaning of Supreme Court Rule 272.

For all the foregoing reasons, we find that judgment in this case was entered of record on June 8, 1984; plaintiffs’ notice of appeal was therefore timely; and the motion to dismiss and the renewed motion to dismiss are denied. We have jurisdiction.

Plaintiffs’ only contention on the merits of the appeal is that the verdicts were against the manifest weight of the evidence. An extensive review of the facts is not necessary, since they are well known to the parties. The collision occurred at the intersection of North Liberty and East Adams streets. It was undisputed that Adams was the preferential street and that drivers on Liberty were required to stop by signs posted there. Plaintiffs (Hasty was driver and Stevenson was passenger) were northbound on Liberty; defendant was eastbound on Adams; the collision occurred in the southeast quadrant of the intersection.

Plaintiff Hasty testified that she did stop at the intersection, did look in both directions, but did not see defendant’s automobile until the collision.

Defendant testified that she had turned onto Adams only one short block west of Liberty and was proceeding at about 20 miles per hour when the collision occurred. She stated that she did not see plaintiffs' vehicle until it was in the intersection, at which time she braked and turned to the south in an effort to avoid the collision.

A police officer of the city of Rushvifle testified that he arrived immediately following the collision and that there was nothing to obstruct the view to the west of one stopped at the northbound stop sign on Liberty.

As we have previously indicated, the jury returned verdicts in favor of the defendant both on plaintiffs’ complaint and on defendant’s counterclaim for property damage. We find no basis upon which to interfere with those findings. The inference to be drawn from the evidence is that plaintiff Hasty grossly misjudged the approach of defendant’s car, or, alternatively, entirely failed to see it.

The applicable rule of the road appears at section 11—904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11— 904(b)). That section requires that a motorist obey a stop sign, after which the driver must yield the right of way to any vehicle approaching the intersection close enough to constitute an immediate hazard. Whether a driver is negligent in entering a controlled intersection on a nonpreferential road is singularly a question of fact, since there are no precise standards, and the issue involves considerations of the relevant speed and distances of vehicles. (Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 380 N.E.2d 407.) The jury’s findings on such issues are not against the manifest weight of the evidence unless a contrary conclusion is clearly evident. Harris v. Day (1983), 115 Ill. App. 3d 762, 451 N.E.2d 262.

As in all such cases, there were conflicts in the evidence and questions of credibility of witnesses to be assessed. These are functions of the jury. In the same manner, the jury must judge defendant’s comparative negligence when acting upon her counterclaim. A motorist on a preferential road does not possess an absolute right under all circumstances, but he does have the right to expect that vehicles on the nonpreferential road will obey the stop sign and yield the right of way. (Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 380 N.E.2d 407.) The jury’s finding in this regard cannot be said to be against the manifest weight of the evidence.

The judgment of the circuit court of Schuyler County is affirmed.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE DAVIS, Defendant-Appellant.
    Fourth District
    No. 4—84—0413
    Opinion filed February 7, 1985.
    Daniel D. Yuhas and Deborah L. Rose, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his convictions upon jury verdicts of attempted robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8—4(a)) and criminal damage to property (Ill. Rev. Stat. 1983, ch. 38, par. 21—1(a)), and from the respective concurrent sentences of three years and 364 days.

Upon appeal, defendant argues that the trial court erred in failing to instruct the jury sua sponte upon the elements of the offense of robbery, and in admitting into evidence the entire prior statement of the prosecuting witness after the latter had been impeached in cross-examination.

The course of events in evidence is bizarre, if not slapstick. Pokora, the complaining witness, testified that he was working at a small grocery store of which he is part-owner when a black male entered the store about 4:45 p.m. At that time there were three other persons in the store. When these customers left, the black male went to the cooler and took a quart of orange juice and walked to the meat counter where Pokora was working. The latter stated that he told the black male that he would check him out at the end of the counter. That statement was repeated when the black male ignored the statement. Pokora, who had placed a gun in his belt, moved to the opening in the meat counter and blocked the passage with a ladder, upon which he placed a case of quart bottles of beer.

Pokora stated that the black male attempted to come behind the counter, ripped open the case of beer and grabbed one of the bottles by the neck. Pokora testified that as that individual started to come towards him, he asked what the man wanted and the black male responded, “You know what I want.” Pokora in turn stated, “Yes, I know what you want” and told the man to get out. As he walked towards the front of the store, the black male turned and threw the bottle of beer toward Pokora and then picked up jars of food which he hurled at the latter. Pokora then fired a charge of BB’s into a display of paper products where the man was standing. The gun was otherwise loaded with live bullets. The black male fled out the front door. Pokora called the police, but before he finished the call, the man returned to the store through the front door, and Pokora fired a shot in the door frame.

Pokora testified that the man then went around to the back of the store, broke the glass in the back door, unlatched the hook lock and entered the store. Crouching low, he approached the cash register and reached for the knob on the side of the register which would open the drawer. Pokora then fired another shot and the black male fled through the back door and ran down the street.

Evidence technicians testified that no fingerprints capable of comparison were found on the jars, bottles or cash register knob but that defendant’s fingerprints were found on the flap of the case of beer.

Defendant argues that he was denied a fair trial because the jury was not instructed on the elements of the offense of robbery. Upon this record, the issue is available only if the omission is found to be plain error. The following instructions tendered by the State were given without objection and without preservation in the record by post-trial motion.

“A person commits the offense of attempt when he, with intent to commit the offense of Robbery, does any act which constitutes a substantial step toward the commission of the offense of Robbery.
The offense attempted need not have been committed.
To sustain the charge of attempt, the State must prove the following propositions:
FIRST: That the defendant performed an act which constituted a substantial step toward the commission of the offense of Robbery; and
SECOND: That the defendant did so with intent to commit the offense of Robbery.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Under the general rule, failure to object at trial to an error in jury instructions waives the issue on appeal. (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513; People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) However, the waiver rule does not bar review of substantial defects in instructions if the interests of justice require. People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; 87 Ill. 2d R. 451(c).

There is an exception to the general rule:

“The interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. (People v. Roberts (1979), 75 Ill. 2d 1, 15; People v. Parks (1976), 65 Ill. 2d 132, 137.) Fundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. (People v. Roberts (1979), 75 Ill. 2d 1, 13.) The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. (People v. Jenkins (1977), 69 Ill. 2d 61, 66-67; People v. Davis (1966), 74 Ill. App. 2d 450; People v. Lewis (1969), 112 Ill. App. 2d 1.) It is of the essence of a fair trial that ‘the jury not be permitted to deliberate a defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime.’ People v. Lewis (1969), 112 Ill. App. 2d 1, 11.” People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864.

In People v. Davis (1966), 74 Ill. App. 2d 450, 221 N.E.2d 63, the defendant was charged with attempted robbery. The jury was instructed as to the issues in the offense of attempt, but was not instructed as to the elements of the offense of robbery. The instruction concerning attempt did not mention the offense of robbery, but only referred to the offense attempted as the “specific offense.” Finding that the instructions provided no guidance to the jury in determining the specific offense attempted, as well as whether the defendant had taken a substantial step in its commission, the court reversed the defendant’s conviction, holding that an instruction defining or setting forth the elements of the offense is “so vital to the veriest function of a jury that it must be the court’s responsibility to make sure that such a one is given, directing its preparation, if necessary.” 74 Ill. App. 2d 450, 454, 221 N.E.2d 63, 66.

The Committee Notes to the Illinois Pattern Jury Instructions (IPI) defining the offense of attempt provide that the court must also give an instruction that defines the offense alleged to have been attempted. IPI Criminal No. 6.05 (2d ed. 1981).

IPI Criminal 2d No. 14.03, defining the offense of robbery, provides:

“A person commits the offense of robbery when he takes property from the person or the presence of another by the use of force or by threatening the imminent use of force.”

Upon the facts before us, the attempted robbery by defendant is largely to be inferred from conduct which, in part, could be deemed threatening and an alleged statement which was less than specific as to robbery. The testimony, as to the defendant’s third entry to sneak up to the cash register, had some aspects of theft rather than the use of force. Where the failure to instruct concerns “a disputed issue essential to the determination of defendant’s guilt or innocence,” fundamental fairness requires that the conviction be reversed. (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) On the other hand, the testimony concerning the throwing of bottles and cans is so closely intertwined with mutual combat and with the use of the weapon by Pokora that it is a question of fact as to whether defendant planned the use of force to obtain money from the presence or person of Pokora. Upon the sum of the record, it is apparent that contrary conclusions of fact might be drawn by the jury if the elements of robbery had been defined.

Where the failure to instruct concerns “a disputed issue essential to the determination of defendant’s guilt or innocence,” fundamental fairness requires that the conviction be reversed (People v. Ogunsola (1981), 87 Ill. 2d 216, 223, 429 N.E.2d 861, 865), and we conclude that the trial court erred in failing to require the instruction of the jury as to the definition of the offense of robbery.

Upon the second issue appealed, defendant argues reversible error by reason of prejudice, when the court permitted a prior statement of Pokora’s to be read to the jury in its entirety. The prosecution argues that the reading of the entire statement was necessary to explain apparent inconsistencies between Pokora’s testimony and the statement as developed on cross-examination.

At trial, Pokora testified that after the black male ripped open the case of beer and grabbed a bottle by the neck, he asked him, “What do you want?” Pokora stated that the black male responded, “You know what I want.” Pokora answered, “Yes, I know what you want.” On cross-examination, Pokora stated that the above remark by the black male was included in the written statement; however, Pokora admitted that it did not contain the statement allegedly made by the black male that “You know what I want,” and agreed that other than the statement “You know what I want,” nothing said by defendant indicated a robbery.

On redirect examination, the State offered the written statement into evidence in order to explain the inconsistency in Pokora’s testimony. Davis’ objection on the ground of improper foundation was overruled by the court, and the statement was admitted.

The State then requested leave to publish the statement to the jury. Davis objected and, initially, the trial court sustained the objection. The court then inquired as to the purpose of the publication, and the State explained that it was to explain the inconsistency alleged by Davis. The trial court changed its ruling and allowed the statement to be read to the jury.

The pertinent part of the statement is, as follows:

“He then tore the beer case open and grabbed a bottle of it by the neck. I told him at this time T know what you want.’ ”

The rule here applicable was stated by the court in People v. McConnell (1977), 48 Ill. App. 3d 355, 363, 362 N.E.2d 1280, 1287, quoting Kenilworth Insurance Co. v. McDougal (1974), 20 Ill. App. 3d 615, 621, 313 N.E.2d 673, 678:

“Prior out-of-court statements consistent with direct testimony cannot be used to rehabilitate the direct testimony even after impeachment on cross-examination. [Citations.] However, to avoid unfairness it is permissible to explain or qualify the impeaching statement from the same document by showing that the impeaching statement was taken out of context or so isolated as to be misleading.”

In the present case, counsel for Davis impeached Pokora’s testimony by showing that the remark allegedly made by the black male was not contained in a statement given by Pokora after the incident. On redirect, the State sought to qualify the inconsistency by showing that part of the purported conversation, albeit not defendant’s remark, was contained within the prior statement.

For the purpose of rehabilitation upon the facts present here, it would be quite sufficient, at most, to permit reading the statement relating to the conversation. While it may be said that the contents of the statement describing the shooting and throwing of missiles are merely cumulative, the emphasis necessarily resulting from cumulative testimony may itself be prejudicial. For this reason, we conclude that the reading of the contents of the statement should be strictly limited to explaining or qualifying the alleged impeachment by showing the correct context of the entire conversation.

For the foregoing reason, the conviction upon the charge of criminal damage to property is affirmed, the conviction of the offense of attempted robbery is reversed, and the cause is remanded for farther proceedings upon the charge of attempted robbery not inconsistent with the views expressed herein.

Affirmed in part; reversed in part; remanded with directions.

GREEN, P.J., and McCULLOUGH, J., concur.