text:
    Albert Reich, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners, Defendant-Appellee.
    (No. 72-78;
    Second District —
    September 19, 1973.

      Howard Prestwich, of Freeport, for appellant.
    John G. Garrity, Corporation Counsel, of Freeport, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This appeal is taken from an administrative review proceeding wherein the circuit court confirmed the defendant-Board’s discharge of plaintiff from his position as a Freeport patrolman.

. Plaintiff had been employed by the police department for over one year when the Chief of Police entered a complaint against him. On March 25 and 26, 1971, there was a formal hearing on the second amended complaint charging plaintiff with five violations of the Freeport Municipal Code; he was found guilty on four of the five charges.

A single valid finding is sufficient to constitute the basis for entering the order of dismissal. (DeGrazio v. Civil Service Com., 31 Ill.2d 482 (1964); Bagat v. Police Board of City of Chicago, 95 Ill.App.2d 45, 50 (1968); Moriarty v. Police Board of Chicago, 7 Ill.App.3d 978, 982 (1972).) We, therefore, consider the points raised on appeal only in their application to certain violations contained in the third charge. There, plaintiff was found in violation of sections 15 — 114—1, 15 — 125—6, 15 — 125—7 and 15 — 125—18 of Chapter 15 of the Freeport Municipal Code which sections specify the duty of an officer to know and enforce the criminal statutes, and provide that certain acts be subject to penalty: neglect of duty, violation of any criminal law, and the loss, spoiling, damage or wrongful disposal of City or Department property.

According to plaintiff’s testimony, an attempted marijuana purchase was set up under the direction of the department, such purchase to be made through plaintiffs informer. The purchase failed after certain members of the department talked about the plans to a friend of the anticipated seHer. Subsequently, plaintiff suppfied his own money and encouraged the informant to persist in attempting a purchase. A “brick” of marijuana was ultimately bought and dehvered to plaintiff but, feeling that the evidence would not hold up in court, that he would not be reimbursed for his cash outlay and that the department was not interested in the drug problem, plaintiff later gave the drug to the informant, suggesting it be returned to the seller for the money.

Plaintiffs multiple contentions will be grouped for the purpose of this appeal.

The findings of the Board were conclusionary, the findings were against the manifest weight of the evidence, and discharge was an inappropriate penalty;

Plaintiff was found to have violated a criminal statute which has since been held unconstitutional;

The Board based its decision upon secret evidence and arguments outside plaintiffs presence, was prejudiced and biased against plaintiff, and erred in failing to grant subpoenas;

The circuit court erred in refusing to strike defendant’s answer.

A review of plaintiffs own testimony reveals that, without department knowledge or authority, he was in possession of marijuana, that he did not bring the matter to the attention of the appropriate officer or turn the evidence in to the department, and that he subsequenly had the “evidence” returned to the seller. Were we to determine that plaintiffs possession of the marijuana occurred within the scope of his duties, he would then have been in violation of the Code in returning the contraband to the seller. Conversely, were we to view such possession as being outside the scope of his duties, he would there be in violation of the criminal law. Under either finding, plaintiff was guilty of violating the Code and the Board’s determination in this regard was not against the manifest weight of the evidence.

The findings stated that plaintiff had been found “guilty as charged.” Within the amended charges, the factual background for each of the accusations was set forth. While the requirements for administrative findings are more exacting than those relating to the findings of trial courts (Maywood Trotting Ass’n v. Racing Com., 15 Ill.2d 559, 563 (1959)), we consider the findings herein to include, by reference, the specificities of the charges and hold these to be of such clarity as to negate plaintiffs allegation that the findings were conclusionary.

Under the provisions of section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, sec. 10 — 2.1—17), a police officer may be discharged for cause. Plaintiffs violation of the Code and his disregard for departmental procedures was sufficient cause for the Board to appropriately discharge him from the force.

Plaintiff does not directly attack the constitutionality of that portion of the Code charging him with, the violation which we here consider, namely, section 15 — 125—7, “* * * violation of any criminal law * * Rather, he directs his argument to the Code’s underlying criminal statute (Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 3) which was held unconstitutional in People v. McCabe, 49 Ill.2d 338 (1971). There is no question that, at the time of the occurrence, possession of marijuana was prohibited by an existing statute. To disclaim any violation because that statute was subsequently found unconstitutional would require that a police officer personally prejudge the validity or constitutionality of each criminal statute before proceeding to enforce it. Such practice would totally disrupt law enforcement and police discipline.

• 5 Prior to being held unconstitutional, a statute is an operative fact with consequences, (or potential consequences) which cannot be ignored. (Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, (1940); Gosa v. Mayden, 450 F.2d 753 (5th Cir. 1971), affd, - U.S. -, 93 S.Ct. 2926, 37 L.Ed2d 873 (1973).) Retroactive application of unconstitutionality must be limitedly applied. At the time of the charge herein, it was plaintiffs duty as a police officer to enforce the statute, it then being an operative fact.

During the formal hearing, plaintiff, by way of an offer of proof, submitted his affidavit which provided a narrative on the January 7th informal proceedings. He stated that at about 10:00 P.M. on that date, while on duty, he was ordered to report to a business address. Arriving, he found two Board members and the Chief of Police already present. A large file was on a desk. One Board member commented that he had “heard a lot of bad things about” Reich. Plaintiff “assumed that the three * <* * had been discussing” him and his performance. During the one-half hour meeting, the Board members repeatedly advised him to resign. He was not permitted to look at the file, the Board declined to explain the nature of the “bad things” heard, and Reich was not advised of the specific charges against him.

Discipline procedures under the Code (sec. 15 — 127 et seq.) provide that, upon receipt of a complaint, the Commission shall tentatively determine the appropriate penalty and may call the accused member before it, inform him of the complaint and advise that he may waive hearing, plead guilty and accept the proposed penalty. Should he not plead guilty, the matter shall proceed, without prejudice, to a formal hearing and, toward that end, the Commission shall direct that corporation counsel prepare formal written charges, a copy of which shall be served upon the accused. In formal hearing, the accused shall have the right to be present with counsel, to cross-examine witnesses and present evidence.

Plaintiff alleges that the Board heard secret evidence outside his presence, referring first to the occasion of the January 7th meeting. There, he contends, the Chief imparted information to the Board members prior to Reich’s arrival. Such action is specifically allowed under the Code provisions for preliminary hearings and is permissible for the purpose of determining probable cause. Seneca v. Board of Fire & Police Comm’rs, 71 Ill.App.2d 219, 228-229 (1966).

Plaintiff aEudes to secret, aside meetings and whispered conferences, but has faffed to show that any extraneous evidence the Board may have at any time heard affected its decision. Evidence introduced during the formal hearing substantiaEy proved the validity of the charge brought against plaintiff and, under these circumstances, reversal is not required. Rizzo v. Board of Fire & Police Comm’rs, 131 Ill.App.2d 229, 236 (1970).

It is contended that the Board predetermined plaintiff’s case, that it exhibited bias and hostility against plaintiff and his attorney, and that, upon plaintiff’s motion, it should have resigned. Largely, this argument is also based upon the January 7th meeting. We have already established that that meeting was a preliminary proceeding permitted under the Code and that, as part of that proceeding, the Board was to reach a preliminary determination as to the proposed penalty and offer the accused the opportunity to resign. No conclusion of bias or prejudice can be drawn from the Board’s adherence to the procedures required by the Code.

Plaintiff’s allegations are conclusionary and unsubstantiated; the record reveals no merit to his assertions. We cannot conclude that the Board should have resigned.

• 9 Plaintiff complains that the Board denied his motion for subpoenas which requested, in part, that the department be required to produce his duty reports, his service file and the file viewed by the Board during the January 7th meeting. The Board stated that it would rule on the relevancy of these documents during the course of the hearing and there held them irrelevant. He contends that the Board erred by refusing to issue the subpoenas, by imposing a precondition of a showing of materiality before ordering production of the documents, and by ruling them irrelevant, arguing that the documents sought would have shown his diligence while on the force, how he gained knowledge of the drug traffic in Freeport, and that there was no action by his superiors on several of his offense reports. There is no contention that the documents would have refuted the evidence on the charges against him.

The statute provides that, “the board shaE have power to secure by its subpoena 005 the production of books and papers relevant to the hearing.” (IE. Rev. Stat. 1969, ch. 24, sec. 10 — 2.1—17.) Since plaintiff established no relevancy, it was not. error for the Board to deny die subpoenas.

In arguing that the trial court should have granted his motion to strike defendant’s answer, plaintiff first contends that defendant’s answer was defective because a copy of the transcript of proceedings (filed with the circuit court) was not served on him. He cites no case to substantiate this position. The section of the Administrative Review Act relative to pleadings provides that, “* * 9 the * * ° agency shall file an answer which shall consist of the original or a certified copy of the entire record of proceedings under review * * (Ill. Rev. Stat. 1969, ch. 110, see. 272(b).) Our construction of that statute indicates that the agency, as an answer, need only file the record with the court clerk.

Plaintiff also contends that the record was incomplete because it did not contain all proceedings held before the Board. In this respect, plaintiff again refers to the fact that there is no report of the informal meeting of January 7. It is clear, however, that no transcript was made of those proceedings. At the formal hearing, the chairman of the Board gave a statement as to what had transpired during that meeting. Plaintiff’s affidavit concerning those events was also included in the record. We do not consider the record incomplete merely because a transcript of those preliminary proceedings is not included.

The record sustains plaintiff’s guilt of the violations set forth herein and reveals no error having occurred in the course of such determination. We affirm the decision of the circuit court confirming the order of discharge.

Order affirmed.

GUILD, P. J., and SWANSON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SCOTT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Skipper Merle Ahlberg, Defendant-Appellant.
    (No. 71-126;
    Third District —
    September 24, 1973.
    James Geis, Deputy Defender, of Ottawa, (Steve Hurley, Assistant Appellate Defender, of counsel,) for appellant.
    Jay H. Jannssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

After trial by jury in the circuit court of Tazewell County, Skipper Merle Ahlberg, the defendant, was found guilty of voluntary manslaughter and he was thereafter sentenced to a term of not less than 16 nor more than 20 years in the penitentiary.

The defendant’s conviction and incarceration stems from a series of events which commenced on Friday evening, October 16, 1970. On the evening of this date the defendant, being a teacher and coach in the Mackinaw school system, made arrangements to meet his wife Jan at the school’s annual homecoming football game. Jan failed to keep this appointment and after the game the defendant returned to his home. The defendant’s wife and the two minor children of their marriage never returned home on this particular night. Sometime between 2:00 A.M. and 3:00 A.M. on October 17th the defendant discovered the clothes closets in the home had been almost entirely emptied.

The defendant’s testimony is that he almost continuously looked for his wife and children when they remained absent from the home. On Monday morning at approximately 8:00 A.M. the defendant called his wife’s place of employment, the General Electric Plant in Bloomington. At this time the defendant talked to her, but she refused to tell him where she and the children were staying but instead informed him to get an attorney since she had filed for a divorce.

At 4:00 A.M. on Wednesday, October 21, the defendant received a call from his wife. At this time they talked for approximately an hour and a half. The bulk of the conversation consisted of defendant’s efforts in trying to persuade his wife to return home; however, she advised him that he was to be in her attorney’s office in Eureka at 9:15 A.M. for a consultation.

The defendant met with his wife and her attorney at the appointed time and consented to a separation agreement. After this meeting he drove his family to Mackinaw, left the children with a baby sitter and then took his wife to her place of employment. The same evening at approximately 5:15 or 5:30 P.M. the defendant called at his wife’s place of employment to take her home but was informed that she had already gone home because of illness. The defendant returned to Mackinaw, went to a store accompanied by his children and then went to his home. On arriving there he found present his wife and a friend, Gerald Sweckard. Upon the defendant attempting to use the telephone an argument ensued and he was informed by his wife that her permission was needed if he was to use the phone. Other remarks were made by the defendant’s wife which he testified as “weren’t very nice” and the friend Sweckard then departed.

The defendant testified that his wife informed him that she was tired of being the nice school teacher’s wife and that she was unhappy living in Mackinaw. Also he testified that he was informed by his wife that he had never satisfied her sexually and that she had found an older man who could love her and the two children more than he could and that she was going to get a divorce. The defendant’s testimony is that from this point of time until he was later found driving on a country road he has no recollection of his actions.

Testimony from neighbors of the defendant establish the fact that he dragged his wife from their home, beat, kicked and stomped her causing injuries from which she later died.

The defendant was indicted for the crime of murder but as we have previously stated was found guilty of the crime of voluntary manslaughter and in this appeal he raises as his first issue that the evidence in the record does not support a conviction for voluntary manslaughter beyond a reasonable doubt.

It is the defendant’s position that the evidence adduced during the course of his trial indicates that he was either gmlty of murder or he was not guilty by reason of insanity since evidence of the type of provocation necessary to support a voluntary manslaughter conviction is not present.

Section 9 — 2 of the Illinois Criminal Code of 1961 (IU. Rev. Stat. 1969, ch. 38, par. 9 — 2) specifically sets forth the elements of the crime of voluntary manslaughter. The pertinent part of this statute provides:

“9 — 2(a). A person who kiUs an individual without lawful justification commits voluntary manslaughter if at the time of the kiHing he is acting under a sudden and intense passion resulting from serious provocation by
(1) The individual tilled * * *
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Emphasis supplied.)

There is ample evidence in the record to support a finding that the defendant was acting under a sudden and intense passion when he committed the acts which caused the death of his wife. The defendant, however, contends that such passion did not result from the type of provocation on the part of the victim which is necessary to sustain a verdict that he is guilty of the crime of voluntary manslaughter. In substance the defendant argues that words alone from a victim will not constitute the provocation necessary to support the crime of which he was convicted. It is the defendant’s view that physical contact between the defendant and his wife, or threats by the wife to the defendant have to be present in the evidence in order to sustain his conviction for voluntary manslaughter.

Our reviewing courts have in many cases established the proposition that mere words are insufficient provocation within the meaning of that term as an element of voluntary manslaughter. (See People v. Thompson, 11 Ill.App.3d 752, 297 N.E.2d 592; People v. Lowe, 122 Ill. App.2d 197, 258 N.E.2d 370; People v. Pecora, 107 Ill.App.2d 283, 246 N.E.2d 865.) In the cited case of Thompson the defendant was indicted for the murder of his wife, however, the trial judge sitting without a jury found him gmlty of voluntary manslaughter. In reversing this con-victim, the reviewing court need not have been concerned with the question of what constituted provocation since it is set forth in the court’s opinion that there was no argument between the defendant and his wife, the victim, and the opinion further stated, “There is nothing in the record to indicate that defendant was acting under a ‘sudden and intense passion resulting from serious provocation’.” In Thompson the record is barren of any evidence of any conduct of any kind or nature on the part of the deceased that could be imputed to have caused provocation.

In the cases of Lowe and Pécora which we cite, we find the situation existing where one convicted of murder is seeking to have the conviction reduced to the crime of voluntary manslaughter. In these cases the reviewing courts adhered to the well established rule that “mere words” can never be sufficient to support voluntary manslaughter.

In the instant case we have a defendant who was charged with murder but found guilty of voluntary manslaughter. Unlike the factual situation in Thompson, the defendant by his own testimony stated that his wife informed him that he had never satisfied her sexuaHy, that she had found an older man who could love her and that she was going to get a divorce. It is further the defendant’s testimony that after hearing these remarks he did not remember anything until he later found himself driving on a country road, however, in the interim in the presence of witnesses he dragged his resisting wife from their home and kfiled her by beating, stomping and kicking her.

We are inclined to befieve that had the defendant been convicted of murder he would now be before us asking that his crime be reduced to voluntary manslaughter. Having escaped a gmlty of murder conviction he now asks that we set aside a voluntary manslaughter conviction even though by his own testimony the words of his wife were such as to cause him to lose aH control of himself including his memory. To grant the request of the defendant would make a mockery of the law. Set rules, formulas and standards are strongly embedded in our legal system but no more so than logic and common sense. To follow unequivocally the rule that “mere words are insufficient to cause the provocation necessary to support a finding of guilt of voluntary manslaughter would be in keeping with precedent and an estabHshed rule; however, it would be a direct refutation of logic and a miscarriage of justice. We reach this conclusion for it is not incumbent on us to determine what could or did provoke the defendant into a state of intense passion, for by his testimony he made such determination. It was the cumulative effect of his wife’s absence, his fruitless searching for her whereabouts, her retention of counsel for the purpose of obtaining a divorce, and her slurring remarks as to his masculinity and the announcement that she had found another man. This conduct commencing on a Friday evening and ending on the following Wednesday evening created such a state of provocation that the defendant in a frenzied state of passion killed her.

The defendant in his brief filed with this court argues that he should have been found guilty of murder or not guilty of murder by reason of insanity. Should we accept this statement of the defendant then we are compelled to quote from the case of People v. Young, 11 Ill.App.3d 609, 297 N.E.2d 298, wherein the court stated: “The defendant may not complain of a finding of guilty of manslaughter where the evidence shows that he could have been found guilty of murder.”

The defendant further contends that error was committed by allowing the jury to consider and return a voluntary manslaughter conviction. In light of our holding that the defendant did commit the crime of voluntary manslaughter, we cannot agree with this contention. In addition we find that the defendant waived any claimed error as to a manslaughter verdict instruction by not objecting at the time of the conference on instructions and further by not assigning the giving of such an instruction as error in his post trial motion. See People v. Minor, 20 Ill.2d 496, 170 N.E.2d 555; People v. Stevens, 11 Ill.2d 21, 141 N.E.2d 33; People v. Neukom, 16 Ill.2d 340, 158 N.E.2d 53; People v. Riggins, 13 Ill.2d 134, 148 N.E.2d 450.

Lastly the defendant claims that the sentence imposed was excessive and disproportionate to the offense, considering the defendant’s background, character, and the jury’s recommendation for leniency. While this appeal was pending our legislature enacted the Unified Code of Corrections. The sentencing provisions of the new code have been held to be applicable to cases pending on appeal. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Kovacovich, 10 Ill.App.3d 797, 295 N.E. 2d 33; People v. Sanchez, 11 Ill.App.3d 1079, 297 N.E.2d 230.

Under the Code, voluntary manslaughter has been classified as a class 2 felony and provides that the maximum term of imprisonment be twenty years and the minimum term of imprisonment be one year. The Code sets forth the following provision which is applicable to the instant case:

“1005 — 8-—1(c)(3): for a class 2 felony the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court; * * (in. Rev. Stat., 1972 Supp., ch. 38, par. 1005— 8 — 1(c)(3).)

FoUowing the three to one ratio of sentencing as required by the code we hereby modify the sentence imposed by the trial court so that defendant’s term of imprisonment shall be not less than six years and eight months nor more than twenty years.

We do not agree with the defendant’s contention that his minimum sentence should be reduced to one year. Considering the circumstances of the offense we find an athletic individual weighing in excess of two hundred pounds slaying his wife, who was a slight woman weighing less than one hundred pounds. It is difficult to conceive of a more brutal crime than that committed by the defendant. We are aware of the jury’s recommendation of leniency and by reducing the defendant’s sentence in accordance with the dictates of the sentencing provisions of the Unified Code of Corrections which we are compelled to follow we believe that he has been afforded that leniency.

For the reasons set forth the judgment of conviction and the sentence of the circuit court of Tazewell County as modified are affirmed.

Affirmed as modified.

STOUDER, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Giovana Guerrieri, a/k/a Gennie Guerrieri, a/k/a Jennie Guerrieri, Plaintiff-Appellant, v. Esther Guerrieri, Admr. of the Estate of Sisto Guerrieri, Deceased, et al., Defendants-Appellees.
    (No. 73-73;
    Third District —
    September 24, 1973.

      J. Paul Aplington, of La Salle, for appellant.
    L. E. Ellison, of Sterling, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Whiteside County denying the request of plaintiff in an action to set aside two deeds which were executed by plaintiff, Giovana Guerrieri and conveyed certain real estate to her deceased son, Sisto Guerrieri. The action was based upon a theory that a constructive trust arose by reason of the abuse of a confidential relationship between the deceased Sisto Guerrieri, the son, and Giovana Guerrieri, the mother, who is plaintiff in this action. The widow of Sisto Guerrieri, his children, and the administrator of his estate were named as defendants in the action. At the close of the evidence for plaintiff, a motion of defendants for judgment was allowed by the trial court. The fundamental issue which is presented on appeal in this court is whether the evidence presented by plaintiff was sufficient to prove the existence of the requisite confidential relationship between plaintiff and her son at the time the two deeds were executed, so as to require setting aside such deeds.

The premises conveyed by the two deeds are located in Rock Falls, Illinois, and are referred to generally as No. 609 Avenue A and 701 Avenue A. These properties had a value of $9,000 and $8,000 respectively. Plaintiff Giovana Guerrieri, at all times pertinent to our consideration, has resided at 609 Avenue A, and the house at 701 Avenue A has been rented with the current monthly rental being $80. From the record it is noted that on February 12,1966, a second son of plaintiff, Linto Guerrieri, died and shortly thereafter, Sisto moved to Rock Falls from Cherry, Illinois, for the purpose of assisting Linto’s widow in the operation of a tavern which had been owned by Linto. Whether Sisto was married at that time and had a family does not appear from the record, but it is noted that Sisto had lived with the plaintiff for about three years after coming to Rock Falls.

On August 31, 1966, plaintiff, Giovana, executed and delivered the two deeds conveying the properties to Sisto. Thereafter plaintiff continued to live at 609 Avenue A without payment of rent, and also continued to collect the rentals from 701 Avenue A. Until the time of his death on January 12, 1971, Sisto paid the taxes, insurance and repairs on both properties. After his death the same practices continued. Plaintiff continued to live in 609 Avenue A rent free and collected the rentals on 701 Avenue A and the administrator of Sisto’s estate, his widow, continued to pay the taxes, for insurance and for repairs on the property. On September 21, 1971, the complaint of plaintiff to set aside the two deeds was filed. The basic question before us, as noted, is whether under the evidence presented in this case the property conveyed to Sisto should be deemed to be held under a constructive trust and that the deeds be declared void.

The law relating to constructive trusts of the character which we have under consideration in the cause before us has been firmly established by many cases in this state. Klass v. Hallas, 16 Ill.2d 161, 157 N.E.2d 261, and Kester v. Crilly, 405 Ill. 425, are typical of such cases. The indispensable requirement, relating to both substance and procedure, is the existence of a confidential relationship, and, a showing that such relationship exists in all instances where one reposes trust and confidence in another or thereby gains a resulting influence or superiority over the first. As stated, however, in Kester v. Crilly, 405 Ill. 425, at page 432:

“The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit during the course of the relationship and affords a basis for fastening a constructive trust upon property so acquired. Where a confidential relation exists, the presumption obtains that the transaction complained of resulted from influence and superiority and the burden rests upon the grantee to show that it was fair, equitable and just and did not proceed from undue influence

It is noted, consequently, that where a confidential relationship does not exist as a matter of law, it must be proved by the party asserting it by cigar and convincing evidence before a basis is established for raising a constructive trust. (Apple v. Apple, 407 Ill. 464, 95 N.E.2d 334.) Therefore, considered from the standpoint of procedure required in proof of such cause, the party asserting a constructive trust must first prove the existence of a confidential relationship before the burden of proving the fairness of the transaction shifts to the party alleged to be dominant.

The mere relationship of parent and child does not create a confidential relationship as a matter of law. (Bodin v. Mattingly, 8 Ill.2d 487.) It may exist, however, if there is competent proof of the necessary trust and confidence of one in the other so as to endow one of them with superiority. (Klass v. Hallas, 16 Ill.2d 164.) Factors to be taken into consideration are disparity in age, health, mental condition, education and business experience, and the extent to which the allegedly servient party entrusts the handling of his business and financial affairs to the other and reposes faith and confidence in him. (Kester v. Crilly, 405 Ill. 425.) A conveyance from a parent to a child cannot be presumed to have resulted from fraud or undue influence from the fact of the relationship alone. McCrillis v. Utterback, 397 Ill. 550, 74 N.E.2d 682.

In the instant case, to sustain her burden of proving the existence of a confidential relationship, plaintiff introduced the testimony of two attorneys and of three persons familiar with plaintiff and her family. In substance, the extent of the testimony of the persons familiar with plaintiff and her family was that plaintiff was about 76 years old when the deeds were executed; that she was bom in Italy; that she spoke broken English and that she carried on her correspondence in Italian. The same witnesses, however, stated that they had no difficulty in understanding plaintiff or in conversing with her. One witness testified that plaintiff was in good physical health, except for her legs; that it was difficult for her to walk; that she could walk around her home with the assistance of a cane and by bracing herself on furniture; that she seldom left her house and then only if accompanied by someone who could assist her in walking. The length of time that plaintiff had suffered from such disability does not appear in the record. In response to direct questions, two of the witnesses responded that they did not know the extent to which Sisto had assisted plaintiff in her business affairs.

The two attorneys who testified were Charles W. Helmig and his sister, June, who were practicing law in Bureau, Illinois, in the year 1966. Their offices were in the second story of a building and the only access thereto was a flight of stairs described as “quite steep”. According to June’s testimony, Sisto came to see her sometime during 1966 to have her draft a will for his mother. When June stated she would prefer to talk directly with the plaintiff, Sisto explained that his mother lived a considerable distance away; that she had difficulty in getting around, and that he was prepared to brief the attorney as to tibe provisiops which his mother desired. June accepted this explanation and made notes but informed Sisto that plaintiff would be required to come to the office to execute the will. Thereafter, either June or her brother drafted the will and on a subsequent date Sisto drove plaintiff to Bureau in his automobile. To save plaintiff the problem-of climbing the office stairs, June took the will down to the car, and it was her testimony that plaintiff’s first words were, “I sign, I sign.” Before permitting execution, however, the attorney stated that she read the will to plaintiff and explained its terms and satisfied herself that plaintiff understood and desired the dispositions which were made in the will.

One of the attorneys also testified to an acquaintance with Sisto prior to the transaction involving the will; that on several occasions “around” 1966, both before and after the deceased brother Linto’s death, conferences were had with Sisto about the development of some land near Sterling which was owned by his “family”. The conferences were described as “an awful lot of talk, very little actual dealing with property”, and that apparently Sisto’s mother owned some of the property which was being discussed.

Charles W. Helmig testified that he was practicing law in Bureau with his sister in 1966; that he took the acknowledgment of the plaintiff on the two deeds involved in the present litigation; that he believed the deeds were executed at the same time as the will, or near thereto; and that he could remember little of the circumstances surrounding the execution of the deeds, although he recalled that he had to go down from his office to an automobile to take the acknowledgments. Sisto was described as being Mr. Helmig’s friend, and, also, a friend of Helmig’s sister. Helmig stated that he had been contacted by Sisto also about another matter in May of 1966. On this occasion, he stated that Sisto had several blank deed forms which the deceased brother Linto had signed prior to his death. Sisto requested that the deeds be filled in and the acknowledgments completed, so as to effect a conveyance of the properties the deceased brother Linto had owned at the time of his death. Attorney Helmig stated that he explained to Sisto that what he requested could not be done legally, and that Sisto was quite perplexed. When asked on cross-examination if Sisto had a purpose of cheating or defrauding anyone, Attorney Helmig replied: “No, I don’t think the thought ever crossed his mind.”

In describing his conversation with Sisto on the occasion just referred to, Helmig stated that he and Sisto discussed the ownership of real estate at great length; that Sisto said the land individually owned by himself, brother Linto, and their mother, was more or less considered as being in a pool; that this was the way business was done in the family; that he was acting for his brother’s estate, for his mother and himself; that he was worried about his sister-in-law and his niece; that he wanted to do what was best for them; and that he thought the best thing was to hold ah the real estate in one name because he expected some commercial development in the area and believed a greater profit could be realized from a sale if there was but one title holder.

The trial court, after considering all of the evidence presented in the cause by plaintiff, specifically inquired if there was any supplementary evidence of any kind which plaintiff could present to establish the existence of a confidential relationship between the plaintiff and Sisto. There was some discussion about the fact that the mother had made a conveyance to Linto’s widow of other property. The trial cotut declared to counsel that there was no testimony which indicated in any way that there was the required confidential relationship or fiduciary relationship connected with the deeds to Sisto, nor was there any suggestion of undue influence connected with the two deeds. The court then stated that there was insufficient evidence to establish a basis for setting aside the deeds which were given to her son by the plaintiff in this case. The court indicated that there might be some basis to establish that the property was in some sort of trust for the benefit of the plaintiff. (Although not stated expressly, the trial court apparently was referring to a possible reservation of a life use of the property with right to receive income therefrom by plaintiff.) The court specifically stated that if there was no additional evidence to show definite undue influence on the part of plaintiff by her son Sisto, there would be no basis for setting aside the deeds in the case. The court then granted the motion for judgment in favor of defendants, orally expressing the conclusion that this was without prejudice to establish some sort of beneficial relationship for plaintiff short of requiring that the deeds be declared void.

We do not feel that it would be proper, on the basis of the record before us, to set aside the determination of the trial court in this cause. The trial court found from the evidence that there was no unmistakable or convincing evidence to establish the existence of a confidential relationship between Sisto and plaintiff at the time the deeds were executed. (Cf. Apple v. Apple, 407 Ill. 464, 95 N.E.2d 334.) While the disparity in ages and the condition of health may have existed, there is no evidence which shows disparity in mental condition, education and business experience. So far as the record is concerned, the plaintiff may have possessed a business acumen greater than, or on a par with, her son.

The trial court apparently found that the record did not show suffident proof to warrant the conclusion that plaintiff customarily entrusted the handling of her business and financial affairs to her son, Sisto. Considering plaintiffs physical handicap and Sisto’s friendship with the attorneys, the court could have seen no great significance, measured in terms of reposing of trust and confidence, in the circumstance that it was Sisto who briefed the attorneys as to the provisions of plaintiffs will. This would be particularly so considering that plaintiff must be deemed to have known she would be required to execute the will and could at that time have examined its contents. On the record we do not believe that the finding of the trial court was contrary to the manifest weight of the evidence in the action which sought to have the deeds set aside as being void. We, therefore, conclude that we are not justified, in the state of the record, in setting aside the judgment of the Circuit Court of Whiteside County in this cause.

The judgment of the Circuit Court of Whiteside County is, therefore, affirmed.

Judgment affirmed.

STOUDER and SCOTT, JJ., concur.


author: Mr. JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Grayson et al., Defendants-Appellants.
    (No. 55748;
    First District (1st Division) —
    June 11, 1973.

      Supplemental opinion filed August 9, 1973 upon denial of rehearing.

      James J. Doherty, Public Defender, of Chicago, (Nunzio D. Tisci and Shelvin Singer, Assistant Public Defenders, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Gerald Collins, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

On February 21, 1969, both defendants pleaded guilty to armed robbery before Judge Robert J. Collins and were placed on probation for five years. In June, 1970, both were indicted for the armed robbery of Thaddeus Lukas, which took place on April 9, 1970, and were found not guilty in a bench trial before Judge Louis B. Garippo. On a hearing before Judge Collins to revoke their probation, the court heard the same identifying witnesses that had testified before Judge Garippo, revoked their probation and sentenced each to a term of three to eight years in the penitentiary. It is the position of the defendants that the finding by Judge Garippo precluded the State from relitigating the question of the robbery of Thaddeus Lukas under the doctrine of collateral estoppel.

At the revocation hearing Thaddeus Lukas testified that he was in his law office at 8801 South Commercial Avenue on April 9, 1970, when two men, he identified as the defendants, came into his office at 2:30 P.M. and robbed him. Both men struck him with their fists, and Hall with a revolver. The following day he identified Hall in a line-up and two days later he identified Grayson in a line-up. His brother, Edward Lukas, testified that he heard his brother screaming; and when he ran into his brother’s office, he saw two men, he also identified as the defendants, beating his brother. He testified, contrary to his brother’s testimony, that he saw Grayson the next day and Hall two days later.

The defendants did not testify but submitted a partial report of the proceedings before Judge Garippo, which contained no testimony but only the colloquy between the judge and lawyers and the judge’s ruling. That record reflects that Judge Garippo, who had before him a motion to suppress identification, stated that the identification would not convince him beyond a reasonable doubt but that, since the liné-up was satisfactorily conducted, he would deny the motion. A jury was then waived, it was stipulated that the evidence heard on the motion to suppress would be the same at the trial, and the judge found both defendants not guilty. Although we cannot tell from the report of proceedings what evidence Judge Garippo heard, since both sides have proceeded in this court on the assumption that he heard the same evidence that Judge Collins did, we shall also proceed on that assumption.

Collateral estoppel, or estoppel by verdict, was defined in Hoffman v. Hoffman, 330 Ill. 413, 417, 161 N.E. 723, as follows:

“Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not.”

It has been described as a branch of the doctrine of res judicata. (ILP Estoppel, section 3, page 66.) In the annotation at 9 A.L.R. 3rd, page 203, the terms “res judicata” and “collateral estoppel” are used as though synonymous.

The identical question before us has been presented in a number of cases. In People v. Kuduk, 320 Ill.App. 610, 51 N.E.2d 997, one of the grounds assigned to revoke probation was driving while intoxicated. The probationer had been found not guilty of that offense. The court, in affirming the revocation of probation, relied primarily on the differences between the burden of proof in a criminal trial and a revocation hearing and rejected the argument that the acquittal at the trial was res judicata at the revocation hearing. Reviewing courts have consistently followed the Kuduk case. In People v. White, 98 Ill.App.2d 1, 4, 239 N.E.2d 854, the court said:

“[Ejvidence is admissible on the issue of a revocation of probation for the very simple reason that proof of facts justifying revocation of probation may be established only by the greater weight of the evidence whereas evidence sufficient to convict must be proved beyond a reasonable doubt. The insufficiency of the evidence to prove the latter does not establish the insufficiency of the evidence to prove the former. * * * Evidence insufficient to warrant his conviction beyond a reasonable doubt of a violation of the criminal law may very well be evidence sufficient to establish that he had in fact violated the criminal law and to undermine, if not entirely explode, the thought that a continuation on probation will affect rehabilitation outside the penitentiary rather than in it.”

The Kuduk case was cited in People v. Whittaker, 101 Ill.App.2d 432, 438, 243 N.E.2d 467, and the court rejected the same argument that is advanced here. Similarly, in People v. Sluder, 107 Ill.App.2d 177, 180, 246 N.E.2d 35, this court held, citing Kuduk, “[tjhat a probation revocation proceeding and a criminal proceeding are independent of one another and, accordingly, the result of one has no bearing on the other

ft ft ft »

All of the cases cited by the defendants are inapposite since each involves two separate criminal trials.

The judgment of the circuit court is affirmed.

Judgment affirmed.

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

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE EGAN delivered the opinion of the court:

In the petition for rehearing, the defendants contend that we “failed to appreciate that what was done below is prohibited by the Double Jeopardy Clause of the Fifth Amendment.” We refer to the case cited by the defendants in their original brief and in the petition for rehearing, Ashe v. Swenson, 397 U.S. 436. That case held, as the defendants originally argued, that collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. (See also People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756.) We wish to make it clear that, when we held that the State was not collaterally estopped, we were also holding that, therefore, there had been no violation of the defendants’ rights under the Fifth Amendment.

The defendants also contend, for the first time, that due process requires proof beyond a reasonable doubt at a revocation hearing and that, since the prosecution seldom proceeds with revocation proceedings after an acquittal, the defendants have been discriminately prosecuted and, therefore, denied equal protection of the laws. Since these arguments were not advanced in the original hearing, they are deemed waived. Supreme Court Rule 341(e)(7); Ill. Rev. Stat. 1971, ch. 110A, § 341(e)(7); Sobina v. Busby, 62 Ill.App.2d 1, 210 N.E.2d 769.

Moreover, in People v. Crowell, 53 Ill.2d 447, 450-451, the Illinois Supreme Court held that a violation of the conditions of probation need be proved only by a preponderance of the evidence. We further find no merit in the defendants’ contention that they were denied equal protection of the laws.

We adhere to our original opinion, and the defendants’ petition for rehearing is denied.

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


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Anton Dasenbrock et al., Plaintiffs-Appellees, v. Interstate Restaurant Corporation, Defendant—(Anthony F. Spina, Appellant.)
    (No. 73-53;
    Fifth District —
    July 13, 1973.

      Rehearing denied October 11,1973.

    Anthony F. Spina, of Elmwood Park, pro se.

    Frank H. Schniederjon, of Effingham, for appellees.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Appellant is the registered agent of defendant corporation. After judgment was rendered against the corporation, this supplemental proceeding to discover assets was instituted by plaintiffs. A citation to discover assets was issued by the Circuit Court of Effingham County, addressed to: “Registered Agent, Anthony F. Spina, for Interstate Restaurant Corp. 9 * * ” Appellant personally appeared and verbally objected to the hearing, and also presented a petition for costs incurred by him in traveling from Elmwood Park, Illinois to Effingham, Illinois. Both the verbal objection to the hearing and the petition for costs were denied by the trial court. We affirm.

There are two issues to be resolved on appeal. First, did the trial court err in denying this appellant’s verbal objection to the hearing? Second, did the trial court err in denying appellant’s petitioñ for costs for his trip from Elmwood Park, Illinois to Effingham, Illinois? There is no applicable case law dealing with facts similar to those presented in the instant case. However, a reading of the applicable statutes confirms the correctness of the trial judge’s rulings.

The following statutes dispose of appellant’s contentions. Illinois Revised Statutes, ch. 32, sec. 157.13, provides that: “The registered agent so appointed by a corporation” shall be an agent of such corporation upon whom any process, notice, or demand required or demanded by law to be served upon a corporation, may be served. Illinois Revised Statutes, ch. 110, sec. 13.3(1) provides that a corporation may be served through its registered agent or any officer of the corporation. Illinois Revised Statutes, ch. 110, sec. 73.1, authorizes a judgment creditor to prosecute supplementary proceedings to discover assets under procedures prescribed by rule. The rule is Supreme Court Rule 277, codified as Ill. Rev. Stat., ch. 110A, sec. 277. Rule 277(c)(3) states that the citation “shall require the party to whom it is directed, or if directed to a corporation or partnership, a designated officer or a partner thereof, to appear for examination 9 9 9 concerning the property or income or indebtedness due the judgment debtor 9 9 9 ” Rule 277(d) provides that “a supplemental proceeding against a judgment debtor may be commenced in the court in which the judgment was entered. Supplemental proceedings against a third party must 9 9 9 be commenced in a court of this state in which the party against whom it is brought resides 9 9

Under these statutes, service upon the appellant was proper. Appellant contends that the hearing should have been in the county of his residence on the theory that a registered agent is not a direct party to the hearing, but rather a “third party” within the meaning of Rule 277(d). We find no merit in this contention. The judgment debtor is the corporation, not the appellant. The proceeding was properly brought in the court in which judgment had been entered under Rule 277(d). The appellant as registered agent was properly served under both Ill. Rev. Stat., ch. 32, sec. 157.13 and Ill. Rev. Stat., ch. 110, sec. 13.3(1). In addition, the record shows that appellant was not only the registered agent but also the secretary of defendant corporation. As an officer of the corporation, appellant could be served under Rule 277(c) (3) if properly designated. However, the citation does not appear in the record on appeal, so this court is unable to determine whether appellant was properly designated as an officer in the citation, and we therefore do not base our holding on this section.

The petition for costs was also properly denied. Rule 277(i) permits a court to tax the costs of witness’s, stenographer’s and officer’s fees incurred by the person subpoenaed. This section is permissive rather than mandatory, and we find no abuse of discretion in the court’s denial of the petition. This is especially so in light of the fact that appellant failed to comply with the citation by failing to bring the books and records of the corporation to the hearing.

We have examined the other contentions of the appellant and find no merit in them. Accordingly, the judgment of the Circuit Court of Effing-ham County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE JONES

text:
    Delbert Waller, Plaintiff-Appellant, v. Board of Education of Century Community Unit School District No. 100, Defendant-Appellee.
    (No. 72-183;
    Fifth District —
    August 17, 1973.

      Rehearing denied October 10, 1973.

      Drach, Terrell and Deffenbaugh, of Springfield, for appellant.
    James W. Sanders, of Marion, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court;

This is an appeal by plaintiff-appellant, Delbert Waller, from a judgment of the Circuit Court of Pulaski County upholding the action of the defendant-appellee, Board of Education of Century Community School District No. 100 of Pulaski, Alexander, Massac and Johnson Counties, Illinois, hereafter referred to as the Board, dismissing him from his teaching appointment.

During the school year 1970-71 and for two or more years immediately preceding this year the appellant was superintendent of schools for Century Community Unit School District No. 100. On March 15, 1971, after a hearing, the Board relieved the appellant of his administrative duties effective June 30, 1971 and reassigned him as a teacher for the 1971-72 school year.

On August 21, 1971, prior to the assumption of classroom duties, the Board informed the appellant that he would be dismissed from employment as a teacher on November 2, 1971 and that pending a hearing he was suspended effective August 21, 1971. This decision was reached by the Board in a special meeting held on August 21. Following this notification the appellant requested and on September 2 received a bill of particulars. A hearing was held on October 2, 1971 following which the Board adopted a resolution dismissing the appellant effective November 2, 1971 and continuing his suspension until that date.

A complaint for administrative review was filed in the Circuit Court of Pulaski County, and on April 11, 1972 the court entered an order affirming the decision of the Board. Notice of appeal to this court was filed on April 18, 1972.

Appellant does not question the right of the Board to relieve him of his position as Superintendent and reassign him to a teaching position; and the Board does not question the status of the appellant as an employee having tenure within the terms of section 24 — 11 of the Teacher Tenure Law. Ill. Rev. Stat. 1973, ch. 122, sec. 24 — 11.

Though the Board’s letter of dismissal of August 21, 1971 does not state specifically which of the causes listed in section 10 — 22.4 of the Teacher Tenure Law is the basis for its action, the bill of particulars supplied to the appellant on September 2 indicates that it is based on that portion of the above section which states that the Board has power to dismiss: “* * * whenever, in its opinion, the interests of the schools require it, * *

Section 24 — 12 of the Teacher Tenure Law contains an important condition on the right of a board to dismiss. It provides that:

“Before service of notice of charges on account of causes that are considered remedial, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or causes for dismissal or removal is final unless reviewed as provided in Section 24 — 16 of this Act.”

Section 24 — 16 of the Teacher Tenure Law makes applicable the provisions of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, sec. 264 et seq.) to decisions of school boards.

When this court reviews any decision of a circuit court which has handed down an opinion under the Administrative Review Act it is confronted with two questions: (1) Does the record show that the steps and procedures required by law were taken, and (2) If so, is or is not the decision of the board or administrative agency against the manifest weight of the evidence? If, upon examination of the record regarding the first question, the court concludes that there were failures or omissions which substantially affect the rights of the party against whom the proceedings are taken, it has no choice but to reverse.

We consider the right of a teacher to be informed about causes that are remediable and to have an opportunity to correct such causes as extremely important and one that goes to the heart of the tenure system. We do not believe that a record which fails to show that- the board took proper cognizance of this provision is sufficient. In Hauswald v. Board of Education, 20 Ill.App.2d 49, 155 N.E.2d 319, the court said:

“The Tenure Law would have no value as a protection to teachers if Boards were free to dismiss teachers for ‘cause’ deemed by them to be irremediable and the decisions were insulated from judicial review.”

Since the law itself states that the Board’s decision is subject to review, it seems reasonable to conclude that the record should disclose the findings of the Board regarding remediabifity. In Miller v. Board of Education, 51 Ill.App.2d 20, 200 N.E.2d 838, tire court said:

“# e # there is no showing in the record that the Board made an express initial determination on the issue of remediability. It may be said that by not giving a warning notice the Board inferentially determined that the charged were irremediable. It would seem that the better practice would be for the Board to put itself on record before the hearing as to that question. * * * However, the determination of the Board in the first instance, assuming such determination was made, and its final decision on the hearing that the causes of dismissal are not remediable, are subject to review.”

In Donahoo v. Board of Education, 413 Ill. 422, 109 N.E.2d 787, the court said:

“A board would not so readily dismiss when its reasons therefor will be submitted to the bar of public opinion. Such a statement would give the teacher a chance to know his weaknesses and try to correct.”

After sympathizing with board of education because of time and energy their members must spend in the public interest the court nevertheless said:

“* * * proper minutes and records should be kept to the end that the persons who are carrying the tax load may make reference to such records and that future boards may be advised of the manner of disposition of questions which have arisen.”

In Werner v. Community Unit School Dist. No. 4, 40 Ill.App.2d 491, 190 N.E.2d 184, the court said:

“* * * we are of the opinion that the Board was well within its rights in determining in the first instance and until a final hearing that the causes were not remedial.
The evidence presented at the hearing before the Board must not only prove that the reasons and causes for discharge existed, but it must also be shown by competent substantial evidence that the reasons and causes were not remedial * * * ”

In the Werner case the court held that the evidence in the record fell far short of proving that causes and reasons set forth in the notice of dismissal were not remediable.

In view of these decisions and of our own thinking, we conclude that a record cannot be properly reviewed on appeal unless there is a showing that the Board made a determination regarding the remediability of causes and unless its reasons are expressed in such fashion that the reviewing court can pass judgment on them.

In the instant case we find nothing in the record showing that the Board ever considered the question of remediability. Four days after receiving the appellant’s ‘letter of protest,” the Board, without discussing with the appellant the contents of his letter, held a special meeting and issued its August 21 letter of dismissal. Appellant’s counsel states in his brief that at the time of the hearing he made a motion to dismiss for failure of the Board to give the appellant reasonable warning regarding remediable causes; and that the motion was disallowed. But this does not appear in the record of the Board’s proceedings. Counsel, in his argument for the appellee, expressed the opinion that the causes in this case were not remediable. But this was his opinion; there is no showing in the record that the Board reached this conclusion. There is no mention of a finding regarding remediability in the minutes of the special meeting of the Board held on August 21, 1971 or in its letter of dismissal of that same date. The bill of particulars of September 2 makes no mention of remediability. The resolution of the Board adopted on October 28 dismissing the appellant makes no mention of a finding regarding remediability, and the order of the court entered on April 11, 1972 likewise makes no mention regarding a finding on remediability.

It should be noted that in cases cited by both the appellant and the appellee the record shows that there was a finding regarding remediability. In Hutchison v. Board of Education, 32 Ill.App.2d 247, 177 N.E.2d 420, though no notice regarding remediable causes had been given the teacher, the Board in its dismissal resolution indicated that a prior determination regarding remediable causes had been made. At least there was something in the record — though the court found in this case that:

“* * * The Board’s determination that the causes assigned for dismissal were not remediable appears to be without substantial foundation in the record.”

In the Werner case the Board adopted a resolution finding that the causes were not remediable, and again, after the hearing, the Board’s resolution also showed that it had found the causes not to be remediable. In Wells v. Board of Education, 85 Ill.App.2d 312, 230 N.E.2d 6, the Board’s notice of dismissal stated that the causes were irremediable. And again the resolution after the hearing also stated that the causes were irremediable. In this case, however, the court found that the causes were remediable and that the finding of irremediability was against the manifest weight of the evidence. In Keyes v. Board of Education, 20 Ill.App.2d 504, 156 N.E.2d 763, one of the cases cited by the appellee, the resolution adopted by the Board stated that the causes were irremediable. But even in this case where the facts showed that over a period of four years the teacher could have made amends but refused to do so, the court said:

“Obviously, compliance with this warning notice provision cannot be had unless, prior to giving a dismissal notice, determination is made as to whether the cause or causes relied upon are remediable.”

In Meridith v. Board of Education, 7 Ill.App.2d 477, 130 N.E.2d 5, though the court stated:

“* * * we must conclude that the Board was well within its rights in apparently determining, in the first instance, until a final hearing, that the charges, particularly when considered as a whole, were not remediable.”

The record before the court showed that the teacher had told the Board he would not remedy the cause. Therefore this is not a strong case for holding that the Board does not have to make a finding regarding remediability as a matter of record.

We find other cases making similar holdings. In Allione v. Board of Education, 29 Ill.App.2d 261, 173 N.E.2d 13, another case reversed in favor of the teacher, the Board’s letter listing causes stated that it had found that the causes were not remediable. In McLain v. Board of Education, 36 Ill.App.2d 143, 183 N.E.2d 7 the teacher had been notified repeatedly of defects by the principal both orally and in writing and over a period of months. Also, the Board made a written request to the teacher to remedy the causes. The record showed that she took no steps to correct her defective performance so the court affirmed the action of the Board.

In “The Guiding Star in Teacher Dismissals,” 52 Ill. Bar J. No. 5, January 1964, p. 425, Thomas C. Kelleghan states that:

“It has been the distinction between remediable and irremediable causes which has bedeviled the courts, however, and which has created the need for a ‘guiding star.’ They have uniformly ruled that the school boards have the discretion in the first instance to determine whether the causes for dismissal are remediable, and to confirm that finding at the conclusion of the hearing. The courts have just as consistently held that they have the power to test that finding on review for abuse of discretion by the school board."

In the instant case we are not apprised by the record that the school board made a finding regarding remediability, and there was no reference to any such finding at the conclusion of the Board’s hearing. It is our opinion that the failure of the Board to make any finding of record regarding the remediability of the causes enumerated in its bill of particulars is not in accord with the obvious intent of the law and is prejudicial to the rights of the appellant.

Judgment reversed.

G. MORAN, P. J., and CREBS, J.; concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Greer, Jr., Defendant-Appellant.
    (No. 72-32;
    Fifth District —
    August 20, 1973.

      Rehearing denied October 12,1973.

    JONES, J., dissenting.
    Linda West Conley, of Defender Project; of Chicago, for appellant.

      Robert H. Rice, State’s Attorney, of Belleville, (Philip G. Feder, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, James Greer, Jr., has brought this appeal from a judgment entered upon his conviction for the offense of murder by the Circuit Court of St. Clair County. The case was tried before a jury. Upon corn viction the defendant was sentenced to the penitentiary for a term of from 14 to 45 years.

During the early morning hours of September 22, 1969, the events of this case began to unfold. A female, Yvonne Davis, was having a drink at a lounge in East St. Louis and the defendant came into the lounge and joined with Yvonne Davis in having a drink. The two of them decided to leave the premises and pick up Theresa Dowell, who was a mutual friend and the eventual decedent and victim of the murder.

The defendant and Yvonne Davis left in the defendant’s mother’s car, a then new 1969 model, picked up Mrs. Dowell and went to the We Three Lounge also located in East St. Louis. At the We Three Lounge Yvonne Davis and the defendant went in and had a couple of drinks, bringing Mrs. Dowell’s drinks to her out in the car because Mrs. Dowell was not dressed appropriately to enter the establishment. After about 30 or 40 minutes, the trio, who had been friends for more than a year, left the We Three Lounge and drove to the B & F Lounge, also located in East St. Louis. The time of arrival was at 1:00 A.M. or shortly thereafter. The B & F was not crowded, there being only three other people in the place when the threesome arrived. The lounge contained a Mr. Ben J. Roby, tire manager, Clentis Hickman, a patron, and Atiene Stevens, a barmaid. All three in addition to Miss Davis were called as State’s witnesses.

The B & F Lounge is located on the south side of State Street in East St, Louis. When the three walked into the bar, they sat at the south end of the bar. The defendant sat next to Mrs. Dowell, with Yvonne Davis sitting next to Mrs. Dowell. The defendant sat facing Mrs. Dowell while Yvonne Davis was talking with Clentis Hickman. Atiene Stevens, the barmaid, was behind the bar. Ben Roby was sitting at the other end of the bar, but had left and was across the room at the stereo; the music was playing.

The evidence is uncontradicted that the decedent had a gun in her purse, a gun the property of defendant which she had pawned and recovered and that there was discussion between defendant and decedent about the gun which defendant wanted. The defendant had turned on the bar stool as had the decedent so that the two were facing with Mrs. Dowell’s legs between the defendant’s knees and her back toward Miss Davis who was in turn facing toward Hickman. Defendant and decedent had been keeping company with each other for more than a year; they had no argument that evening and were not arguing or raising their voices; no one saw any signs of violence between them. All witnesses heard what they thought was a shot where defendant and decedent were seated. No witness saw the shooting except the defendant who stated that decedent accidently shot herself with it, and that he never touched the gun. No witness testified that he did although Miss Davis testified that decedent said “she had been shot” and that after decedent had walked around the end of the bar and collapsed defendant arose with a gun in his hand but did not know which hand.

None of the other State’s witnesses ever saw the gun and the gun was not presented at the trial nor was inquiry made concerning its disposition; the others all testified that they did not at any time see defendant have a gun. Miss Davis took charge of decedent’s purse and admittedly removed some of its contents, which she gave to decedent’s husband, before eventually delivering a purse to the prosecution which was admitted into evidence on the basis of Miss Davis testifying it was the purse Mrs. Dowell had there that evening. Defendant testified that it was not the purse decedent had and that defendant believed she either had the gun back in the purse or was putting it back in when it was fired. No one else testified it was the purse decedent had there that evening. No one contradicts that it was in her lap and would have been inches from where the bullet entered her body whether fired at close proximity by defendant or by decedent; it apparently showed no powder bums, or bullet hole. Her testimony as to what was said or done immediately after the shooting was contradicted by other State’s witnesses. All five gathered around decedent when she collapsed, most were agreed that she stated “I have been shot.” She testified that defendant at the time made a threatening remark to her which caused her to flee to the bathroom, but she did not know what those remarks were.

She testified that after decedent had been taken out and placed in defendant’s car, by defendant and Roby, to take decedent to a hospital, that defendant returned hammered on the bathroom door and shouted “Come on out, you are next.” None of the other witnesses supported this but testified that defendant came back in, paid for the drinks, went to the bathroom door, tapped on it and told her to come on. They denied that he hammered, shouted or made threats against her. Upon defendant’s driving away she came out of the bathroom, telephoned defendant’s mother and a lady friend asking the latter to send a taxi for her which she did. She then went to the lady friend’s home where she remained the rest of the night without further inquiry or report concerning her friend, Mrs. Dowell. No one at any time called an ambulance or reported the incident to the police.

Roby testified decedent said, “He shot me” when she arose and went toward the end of the bar, but when asked, still on direct, to whom she said that, answered, “Well, she didn’t say who — she said, just said ‘I was shot’ I don’t know.” He proceeded to testify then that while the witnesses were gathered around decedent he asked defendant “Did you shoot her?” and that defendant answered “I am trying to kill her.” When admonished to speak louder he testified, “Exactly I don’t know exactly how he said what he said I don’t know exactly, but he was talking he said 1 am going to kill her I am going to do something, I don’t know the exact words he used.” The prosecutor by a question then suggested that defendant had said “I am going to kill her, I am going to shoot her, is that what he said?” to which the witness answered, “He threatened her things like that, words like that.” He then testified, “I said Let’s get her to the hospital, you shot her” and that he then “caught hold of her. I was trying to help him get out, I didn’t see where she was shot. I thought she might have fainted or she got scared or something. I said, Will you take her to the hospital, he said, Yes I will take her to the hospital.”

On cross examination he admitted testifying in St. Louis a short time after the incident “I asked what happened — did he shoot her and someone said yes.” He admitted that he never saw a gun and that in answer to the question “Did you hear James make any statement after the shooting” in a previous hearing, he testified “No, he said this is my thing, something like that. I don’t know if he said it is his wife or his woman, I don’t know what he said” and admitted that in the previous hearing in St. Louis, he had never in response to the request to testify to what happened, testified to any threats by defendant to decedent and concluded that “He was saying a lot of things; I don’t remember exactly what that was” and stated specifically that he never did see defendant with a gun.

Apparently attempting to anticipate defendant’s testimony the prosecutor on redirect then asked whether the witness ever heard defendant say “I didn’t mean to shoot her; please call the ambulance; please call the police” to which the witness answered “No.” There is nothing in the record from which it could even be inferred that defendant ever said “I didn’t mean to shoot her.”

On direct examination the barmaid Ailene Stevens testified that Roby asked defendant “Did you shoot her” and defendant answered “yes” admitting that after the woman collapsed she was so excited that she did not know what was said, on cross examination. On cross she admitted testifying previously that Roby asked “Did he shoot her” and she then testified “I was so upset — I think he said yes.”

None of the other witnesses heard the incriminating statements to which Roby had testified although all were right there together.

When Hickman, the patron who was present, testified as to what was said immediately after the incident the prosecutor attempted to manufacture evidence to support his opening statement that defendant said “Let her lie there and die.” After testifying that defendant started around to decedent when she had faHen he stated that defendant said “Leave her lie there.” The witness thought the decedent was just playing although he had heard what he thought was a shot. He did not indicate whether defendant’s statement was made out of compassion or disgust. He testified then that when Roby came up defendant said, “Help me put her in my car; I will carry her to the hospital.” Then after testimony as to what occurred after the decedent had been taken to the car, the prosecutor asked the witness,

“Now, how far away were you from Mr. Greer when he said, Let her He there and die?”

Counsel immediately objected that that was not what the witness had said. The court agreed “No he didn’t.” The prosecutor said “I am sorry” and defense counsel asked that the remarks of the State’s Attorney be stricken. The court ruled “Stricken. I think the jury heard what the witness said.” Subsequently the prosecutor returned to the matter by inquiry of the distance between the witness and defendant, “When he said let her lie there or something like that?” The witness ignored the question and answered, “He said let her He there.’ ”

Standing as a single incident, the errors in conduct of the State’s Attorney in attempting to impress the jury with the callousness of the defendant by leading them to believe that defendant had said “Let her He there and die” when there was absolutely no evidence that defendant ever made that statement, but only evidence that he said “Let her He there”, would have been cured by the court’s remark and ruling as well as the impressive correction by the witness of the prosecutor. However, the incident is here recited as one that displayed a calculated attempt to give credence to the false statement in the opening statement, and to prejudice the jury and deprive the defendant of the fair trial which the prosecutor was obHgated by law to afford him.

Defendant here contends that he was prejudiced by tire prosecutor’s opening argument coupled with the questioning of the witness, Hickmán, with reference to what defendant said immediately after the decedent had collapsed. He told the jury that there would be testimony to the effect that,

“Greer said ‘Let her die. I shot her.’ ”

No witness ever testified that defendant said “Let her die,” nor that defendant said “I shot her.”

Defendant also pointed out that in the opening statement the prosecutor told the jury, “the next morning the police apprehended the defendant, Mr. Greer” and that the evidence is uncontroverted that defendant voluntarily went to the police' station and surrendered himself.

' In the rebuttal argument the prosecutor told the jury:

“Well, if he is acquitted he is going to be back on the street. The State has one opportunity to try someone. We don’t have the right of appeal; this is our one and only opportunity.”

Defense counsel promptly objected, asked that a juror be withdrawn and a mistrial declared. The court, “overruled” and the prosecutor, concluded his argument. In the argument of defense counsel we find nothing that invited those remarks made in rebuttal.

We particularly note the last three sentences and the fact that by overruling the objection the court placed his sanction upon them. There is no question that error was committed by the prosecutor and by the trial court, who should have sustained the objection, ordered the remarks stricken and instructed the jury to disregard them in the interest of providing defendant a fair trial. At the least it was a subtle attempt to infer to the jury that if there was doubt in their minds of defendant’s guilt they should convict because the State had only one opportunity and no right to appeal. While the statement did not specifically state that any mistake the jury made could be corrected because defendant could appeal, it inferred as much. The inferences were magnified and given credence by the action of the trial judge. In 23A C.J.S., Criminal Law § 1101, it is pointed out that it is improper to point out that the State has no right to appeal, although it may not warrant reversal. In a case in which there is or may be reasonable doubt, because of the sufficiency or clarity of the evidence, of the defendant’s guilt, and there is a likelihood that the remark was calculated to and did or may have had an influence upon the jury against the defendant, such argument sanctioned by the court constitutes a ground for setting aside the conviction, particularly when it is coupled with other conduct of the prosecutor indicating an indifference to defendant’s right to a fair trial.

Defendant was not entitled to a perfect trial, but he was entitled to a fair one. From a careful reading of the entire record, we have determined that the evidence is extremely close and whether reasonable men would have found defendant guilty of the murder with which he was charged, had he been given a fair trial, is open to question. We therefore arrive at the conclusion that defendant is entitled to a new trial.

Reversed and remanded.

G. MORAN, J., concurs.

Mr. JUSTICE JONES

dissenting:

I respectfully dissent.

Although it was error for the prosecutor to attribute a statement to defendant (“Let her he there and die”) which he did not in fact make, under the circumstances in which the matter was presented and handled in this case it did not, in my opinion, influence or sway the jury and therefore did not prejudice defendant or prevent him from receiving a fair trial. When witness Hickman was asked by the prosecutor “Now, how far away were you from Mr. Greer, when he said, ‘Let her lie there and die?’ ” the defendant’s objection was sustained and the court stated that the witness had not so testified. Later the witness testified on two occasions during his direct examination that defendant had said “Let her lie there.” When the prosecutor later asked witness Hickman how far away he was when he heard defendant say “Let her he there or something like that,” this can by no means be construed as an attempt to rephrase the offensive question; it was a legitimate attempt to establish the distance between the witness and defendant to show that he was within easy hearing distance.

The prosecutor commenced his opening statement by saying:

“Now, before I start this opening statement once again I would like to advise you to please listen to what the witnesses say. If you cannot hear what they say please let us know, so that you will have all the evidence.
As I said when I talked to you before the trial began, what they say is the evidence, not what I say in this instance here or during the course of the trial or what Mr. Hoban may say. If I say something now in opening statement and later you find out in evidence it happened or didn’t happen, then you will take that evidence in making your decision.”

Repeating the admonition, the prosecutor prefaced his closing argument with this language:

“The purpose of the State in closing argument is to inform you as to the facts — as to what we believe the State has proven. If,during my argument to you I should state something you don’t believe happened, you use your own recollection in recalling to mind what the witnesses said.
Again I want to caution you that what the witnesses say is the evidence, not anything I may say during the closing argument or anything Mr. Hoban may say; just what the witnesses have testified to.’

Furthermore, at least four different times during the closing argument the prosecutor stated that witness Hickman had testified that defendant said only “Let her lay there.” In view of the correction of the testimony attributed to defendant by the prosecutor by both the court and the witness, and the repeated admonitions to the jury that they were to take the evidence only as given by the witnesses and the statement by the prosecutor on four different occasions in his closing argument that the witness had said “Let her lay there,” it is inconceivable that the jury could be misled or influenced in any degree by the remark of the prosecutor in his opening statement and the inference carried by his question, or that the defendant would be prejudiced in any way from receiving a fair trial because of the appearance of the offensive remark and question during the trial.

I also do not believe that prejudice resulted to defendant because the prosecutor remarked in his closing argument that the State did not have a right to appeal. The remark was improper and the trial court was in error in overruling defendant’s objection. However, in view of what I view as strong evidence of defendant’s guilt this remark should not constitute reversible error. This is conceded by the majority in their opinion and the holding of the cases referred to in the C.J.S. citation.

Although a prosecutor’s remarks may be subject to criticism, unless they constitute a material factor in the conviction or are such that prejudice to the defendant is the probable result, the verdict will not be disturbed (People v. Davis, 46 Ill.2d 554, 264 N.E.2d 140; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.) This rule was followed by this District in People v. Lyons, 8 Ill.App.3d 695, 290 N.E.2d 313. In my opinion the remarks of the prosecutor cannot be said to constitute a material factor in the conviction of the defendant and accordingly are not reversible error.


author: Mr. JUSTICE CREBS

text:
    Ollie Leisure, Plaintiff-Appellant, v. Robert W. Smith et al., Defendants-Appellees.
    (No. 72-26;
    Fifth District —
    September 6, 1973.

      Rehearing denied October 10,1973.

    Marvin Barnes, of Granite City, for appellant.
    Amerik A. Kachigian, of Granite City, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from the Circuit Court of Madison County. The case involves a contract for the conveyance of a fee simple in Granite City by warranty deed. Plaintiff, Ollie Leisure, wanted a tavern known as the “Town Tavern” which was owned by Robert and Birdie Smith. There is some confusion about the facts. Apparently Mrs. Leisure and one Larry Butts contracted to purchase the tavern and Butts was to run the tavern, but this contract is not part of the record. Leisure and Butts took over the tavern and ran it for one week during which time it was robbed of all the stock and the fixtures were damaged. At this time plaintiff asked Robert Smith to come back into the business and run it for her. A new agreement was entered into listing the names of plaintiff and defendants, Robert Smith and Birdie Smith, as parties to the contract.

Under the terms of the contract OHie Leisure was to pay to Robert Smith and Birdie Lee Smith, his wife, the sum of $35,000 in exchange for the warranty deed to the real estate upon which was located the “Town Tavern,” including all of the present stock and aH personal property appurtenant to or used in the operation of the business.

The $35,000 was to be paid in the foHowing manner: $100 cash paid November 1, 1967; $13,500 allowed for the property at 2008 and 2010 Missouri Avenue which Leisure deeded to the Smiths, and a note for $4,000 to the seHer as a down payment; buyer also assuming a loan of $933.75 at the First Granite City National Bank for an air conditioner. The balance of $16,268.75 payable to Robert W. Smith and Birdie Lee Smith in monthly installments of $165.00 with interest at seven per cent. Mrs. Smith refused to sign the contract, however, after having the contract read to her. Mrs. Leisure signed it at the same time Robert W. Smith signed it.

The plaintiff testified that she then ran the business with Robert Smith for six months or a year. The businesss never recovered from the earlier robbery and damage, and slowly deteriorated until it was abandoned by both parties after one year, never having shown a profit. The property was then leased and a realty company coHected the rentals.

Ollie Leisure paid the $100 cash, transferred the deed to the Missouri Avenue property to Robert Smith and turned over a note for $4,000 to Robert Smith which she never paid. Fire burned down the Missouri Avenue property and after paying off the mortgage for $7,500 to the First National Bank in Madison and for the demolition of the fire damaged building, the balance of the insurance money is being held by a receiver.

Plaintiff filed a complaint to rescind the contract and conveyance alleging that defendant knew at the time the contract was signed that his wife would not sign the contract for the “Town Tavern”, but fraudulently made statements that Birdie Lee Smith would sign the contract to induce plaintiff to deed her Missouri Avenue property to the Smiths. Defendant, Robert Smith, filed a counterclaim for payment of the $4,000 note of Mrs. Leisure. The trial court found in favor of the defendant on the complaint and in favor of Mrs. Leisure on the counterclaim. Only the plaintiff has appealed.

The plaintiff maintains on appeal, inter alia, that the “Town Tavern” had a mortgage at the time the contract for deed was made and that no mention of the mortgage was made in the contract and this failure to mention the mortgage amounted to fraud and because of this initial fraud the plaintiff is entitled to rescission. The contract provides in part: “If the title of the seller of the above described property is now or hereafter encumbered by mortgage, seller shall meet the payments of principal and interest thereon as they mature and produce evidence thereof to purchaser. The seller shall cause to be made all payments of principal and interest on said mortgage, if any, in accordance with its terms and upon failure to pay said mortgage, principal or interest, or perform the covenants and conditions contained in said mortgage, the purchaser may pay the same which payments shall be credited to the sums due under the terms of this Contract.” It seems clear that the possibility of there being a mortgage on the property was considered and plaintiff had the option of paying off the mortgage and applying those payments to the total purchase price. Also, plaintiff could have inquired into the public records to determine whether or not the property was mortgaged. Considering all these facts we do not feel that the plaintiff has sustained the burden required to prove the existence of fraud entitling her to rescission on this point.

Plaintiff also maintains that at the time of the contract signing Robert Smith knew that Birdie Smith would not sign the contract for the “Town Tavern,” but fraudulently made statements that Birdie Smith would sign to induce plaintiff to deed her Missouri Avenue property to the Smiths. This issue was decided in favor of the defendant at the trial level. We must point out that on appeal, the party claiming error has the burden of establishing any irregularities and the one who seeks to reverse the decree carries the burden of showing that it was erroneous. Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237.

At the time Ollie Leisure signed the contract for deed she knew that Mrs. Smith was not present and that she had not signed the instrument previously, but after the contract was read to her Ollie Leisure signed it at the same time Robert Smith signed it. When Mrs. Smith did not sign the contract, Mrs. Leisure had the option to rescind the contract. She did not take that option, but instead continued the contract knowing only Robert Smith had signed, thus it became a contract between Mrs. Leisure and Mr. Smith.

Plaintiff alleges that the failure of Birdie Lee Smith to sign the contract was a substantial failure of consideration. As we have already stated when Mrs. Leisure continued the contract after Mrs. Smith had not signed it, it became a contract between Mrs. Leisure and Mr. Smith. The contract provided that: * * * if the party of the second part (Ollie Leisure) shall first make the payments and perform the covenants * # and “* * * it is Mutually Agreed by and between the parties hereto that when payment in full of said purchase price, together with all interest, costs, taxes, assessments and other charges accrued shall have been paid said party of the first part (Smith) will deliver deed to said second party upon said property.” According to the terms of this agreement Smith was to convey a warranty deed for the “Town Tavern” property after Leisure completed performance of her obligation. Thus it was not until after Leisure had performed that Smith was to convey the Warranty Deed. Where the owner of real estate has contracted to sell and convey it, he may insist on the payment of the purchase money as a condition to delivering the deed. (Ishmael v. Parker, 13 Ill. 324.) Plaintiff implies that because Birdie Smith would not sign the contract for deed then she would not sign the deed itself. This does not necessarily follow. Smith’s time for performance never arrived. We cannot say as a matter of fact that Mrs. Smith would not sign the deed if the contract had been complied with by Mrs. Leisure. Smith exchanged his promise to convey a warranty deed to the “Town Tavern” property for Leisure’s promise to first pay the purchase price. It is clear that mutual and concurrent promises afford sufficient legal consideration for the support of each other. (Funk v. Hough, 29 Ill. 145; Nathan v. Leopold, 108 Ill.App.2d 160, 247 N.E.2d 4.) The trial judge is presumed to have heard sufficient evidence upon which to base his judgment and the appellant has the burden of showing by the record that the judgment is manifestly against the weight of the evidence. (Croft v. Lamkin, 112 Ill.App.2d 321, 251 N.E.2d 88.) Mrs. Leisure undertook the operation of the tavern and the fact that it proved to be unprofitable does not constitute a failure of consideration.

Appellant at the time of oral argument requested leave to file an amended complaint. In view of our holding herein, we find that such an amendment would not change the result reached and on that basis leave is denied.

We conclude, therefore, that the findings of the trial judge are not against the manifest weight of the evidence and thus affirm the decision of the trial court.

Affirmed.

EBERSPACHER, P. J., and JONES, J., concur.