text:
    Marguerite Scott, et al., Plaintiffs-Appellees, v. City of Springfield, Illinois, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 10,798.
    Fourth District.
    April 27, 1967.

      Walter L. Oblinger, Corporation Counsel of the City of Springfield, of Springfield (W. J. Simhauser, Assistant City Attorney of the City of Springfield, of counsel), for appellant.
    Robert F. Scott and Charles G. Tisckos, of Springfield, for appellees.
   TRAPP, J.

The City of Springfield, defendant, appeals from an injunction obtained by Marguerite Scott, Ralph W. Kettelkamp, Vivienne M. Kettelkamp, Freda E. Jagla and Althea M. Jagla, plaintiffs, restraining the defendant from enforcing the residential classification regulations of the city zoning ordinance against the property of the plaintiffs.

Although the decree does not specify the particular nonresidential use sought, it is clear that the case was tried upon the theory that enforcement of the ordinance to prevent erection of a gasoline filling station upon the plaintiffs’ property constituted arbitrary governmental action in violation of plaintiffs’ constitutional rights. It is also clear that no attack was made upon the ordinance as such, but rather upon the application of the regulations to plaintiffs’ property.

The case was first referred to the Master in Chancery, who made specific findings and recommendations which were approved and followed by the Circuit Court.

The necessary consideration of the facts and circumstances of the case requires a particular description of the neighborhood involved at the present time. Not less important, as an analysis of the cases will demonstrate, is the recorded historical trend. All of the authorities grant to the municipal council great latitude in the enactment and enforcement of zoning regulations, and it has been repeatedly stated that if the net result of the conflicting testimony is that the reasonableness of the regulation is debatable, the action of the municipal council must be sustained. Miller Bros. Lumber Co. v. City of Chicago, 414 Ill 162, 111 NE2d 149. Nevertheless, the action of the municipal council must not be arbitrary, that is, without reason, and in consequence thereof, it must appear to be following some consistent plan or theory which is demonstrably related to the existing fact situation.

In the present case this court must be guided by another consideration which is that where there is evidence to support the findings of the trial court as to specific issues, those findings should be sustained, unless they are against the manifest weight of the evidence. The reasonableness of the classification at issue must be determined from the facts in each case. Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328.

The subject property consists of three lots having a total frontage of 120 feet on South Sixth Street and a frontage of 152 feet on East Myrtle Street. The lots are improved with residences facing Sixth Street, and the property is located at the southeast corner of the intersection of Sixth Street and Myrtle Street.

The testimony and exhibits are devoted chiefly to an area bounded by Fourth Street on the west, Ninth Street on the east, a railroad viaduct across Sixth Street, which is about five blocks south of Myrtle Street and South Grand Avenue, an east and west street which is five blocks north of the subject property.

The residential character of the area was established by a zoning classification made in 1924, the outstanding exception to which was a transportation company garage and service area at the southeast corner of Sixth and Ash Streets, which is two blocks south of the subject property.

There is testimony that there has been no new residential development in the past ten to fifteen years. This would appear to be an understatement so far as the neighborhood in the immediate area of the surrounding property is concerned. Plaintiffs’ photographic exhibits 1, 2, 3, 4 and defendant’s photographic exhibits 1, 2, 3, 4, 5, 6, 7, 8, and 9 (identifications as shown in the record) indicate uniformly a much older style house, the majority, if not all of which appear to have been in existence at the time of the zoning classification in 1924. Additionally, the testimony that in the block north of Myrtle on the west side of Sixth Street, which is now occupied by Capitol Bank, five residences, being all of the residences in the block, have been removed would indicate a distinct lack of residential building activity. There is no testimony of any actual new residential development, except Mr. McCIernon’s testimony that the big two-story houses are hard to sell and are developed into multiple-family dwellings.

The outstanding fact disclosed by the testimony is the proven 40-year trend in the ten-block area on South Sixth Street, being five blocks to the north and five blocks to the south of subject property. It is not possible to consider the effect of a single zoning change in a vacuum. Consideration must be given to the changes which have taken place over a period of years and, most especially, when these changes have been created by, or approved by the municipal authorities. The Master-in-Chancery summarizes the character of the neighborhood as follows:

“The character of the neighborhood with which we are here concerned could well be described as formerly residential but rapidly changing to a commercial area.”

We think the record justifies the use of the phrases “formerly residential” and “rapidly changing.”

The classifications of the Springfield Ordinance with which we are concerned are A-Residential, being chiefly one and two-family houses; B-Residential, being multiple-family use; C — 1, Commercial, which includes retail sales but not filling stations; C-2, Commercial, which includes filling stations and D-Light Industrial, which among other things includes a warehouse, an automobile repair shop and car wash.

Commencing at South Grand Avenue in 1924, with an all residential classification, and proceeding south, the ten-block area on South Sixth Street has experienced more than twenty municipally authorized zoning classification changes. These changes have been spotted throughout the area. At irregular intervals, commercial or light industrial use has been authorized in the midst of residential uses.

In the first block of the area at Sixth and South Grand, on the west side, a filling station was authorized in 1928. Next, south thereof, a Big Boy Drive-In Restaurant was authorized in 1962. On the east side of the street, a retail store was authorized in 1926, and on the south corner thereof, a filling station was authorized in 1961.

In the second block, commencing at Pine Street, the west side of the street was made B-Residential at a time not indicated, and the entire block on the east side was made commercial in 1956.

In the third block, commencing at Cedar Street, the south corner on the west side was commercialized in 1960. On the east side the north corner was classified Commercial in 1958, an area in the middle of the block was commercialized in 1962, and the south corner in 1961.

In the fourth block, commencing at Spruce Street on the west side, the commercial classification made in 1953 had developed into a Gulf filling station on the north, a package liquor drive-in at the center, and a Marathon filling station on the south. There is also a warehouse classification adjoining the Gulf filling station. On the east side, the north corner was made commercial in 1953 and is used as an automobile sales lot. Across Spruce Street to the north at the alley is an automotive repair shop. In the middle of the east side, one lot was commercialized in 1957 and another in 1961. On the south corner, a 1954 change to commercial, is a Sherwin Williams paint store.

In the fifth block, commencing at Laurel Street, on the west side, changes to Commercial were made in 1953, 1957 and 1961, respectively. This half block is now occupied entirely by the Capitol Bank. On the east side, a reclassification was made at the north corner in 1955, and it is a drive-in restaurant. In the middle of the block a change was made in 1954 to authorize a D-Light Industrial use, which is a car wash.

The sixth block begins at Myrtle, which includes the subject property. The west side is entirely residential and has had no changes. The east side is entirely residential and has had no changes.

The seventh block, beginning at Oak Street, is residential on the west side, and is a part of lies Park on the east side.

The eighth, ninth and tenth blocks are residential on the west side. On the east side, commencing at Ash Street and proceeding south, what was formerly a transportation company garage, is now developing as a seven-acre commercial complex with parking for 300 automobiles. To the south of this complex and all the way to the railroad viaduct are commercial or industrial establishments, including a Coca Cola bottling plant, a dry cleaning plant, a large restaurant, and retail store fronts.

Thus, what was originally a ten-block residential area in 1924, has been reduced to a two-block residential area on the east side of Sixth Street, one block of which is lies Park. On the west side of Sixth Street, the ten-block residential area has been reduced to five blocks.

Sixth Street north of the ten-block area, and to the major business area, could be considered commercial, although some residences remain.

Sixth Street was the Business U. S. 66 entrance to Springfield. Recently the City changed Sixth Street to a one-way north direction street and prohibited parking thereon. The City has also made Myrtle Street, which adjoins the subject property, a one-way east street for U. S. 66 traffic, and parking is prohibited. Thus, the northbound U. S. 66 traffic makes a right turn at the northwest corner of the subject property. Traffic on Sixth Street averages 13,000 vehicles per day and upwards of 2,000 vehicles make a right turn on U. S. 66.

It should be noted that the majority of the use changes which have been granted on Sixth Street by the City have allowed the use of the entire lot. Typical are filling stations, drive-in restaurant, car wash, automobile sales lot, and business complex. It should also be noted that the changes authorized did not go into effect one block at a time, but were so scattered that no consistent plan to buffer any substantial part of Sixth Street against commercial encroachment appears. The west side of Sixth Street from Myrtle Street south differs from the east side in that it is continuously residential, and does not have U. S. 66 proceeding through it, but only across the front of it. It should also be noted that the zoning changes authorized on Sixth Street have not proceeded gradually from A-Residential to B-Residential and then to offices, but rather abruptly from A-Residential to Heavy Commercial and Light Industrial use.

Two realtors, James P. McClernon and John J. Bombard testified that commercialization and traffic utilization of Sixth Street has already deteriorated Sixth Street for residential purposes, and that this has proceeded so far that the introduction of a gasoline filling station on the subject property would not further devaluate neighboring residential values. Both of these witnesses have had sales experience in the area. One witness, James Dunigan, testified that in his opinion the introduction of any filling station would lower neighborhood residential values substantially. He gave no basis for this opinion and stated that he had not sold any property adjacent to a filling station within five years, nor did he have any example of deterioration in value where the property was already on a four-lane highway adjacent to other commercial construction. The Master-in-Chancery and the court believed that the testimony of the two realtors first mentioned was entitled to greater weight.

The opinion of the Master-in-Chancery is:

“That the proposed change in the use of the property will not have a long range effect on the neighborhood since the trend to commercial use is well established. The use will not affect the demand for public on street parking. The change will not affect existing land use pattern in the neighborhood, community or metropolitan area for as mentioned above, the trend to commercial use along South Sixth Street is well established.”

On the other hand, the testimony established that the maintenance of the residential restriction on the subject property would diminish its value by $48,000.

It is apparent, without elaboration, that the recent action of the City in prohibiting parking on Sixth Street, and making it a right-hand turning corner for U. S. 66, and again prohibiting parking access on Myrtle Street, has made the subject property less desirable for residential use. While traffic alone might not be a sufficient reason for questioning a residential classification, it is an additional factor to be considered in the entire trend in the area.

Marguerite Scott, a plaintiff, testified that she had resided on the premises for eight years, but had moved because of the heavy traffic and noise. She further testified that since moving, it had been difficult to keep tenants; that the ground floor was let after a reduction in rental, but that the upper floor had not had a tenant for some time. She stated that vibration from heavy trucks, as well as dirt and dust, affected the rental of the premises. In Berger v. Village of Riverside, 69 Ill App2d 148, 216 NE2d 479, the court noted the evidence that the property could not be sold as zoned.

A review of many cases leads to the conclusion that a primary factor in ascertaining the reasonableness of a zoning classification is whether there has been a substantial changing trend in the development of the zoned area, or whether it remained substantially unchanged in character. Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328; Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358.

We believe that the authorities cited by defendant substantially acknowledge such principle. In Miller Bros. Lumber Co. v. City of Chicago, 414 Ill 162, 111 NE2d 149, the court upheld a change of classification from manufacturing to single residence. The court noted that there had been no development in the industrial classification for nineteen years, but that such development had been exclusively residential. Again, in LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 126 NE2d 643, the change from commercial to a classification permitting apartments was upheld, the court pointing out that in a period of 19 years there had been no commercial development. In Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771, substantial and expensive new apartment construction justified the continuation of the residential classification. In short, new investors were relying upon the residential classification. It was also noted that the subject property neither faced, nor bordered, commercial property. In Fox v. City of Springfield, 10 Ill2d 198, 139 NE2d 732, it was observed that a number of new residences had been built upon Ash Street since it was improved, and also that in a square area two blocks on each side of the subject property each tract was residential. The court found minor variations from the classification, but no trend to the commercial. In Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358, cited by defendant, the court found that the general character of the neighborhood had not changed substantially for many years, although two minor variations existed. Following the same observation of trends is Hartung v. Village of Skokie, 22 Ill2d 485 on 494, 177 NE2d 328, in which the court emphasized the fact that although the major portion of the area had been zoned residential for 40 years, no such development had taken place, and affirmed a change of classification.

In Berger v. Village of Riverside, 69 Ill App2d 148, 216 NE2d 479, on 482, the court, emphasizing the conduct of the municipality in reference to the trend, stated:

“It is clear that a municipality may choose to place a buffer zone between business and commercial uses on the one hand and single family residences on the other. The difficulty here is that the Village of Riverside did not see fit to use transitional zoning in the form of duplex housing except for two blocks in this nine block strip of land.”

We believe that, in view of the municipally induced and encouraged trend of South Sixth Street, both north and south of the subject property over a long period of years toward heavy commercial and light industrial uses, the placing of highway routes for one-way traffic with no parking on two sides of the subject property, the lack of any plan for transitional zoning in the area, and the fact that granting the use sought would not further deteriorate remaining residential regulations on the subject property, is arbitrary and unreasonable.

The decree of the Circuit Court of Sangamon County is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vernon Napue, Defendant-Appellant.
    Gen. No. 51,020.
    First District, Third Division.
    April 27, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction after a jury trial for burglary. Defendant, Napue, was sentenced to the penitentiary for a period of five to twenty years.

Defendant contends on appeal that (1) the identification of defendant was insufficient and the result of an unconstitutional suggestive identification procedure; (2) the court erroneously instructed the jury on admission by silence when in fact the evidence did not support a finding of such admissions; (3) it is unconstitutional to infer guilt from defendant’s silence upon accusation; (4) the court admitted evidence obtained in an unconstitutional search, and (5) defendant was not sufficiently in possession of the stolen goods to allow the application of the rule that recent unexplained possession of stolen goods is sufficient to convict one of burglary.

On December 3,1964, Floyd Nightlinger, then 69 years old, was the landlord of a building at 311 Wisconsin Street. According to his testimony as a State’s witness, he looked out of his apartment window and saw a cab pull up and a man alight and proceed to the basement apartment. After seeing the man emerge from the apartment carrying some household goods, Mr. Nightlinger left his apartment and ran outside where he bumped into the man.

The police were called and Mr. Nightlinger gave them the number of the cab and a brief description of the suspect saying he was a short colored fellow with a mustache. When the cab was located the driver gave police the address of the passenger’s destination. The police went there and searched the rear apartment but found nothing. Later that day the police returned to the address and searched the front apartment. Six people and the stolen items were in the apartment. Police arrested one of the six, defendant.

Mr. Nightlinger was taken to the police station and upon entering the room, saw defendant and another man seated at a table approximately twenty-five feet from Mr. Nightlinger. He saw Napue and exclaimed, “There’s the man talking to the other man.” The defendant looked at the entrance door where Mr. Nightlinger was standing, turned away and put his head down. There was no lineup held.

Defendant first contends that the identification of defendant was insufficient and the result of an unconstitutional suggestive identification procedure. Since there was no lineup and the identification occurred when Mr. Nightlinger entered the room in which defendant was seated, defense counsel argues that this is an unreliable identification. He says that it was suggested because Mr. Nightlinger knew he was going to the police station to view a suspect. Counsel also suggests that there was actual suggestion and influence, but there is nothing in the record to so indicate that this occurred. Defendant further says that the encounter of Mr. Nightlinger and the burglar was brief and under poor lighting condition in that it was a dark blustery winter day. Also, the description given by Mr. Nightlinger immediately after the occurrence was sketchy and there was some confusion as to whether defendant had a mustache at the time of the arrest, but no one testified that he did have one.

Defendant claims that eyewitness identifications are inherently weak because the eyewitness quite often does not have adequate observation or ample opportunity to observe the assailant for a sufficient period of time or under lighting conditions which are amenable to making adequate observations, and that often these identifications are rejected by the courts as insufficient to show positively that the defendant committed the crime. People v. Cullotta, 32 Ill2d 502, 207 NE2d 444; People v. Kincy, 72 Ill App2d 419, 219 NE2d 662; People v. Kidd, 410 Ill 271, 102 NE2d 141; People v. Fiorita, 339 Ill 78, 170 NE 690. However, these cases are distinguishable in that the witnesses either did not see the defendant during the crime or several witnesses presented varying identifications and versions of the occurrence. In this case the witness saw the defendant at close range after first observing him from his window. The identification occurred the same day with no appreciable time lapse to dull his memory. Furthermore, his identification, while not during a lineup, was spontaneous and immediate. There is no showing in the record that Mr. Nightlinger knew just where defendant would be, nor that defendant was the only man in the room who was not in a police uniform.

In People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599, the court discussed nonlineup identifications and said on page 464:

“There is no requirement in the law that an accused person must be placed among a group of persons for the purpose of testing the ability of a witness to identify him as the guilty person, (People v. Vaughn, 390 Ill 360; People v. Minor, 388 Ill 436; People v. Reilly, 348 Ill 153,) and where an accused is not selected from a group, such fact does not render evidence of identification incompetent, but only affects its weight. (People v. DeSuno, 354 Ill 387; People v. Barad, 362 Ill 584; People v. Dustin, 385 Ill 68.) Similarly, where claim is made that identification was induced by police suggestion that the guilty party is in custody, we have stated such procedure does not completely destroy the evidence of identification, but affects only its weight and credibility.”

The identification in the case at bar is not a ground for reversal since the jury knew the circumstances surrounding it and could decide the weight to be given it.

Defendant next contends that the court erroneously instructed the jury on admission by silence when in fact the evidence did not support a finding of such admissions. The evidence of such admission was that when Mr. Nightlinger, upon seeing defendant at the police station, exclaimed, “There’s the man,” defendant put his head down and turned away. The police officer sitting with defendant then testified to defendant’s actions. The officer stated that he heard Mr. Nightlinger’s exclamation and defendant reacted to it in the manner described. While it is possible that defendant did not hear the accusation that is not the only possible interpretation of the testimony. The instructions given to the jury on this matter (both State’s and defendant’s)' correctly set out the instances when it was possible to draw an inference of admission from circumstances. While defendant relies upon People v. Aughinbaugh, 36 Ill2d 320, 223 NE 2d 117, that case dealt with the admission of evidence regarding admission by silence under circumstances distinguishable from the instant case. The defendant there did not know that he was charged with robbery, in connection with which he was identified. In this case defendant did not object to the evidence regarding the admission, but claims only that the State’s instruction was improper. The ground alleged is that there was no evidence or showing of any admissions. Yet defendant submitted an instruction which not only discussed the circumstances from which an admission could be inferred, but also stated “(e)vidence has been introduced that defendant made certain admissions relating to the crime charged in the indictment.” In light of defendant’s view of the matter at trial it is incomprehensible to us that he could on appeal complain of a similar, but not so damaging, State’s instruction. The Illinois Supreme Court said in People v. Riley, 31 Ill2d 490, 496, 202 NE 2d 531:

“It is axiomatic that an accused cannot complain of error acquiesced in or invited by him, and to this end we have held that a defendant may not complain of defects in instructions which were given at his request ... or of instructions given by agreement between the State and the defendant . . . or of instructions similar to ones given at his own request. . . .”

Defendant next contends that it is unconstitutional to infer guilt from defendant’s silence upon accusation. There was no mention of this constitutional point during the trial and no objection was made to the relevant testimony. It is well settled that one may not raise a constitutional question for the first time on appeal. (People v. Harris, 33 Ill2d 389, 211 NE2d 693.)

Defendant next contends that the court admitted evidence obtained in an unconstitutional search. The only objection made when this evidence was admitted was on the ground of relevancy. No motion to suppress was made. Counsel suggests first that trial counsel was relying on an appellate ruling that one not admitting possession may not move to suppress the evidence obtained by illegal search. The case to which he refers was reversed upon appeal to the Illinois Supreme Court. He alternatively says that because trial counsel did not know the law and therefore made no motion to suppress, that defendant was denied effective aid in the preparation of his case. Whatever trial counsel’s reason for not making the motion, such was not done during trial. The point has not, therefore, been properly preserved for appeal. People v. Riley, supra; People v. Moore, 74 Ill App 2d 24, 220 NE2d 105; People v. DeMarco, 44 Ill App2d 459, 195 NE2d 213; People v. Gratton, 28 Ill2d 450, 192 NE2d 903.

Defendant finally contends that defendant was not sufficiently in possession of the stolen goods to allow the application of the rule that recent unexplained possession of stolen goods is sufficient to convict of burglary. Napue was found in an apartment with the stolen goods, and, although it appears that others were present, it has been consistently held that the possession need not be exclusive; that joint possession is sufficient. People v. Florman, 77 Ill App2d 158, 222 NE2d 191; People v. Moore, 76 Ill App2d 326, 222 NE2d 95; People v. Reynolds, 27 Ill2d 523, 190 NE2d 301.

For the reasons above expressed, the conviction must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Defendant in Error, v. Sebastian M. Ortega, Plaintiff in Error.
    Gen. No. 51,008.
    First District, Fourth Division.
    April 28, 1967.

      William R. Yowell, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged

Unlawful sale of narcotic drugs (Indictment 63-972), and unlawful possession of narcotic drugs (Indictment 63-973).

Judgments

Jury trial was waived. After hearing the evidence in Indictment 63-972, the court found defendant guilty and sentenced him to a term of ten to eleven years. It was then stipulated that the evidence heard at that trial be considered also as evidence in Indictment 63-973, and there was a further stipulation as to additional evidence. The court found defendant guilty of this charge also, and sentenced him to a term of two to three years, concurrent with the first sentence.

Points Raised on Appeal

(1) The evidence did not establish defendant’s guilt beyond a reasonable doubt.

(2) The court unduly restricted defendant’s cross-examination of State witnesses.

Evidence

Defendant does not seriously question the adequacy of the proof except as to the narcotic content of the substance sold or possessed. Admittedly, this is one of the elements of the crimes charged which the State has the burden of proving. In the case charging sale, the State sought to meet this burden by means of an oral stipulation in lieu of a chemist’s testimony. The stipulation was that the police chemist, if called, would testify that the substance “purports to be” heroin. In the case charging possession, there was an additional stipulation that the chemist, if called, would testify that the substance was “found to be” heroin.

Opinion

(1) Although we are mystified as to the reason for it, we have been impressed by numerous instances in recent years of the demonstrated nonchalance and inattention to detail on the part of prosecutors when introducing by stipulation the part of the State’s case having to do with the chain of possession and chemical content of the substance seized in narcotics cases. The expedience of resorting to such a stipulation we do not doubt, but we cannot permit this informality of procedure to render the proof any less exact or complete than would be the case if the witnesses were to testify.

Our question, therefore, is whether proof that a substance “purports to be” narcotic constitutes proof beyond a reasonable doubt that it is narcotic. The answer must be that it does not. While it is true that under the generally understood meaning of the word, “purport,” an object which purports to have a certain characteristic may, or perhaps usually does, in fact possess that characteristic, it does not always do so. In any given case the speciousness of a purported attribute is a definite possibility. And that ever-present possibility is, in our opinion, sufficient to raise a reasonable doubt as to the attribute claimed.

We are aware of no opinion bearing directly on this point, but there are two cases which we believe support our conclusion.

In People v. Steele, 22 Ill2d 142, 174 NE2d 848, the Supreme Court affirmed the defendant’s conviction for the unusual crime of offering to sell a narcotic drug and then delivering a nonnarcotic substance. Ill Rev Stats, 1959, c 38, § 192.28-38; now c 38, § 22-40. The indictment described the delivered nonnarcotic substance as “a certain purported narcotic drug.” Obviously, if the defendant in that case had delivered a narcotic drug, he would not have been guilty of the charge brought against him; and, just as obviously, if the words, “purported narcotic,” described the genuine article, the indictment itself would have failed to charge the crime in question.

An oral stipulation quite similar to the one in the instant case was employed in People v. Green, 36 Ill2d 349, 223 NE2d 101, where the charge was the unlawful possession of narcotics. There the language incorporated into the stipulation referred to cigarettes which “purported to be” marijuana cigarettes, or were “supposed marijuana cigarettes.” A conviction in the trial court was reversed in the Supreme Court by an order entered September 15, 1959, on the basis of a confession of error by the Attorney General on this point.

We conclude, therefore, that there was a failure to prove one of the essential elements of the crime in the case charging sale of narcotics, and the conviction should be reversed. People v. Brown, 66 Ill App2d 317, 319-320, 214 NE2d 289, and cases there cited. We feel that we cannot, under that indictment, find defendant guilty of a reduced charge of delivering a nonnarcotic substance under section 22-40 since that charge does not appear to be an included offense in the sale of narcotics. The element of deceit which is an essential to the former crime, does not enter into the latter.

In the case charging possession of narcotics, we consider the additional stipulation (set forth above) sufficient to cover the point which was missed in the other case, and that conviction should, therefore, be affirmed.

(2) In view of what we have written, it is unnecessary to review defendant’s contention in regard to trial errors so far as they relate to the first indictment. The point is made as to both indictments, however, that the court erred in restricting repeated attempts by defense counsel to question the police witnesses about a man named Mario Compos who had been at the scene of defendant’s arrest but had not been arrested. The informer in the case had testified that he did not know Compos and had never heard of him. Under all the circumstances of this case we find no clear abuse of the court’s discretion in determining the latitude to be allowed on cross-examination. People v. Moretti, 6 Ill2d 494, 526, 129 NE2d 709; People v. Provo, 409 Ill 63, 68-69, 97 NE2d 802.

Decision

The judgment in Indictment 63-972 is reversed.

The judgment in Indictment 63-973 is affirmed.

Reversed in part.

Affirmed in part.

DRUCKER and McCORMICK, JJ., concur.

       Appeal was taken to the Supreme Court which transferred the case here.


text:
    People of the State of Illinois, Appellee, v. William Jack Faulkner, Appellant.
    Gen. No. 51,092.
    First District, Fourth Division.
    April 28, 1967.
    Julius Lucius Echeles, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged in the Indictment Unlawful possession of narcotics.

Judgment

After a jury verdict of guilty, the court sentenced defendant to a term of five to fifteen years.

Points Raised on Appeal

(1) The evidence was insufficient to support the verdict.

(2) The court erroneously refused to give a defense-tendered instruction on circumstantial evidence.

(3) The court erroneously received into evidence, over objection by the defense, a search warrant which had no relevance to the issues at the trial.

(4) The sentence imposed exceeds the statutory limitation.

Evidence

Testimony of State Witnesses

A police informer made an affidavit in which he related that he had purchased narcotics from defendant in a house at 2255 S. Kostner Avenue in Chicago. A search warrant was issued and several State of Illinois narcotics inspectors, two of whom testified at trial, raided the house at about 3:00 p. m. on June 11, 1963. Defendant and a workman who was found repairing the attic were detained in the kitchen while the entire house was searched. In a rear bedroom off the kitchen, Inspector Kahn found a pair of dungaree type trousers, one pocket of which contained a small tinfoil packet which, when opened, was found to hold some white powder later proved to be a narcotic substance. The rear bedroom, also contained ten men’s suits and other men’s clothing in a dresser on top of which were found an application for a dog license and other papers respecting defendant’s dog, and a wallet containing money which admittedly belonged to defendant.

When confronted by the inspectors with the pants and tinfoil packet, defendant denied ownership of both. The officers then held the pants up to defendant and at the trial testified that they apparently fit. A belt was removed from the pants, put around defendant’s waist and when tightened to his size, was in the notch most frequently used on the belt. No attempt was made to fit the belt or pants to the workman detained in the kitchen with defendant. A written report of the search and arrest mentioned neither the finding of narcotics in a pair of pants nor the fitting of the belt and pants to defendant. Defendant was never asked to try on the pants, and the pants and belt were not retained by the officers and not produced at trial. No further evidence against defendant was found during the search.

Testimony of Defense Witnesses

The defendant’s divorced wife testified that she moved into the house at 2255 S. Kostner Avenue during the last part of April 1963, and owned the home with her grown son Jerome who was in the Armed Services at time of trial. Considerable repair work had been in progress for three weeks to a month prior to June 11, 1963, and carpenters, electricians, linoleum layers, men who cut plastic covers for the couches, and men who installed the washer and dryer had been in and about the premises. Six workmen came in on June 11. The rear bedroom (in which the narcotics were found) was used for storage of clothes, and although her former husband kept clothing there, so did her son, his friends who helped with the construction, and the workmen who changed clothes and used the closet in the bedroom. She never saw her husband wearing dungarees, but her son had done so.

When she returned home at about 4:30 p. m. on June 11, her house looked as though a storm had been through it. In the course of picking things up, she found a pair of blue jeans or dungarees which fit neither her son nor her husband. These dungarees were offered into evidence at trial but were excluded on objection by the State.

Opinion

We agree with defendant’s contention that the evidence did not constitute proof of guilt beyond a reasonable doubt and was insufficient upon which to base a conviction for possession of narcotics. In People v. Connie, 52 Ill App2d 221, 226-227, 201 NE2d 641, this court reversed a conviction for possession of narcotics, holding:

The Supreme Court of Illinois has often pronounced that to support a conviction of the crime of unlawful possession of narcotics the People must establish knowledge on the part of defendant of the presence of narcotics and must also establish that the narcotics were in the immediate and exclusive control of defendant. (Citations.) . . .
. . . The law, therefore, is that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him, which may be sufficient to sustain a conviction for unlawful possession of narcotics absent other facts and circumstances which might leave in the mind of [the trier of fact] a reasonable doubt as to his guilt. People v. Nettles, 23 Ill2d 306, 309.

Discovery of the narcotics in clothing found in the home of defendant’s divorced wife, under all the circumstances of this case, did not establish ownership and control by defendant to the degree necessary to raise an inference of guilty knowledge and possession on the part of defendant. People v. Nettles, 23 Ill2d 306, 178 NE2d 361. Further, the dungarees and belt which were allegedly “fitted to” defendant, thereby forming the basis for the conclusion that they were his, were never actually tried on the defendant and were not introduced by the prosecution at trial, at which time the fit of the pants could have been positively determined. Even were we to accept as fact the approximate fit of the pants to defendant, a fact denied by defendant and his wife, this does not, under these peculiar circumstances, prove beyond a reasonable doubt that the pants were defendant’s and not those of his son, one of his son’s friends, or one of the workmen who had access to the rear bedroom and used it for the purpose of changing clothes. It is also noteworthy that the written report of the search and arrest did not mention that the narcotics were found in a pair of pants which were fitted to defendant, or that a belt from the pants had been fitted around his waist.

Defendant, of course, did not have the burden to prove that the pants or the narcotics were not his or in his possession. As stated in Connie, supra, at pages 228-229:

Mere presence of the defendant at the scene of the crime is insufficient to establish guilt. People v. Boyd, 17 Ill2d 321 ... . The burden remained on the People to show that no one other than defendant was responsible for the presence of the narcotics. Furthermore, it is unnecessary for defendant to prove or allege that another is guilty. Since defendant’s guilt was predicated on conjecture, speculation and surmise it cannot be sustained. We believe that there are present here such facts and circumstances to leave a reasonable doubt as to his knowingly possessing and being in control of the narcotics. (Emphasis supplied.)

Because of our view concerning deficiencies in proof, it is not necessary to discuss the other contentions raised on this appeal.

Decision

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and McCORMICK, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dale A. Dronso, Defendant-Appellant.
    Gen. No. 51,150.
    First District, Fourth Division.
    April 28, 1967.
    Rehearing denied May 25, 1967.

      Frank Ferlic and Horace Lund, of Chicago (Frank Ferlic, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Armed robbery.

Defense at Trial: Defendant denied that he committed the alleged offenses.

Judgment : The defendant was indicted for two robberies by force and while armed. One was the robbery of Anna Sokolowski; the other the robbery of Elmer Dobesh. The cases were consolidated for trial. After a jury trial the defendant was found guilty as charged in both indictments and was accordingly sentenced to the penitentiary for one to three years.

Points Raised on Appeal :

1) The evidence was insufficient to support a finding of guilty;

2) The State failed to call all its available witnesses;

3) The argument of the State’s Attorney was improper and prejudicial;

4) The court erred in excluding defendant’s children from the courtroom;

5) The court erred in refusing defendant access to police records during cross-examination.

Evidence : The grand jury voted two indictments; one indictment charged the defendant, Dale A. Dronso, with the offense of robbery, while armed, from the person of Anna Sokolowski; the other charged the defendant with robbery, while armed, taking $50 from the person of Elmer Dobesh. Because the same evidence was involved, both indictments were consolidated and tried together. A jury was selected and sworn. A motion for the exclusion of witnesses was allowed. The court then excluded the defendant’s children from the courtroom on the ground that their presence was merely to elicit sympathy from the jury. The defense took exception to this ruling.

Testimony of Witnesses:

Elmer Dobesh testified as follows: On February 13, 1964, he was in the Club 59, located at 59th and Lawn-dale, in Chicago. He arrived there about 10:30 p. m., and about 11:00 p. m., two men went up to the bar, one of whom he identified as the defendant. Besides the two men at the bar, the proprietor of the Club and two other people were present. The defendant told them to turn around, put their hands on the bar, that “this was a stickup,” and said that “if we didn’t put our hands on the bar he would kill us.” When Anna Sokolowski (the owner of the tavern) hesitated, the defendant reiterated that “he would have to kill,” and Dobesh told Anna Sokolowski to hand over the money. The defendant was holding a .45 automatic in his right hand; he told his accomplice to take Dobesh’s billfold which contained his driver’s license, his draft classification card, some personal things and a 50-dollar bill. The men then left the tavern and Dobesh followed them to try to get the make and model of the car they had, but was unsuccessful in this attempt. Dobesh said the defendant and the other man were in the tavern for only five minutes, and he next saw the defendant on June 14, 1964. Dobesh was in a restaurant at 60th and Kedzie when he saw the defendant walking north on Kedzie. Dobesh got into his car and drove to 59th and Kedzie, where he told a police officer what had happened. The officer stopped the defendant, told him he was being questioned about the holdup in Club 59, and arrested him.

On cross-examination Dobesh described the defendant as medium build, medium height, graying hair, and cleft chin. He said that when he was told to put his hands on the bar his head was turned at a 45-degree angle and he could see the defendant and the other man clearly; that he could identify the gun as a .45. He stated that he could identify the car only as a red Oldsmobile, possibly a 1962 model; that the license plates were dirty and not readable; that the bar was well lighted. Dobesh stated that on June 14, after the defendant was arrested, Dobesh went to the police station on his own, where he gave the officers the name of Anna Sokolowski as someone who would back him up, and she came to the station.

The narrative description of the offenders, signed by officers Joynos and Scafinski, was not made available to the defense for purposes of cross-examination. In reference to Dobesh’s testimony at the preliminary hearing, the court read his description of the defendant:

“A I said graying hair, what I thought was a crew cut but it’s not, cleft chin and about his height and build.
“What did you say ?
“A I said about five feet five inches and 150 pounds.”

Dobesh testified that the defendant had on a three-quarter length green suburban coat, dark pants, and did not wear a hat. Dobesh does not wear glasses; Mrs. Sokolowski does wear glasses.

On redirect, Dobesh was asked the dates of his military service; counsel for the defense objected to this evidence and was overruled; the dates were from February 1,1953, to November 23,1956.

Anna Sokolowski testified that on February 13, 1964, at approximately 11:05 p. m., two men walked into her bar, and she identified the defendant as one of the men. She stated that the defendant had a gun in his hand and said, “Everybody put your hands on the bar, this is a stickup”; that he added, “Lady, don’t move, I wouldn’t want to kill you .... Give me all the bills you’ve got in the register.” She stated that she put the money on the bar. She further testified that after the two men left Mr. Dobesh ran after them; that she called to him because he did not have a gun and she was afraid he might be hurt. She stated that she next saw the defendant on June 14, 1964, at the Chicago Lawn Police Station; that the officers had come to her bar and told her they would like her to come and identify the man who had held her up; that she was taken into a room for a showup; that all the men were Caucasian; that she was asked if she could point out the man who robbed her, and she did.

On cross-examination Anna Sokolowski testified as follows : Mr. Dobesh and two other people — Jack and Louise Langbouer — were in her tavern on February 13, 1964. Dobesh was drinking a coke, and she had “probably a drink or so that night.” The man with the gun was standing near the telephone booth, and the other man was the one who came and picked the money off the bar. She described him to the police. She said that one of the men in the lineup at the police station was considerably younger than the other three, and that she did not talk to Dobesh at the station until after they had signed the complaint.

William Bebinger, a police officer with the Robbery Division, testified that he talked with the defendant at the Chicago Lawn Police Station; that he asked the defendant where he was on February 13 and the defendant “said he knew very well where he was at, but he wasn’t going to tell me.” Bebinger did not remember whether he asked defendant if he could search his room, or whether defendant gave him permission to do so. He stated that he questioned the defendant the afternoon of the day he was arrested and also on the Mowing day; that on the following day Bebinger was familiar with the offense with which defendant was charged.

Dale Dronso, the defendant, testified that he had never been in the Club 59, although he had passed there many times, since it was his neighborhood. He testified that on June 14, shortly after noon, he was walking north on Kedzie Avenue when a police car pulled over to the curb and a policeman said, “Say, fellow, do you live around here ?” He said that a civilian car then pulled up behind the police car and Mr. Dobesh got out of it; that the policeman asked the defendant if he knew him and the defendant said he didn’t think so; that Dobesh said, “How about February 13th, when you held the GI .45 on me?” The defendant testified that a few more squad cars arrived, and the arresting officer took him to the station where he was questioned for about an hour. He testified that Mrs. Sokolowski came in; that the defendant was then put in a lineup with three men and a boy, and Mrs. Sokolowski looked at the four of them “slowly and deliberately, and immediately excluded the young man, the boy, — ” The defendant stated that Mrs. Sokolowski then looked back and forth again; that the policeman asked her if the person said anything, and she said he said “Put your hands on the bar, this is a stickup”; that the four men were then asked to repeat that statement; that Mrs. Sokolowski then identified the defendant as the man. The defendant stated the officer and he had the following conversation concerning his taking a lie detector test:

“He said, ‘Now, you don’t have to take this, you know that, don’t you?’ And I said, ‘Yes, I do know that.’ And he said, ‘This causes us a lot of trouble, but, today being Sunday, we can’t set it up today but we will set it up for tomorrow morning.’ He said, ‘If you want to change your mind, change your mind now, because, don’t put us to a lot of trouble.’ I said, ‘Don’t worry, I won’t change my mind.’ ”

The defendant was not given a lie detector test. He testified that there was no way in which he could connect up the date of the robbery; that it did not mean a thing to him. He said, “I’ve tried and tried and the closest I could come was to place it between Lincoln’s Birthday and Valentine’s Day. The 13th of February doesn’t mean a thing to me.” He testified that he talked to the police officer concerning the search of his apartment and told them to go ahead and search, but as far as he knew it had not been searched. He stated that he did not- hold up the tavern or Mr. Dobesh or Mrs. Sokolowski.

The defense then rested. In rebuttal, the State introduced a prior conviction of Dale Dronso for assault. William Bebinger was recalled as a witness and testified that the defendant had requested a lie detector test on Sunday, but had refused it the following morning. The State then rested its case.

Opinion : The first question raised by the defendant is that he was not convicted beyond a reasonable doubt. In this court he argues that the identification made by Dobesh was a doubtful one. It is true the identification was made four months after the robbery was committed. Dobesh testified that he could clearly see the men who were holding up the tavern; that the tavern was well lighted, and that he described the men to the police immediately after the robbery. Dobesh’s identification was positive.

Defendant also argues that doubt was thrown on Mrs. Sokolowski’s identification of Dronso because she testified that before she went to the police station where he was in custody, she was told they had caught the man who held her up. She further testified that when she went to the police station she saw Dobesh there; that there were four men in a lineup; that she asked to hear Dronso speak, and when he did she identified him as the robber. The fact that she was told that the man who was accused of holding up her tavern had been caught, is immaterial; there is no showing that she was influenced by that statement in identifying Dronso; she positively identified him. In People v. Hynes, 26 Ill2d 472,187 NE2d 252, the same contention was raised by the defendant. The evidence brought out before the jury showed that when two State’s witnesses first viewed the defendant at a police lineup about six months after the robbery, they were unable to identify him. The court held that the fact was not sufficient to require a reversal. In the case before us there was no question that both Dobesh and Mrs. Sokolowski identified the defendant.

In People v. Washington, 26 Ill2d 207, 186 NE2d 259, it was held that the fact that an accused is not placed among a group of persons in being presented to a witness for identification does not fatally weaken the evidence of identification, but bears only upon the weight to be accorded that evidence. Citing People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; and People v. Barad, 362 Ill 584, 200 NE 858 in which latter case it was stated that positive identification by one witness who had ample and favorable opportunity to observe is sufficient to convict even though the testimony is contradicted by the accused.

In the instant case the defendant also makes a point of the fact that at the time of the holdup there were two other persons in the tavern who were not called as witnesses by the State, and in support of its argument cites Waters v. People, 172 Ill 367, 50 NE 148. In that case, however, the court held that the identifying witnesses had been impeached and that there was not such a clear preponderance of evidence as would be sufficient to convict the defendant. There is no requirement that the State produce all of its available witnesses in a criminal trial. People v. Sustak, 15 Ill2d 115, 153 NE2d 849; People v. Wright, 27 Ill2d 557, 190 NE2d 318. The contention of the defendant that the State’s failure to call the two witnesses deprived him of a fair trial is without merit. People v. Huff, 29 Ill2d 315, 194 NE2d 230.

The next contention of the defendant is that the argument of the Assistant State’s Attorney trying the case was improper and prejudicial. Among other things, the Assistant State’s Attorney said:

“But we have a character assassination placed before you against Mr. Dobesh. They state, what a fool to run after a man. Well, the Purple Heart is not given to a man who drives a tank after a mouse. It is given to a man who throws his body on a grenade to save forty or fifty people in his battalion.”

The State contends that the argument objected to was made in reply to counsel for the defendant. The argument of counsel for Dronso does not appear in the abstract; in the record the following statements by counsel for Dronso appear:

“Then I think a very meaningful thing, the fact that after the man left, that Dobesh took off, by his own statement, he ran after. Now, this, one of the men at least had a gun and he was running after him to try to get, he said, the license number and he admitted he wouldn’t know what to do when he got up there. He claims a lot of experience in the Army, an Army man, as an expert with a .45, but suggest the United States Army never told anybody to run out unarmed against an armed man. . . .”

There was evidence in the record brought out on cross-examination that Dobesh had been in the Army and was familiar with guns. Considering the evidence and the statements made by counsel for Dronso, the argument made by the Assistant State’s Attorney is not sufficiently prejudicial to require reversal.

Dronso raises a further objection to the statement of the Assistant State’s Attorney with reference to Dronso’s testimony in which Dronso had said he did not know where he was on February 13, 1964, but that he guessed he was probably sleeping. In his closing argument, the comment of the Assistant State’s Attorney was, “Well, I submit the best people in the world for remembering dates are women, I think all of us know that. But where is Mr. Dronso’s wife in the Courtroom?” Counsel for Dronso objected and the objection was overruled. The comment of the Assistant State’s Attorney need not necessarily be interpreted as a criticism because of Dronso’s failure to call his wife to testify; nor do we think it could be so considered by the jury. The statement, while ill-advised, is not a matter requiring a reversal.

Dronso objects that he was denied his right to a public trial since the trial court excluded his children from the courtroom. At the beginning of the trial the State made a motion to exclude witnesses, which motion was allowed by the court. The court then said, “Are these youngsters the youngsters of the defendant?” When told that they were, the court said, “I think they should be removed from the courtroom.” Mr. Lund (attorney for Dronso) said, “We take exception to that, your honor.” The court then said:

“Yes, I understand. That’s my ruling. It will do the youngsters no good to hear the facts in this case, as they are set forth in these indictments, and their presence here can aid them in no way whatsoever. Their presence here can only be for the purpose of eliciting sympathy on the part of the jury, which is improper. They will be removed from the courtroom during the trial.”

The defendant was not denied a public trial because of the exclusion of the children from the courtroom. The right to a public trial is violated only by a blanket exclusion of the members of the public. In United States v. Kobli, 172 F2d 919, the court said:

“The right to a public trial in a criminal case which is guaranteed by the Sixth Amendment has received universal recognition in this country, the right having been similarly guaranteed by the constitutions of nearly all the states. . . .
“After mature consideration we have reached the conclusion, in accord with the present views of the two United States Courts of Appeals which have passed upon the precise question, that the Sixth Amendment precludes the general indiscriminate exclusion of the public from the trial of a criminal case in a federal court over the objection of the defendant and limits the trial judge to the exclusion of those persons or classes of persons only whose particular exclusion is justified by lack of space or for reasons particularly applicable to them.”

The defendant’s children were not witnesses; they had nothing to offer to the outcome of the case. Their presence in the courtroom could only serve to arouse the sympathy of the jury, and this the defendant is not permitted to do. Further, this was a valid exercise of judicial discretion, because no good could have come of having the children hear their father’s trial for an alleged robbery.

Dronso also contends that he was refused access to the police records during cross-examination of Dobesh; however, it appears from the record that the Assistant State’s Attorney stated that he had in his possession a narrative description of the defendant reported by officers Joynos and Scafinski, and out of the presence of the jury, the report was given to counsel for Dronso who read it into the record. At that time the Assistant State’s Attorney stated that the records were not available to the defendant for cross-examination. Because the report did not disclose who had given the information which was recorded in the report, the court sustained the State and refused to make the report available to defendant for the purpose of impeaching Dobesh. In People v. Neiman, 30 Ill2d 393,197 NE2d 8, it is held:

“The law is well settled that the prosecution is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by a State’s witness which have been established to exist and which are in the witnesses’ own words or substantially verbatim.”

In the instant case the defendant did not then lay proper foundation to show that the statements in the report had been made by Dobesh. Under those circumstances the court correctly ruled that the report could not be used for the purpose of impeaching Dobesh.

Decision: The judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.

       Ill Rev Stats 1963, e 38, § 18-1 (a). A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
      Ill Rev Stats 1963, c 38, §18-2(a). A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.


author: MR. JUSTICE ADESKO

text:
    Mary Jenkins, a Minor, by Lorraine Jenkins, Her Mother and Next Friend, Plaintiff-Appellant, v. Pearl Hechtman, Defendant-Appellee.
    Gen. No. 50,865.
    First District, First Division.
    May 1, 1967.

      Rosenbaum & Rosenbaum and Lester E. Williams, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Robert O. Rooney and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff, Mary Jenkins, a minor, age 5 at the time of the accident, by her mother and next friend Lorraine Jenkins, filed this complaint for personal injuries. The complaint alleges that the defendant while driving her motor vehicle struck plaintiff causing severe injury to her head. The child suffered a depressed frontal skull fracture with a fragment of the skull bone pushed into the surface of the brain. A verdict of “not guilty” was returned by the jury upon which judgment was entered. Plaintiff’s post-trial motion for a new trial, or in the alternative, judgment notwithstanding the verdict, was denied. Plaintiff appeals from the judgment and the denial of the post-trial motions.

On April 19, 1961, in the forenoon, Mary Jenkins and her two-year-old brother Don were taken by their older married brother, Gene Andrew Jenkins, age 26, to Humboldt Park across the street from the children’s home. At about 11:80 a. m., they started to return to the children’s home, located at the Northwest corner of Kedzie Avenue and Haddon Street. The accident occurred on Kedzie Avenue, a North-South thoroughfare, immediately North of Haddon Street, an East-West street which dead-ends on the East at Kedzie Avenue. Humboldt Park is located on the East side of Kedzie Avenue. There was a crosswalk across Kedzie Avenue from East to West parallel to and immediately North of Haddon Street.

Pearl Hechtman, the defendant, was driving North on the right side of Kedzie Avenue, approaching Haddon Street. She testified that she was a truant officer; drove an automobile for 11 years; the car she drove was four months old with new tires and brakes; that at the time of the accident she was driving 25 miles per hour; that there were automobiles parked along the East side of Kedzie Avenue; that the plaintiff came out between two parked cars; that the defendant could see a young man’s head at the curb and heard “like he yelled to her”; that defendant was three car lengths South of the crosswalk when she first saw plaintiff; that the plaintiff turned, looked at her brother and then ran and fell on the pavement of the street; that defendant’s car did not come in contact with the plaintiff; and that defendant put her brakes on and swerved toward Haddon Street leaving skid marks.

Gene Andrew Jenkins testified that as he and his little brother and sister arrived at the corner of Haddon Street and Kedzie Avenue, he was holding on to the hands of both children. Don, the two-year-old, began tugging at his hand, wanting to sit down and be picked up. Gene let go of plaintiff’s hand and turned to pick up his little brother. At that point he noticed defendant’s car about 50 feet away from the North crosswalk of Haddon Street. There were no parked cars near the crosswalk, the closest parked car being 50 feet to the South. Defendant was traveling 35 to 40 miles per hour. Gene turned to pick up his little brother. When he turned back, plaintiff was 4 or 5 feet into the street. She was immediately hit by defendant’s car. Gene further testified that he did not holler at his sister until after she was hit by the car. The witness did admit that the first thing defendant said to him when she got out of her car and what she kept telling him was that “she did not hit that girl.”

There was conflicting testimony as to whether there were cars parked along the East curb of Kedzie Avenue and whether the plaintiff ran out from between parked cars. Another witness, Carol Patricia Jenkins, wife of Gene Andrew Jenkins, who lived across the street on the West side of Kedzie Avenue testified that there was no parked cars on the East side of Kedzie Avenue. The report of Joseph Halicka, the police officer who investigated about an hour after the accident, showed there were cars parked, but his report was based on information he received from Pearl Hechtman. Plaintiff’s mother and brother, Gene, also testified that plaintiff was wearing a bright red sweater on the day of the accident. Defendant did not recall any bright red clothing. She testified that plaintiff was wearing dark clothes.

Plaintiff claims the verdict was contrary to the manifest weight of the evidence and error on the part of the trial court for excluding evidence of the defendant’s stopping ability and the results of a test the police officer made of defendant’s automobile shortly after the accident.

The plaintiff’s argument that the jury verdict of not guilty is against the manifest weight of the evidence is based on the theory that it was physically impossible for defendant to stop and avoid hitting the child because the skid marks belie defendant’s testimony as to how fast she was going. According to her own testimony, when she first saw the child, she was only three car lengths away. This theory of impossibility was fully argued to the jury. This court is not the judge of credibility of the witnesses, the weight of the evidence, nor is it to determine the preponderance. Rodgers v. Meyers & Smith, Inc., 57 Ill App2d 200, 206 NE2d 845 (1965). As a court of review we considered the fact that the trial judge after seeing and hearing the witnesses and arguments of counsel, denied a motion for a new trial. Green v. Smith, 59 Ill App2d 279, 207 NE2d 169 (1965); Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 170 NE2d 635 (1960).

Having reviewed the record, we feel that there is sufficient evidence to support the verdict of the jury. We do not find that a conclusion opposite to that reached by the jury is clearly evident, plain or indisputable, as we must, to reverse the jury’s verdict. Black v. DeWitt, 55 Ill App2d 220, 204 NE2d 820 (1965); Bibby v. Meyer, 60 Ill App2d 156, 208 NE2d 367 (1965). Nor do we find that the jury verdict is palpably erroneous and wholly unsupported by the manifest weight of the evidence. Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 180 NE2d 347 (1961).

While the evidence as to whether there was contact between the child and defendant’s car and whether the child stepped out into the street from between two parked cars is in conflict, it is apparent that the jury disbelieved the testimony on behalf of the plaintiff and did believe the testimony of the defendant.

A fair reading of the testimony discloses that the injured child broke away from her older brother’s grip and stepped out from between two parked cars into Kedzie Avenue. Defendant, upon seeing the child, applied the brakes and swerved to avoid striking her. The injury to the child was the aforementioned skull fracture. There were no other cuts, bruises or other indications that the defendant’s car came in contact with the child. Under the principles of law in Brannen v. Fisher, 57 Ill App2d 64, 206 NE2d 458 (1965); Copeland v. Johnson, 63 Ill App2d 361, 211 NE2d 387 (1965); Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379 (1965) and Roberts v. City of Rockford, 296 Ill App 465, 16 NE2d 568 (1938), and under the facts of this case we feel that a conclusion opposite to that reached by the jury is neither clearly evident nor so palpably erroneous or unwarranted by the manifest weight of the evidence.

Plaintiff also urges that the trial court erred in sustaining the objection to the question relating to defendant’s stopping ability basing her contentions on Barrows v. Midwest Transfer Co., 4 Ill App2d 191, 124 NE2d 20 (1955). The trial court sustained defendant’s objection to the following question asked of the defendant. “Going 25 miles per hour with the kind of brakes you had and tires in what distance could you stop?” A careful reading of the Barrows decision indicates that the judgment of the trial court was reversed and cause remanded for several reasons stated therein. While the Appellate Court in the Barrows case did say that cross-examination of the plaintiff with respect to the distance within which his automobile could have been stopped was admissible, there was no question in that case that plaintiff and defendant collided. In the instant case there is no convincing evidence that plaintiff was struck by the defendant’s automobile. However, even if it was error to refuse to permit the question to be answered, “a verdict will not be reversed, even though there is error in the record, where the result is fair and just, where the error did not affect the result, or where the result would most likely be the same.” Shafer v. Northside Inn, Inc., 44 Ill App2d 86, 194 NE2d 5 (1963); Adamaitis v. Hesser, 56 Ill App2d 349, 206 NE2d 311 (1965).

Plaintiff also claims that it was error for the court to refuse to permit plaintiff to introduce testimony by the police officer of stopping tests he conducted with the plaintiff after the accident. Defendant’s car was 4 months old. There is no claim that the condition of the car was faulty or that it contributed in any manner to this accident. The police officer who tested the car after the accident testified that the condition of the brakes was very good. Such tests are usually used to show a defective condition in the car. Thus it was proper for the trial judge in the exercise of his discretion to exclude such evidence.

The final error asserted by plaintiff was permitting the defense to show that the policeman’s report stated that there were parked cars along the East side of Kedzie Avenue. The officer had stated on direct examination: “When I arrived there, I found nothing at the scene.” On cross-examination the officer denied noticing the condition of parked cars along the East side of Kedzie Avenue. The policeman’s report which was marked for identification, but never offered into evidence, was then used to impeach the officer. We find no error in such procedure. Black v. DeWitt, 55 Ill App2d 220, 204 NE2d 820 (1965).

The plaintiff further claims that the trial court breached its special duty to the minor to see that her rights were adequately protected and the court is bound to notice substantial irregularities even though objections are not properly presented on behalf of the minor. This is the so called Muscarello doctrine. Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564 (1960). Plaintiff does not point to any errors that were made to which no objection was made. In our opinion the Muscarello doctrine has no application here.

The judgment in favor of the defendant is proper, the trial judge having heard the evidence was justified in his ruling denying the post trial motions. Judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE BURMAN

text:
    Herbert M. Pozdro, Administrator of the Estate of Carol Rose Pozdro and of the Estate of Robert Allan Pozdro, Plaintiff-Appellant, v. John Dynowski, Defendant-Appellee.
    Gen. No. 51,219.
    First District, First Division.
    May 1, 1967.

      John T. Chadwell, Jr., of Chicago (Chadwell, Keck, Kayser, Ruggles & McLaren, of counsel), for appellant.
    George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This action was brought by Herbert M. Pozdro, as Administrator of the Estates of his two deceased children, under the Illinois Wrongful Death Act, (Ill Rev Stats 1965, c 70, §§ 1-2) to recover damages for their deaths in an automobile accident allegedly due to defendant’s negligence. The jury trial resulted in a verdict in favor of the defendant, John Leon Dynowski, and against both the plaintiff-Administrator and the occupants of a third car. Judgment was entered on the verdict for defendant and Herbert M. Pozdro, Administrator, appeals.

The collision occurred on July 9, 1960, at about 8:00 p. m. on Route No. 53, which runs north-south where Industrial Road enters from the east. Mary R. Pozdro was driving south on Route No. 53 with Carol and Robert Pozdro, the deceased children, as passengers. Mrs. Pozdro was attempting a left-hand turn into Industrial Road when struck by defendant’s automobile which was proceeding north on the same highway.

Plaintiff contends that (1) the verdict and judgment are against the manifest weight of the evidence; (2) the court erred in giving certain instructions to the jury; and (3) defense counsel committed error by going beyond the record of the trial in his closing argument to the jury.

The plaintiff called the defendant, John Dynowski, under section 60 of the Civil Practice Act. He testified that he and his uncle, Casimer Dynowski, had decided to go fishing that evening, and on the way they had a glass of beer and bought a six-pack of beer which was placed in the back seat of the car. He said that he was driving north on a two-lane highway, Route No. 53, at 40 to 45 miles per hour, that he had his lights on because it was dusk, that the visibility was clear and no cars were in front of him, and that he could have stopped his car within 40 to 45 feet. He said he first saw the Pozdro car a block north of Industrial Road, and “When I was about 30 to 35 feet from the intersection when I seen Mrs. Pozdro. Then she turned in front of me and that was all I remember.” He testified further that she appeared to be driving 5 to 10 miles an hour slower than he was, but he said there was no indication that she was slowing down to make the left-hand turn. He said he didn’t slow up, but applied his brakes and felt them catching just before he hit her.

Casimer Dynowski, defendant’s uncle, was also called as a witness by the plaintiff under section 60 and he testified that they had a glass of beer and bought a six-pack of beer to go fishing with. He said he didn’t remember any part of the accident.

Police Sergeant James Ruggio, Jr. testified that he was summoned by radio to the accident scene and arrived at 8:22 p. m. He prepared a drawing of the scene at that time and said that the road is drawn to a scale of one inch to 20 feet, but that the vehicles were not to scale. He said he found four Budweiser cans in the Dynowski car, three full small cans and one larger empty can. When questioned on recross-examination he denied finding a full six-pack in the car and didn’t remember testifying at the Coroner’s Inquest that a full six-pack was found or that the empty cans were rusty and dirty. He said he smelled no odor in the opened cans.

Daniel Salberg testified that he, his wife, the Culpeppers and Kellys were driving in a southerly direction about 40 miles per hour on Route No. 53, about 200 feet behind the Pozdro car, which he said slowed down to 15 miles per hour before it made a normal left-hand turn on Industrial Road. Previous to this he saw defendant’s car, but could not determine the speed. He said the Pozdro car was in the middle of Industrial Road at the time of the impact and the defendant’s car careened off the Pozdro car causing the back end to strike him head-on. He estimated that the defendant was traveling about 80 miles an hour after the impact. He placed the Pozdro car in the middle of the north lane at the time of the collision. On cross-examination he said he did not have an opinion of Dynowski’s speed at the time of impact, but he formed an opinion of the speed of defendant’s car, “By the damage” and “That and seeing the car,” one and one-half months later when he got out of the hospital.

William H. Kelly testified that he was sitting on the front side of the Salberg car. He didn’t remember seeing a car in front of them or seeing an automobile making a left-hand turn in front of them. He said when their car was about 100 feet from Industrial Road he noticed another car in the northbound lane, already turning. When asked whether he could determine the speed of defendant’s car he answered, “I know it was going very fast. I would say, probably, over seventy-five miles an hour.” On cross-examination he was questioned about his testimony on a pretrial deposition. It appears therein that the following questions were asked and answered as follows:

Q. How long would you say you observed the Cadillac (defendant’s car) and Chevy (Pozdro car) before they actually collided?
A. One or two seconds.
Q. Do you have an opinion as to the speed at that time of the car that you were in ?
A. I would guess around thirty miles an hour.
Q. Do you have an opinion as to the Cadillac speed?
A. No.

When asked whether he made those answers he said he didn’t recall, but if it was in the deposition he must have made it. He also testified that the Pozdro car and the defendant’s car were thirty or forty feet apart when he first saw the two cars.

Hazel Salberg, who was also in the front seat, testified that she was lighting a cigarette when she saw Mrs. Pozdro make her turn and at that time the defendant’s car was on the other side of Industrial Road. She could not describe the speed of the defendant’s car exactly, but she said it was “like a racing car going around the curve, you know, just fast.” On cross-examination she testified that Mrs. Pozdro’s car had completed a normal turn into Industrial Park before it was struck. She said she first saw the defendant’s car when it was about one hundred feet from Industrial Road. She was asked:

Q. When was it that you formed an opinion as to his speed that you expressed yesterday?
A. When he came at us.
Q. This is after he collided with Mrs. Pozdro ?
A. Yes.
Q. Before that time, you had no idea or no opinion
as to his speed, did you ?
A. I couldn’t say, no.

Donald Prium testified for the plaintiff and said he arrived at the collision site shortly after it happened. He said he walked up to John Dynowski and could smell that he had been drinking. On cross-examination he said he couldn’t tell how many drinks Dynowski might have had, or what he had been drinking but that it was just something alcoholic. Mr. and Mrs. Culpepper, who didn’t see how the accident happened, and plaintiff - Administrator, Herbert Pozdro, also testified for the plaintiffs, but only as to the issue of damages.

The defense first called Margaret Rojas, who was the court reporter at the Coroner’s Inquest, and she said that her notes showed that Sergeant Ruggio testified that he found a full unopened six-pack and some rusty opened beer cans in the Dynowski car. John Dynowski testified in his own behalf that he was about a block from Industrial Road when he saw a car coming south which was also about a block from Industrial Road, and when that car was 30 or 40 feet from him it turned into his, the northbound lane. He said he reached for his brakes, but the collision occurred within a split second. He also said that Mrs. Pozdro was driving normally.

The Administrator first contends that the verdict of the jury was clearly against the manifest weight of the evidence. He argues that defendant’s mere denial of the testimony against him does not support a verdict in his favor where the overwhelming weight of the evidence showed that defendant was negligent and that his negligence was a proximate cause of the accident. Moreover, he says two of the witnesses were wholly disinterested and the testimony of all five was strongly corroborated. He argues that:

The excessive speed of defendant’s car prior to or/and at impact with the Pozdro car was testified to by Daniel Salberg, William Kelly and Hazel Sal-berg, all occurrence witnesses. Both Mr. and Mrs. Salberg also testified that they saw Mrs. Pozdro make her turn prior to the accident and that it was normal and at moderate speed. Even defendant admitted that . . . Mrs. Pozdro was driving normally.

We have carefully examined the record and conclude that the evidence as to liability was conflicting. The defendant testified that he was traveling north at 40 to 45 miles per hour in a 45 miles per hour speed zone, and that the Pozdro car turned in front of him when he was 30 to 40 feet from her. Daniel Salberg who testified that the defendant’s car was traveling at 80 miles an hour admitted that when he first saw the defendant’s car he did not have an opinion as to its speed, and that he formed his opinion as to its speed only after observing the damage to the vehicles when he was released from the hospital six weeks later. He also said that the defendant’s car was 50 to 75 feet south of Industrial Road when the Pozdro car turned, and while he later testified that the turn was normal he admitted that he was not taking into consideration the relationship of the other vehicles to the Pozdro car. William Kelly testified that the defendant’s car was traveling at about 75 miles per hour, but in his deposition statement he said he had only seen the car for about one or two seconds before the accident and had no opinion as to speed at that time. He also said the defendant’s car was about 30 to 40 feet away when he saw the Pozdro car for the first time, but that he had not seen the Pozdro car turning. Mrs. Salberg testified that she didn’t know exactly what speed the defendant’s car was going, just fast like a racing car. On cross-examination she said she formed an opinion as to defendant’s speed from the speed he came towards her after he collided with Mrs. Pozdro.

It was within the province of the jury, under the facts and circumstances of this case, to decide whether the defendant was negligent. We cannot say, as we must, to reverse a verdict of a jury on disputed factual testimony, that an opposite conclusion is clearly evident, plain and indisputable. Lowe v. Gray, 39 Ill App2d 345, 188 NE2d 890. A court of review must take into consideration not only the verdict of the jury, but also the fact that the trial judge who also saw and heard the witnesses and argument of plaintiff’s attorney denied the plaintiff’s post-trial motions. Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 180 NE2d 347. In view of the conflict in the testimony as to the circumstances of the collision, we think this was a case specifically for determination by a jury. The manner in which the accident occurred was in dispute and in reaching their verdict the jurors apparently believed the defendant. There are many things which a jury and the court observe on the trial that do not appear from the printed record, such as the appearance of the witnesses and their manner of testifying. They are in a better position to determine the truth of the matter in controversy than a court of review. The weight to be given to the testimony of the witnesses is a matter for the triers of the fact and we cannot say the verdict and the judgment is manifestly against the weight of the evidence.

It is next contended that the court erred in giving defendant’s instruction number 5 over plaintiff’s objection. The instruction was taken from IPI 2.07 and reads as follows:

In deciding whether any fact had been proved, it is proper to consider the number of witnesses testifying on one side or the other as to that fact, but the number of witnesses alone is not conclusive if the testimony of the lesser number is more convincing.

The Administrator charges that it was prejudicial error to give this instruction under the circumstances of the case as it confused the jury since the defendant was the only witness to substantiate his side of the story, while five witnesses, two of them wholly disinterested, testified in support of plaintiff’s version of the accident. While plaintiff concedes this is an IPI instruction it is urged that it was inappropriate and erroneously given under the facts and circumstances.

The record shows that IPI instruction 2.01 on credibility of witnesses was also given together with 2.07 as recommended in IPI. These instructions taken together fairly and correctly state the law. It is argued in plaintiff’s reply brief that this instruction fails to properly explain the importance of the number of witnesses testifying on one side. On the contrary, as pointed out in IPI, it is for the jury to determine to what extent each witness is credible, and that it is error to give an instruction on that subject, so worded, that under the circumstances of the case the jury might readily infer the court believed the witnesses for one side to be more credible than the witnesses for the other side. For that reason also, the Committee recommended that the instruction heretofore sometimes given, that the testimony of one credible witness may be entitled to more weight than the testimony of many others, not be given.

It is further contended that the court erred in giving instruction number 11, which is IPI 21.02, over plaintiff’s objection. It is argued that by giving this instruction the jury was misled into believing that if Mary Pozdro was negligent at all, the defendant was not liable whether or not he was negligent. We do not agree. In addition to this instruction plaintiff tendered, and the court gave, the following instruction:

More than one person may be to blame for causing injury. If you believe that the defendant was negligent and that his negligence caused injuries to the plaintiff, it is not enough that some third person may also have been to blame.

The court also gave IPI instruction 15.01 tendered by plaintiff which stated that proximate cause need not be the only cause, nor the last or nearest cause. We believe that the jury was not confused and that these instructions taken together fairly and correctly stated the law.

It is also urged that the defense counsel went beyond the record of the trial in his closing argument to the jury. This contention arises from the fact that counsel used a ruler to attack a drawing of the accident scene prepared by Police Sergeant Ruggio as not being to scale. The record shows that defense counsel requested the court’s permission to use a ruler in discussing the exhibit and there being no objection the court gave him permission. Nor was there any objection made when defense counsel illustrated the inaccuracy of the document which is now claimed to be error. Under the circumstances we perceive no error. We have examined the cited cases on this point and find them inapplicable. It is further urged that defense counsel in his closing argument improperly commented on the negligence of Mrs. Pozdro. We have examined the record on this point and suffice it to say that we see no merit to this contention.

Accordingly the judgment of the Circuit Court should be affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Lee Harrison (Impleaded) and Sarah Crawford (Impleaded), Defendants-Appellants.
    Gen. Nos. 51,476 and 51,477. (Consolidated.)
    First District, First Division.
    May 1, 1967.

      Howard J. Abrams and Howard T. Savage, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, James Lee Harrison and Sarah Crawford were found guilty of unlawful possession of a narcotic drug in manner and form as charged in the indictment. Harrison was sentenced to a term of from eight to ten years, and Sarah Crawford was sentenced to a term of from two to five years. Their separate appeals were consolidated here.

Defendants’ theory is that the evidence upon which they were convicted was unlawfully obtained by use of an illegal and void search warrant; that assuming validity of the search warrant, it did not authorize the seizure of much of the evidence seized during the search against them; and that evidence was unlawfully admitted and seriously prejudiced their defense of unknowledgeable possession of marijuana.

On the morning of November 1, 1965, James Mason appeared before one of the judges of the Circuit Court of Cook County and subscribed and swore to a complaint for a search warrant, in which it was alleged that on the evening of October 30, 1965, “I James Mason purchased a three dollar bag of marijuana from a man called James, who lives at 1548 S. Trumbull on the first floor. While I was there I saw him handle about 15 packages of tinfoil, and about 25 brown paper bags which he sells for five dollars. The tinfoils and the paper bags have marijuana in them. My bag came out of the bunch that he had.” On the basis of this complaint a search warrant was issued, authorizing the search of the person of “James (Doe)” and the entire first floor of 1548 South Trumbull, “and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Possession of Marijuana be seized therefrom: Marijuana.”

Three police officers went to the Trumbull address, and a man, later identified as Harrison, came to the door and looked out at the officers through partially opened Venetian blinds. Officer John Petrocella announced they were police officers and they had a warrant to search the premises. Harrison, on hearing this, closed the blinds and apparently started toward the rear of the apartment. The officers forced the door and entered the apartment. Petrocella subdued Harrison in the kitchen and there showed the original of the search warrant to Harrison and read it aloud to him, after which the apartment was searched. Paper bags and tobacco tins were seized, the contents of which were tested at the Chicago Police Crime Laboratory and found to be “cannabis setiva,” commonly known as marijuana, from which the resin had not been extracted. It was stipulated by both defendants that a total of 812.9 grams of marijuana was taken from nine exhibits.

When the officers entered the apartment, there were present three persons besides Harrison — an unidentified youth and two women, one of whom was the defendant, Sarah Crawford. Officer Jacoby testified that he saw Sarah Crawford “start to go out the door, at which time I stopped her. And she had a bag covered with plastic in her hand.” He took the package away from her and told her to go back and sit down. He stated the package Sarah Crawford had in her hand was filled with some substance. She said that she was not a resident of the apartment, that she was just visiting and did not know the contents of the bag. The contents of the bag were included in the stipulation as being marijuana.

Initially, we consider defendants’ contention that the evidence introduced against them was discovered and seized upon an unlawful entry into the home of defendant Harrison, and that all of the evidence should have been suppressed on defendants’ pretrial motion.

It is undisputed that at the time of the search, a carbon copy of the original search warrant was left with defendant Harrison, but it did not contain the judge’s signature nor the date of issuance. Defendants cite sections of the Illinois Criminal Code which provide that “All warrants shall state the time and date of issuance . . . , shall be issued in duplicate .... If the warrant is executed the duplicate copy shall be left with any person from whom any instruments, articles or things are seized . . . .” Ill Rev Stats, c 38, §§ 108-4, 108-5, 108-6.

Defendants assert that the foregoing provisions are mandatory. Defendants urge “that the above listed defects in the warrant in this case are not mere ‘technical irregularities,’ but a complete disobedience of the law— so complete that it may be said that no attempt was made to create a search warrant in legal contemplation. More than that, substantial rights of defendants here are affected, in that evidence, which they claim was obtained without lawful authority, has been admitted at a criminal prosecution against them — and they are unable to effectively combat the prosecution’s claim that the warrant was properly issued and served within proper time because of the defective issuance and service of the warrant. The law enforcement officials have, by refusing to follow the law, deprived Defendants of an effective method provided them by the Legislature to establish the illegality of the search and seizure resulting in their convictions,” and “the failure to leave a duplicate copy with Defendant Harrison cannot be deemed a ‘technical irregularity’ by any stretch of reason.”

The State argues that the original of the search warrant was properly signed and dated by the issuing judge; that the original was shown to Harrison and read to him in the kitchen; and that, although an unsigned and undated copy was left with defendant, no prejudice was shown at the hearing of the motion to suppress, and “no substantial right could have been violated.” The State cites People v. DeGeovanni, 326 Ill 230, 157 NE 195 (1927), where it was held that the failure of the issuing officer to affix to his signature some indicia of his office was not fatal to the warrant. There the court said (p 237):

“The omission was unimportant — not one of substance but merely of form. It has been held by several courts that such an omission, and similar omissions, do not render a warrant void, particularly where the warrant on its face discloses clearly the official character of the officer signing the warrant.”

Also, People v. Perdew, 78 Ill App2d 331, 223 NE2d 308 (1966), where the court said (p 335) :

“We feel that the absence of the judge’s signature on a copy of the warrant could also be corrected by amendment at any time pending the proceedings so long as the original of the warrant was signed by the judge.”

Noted, also, is section 108-14 (c 38), which provides:

“No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”

We are not persuaded that the failure of a copy of a search warrant to bear the signature of the issuing judge or the date is immaterial, but we hold that in the present factual situation it was a technical irregularity, which was not prejudicial to either of the defendants, nor did it affect their substantial rights. Therefore, the denial of the motion to suppress was proper.

Defendants next contend that the officers executing the search warrant seized a number of things which were not described in the warrant and were not contraband per se. The items included two cigarette making machines, a tobacco pouch, a number of small brown envelopes, a package of cigarette paper, a piece of silver foil, and three packages marked “Zig-Zag Quality Superior.” Defendants argue that the property not described in the search warrant may not be taken, and the search may not be exploratory and made solely to find evidence of guilt. People v. Sovetsky, 343 Ill 583, 175 NE 844 (1931).

The State argues that these materials were incidental to the possession of the narcotic drugs seized and were, therefore, properly seized themselves; that marijuana is most often used in cigarette form and the items listed “were to some extent relevant as being package materials, kept near at hand to the marijuana itself.” In People v. Hall, 56 Ill App2d 7, 204 NE2d 824 (1965), the court was concerned with the seizure of dice suitable for gambling games. The court remarked (p 12):

“[N]ormal dice are not iniquitous per se nor with the legislative condemnation although they may become contraband if used with, a necessary part of or indubitably connected or associated with other gambling paraphernalia when seized.”

We think this statement applies here. The instant items were found in the proximity of a large quantity of marijuana, and the court remarked, “It seems to be a common practice to carry some of these articles around in silver foil packages.” We find no error in the seizure of the articles asserted not to be contraband nor in their admission in evidence at the trial of the defendants.

Finally considered is the conviction of defendant Crawford. She was found in the apartment when the search warrant was executed. She was stopped as she attempted to leave the premises, and she was carrying a bag of narcotics. She denied knowledge of what the package contained.

An officer in the execution of a search warrant “may reasonably detain to search any person in the place at the time.” (c 38, § 108-9.) Narcotics found on that person are properly received in evidence on a charge of unlawful possession of narcotic drugs. (People v. Pugh, 69 Ill App2d 312, 217 NE2d 557 (1966).) “The mere possession of a narcotic constitutes substantial evidence to sustain a finding that the possessor knew its nature.” People v. Pigrenet, 26 Ill2d 224, 227, 186 NE2d 306 (1962).

The conduct of defendant Crawford prior to her detention and search was evidence from which an inference might fairly be drawn of her knowledge of the contents of the package. We find the record contained sufficient evidence to prove the guilt of defendant Crawford beyond a reasonable doubt.

We conclude both defendants were proved guilty beyond a reasonable doubt of the possession of narcotic drugs upon properly admitted evidence. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stevia Harris, Defendant-Appellant.
    Gen. No. 51,273.
    First District, First Division.
    May 1, 1967.

      Jay Weisman, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County; of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.