text:
    In the Matter of Robert R. Urbasek, Alleged Delinquent Boy. Robert F. Urbasek, by His Mother and Next Friend, Lorraine Urbasek, Respondent-Appellant, v. People of the State of Illinois, Petitioner-Appellee.
    Gen. No. 51,004.
    First District, First Division.
    October 31, 1966.
    Rehearing denied November 29, 1966.

      Edward F. Vyzral and Herman R. Tavins, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Robert F. Urbasek, an eleven-year-old boy, was found to be a delinquent by the Juvenile Division of the Circuit Court of Cook County on October 1, 1965. The petition alleging delinquency charged that he did “violate a State law.” At the hearing, evidence was introduced of the murder of an eleven-year-old girl with whom he had been playing approximately four hours prior to the discovery of her body. The finding of delinquency was based on the use of the “preponderance of the evidence rule.”

On appeal, the principal questions are: (1) Where the hearing and determination of delinquency were prior to the effective date of the present Juvenile Court Act, should the proceedings have been governed by the “preponderance of the evidence rule” or by the “beyond a reasonable doubt rule,” since personal liberty was at stake? (2) Was the delinquent entitled to all the constitutional safeguards possessed by adults exposed to criminal prosecution? (3) May an expert witness on direct examination be questioned about learned treatises on which he is not specifically relying? (4) Was there an illegal search and seizure and, if so, was the right to suppress the fruits thereof waived?

On August 26, 1965, between 7:00 and 8:00 p. m., the body of Karen Mitchell was found in the locked Urbasek garage. Karen had been missing since about 3:00 p. m., and her mother had been searching for her. She had questioned Robert several times and finally insisted that Robert and his older sister allow her to look for Karen in their garage. The garage was opened, and the girl’s body, with seven stab wounds, was found in the crawl space at the far end of the garage. A 6-inch knife was found near her head, and on her left wrist was “a strapping with perforated holes and a combination lock and a piece of twinelike substance around her neck.” The immediate cause of death was stab wounds of the lungs and liver. Karen’s mother testified as to what happened when she found the body: “I saw Karen’s knees. I looked, and I said, ‘There she is, Bobby. . . . Why did you do it?’ He said, T don’t know.’ ”

Later that evening, Robert was questioned both at home and at the Village of LaGrange police headquarters. The record indicates that Edward F. Vyzral, an attorney, was present during part of the questioning at the police station, and that he represented Robert at the court hearing. Robert cooperated with the police and answered all questions. He denied seeing Karen after 3:20 p. m., when “she went around the side of the house” while he was filling a lawn mower with gasoline.

A State’s witness, a Chicago Police Department micro-analyst, testified that he made an examination of a sample of the decedent’s blood, which he received from the morgue, and determined that “it was human blood, Group A.” He also examined reddish brown stains on the knife and on Robert’s T-shirt and found they were “human blood of Group A.” One strand of hair found in the hand of the decedent was compared with hair strands submitted from the head of Robert, and a comparison determined that both hairs were similar. On the one strand was found a reddish brown flake, which was found to be blood. He also testified, “I found nothing on the boy’s socks, nothing on his undershirt. I found nothing on his undershorts, they were clean. The fingernail scrapings were negative. There were no fingerprints on the knife, there were no fingerprints on the strap iron, there were no fingerprints on the lock, there were no fingerprints on the tape or the rope.”

Robert testified and was cross-examined extensively at the hearing. His testimony was substantially the same as related by the various police officers who had questioned him on the day of the occurrence. He denied killing Karen and was steadfast in his statement that he did not see her after she left him at 3:20 in the afternoon.

The trial court, in announcing its findings, remarked: “I was and am convinced that the youngster committed the act. I believe that the State met their burden of establishing the preponderance of evidence. I don’t know that they met, if it is a requirement of proof beyond a reasonable doubt. I don’t think that was met. . . . Since I have entered the finding of delinquency, and since I was convinced he was and I am convinced the youngster committed the act, I have felt that long term placement was in need.”

Initially, we consider whether at the hearing on the delinquency petition, the court should have required proof beyond a reasonable doubt that Robert murdered Karen, which was the basis of the charge and finding of his delinquency.

The authorities submitted by respondent include In re Madik, 233 App Div 12, 251 NYS 765, where the charge of delinquency was based on arson, and the court said (p 767):

“In the case of an adult, proof of guilt beyond a reasonable doubt would be required. The district attorney concedes and we think that such proof is required here.
“Undoubtedly suspicion points to the boy’s guilt, but suspicion is not proof beyond a reasonable doubt, and we think that the boy’s guilt has not been sufficiently shown under the rule.”

In In re James Rich, 86 NYS2d 308, the charge of delinquency was that the minor was responsible for the death of another person. There the court said (p 311):

“The rule of law is that a charge of crime must be established beyond a reasonable doubt. If there is a reasonable doubt as to the perpetration of the crime, that reasonable doubt must be resolved in favor of the person charged with having committed the act.
It is no less applicable to a child than it is to an adult.”

In Jones v. Commonwealth, 185 Va 335, 38 SE2d 444, the court said (p 447):

“Guilt should be proven by evidence which leaves no reasonable doubt. Inferences must give way when in conflict with facts established by positive proof.”

Also cited is an article entitled “Constitutional Rights in Juvenile Courts,” 46 Cornell Law Quarterly 387, where it is said (p 412):

“Due process of law demands that the particular misbehavior alleged to constitute juvenile delinquency be proved beyond a reasonable doubt. Some courts have settled for the quantum of proof used in civil litigation, that is, proof by a preponderance of the evidence. Not only must the offense be clearly proved, but it must be proved, according to the weight of authority, by good and competent evidence with true probative value ....
“A child before a juvenile court, alleged to have committed particular wrongs, is entitled to the presumption of innocence accorded by the law to inveterate adult wrongdoers . . . .”

The State argues, “The standard of proof for delinquency hearings after December 31, 1965 has been and remains ‘. . . a preponderance of the evidence . . . .’ Ill Rev Stats 1965, ch 37, par 701-4. That provision of the Juvenile Court Act merely codified the earlier procedural gauge, said to be ‘. . . the manifest weight of the evidence . . .’ in In re Johnson v. Johnson, 30 Ill App2d 439, 444 (4th District).”

The State concedes “occasional suggestions of a reasonable doubt standard are discoverable in New York . . . , but the established standard throughout New York is a preponderance.’’

Other authorities examined by this court include “Standards for Juvenile and Family Courts,” issued by the U. S. Department of Health, Education and Welfare, Children’s Bureau Publication Number 437-1966, where it is said (p 72) :

“Since delinquency proceedings are noncriminal in nature, the majority position holds they should be governed by the preponderance of the evidence rule. The minority position holds that beyond a reasonable doubt should apply since personal liberty is at stake and the imposition of criminal sanctions may be the ultimate result. A recommendation, which represents a middle of the road position, namely, the requirement of ‘clear and convincing’ proof appears to be a reasonable compromise and is endorsed. . . . Only evidence which is competent material and relevant under the rules applicable to civil cases should be admitted.”

In a recent opinion of the United States Supreme Court, Kent v. United States, 383 US 541, 544 (1966), where the court was concerned with whether the Juvenile Court judge properly waived jurisdiction of the petitioner and directed that he be “held for trial for [the alleged] offenses under the regular procedure of the U. S. District Court for the District of Columbia,” Mr. Justice Fortas discussed the purpose of Juvenile Courts and the theory that their proceedings are designated as civil rather than criminal, and said:

“1. . . . The Juvenile Court is theoretically engaged in determining the .needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge. But the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.
“2. Because the State is supposed to proceed in respect of the child proceeding as parens patriae and not as adversary, courts have relied on the premise that the proceedings are ‘civil’ in nature and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment. For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and in some jurisdictions (but not in the District of Columbia, see Shioutakon v. District of Columbia, 98 US App DC 371, 236 F2d 666 (1956), and Black v. United States, supra) that he is not entitled to counsel.
“While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.
“This concern, however, does not induce us in this case to accept the invitation to rule that constitutional guaranties which would be applicable to adults charged with serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation. The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia provide an adequate basis for decision of this case, and we go no further.
“3. . . .
“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 US App DC 47, 50, 274 F2d 556, 559 (1959).”

The foregoing authorities indicate that there are well grounded reasons for the application of either standard of proof where the charge of delinquency is based on a single criminal act, such as murder.

After much consideration, we conclude that the trial court was correct in basing its finding of delinquency on the “preponderance of the evidence” standard. As we find the hearing measures up “to the essentials of due process and fair treatment,” we do not believe that the interests of justice require that the delinquency proceedings should have been governed by the “beyond a reasonable doubt rule.”

We consider next respondent’s contention that “constitutional rights are not lost by minors in Juvenile or Family Court proceedings.” The basis of this contention is that the court overruled objections and admitted into evidence strands of hair cut from Robert’s head while he was in custody and asleep and a T-shirt taken from his home by police without a warrant. Authorities cited include In re Dennis, 20 App Div2d 86, 244 NYS2d 798, where it is said (p 801):

“It requires no citation of authority to support the principle that even the worst malefactor under our system of jurisprudence must be given a fair trial in accordance with the Constitution and the statutes. Surely, no less consideration should be given to this cardinal principle because the person charged is under the age of sixteen.”

In re Mantell, 157 Neb 900, 62 NW2d 308:

“Can it be that the Legislature ,By the quoted statement appearing in section 43-206, RES 1943, intended to destroy the traditional and constitutional safeguards of a trial? Can it be that it intended that trials should be had without the benefit of testimony of witnesses given under the sanction of oath or affirmation? Can it be said that the Legislature intended that the liberty of a child had less sanctity than that of an adult? Even if it did so intend, could that intention be sustained? We think not.”

In re Contreras (Cal App), 241 P2d 631 (1952):

“True, the design of the Juvenile Court Act is intended to be salutary, and every effort should be made to further its legitimate purpose, but never should it be made an instrument for the denial to a minor of a constitutional right or of a guarantee afforded by law to an adult.”

In re Poff, 135 F Supp 224, at p 226:

“The question boils down simply to whether the legislature could deprive, had it so intended, a youth of these constitutional rights. This Court believes it could not, for in so doing it would be contrary to all principles that only by amendment may the Congress depart from the Federal Constitution. If this deprivation were extended to cover certain crimes committed by adults, it would be condemned by the Courts. Yet by some sort of rationalization, under the guise of protective measures, we have reached a point where rights once held by a juvenile are no longer his. . . . This Court stands steadfast in the belief that the Federal Constitution, insofar as it is applicable ‘cannot be nullified by a mere nomenclature, the evil or the thing itself remaining the same.’ ”

The State concedes “since some criminal aspects are discoverable in a delinquency proceeding, although the risk of criminal prosecution of Robert Urbasek is entirely absent, we assume arguendo that the constitutional protection could have been invoked.” However, the State argues that since no pretrial motion to suppress “was voiced, the claim of an illegal seizure has been waived. People v. Ikerd, 26 Ill2d 573, 581.”

If either the strands of Robert’s hair or the T-shirt was obtained in violation of the Constitution as interpreted by the search and seizure authorities, we are not persuaded that the State may assert a claim of waiver against respondent. The protection against unlawful search and seizure is a fundamental right, and its loss by waiver by a minor would be contrary to the spirit of the “laudable purposes of Juvenile Courts,” and calls for the use in a delinquency proceeding of the rule “the court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.” People v. McKinstray, 30 Ill2d 611, 616, 198 NE2d 829 (1964).

However, we are not persuaded that the admission into evidence of either exhibit was error. As to the hair, we believe it comes within the guidelines supplied by Schmerber v. California, 384 US 757 (1966), where the taking of a blood sample over objection was held not to be a violation against self-incrimination or the product of an unlawful search and seizure.

As to the T-shirt, the police officer who identified it testified, “I went to the Urbasek residence and to Robert Urbasek’s room. I took a T-shirt from the closet in the hall which was on the floor in a pile of other soiled clothing, a closet on the second floor directly opposite the bathroom.” •

In the absence of affirmative evidence in the record that the officer .entered the home without permission and without a warrant, we find no error here.

Respondent next contends that the trial court improperly sustained objections to respondent’s expert “reading into the record quotations from recognized authorities concerning the reliability of tests performed on dried blood stains.” The record indicates that during redirect examination of respondent’s expert, he was permitted to read the titles of two publications he had with him and which he had read in preparation for his appearance as an expert. He was then asked to refer to the references “that do go into the reliability of these tests.” The court sustained an objection, and the matter was not pursued.

Respondent argues, “It would have been most helpful to the Court at arriving at a proper determination to have had the benefit of these texts, especially since there was such a wide disparity between the margin of accuracy ascribed to these tests, that is, whether or not the tests were in fact 92 percent accurate as maintained by the witness for the People or only from 10 to 20 percent accurate as maintained by the expert witness for the defense.” Cited in support of this contention is Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253 (1965), where it is said (pp 335, 336):

“The second major contention advanced by the defendant in this court is that it was prejudicial error to permit the cross-examination of its expert witnesses concerning the views of recognized authorities in their fields, upon the ground that the experts did not purport to base their opinions upon the views of these authorities. In support of this contention he relies upon Ullrich v. Chicago City Ry., 265 Ill 338, and City of Bloomington v. Shrock, 110 Ill 219. Those cases hold that an expert witness can only be interrogated about those texts upon which he expressly bases his opinion. The appellate court held that the cross-examination in this case met that test. We do not consider that determination to ascertain whether every detail on cross-examination of each expert witness fits within the rule announced in those cases, for we are satisfied that the rule is not supported by sound reasons, and should no longer be adhered to.
“. . . To prevent cross-examination upon the relevant body of knowledge serves only to protect the ignorant or unscrupulous expert witness. In our opinion expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues.”

The State concedes that the Darling case changed the rules concerning examination of expert witnesses about learned treatises and argues that the Darling case is not in point here because “it is plain that the ruling pertains to the scope of cross-examination.” We agree. As the record discloses that the expert witness for the State did not rely on the authorities in question, nor did respondent’s witness specifically rely on them, we find no undue curtailment of the redirect examination of respondent’s witness.

Finally, respondent asserts, “A judgment cannot stand unless it is supported by evidence.” The State contends that the finding of delinquency was justified by the evidence.

This record indicates that the delinquency hearing was quite extended and all aspects of the evidence were carefully considered by the trial court. The attendant circumstances of the finding of the body and the findings of the microanalyst were substantial evidence and could not be ignored. As the credibility of the witnesses and Robert, and the weight to be given their testimony, was a question for the trial court, who saw and heard the witnesses testify, we find no ground on which to disturb the finding of delinquency made by the trial court, and for the reasons given that judgment is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mitchell J. Alster, Plaintiff-Appellant, v. Chicago Tastee-Freez Corporation, Alvin D. Rose, Defendants-Appellees.
    Gen. No. 51,089. (Abstract of Decision.)
    First District, First Division.
    October 31, 1966.
    Rehearing denied November 16, 1966.
    Mitchell J. Alster, pro se, of Chicago, appellant; Schwartz, Cooper, Kolb & Cohen, of Chicago, for appellees.
   Opinion by JUSTICE BURMAN. Not to be published in full.


text:
    Arthur E. Wind, d/b/a Crawford Building Material Company, Plaintiff-Appellee, v. Thomas Paulson, Contractor, Defendant. On Appeal of Joseph Ades, Defendant-Appellant.
    Gen. No. M-50,271. (Abstract of Decision.)
    First District, Fourth Division.
    November 2, 1966.
    John C. Gekas, of Chicago, for appellant; Greenstein & Solotke, of Chicago, for appellee.
   Opinion by JUSTICE McCOBMICK. Not to be published in full. .


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Appellee, v. William O’Connell, Patrick McDonnell, Appellants.
    Gen. Nos. 51,240 and 51,241.
    First District, Fourth Division.
    November 2, 1966.

      Philip M. Basvic, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Charge : Indecent liberties with a child.

Judgment: The defendants were jointly indicted by the grand jury of Cook County; the case was tried before the court without a jury, and the defendants were found guilty and sentenced to three to six years in the State Penitentiary.

Point Raised on Appeal : The defendants were not proved guilty beyond a reasonable doubt.

Evidence : From the record it appears that William O’Connell, 41 years of age, Patrick McDonnell, 24 years of age, and Mason Turner, 36 years of age, maintained an apartment at 1472 North Paulina Street, Chicago, Illinois. In the indictment the defendants were accused of committing indecent liberties on November 28, 1964, with Roger Toler, 13 years old.

Roger Toler testified for the State, as did Duane Johnson, 12 years old, and Michael Johnson, 13 years old. The evidence educed at the trial was sordid. Roger Toler testified that Patrick McDonnell committed numerous indecent liberties on his person, including oral copulation. He further testified that William O’Connell committed none of the acts, but that “Bill [meaning William O’Connell] asked Don would I want to go into the bedroom with Pat. I said ‘Yes.’ ” Duane Johnson corroborated Roger Toler’s testimony with reference to the indecent liberties involving McDonnell. His testimony was not confined to a single instance. Michael Johnson also corroborated Roger’s testimony. All three boys testified that they had been in the apartment on various days; that they were served whisky, wine and beer; and that on one occasion O’Connell asked them if they wanted to stay overnight. Roger, Michael and Duane left to call their homes; Michael’s mother told him to get on home; Roger called his mother, but there was no answer, and he and Duane went back to the apartment. Roger stated that they were told “there was a guy there, ... to come back later.” After about fifteen minutes they again went to the apartment; William O’Connell answered the door, and told them to come back a little later, that the man was still there. They left, then went back about three, four or five times, when they were let in; the man had gone. This was about 9:30 or 10:00 p. m. There was testimony from the boys that on one occasion Duane Johnson got sick from the combination of drinks and vomited.

Patrick McDonnell and Mason Turner testified on behalf of the defendants. McDonnell testified that he couldn’t tell anything about the boys coming to the apartment because he was cleaning the second floor for the landlord. The defendants lived on the first floor rear. McDonnell denied any of the acts testified to by the boys, but he did state that the three boys were in the apartment together on November 28, 1964, which is the date set out in the indictment. He also testified that he was told by William O’Connell that there were some friends, or boys in the apartment, and that when he went downstairs he wasn’t surprised to see three little boys, nor did he wonder what they were doing there. He admitted he saw the boys drinking beer and said “It wasn’t strange to me to see three boys drinking.” He did estimate that Duane was younger than Roger; he would say about 11 or 12. He did not think it strange that Duane should be in the apartment around 7:30 or 8:00 p. m., watching television after having been in the apartment all day, nor did he ask the boys at any time what they were doing.

Mason Turner, the other tenant in the apartment, testified that he had seen Roger at the house approximately four times on different days, and that he had also seen Duane and Mike Johnson.

The defendants’ motion for a new trial was denied and the court thereupon sentenced the defendants.

Opinion :

We do not disagree with the rule laid down in People v. Sheppard, 402 111 347, 83 NE2d 587, cited by the defendant in which case the court held:

“. . . In criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed.”

In the instant case, the question as to whether any of the acts took place on the date charged in the indictment — November 28, 1964 — is immaterial, since it is not a fatal variance to fail to prove the exact date of the crime as alleged in the indictment. People v. Schmidt, 10 Ill2d 221, 139 NE2d 726; People v. Claussen, 367 Ill 430, 11 NE2d 959.

The defendants argue that William O’Connell should not have been found guilty since there is no proof that he committed any act of indecent liberties upon the person of Roger Toler. There is no question that William O’Connell was present at the time the offense was committed. Roger has testified that William O’Connell suggested to another person present that Roger would like to go into the bedroom with McDonnell and that Roger assented; that he went into the bedroom and went to bed with McDonnell who committed indecent acts upon Roger’s person. O’Connell also asked that the boys stay overnight and he was present, aiding, abetting and agreeing with the conduct of Patrick McDonnell towards the boys. In People v. Touhy, 31 Ill2d 236, 201 NE2d 425, a case in which the defendant was arguing that the legislature had intended that unarmed accessories who aid and abet an armed robber may no longer be charged and tried as principals, the court said:

“A ready answer to defendant’s contention is found in the report of the committee which drafted the 1961 Code, a source to which we may properly look in determining the legislative intent. (Moran v. Bowley, 347 Ill 148; Ernhart v. Elgin, Joliet and Eastern Railway Co., 405 Ill 577). In that report, which was titled ‘Tentative Final Draft of the Proposed Illinois Revised Criminal Code of 1961,’ it was commented at page 292 with reference to section 18-2: ‘The reference to confederates is eliminated as unnecessary. The principles of accountability stated in § 5-2 (c) of this Code are deemed to cover such accessoryship situations adequately.’ Section 5-2 (c), referred to, supplanted section 2 of division II of the prior law, (Ill Rev Stats 1959, chap 38, par 582,) and provides the following: ‘A person is legally accountable for the conduct of another when: ... (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such person in the planning or commission of the offense.’ (Ill Rev Stats 1961, chap 38, par 5-2(c). Further, it is provided in section 5-1 of the new Code: ‘A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.’ Ill Rev Stats 1961, chap 38, par 5-1.
“In the face of language so plain, and looking to the entire Code and each of its sections, as we must do to ascertain the legislative intent, (Scribner v. Sachs, 18 Ill2d 400; Huckaba v. Cox, 14 Ill2d 126,) we believe there has been no departure from the law relative to armed robbery and accessories as it existed prior to the Code, and that defendant, being legally accountable for the conduct of his armed companion, was properly charged and tried as a principal. The legal consequences of his accessorial acts sufficiently met the charge in the indictment and, this being so, the claim of variance will not ■ lie. Coates v. People, 72 Ill 303, 304.”

In People v. Cole, 30 Ill2d 375, 196 NE2d 691, the court said:

. . circumstances may show there is a common design to do an unlawful act to which all assent, and whatever is done in furtherance of the design is the act of all, making each person guilty of the crime. People v. Rybka, 16 Ill2d 394; People v. Marx, 291 Ill 40; People v. Washington, 26 Ill2d 207, 209.”

Considering the evidence in the light of the law, it is sufficient to sustain the conviction of William O’Connell as a principal.

Even the testimony of one credible witness alone is sufficient to convict, even though the testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 195 NE2d 694.

In the case before us the evidence was adequate to support beyond a reasonable doubt the finding of guilty against both defendants.

Decision : The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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

       Ill Rev Stats, 1965, ch 38, § 11-4. Indecent Liberties with a Child.]
      (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
      (1) Any act of sexual intercourse; or
      (2) Any act of deviate sexual conduct; or
      (3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.

       This section was in force at the time of the commission of the offense.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rudy Almanza, Defendant-Appellant.
    Gen. No. 50,361.
    First District, Third Division.
    November 3, 1966.

      Richard P. Glovka, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was convicted in a jury trial of the unlawful sale of narcotics and sentenced to life imprisonment. On appeal he contends that the evidence does not support a finding of guilt beyond a reasonable doubt and he also charges various errors in the rulings of the court during trial. The facts follow.

Two detectives of the Chicago Police Department arranged a controlled purchase of narcotics which resulted in the arrest of the defendant shortly after midnight on February 1, 1964. John Genarella, an informer and confessed narcotics addict, had advised the policemen that he could buy narcotics. They searched him, found no narcotics on his person and then provided him with $45 in marked currency. The bills had been dusted with fluorescent powder and the serial numbers on them had been recorded. The policemen took Genarella to- the corner of Adams and Halsted Streets in Chicago and observed him as he entered a grill. He had a conversation with the defendant and shortly afterward returned to the policemen with two tinfoil packages containing heroin. He described the defendant to the two officers, and the arrest was made on the street about a half block away. The marked money was not found on Almanza’s person, but when he was examined under ultraviolet light at the Central Police Station, the officers found traces of the fluorescent powder on his hands and on the outside of his right trouser pocket.

The informer Genarella was the principal witness for the State, and the defendant contends in substance that his testimony is so unworthy of belief that it should be rejected and the judgment reversed as not supported by proof of guilt beyond a reasonable doubt. Genarella testified that he had been addicted to narcotics for thirteen or fourteen years and that he was so addicted at the time defendant was arrested. He further testified that his sole employment in 1964 was by the Chicago Police Department and that it was to his advantage to serve as an informer as often as possible. It follows of course that this would affect his credibility, but there was evidence corroborating his testimony. The officers observed the meeting between Genarella and defendant and although they did not see an exchange of money or packages, Genarella shortly returned to the police car with narcotics. It was apparent that some one had sold the drugs to him and considering the brief period required for making the purchase, it is not an unreasonable inference that the seller knew him. Genarella identified the defendant as the seller, and there is no plausible explanation of why he could have selected the defendant as a victim on whom to perpetrate a false accusation.

The instant case is distinguishable from People v. Bazemore, 25 Ill2d 74, 182 NE2d 649, which defendant cites for the principle that the uncorroborated testimony of an informer-addict is insufficient to establish the guilt of a defendant beyond a reasonable doubt. In that case the defendant was not arrested until two months after a controlled purchase and the informer’s testimony was entirely uncorroborated. In pointing out the inherent weakness of the State’s case the court said, at 77:

“This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one.”

The distinction between that case and the one before us is obvious. The credibility of Genarella’s testimony was properly submitted to the jury.

Defendant filed a motion to suppress the evidence relative to the ultraviolet examination obtained upon his arrest. He contends that the arresting officers had only an unsupported suspicion and insufficient grounds to arrest him without a warrant. The motion was denied, and defendant charges error. The officers had reasonable grounds to believe that the crime of unlawful sale of narcotics had taken place because the informer, after promising to procure narcotics, returned to the police car with packets containing a substance which was subsequently analyzed as heroin. From their observation of the conversation between Genarella and the defendant, they had reasonable grounds to believe that defendant was the seller. The observation of traces of fluorescent powder was the direct result of a valid arrest, and the motion to suppress was properly denied.

We proceed to consideration of the court’s refusal on the motion of defendant to require the State to produce the transcript of the testimony given before the grand jury by Genarella and the police officer Montejano for the purpose of determining whether there were discrepancies on which to impeach their testimony given at the trial. Both Genarella and Montejano said they had testified before the grand jury about the same matters to which they testified on direct examination. The trial court denied defendant’s motion with respect to both witnesses. It also denied his motion that the transcript of the grand jury proceedings be impounded and made part of the record. The State contended and the trial court ruled that grand jury proceedings were not subject to the subpoena duces tecum which defendant had caused to be served upon the State, directing that the transcript be produced at the trial. This was error. It is now the law, as definitely declared in People v. Johnson, 31 Ill2d 602, 203 NE2d 399, that grand jury minutes may be made available to a defendant for purposes of impeachment. In that case the court referred to its previous decisions in People v. Wolff, 19 Ill2d 318, 167 NE2d 197, and People v. Moses, 11 Ill2d 84, 142 NE2d 1, where it was held that where witnesses for the prosecution have made pretrial statements which were in the possession and control of the State, they must be made available to the defendant. The court then proceeded to extend that rule to testimony given before grand juries, analyzing the various arguments which had previously maintained the policy of grand jury secrecy, as follows (p 605) :

“The policy of grand jury secrecy is intended (1) to prevent the accused from escaping before he is indicted and from tampering with witnesses; (2) to protect an accused person who is not indicted against unwarranted exposure; (3) to encourage uninhibited deliberations by the grand jurors; and (4) to encourage witnesses to testify before the grand jury without fear of public disclosure. 8 Wigmore on Evidence, 3rd ed., sec. 2360.
“None of those reasons is applicable in the present case, where the accused seeks only the transcript of the testimony of a witness who has testified at the trial. Plainly the disclosure of grand jury minutes after an indictment is returned and the case proceeds to trial will involve no danger of flight by the accused and no risk of damage to his reputation. Nor is it to be expected that he will tamper with a witness who has already testified against him. There will be no impediment to future grand jury deliberations since such deliberations will remain secret. Finally, it is in no sense unfair to a witness who testifies at the trial to reveal his previous testimony. ...”

People v. Johnson, supra, was decided after the trial in the instant case, and the State contends that the trial court properly applied the then existing law in refusing to require the production of the grand jury minutes. It is clear that the Supreme Court of Illinois considered that its ruling was within the scope of the rulings pronounced in People v. Wolff, supra, and People v. Moses, supra. Viewed in this context, the holding in People v. Johnson, supra, is not a new rule, but a clarification of existing law.

We have not deemed it necessary to pass upon other questions raised in this case.

The case must be remanded for new trial.

Judgment reversed and cause remanded.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       Ill Rev Stats (1963), c 38, § 22-40, par 3.
      “Whoever violates this Act by traffic in, selling, prescribing, administering, or dispensing any narcotic drugs, shall be imprisoned in the penitentiary for any term from 10 years to life, and for any subsequent offense shall be imprisoned in the penitentiary for life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs or of a felony under any law of the United States or of the District of Columbia relating to narcotic drugs. No probation or suspension of sentence shall be granted to any violator convicted under this paragraph.”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John D. Blackman, Defendant-Appellant.
    Gen. No. 50,376. (Abstract of Decision.)
    First District, Third Division.
    November 3, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, 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 Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    Joann Dare Varap, Plaintiff-Appellee and Cross-Appellant, v. Barney Varap, Defendant-Appellant and Cross-Appellee.
    Gen. Nos. 50,433 and 50,656.
    First District, Third Division.
    November 3, 1966.

      Emilie N. Wanderer, of Chicago, for appellant.
    Epstein, Wilsey & Kirsh, of Chicago (Errol Zavett, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff and the defendant were married in 1959, lived together until 1962 and were divorced in 1965. The divorce was obtained by the plaintiff on the grounds of cruelty and desertion and she was awarded alimony in gross of $6,500 and attorney fees. The defendant appealed from the adverse decree and the plaintiff petitioned for temporary alimony pending the appeal and for attorney fees to defend the appeal. Her petition was granted. The defendant appealed from the post-decretal order and his two appeals have been consolidated. The plaintiff has cross-appealed from a finding in the divorce decree that she was not entitled to a fee interest in the home in which the parties lived.

This was the defendant’s second marriage. His first wife obtained a divorce in Arizona in 1957. The defendant contends that the Arizona divorce was invalid and that because of this his marriage to the plaintiff was void ab initio and that she was not entitled to a divorce, alimony or attorney fees. The principal points urged by him in this appeal center around this contention. Subordinate points concern an order entered during the trial permitting the plaintiff to amend her complaint to add the charge of desertion; the amount of alimony awarded the plaintiff, and the lien for $6,500 granted the plaintiff on the home in which they lived. In her cross-appeal the plaintiff contends that, instead of being granted a lien she should have been declared the owner of a one-third fee interest in the property.

In an amended answer and in a counterclaim to the plaintiff’s complaint, the defendant asserted that the divorce obtained by his first wife two years before his marriage to the plaintiff was void because the Arizona court did not have jurisdiction over his wife or himself. This affirmative defense was based on letters he had received from his wife which he claimed tended to show that she had not lived in Arizona for the period of time required by the law of that state as a condition precedent to obtaining a divorce and that she was not a resident of the county in which the divorce was filed. He claimed that he had no knowledge of this until 1963, although the letters were received by him in 1956 and 1957 and were at all times in his possession. He contended that jurisdiction over him was lacking because he had not been personally served with summons or served by publication. However, the exemplified copy of the Arizona divorce proceedings contained an affidavit that the summons and complaint had been served upon him by registered mail. The plaintiff moved to strike this portion of the pleadings and her motion was sustained.

The courts of one state must give full faith and credit to the divorce judgments of sister states (Williams v. North Carolina, 317 US 287, 87 L Ed 279 (1942)) but they may inquire whether or not the court of another state entering a prior judgment had jurisdiction of the parties and they can disregard the judgment if they find it is void for lack of jurisdiction. Williams v. North Carolina, 325 US 226, 89 L Ed 1577 (1944); Field v. Field, 215 Ill 496, 74 NE 443 (1905).

If the defendant could sustain his burden of proof that his first wife was not domiciled in Arizona or that he was not properly before the Arizona court he could, under normal circumstances, contend that the court lacked jurisdiction to enter the prior judgment. However, because we hold that the defendant is estopped from claiming the invalidity of the prior decree, we do not find it necessary to ascertain whether or not the Arizona court was, in fact, lacking jurisdiction.

No case exactly like the present one has been brought to our attention but there are many cases which hold that a person who treats a divorce decree as valid by remarrying is estopped from later denying its validity. E. g.: McDonald v. Neale, 35 Ill App2d 140, 182 NE2d 366 (1962) ; Pierotti v. Pierotti, 343 Ill App 116, 98 NE2d 875 (1951); Scase v. Johnson, 130 Ill App 35 (1906) ; Blume v. Blume, 6 NYS2d 516 (1938) ; Rediker v. Rediker, 35 Cal2d 796, 221 P2d 1 (1950). In the Pierotti case the court said: “[T]he rule is well and generally settled that one who accepts the benefits and privileges of a divorce decree by a remarriage, even though the decree be void for want of jurisdiction, is estopped from thereafter assailing such decree.” In McDonald the court explained that, “The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, . . . whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights. . . .” The general rule is well stated in Restatement, Conflict of Laws (1934) subsection 112, comment A: “A spouse who treats as valid a decree for divorce by remarrying is precluded from subsequently disputing the validity of the decree although he neither obtained the decree nor was personally before the court which rendered it.”

The defendant admits in his amended answer that he had been informed that the prior divorce proceeding was legal and that he was not advised that it might be otherwise until his attorney in the present litigation did so. It is evident that he accepted and recognized the Arizona decree. Public policy dictates that the defendant be estopped from challenging the validity of the prior decree. It would be grossly unfair to allow him to escape the obligations he has incurred to his second spouse, whom he married in reliance upon the validity of the prior divorce, and who undoubtedly married him in the belief that he was free to enter into a valid marriage, by asserting the nullity of the former decree. The law will not tolerate such inconsistent positions. The trial court did not err in striking the portions of the defendant’s answer and counterclaim which pertained to this point.

Furthermore, Ill Rev Stats 1963, c 40, par 1, declares in part that when there has been a bigamous marriage the injured party may obtain a divorce and dissolution of the marriage. Chapter 40, paragraph 20, provides that when a woman is granted a divorce from a man who had another spouse living at the time of the marriage, the court may allow the plaintiff alimony as in other divorce cases. While these provisions may not be used as the basis for our present holding because they were not raised in the trial court, they do demonstrate that it is not the policy of the legislature to frustrate a person in the plaintiff’s position nor condone conduct such as the defendant’s.

The defendant next urges that the trial court erred in allowing the plaintiff to amend her complaint during the trial to charge the additional ground of desertion. He claims that the plaintiff had not proven an independent ground for divorce at the time the amendment was permitted and therefore she did not have the right to assert a cause of action for desertion. The crux of the defendant’s argument is that when a person abandons her spouse she must have done so for reasons that would entitle her to a divorce before she would have a cause of action for desertion and since no such reasons existed in the present case the plaintiff did not have an action for desertion.

The plaintiff originally charged the defendant with cruelty. She testified that the defendant struck her without cause and threatened to kill her with a rifle on August 20, 1962. The defendant denied this. The plaintiff further testified that on November 21, 1962, while she was at the home of a friend of the family, the defendant came in and struck her again. Her testimony as to the latter date was corroborated by the friend and his thirteen-year-old daughter.

In his countercomplaint for divorce the defendant charged that the plaintiff committed adultery on the night of November 21,1962, and he testified that, while looking through the window of the friend’s home that evening, he observed the plaintiff come out of the friend’s bedroom attired in a robe. He also introduced into evidence certain cards sent by the plaintiff to the friend which, he claimed, indicated that the relationship between them was something more than mere friendship.

The plaintiff denied that she had committed adultery at any time. The friend’s thirteen-year-old daughter testified that the plaintiff was fully clothed and had wrapped Christmas presents and watched television with her all evening. The friend testified that the plaintiff was fully clothed at all times on the evening of November 21st, that he had not been alone with her, that he had gone to bed early that evening because he was recovering from an operation and that he was awakened when the defendant came into his house and struck the plaintiff. After that night the plaintiff did not return to live with the defendant.

While it is true that the plaintiff’s testimony as to the events of August 20, 1962, was not corroborated, corroboration is not necessary in a contested divorce proceeding. Surratt v. Surratt, 12 Ill2d 21,145 NE2d 594 (1957). The plaintiff’s testimony as to the events of November 21, 1962, was corroborated by two eyewitnesses. The trial court found that the defendant had committed acts of cruelty on both dates. Two acts of physical violence resulting in pain and bodily harm committed on separate occasions constitute sufficient grounds for divorce. Tuyls v. Tuyls, 21 Ill2d 192, 171 NE2d 779 (1961). When a determination of the facts depends upon the weight and credibility to be given to the testimony of witnesses, a reviewing court will not reverse the finding of the trial court unless the finding is against the manifest weight of the evidence. Stockman v. Stockman, 38 Ill App2d 186, 186 NE2d 547 (1963). In the present case the trial court’s finding was not contrary to the manifest weight of the evidence.

Desertion for a period of one year constitutes a ground for divorce, Ill Rev Stats 1963, c 40, par 1, and the statute is applicable not only in cases where the complaining party is actually abandoned but also where she herself abandons her spouse for causes which would have entitled her to a divorce. Lemon v. Lemon, 14 Ill2d 15, 150 NE2d 608 (1958); Webber v. Webber, 349 Ill App 154, 110 NE2d 95 (1953). There was no element of surprise presented to the defendant when, after more than one year had elapsed since the plaintiff justifiably abandoned him, the plaintiff amended her complaint to include the ground of desertion. The plaintiff had proved that the defendant’s cruelty entitled her to a divorce and the charge of desertion arose from the same acts of cruelty. Although the present litigation was pending for the greater portion of the one year required to satisfy the desertion charge, Ill Rev Stats 1963, c 40, subsec 1, provides that the time consumed by such litigation shall not be deducted in any computation of the desertion period. Wide discretion is given to the trial court in permitting pleadings to be amended (Ill Rev Stats 1963, c 110, § 46) and the court’s discretion was not abused in allowing the amendment for desertion.

The defendant further contends that it was error for the trial court to grant the plaintiff a lien on the property in which they lived as security for her alimony in gross. In her cross-appeal the plaintiff claims that she should have been granted a one-third interest in the property.

Three days prior to their marriage the parties, along with the mother of the defendant, who was allowed to intervene in the divorce proceeding, signed an offer to purchase certain property located in Prospect Heights, Illinois. The property was finally purchased some three months after the marriage with title to the realty being taken in the names of the plaintiff, the defendant and the defendant’s mother as joint tenants. The defendant’s mother furnished the entire consideration paid at that time ($30,000) and the three joint tenants signed a mortgage for $16,500.

The defendant testified that no gift was intended to the plaintiff and that the only reason that title was taken in her name was that her signature was required on the mortgage. He testified that he and the plaintiff conversed about the realty prior to the purchase and that he told her the home would be the property of his mother at all times. The plaintiff testified that her name was placed on the title as joint owner not merely for convenience sake; that she and the defendant had picked out the home; that the defendant had full control of his mother’s funds, and that she had agreed with the defendant prior to their marriage to take care of his mother. The testimony of the mother was not too clear. She is an elderly woman of foreign descent who was questioned through an interpreter. Her testimony is contradictory in that she stated that she had never given the home to anyone, but she replied in the affirmative when asked if she thought it was a wedding present for her son.

The trial court found that the plaintiff did not receive a one-third fee interest in the property as a gift but that the realty was the property of the mother subject to the interests of both the plaintiff and defendant. The court granted the plaintiff a lien on the realty to the extent of her alimony in gross with the further order that, when the defendant paid the alimony, the plaintiff was to quitclaim any interest in the property to the defendant’s mother.

When real property is bought with the money of one person and the deed conveys title to the payor and another, the law presumes that the payor-grantee is the beneficial owner of the property and the other grantee will be declared a trustee for the person who furnished the consideration. West v. Scott, 6 Ill2d 167, 128 NE2d 734 (1955). This presumption may be rebutted by the other grantee by showing that at the time of the conveyance the purchaser intended the grantee to have a beneficial interest. Prassa v. Corcoran, 24 Ill2d 288, 181 NE2d 138 (1962). However, when a parent purchases property and title is taken in her name and that of her children there is a presumption that the transfer was a gift to the children. Moore v. Moore, 9 Ill2d 536, 138 NE2d 562 (1957). Such a presumption can only be overcome by clear and convincing evidence. This presumption of gift does not arise where the relationship between the payor and the grantee is more remote — i. e., there is no presumption of a gift to a son-in-law. Ryan v. Ryan, 267 Ala 677,104 So2d 700 (1958).

In the present case there was no presumption that a gift was intended to the plaintiff, a daughter-in-law. In fact, the contrary presumption of a resulting trust arose and she had the burden of overcoming this presumption and showing that a gift to her was intended. While there was some evidence that a gift was intended there was also evidence to the contrary. The plaintiff had the burden of proof on this issue and since the evidence was contradictory we cannot say that the trial court erred in finding that she had not overcome this burden.

The fact that title was taken in the name of the defendant, a son, raised a rebuttable presumption that a gift was intended for him. It is the intention at the time of the gift that is controlling. The burden of proof is upon the person seeking to establish a resulting trust and the evidence, to be effective for such purpose, must be clear, convincing, unequivocal and unmistakable; and if doubtful or capable of reasonable explanation upon any other theory than the existence of a trust it is insufficient. Baker v. Baker, 412 Ill 511, 107 NE2d 711 (1952). Spina v. Spina, 372 Ill 50, 22 NE2d 687 (1939). The evidence as to this point is contradictory. The defendant testified that no gift was intended; however, his mother testified both ways. She said that she thought that it was a wedding gift to her son and that she never made a gift of the home to anyone. The conflicting evidence supported a finding that the presumption of a gift was not overcome, and the trial court accordingly found that the defendant had an equity in the property.

Having found that the defendant had an interest in the property it was not error for the trial court to grant the plaintiff a lien on defendant’s interest. Under Ill Rev Stats 1963, c 22, pars 44 and 45, the trial court has the power to grant a lien on realty and the court can make an allowance to a wife a lien on a defendant’s realty. Klosowski v. Klosowski, 266 Ill 360, 107 NE 634 (1915).

The plaintiff’s alternative theory that the conveyance was made to her and the defendant in consideration of their promise to care for the defendant’s mother in her old age must also fail. In the first place, there' is no evidence of an agreement between the mother and the parties on this subject. There is disputed evidence of a conversation between the plaintiff and the defendant on the topic but this could not bind the mother. In the second place, if there was an agreement to care for the mother, there has been a failure of consideration on the part of the plaintiff and a court will set aside a deed given in consideration of future support of the grantor when there is a subsequent substantial failure on the part of the grantee to comply with her promise. Bradecich v. Rivard, 411 Ill 214, 103 NE2d 367 (1952) ; Brown v. White, 410 Ill 366,102 NE2d Ill (1952).

On a showing of probable cause the plaintiff was awarded $22.50 per week pending the outcome of the divorce action and solicitor’s fees. At the time of the divorce the defendant was $1,350 in arrears in temporary alimony and the decree of divorce awarded plaintiff this arrearage, the sum of $6,500 as alimony in gross and attorney’s fees. A post-decretal order was entered directing the defendant to pay $15 per week temporary alimony pending the appeal and attorney’s fees with which to defend the appeal. The defendant appeals from all three alimony awards. In his brief the defendant states that he is also appealing from the orders allowing attorney fees and he refers to them in his argument. He did not, however, include this point in the brief’s Points and Authorities. The Points and Authorities is the statement of the grounds upon which an appellant relies and the argument of an appellant is limited to the points made. By not raising the question of attorney fees in his Points and Authorities the defendant is deemed to have waived it. Appellate Court Rule 5(2) (k) ; Supreme Court Rule 39(1) IV; Bourne v. Seal, 53 Ill App2d 155, 203 NE2d 12 (1965); In Re Gersch’s Estate, 43 Ill App2d 224, 193 NE2d 208 (1963).

The allowance of temporary alimony authorized by Ill Rev Stats (1963) c 40, par 16, is largely within the discretion of the trial court and is dependent upon the circumstances of the parties. Rabin v. Rabin, 57 Ill App2d 193, 206 NE2d 850 (1965). A court of review will refuse to alter such an order unless the court’s discretion appears to have been improperly exercised. Bush v. Bush, 316 Ill App 295, 44 NE2d 767 (1942). The same rule applies to the allowance of alimony in gross (Ill Rev Stats 1963, c 40, par 19; Doyle v. Doyle, 268 Ill 96, 108 NE 796 (1915)) and to the allowance of alimony while an appeal is pending. (Ill Rev Stats 1963, c40, par 16.)

We have reviewed the evidence concerning the circumstances, occupations, income and expenses of the plaintiff and defendant which was presented to the various trial judges when temporary alimony, alimony in gross and alimony during the pendency of this appeal were awarded. In view of this evidence, which we believe would be superfluous to detail, we cannot say that any judge abused his discretion or that the allowance made at any juncture of this case was so out of line that it would justify reversal.

The decree of the Divorce Division of the Circuit Court will be affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Bertha Coleman, Plaintiff-Appellee, v. Estelle Scott, Defendant-Appellant.
    Gen. No. 50,835.
    First District, Third Division.
    November 3, 1966.
    Howard T. Savage and Theodore B. Howard, of Chicago, for appellant.

      Kohler & Merrick, of Chicago (Vincent F. Kohler, Terrance J. Van Driska and James W. Womack, of counsel) , for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a judgment entered on January 5, 1965, by a magistrate of the circuit court, municipal division, in the amount of $10,000, and from an order denying a subsequent petition to vacate the judgment.

On March 31, 1959, an action for damages for personal injuries was filed by the plaintiff against the defendant. Thereafter the defendant filed an answer. On September 23, 1964, the case came on for trial and was held to the following day for the defendant’s attorney to appear. On September 24, 1964, a default order was entered. Neither the defendant nor her attorney appeared, and a prove-up of the case was continued to October 26, 1964. On that date the prove-up was again continued to November 27, 1964, and again to December 11, 1964. On this last date the attorney for the defendant appeared and requested a continuance of the prove-up. The case was then continued until January 5, 1965. Neither the defendant nor her attorney appeared on the final date when the cause proceeded to trial before a jury, which returned a verdict in the amount of $10,000 in favor of the plaintiff. Judgment was entered upon said verdict.

The defendant filed a “Petition for Writ in the Nature of Error Coram Nobis under Section 72,” by virtue of which the defendant sought to have the judgment of the court vacated on the theory that the magistrate of the circuit court did not have jurisdiction of the subject matter because the ad damnum in the complaint was $10,000.

At the time of the entry of judgment in this case the matter of assignments to magistrates was covered by statute under “An Act to limit or define matters to be assigned to magistrates. Approved August 9, 1963. Effective January 1, 1964.” Section 1 of the above act (Ill Rev Stats 1963, c 37, par 621) read as follows:

“Subject to rules promulgated by the Supreme Court, the chief judge in each circuit or any judge designated by him may assign to magistrates, severally or by designation of office, by class or category of case, or in specific instances the matters set forth in this Act.”

Section 2 of the above act provided in part' as follows:

“Civil proceedings assignable to magistrates are as follows:
“ (a) When the amount of money or damages or the value of personal property claimed does not exceed $5,000;
“(1) actions for the recovery of money only arising on contracts, express or implied; actions for damages for injury to person, property or reputation or for taking or detaining personal property, or for fraud; a 99

We might note here that the General Assembly in its 1965 session, after the entry of judgment in the instant case, increased the amount in actions for damages for injury to person to $10,000, which were thereafter assignable to magistrates of the circuit court.

Article VI of the Illinois Constitution of 1870 was amended and became effective on January 1, 1964. This article is commonly referred to as the Judicial Article.

Section 8 of Article VI of the Illinois Constitution now provides in part as follows:

“There shall be one Circuit Court for each judicial circuit which shall have such number of circuit and associate judges and magistrates as may be prescribed by law; . . .
“The General Assembly shall limit or define the matters to be assigned to magistrates.”

Section 9 of Article VI of the Illinois Constitution reads as follows:

“The Circuit Court shall have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.”

Since under the Judicial Article the circuit court for each judicial circuit is composed of circuit and associate judges and magistrates as may be prescribed by law, and since the circuit court has unlimited original jurisdiction of all justiciable matters under the Judicial Article, we believe that without a constitutional limitation or defining of the matters to be assigned to the magistrates by the General Assembly, the magistrates likewise would have had unlimited original jurisdiction of all justiciable matters.

Paragraph 9 of the schedule to Article VI of the Illinois Constitution provides as follows:

“Paragraph 9. Until otherwise prescribed by the General Assembly, the cases assigned to magistrates shall be those within the jurisdiction of justices of the peace and police magistrates immediately prior to the Effective Date of this Article.”

The General Assembly, at the time of the judgment in this case, had limited or defined the matters to be assigned to magistrates, and among such matters it limited the amount of damages in actions for injuries to person to $5,000. However, the legislature by section 8 of the same act (Ill Rev Stats 1963, par 628) passed the following:

“Sec. 8. All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate.”

There is no question but that this case was improperly assigned to a magistrate under the law as it then existed, however, no objection was made by the defendant to the assignment of the cause to a magistrate prior to trial.

In “A Blueprint for the Magistrate System,” 51 IBJ 696, 703, the author stated: “Erroneous assignment is to be treated as erroneous venue, subject to waiver unless timely objection made.” We do not believe that a magistrate, who is a judicial officer of the circuit court, lacked jurisdiction of the subject matter. His powers under the Constitution itself are not limited; however, by the Constitution the General Assembly is required to limit or define the matters to be assigned to magistrates. Since the legislature is required to limit or define the matters to be assigned to magistrates, it also has the power to limit the time within which the propriety of an assignment to a magistrate can be raised and when it is waived. The language of Article VI of the Constitution did not in any way limit the powers or jurisdiction of magistrates of the circuit court. The statute merely defined cases assignable to magistrates, which we construe to be a matter of venue and not one of jurisdiction.

The defendant has cited the cases of Town of Audubon v. Hand, 223 Ill 367, 79 NE 71, and Town of Kingston v. Anderson, 300 Ill 577, 133 NE 347. In Town of Audubon, supra, the court held that because a freehold was involved the appellate court had no jurisdiction to entertain an appeal and should have dismissed it. Town of Kingston, supra, involved a condemnation of private property for a private road. On page 582 the court said:

“Every paper found in the proceeding to lay out the road describes it as a private road, and the entire record seems plainly to indicate that the purpose was to lay out a road for the sole use and benefit of the petitioner and for no public use or benefit whatever. It would therefore follow that the commissioner and justice of the peace had no jurisdiction of the subject matter and the proceeding was void and of no effect, and the county court, on appeal, could not by any amendment acquire jurisdiction of the subject matter.”

We cannot see in what manner these cases can be helpful to the defendant.

In People v. Village of Lyons, 400 Ill 82, 79 NE2d 33, the court said on page 90:

• “Where a court has jurisdiction of the subject matter and may take jurisdiction of a particular case if certain conditions exist, and no objection is raised to the exercise of jurisdiction, a party will be deemed to have waived the jurisdictional question.”

For the foregoing reasons the judgment of the court entered on January 5, 1965, and the order of the court denying the petition for Writ in the Nature of Error Coram Nobis pursuant to section 72 of the Civil Practice Act are affirmed.

Judgment and order affirmed.

SCHWARTZ and DEMPSEY, JJ„ concur.


text:
    People of the State of Illinois ex rel. Chicago Title & Trust Company, an Illinois Corporation, Trustee Under Trust Agreement, Dated May 11, 1945, and Known as Trust No. 32,744; Ralph Markus and Limar Belwood Incorporated, an Illinois Corporation, Plaintiffs-Appellees, v. Mission Brook Sanitary District, a Municipal Corporation; Joseph Heber, President of the Mission Brook Sanitary District; George W. Grove and Wilbert Struck, Trustees of the Mission Brook Sanitary District, Defendants-Appellants, and Village of Northbrook, a Municipal Corporation; B. L. Pollak, President of the Board of Trustees of the Village of Northbrook; and Edgar J. Wessling, Village Clerk of the Village of Northbrook, Defendants-Appellees.
    Gen. No. 50,860.
    First District, Third Division.
    November 3, 1966.
    Rehearing denied December 1,1966.

      Robert J. Downing, of Chicago (Robert G. Lussier and Raskin and Downing, of counsel), for defendants-appellants.
    Herrick, Vette, McNeill & McElroy, of Chicago (William T. McNeill, Ray W. Fick, Jr., and Robert W. Singer, of counsel), for plaintiffs-appellees.
    Frederic O. Floberg and Richard V. Houpt, of Chicago, for defendants-appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiffs instituted a mandamus proceeding in the Circuit Court of Cook County against the defendant Mission Brook Sanitary District and the President and members of the Board of Trustees thereof, seeking a writ to direct said President to approve plaintiffs’ plans for connection of proposed sanitary sewers to the existing facilities of the Sanitary District. The plaintiffs joined as defendants therein the Village of Northbrook and its President and Village Clerk seeking a writ to direct said President and Village Clerk to approve plaintiffs’ proposed plat of subdivision.

The Sanitary District refused to permit connection to its sewer system unless plaintiffs also connected to its water distribution system in compliance with its ordinances. The Village refused to approve the plat of subdivision because the Sanitary District approval for sewer facilities had not been given, and maintained that water connection must be to the Village in compliance with Village ordinances.

A judgment was entered finding that the Village of Northbrook and the Mission Brook Sanitary District have coequal jurisdiction to supply water to the plaintiffs’ real estate and that plaintiffs have the right to select which water distribution system will service such real estate and to connect said water supply system with the water distribution system of the Village of Northbrook. It is from this judgment that an appeal was prosecuted by the Mission Brook Sanitary District.

The contentions of the defendant appellant, Sanitary District, are: (1) The property in question has been within the territorial boundaries of the Sanitary District since its inception and is subject to its jurisdiction on both sewer and water matters; (2) the Sanitary District cannot be ousted of its jurisdiction by a village imposing conditions under its purported plat approval authority which impede the application of such jurisdiction; (3) it is patently erroneous to declare as a rule of law the proposition that the individual property owner is vested with the power to decree which of two municipalities has the authority and responsibility over water in a given area.

The Mission Brook Sanitary District was established on August 11, 1959, by order of the then County Court of Cook County, Illinois. Included within its boundaries was the property involved in this case. The plaintiff, Ralph Markus, had contracted to purchase the property in April, 1963, for the purpose of subdividing the same and building single family dwellings thereon. Prior to that time the Sanitary District had held a referendum election to authorize the acquisition of a water distribution system then serving Northbrook West, and an area contiguous to the subject property. After a successful election the Sanitary District passed an authorizing ordinance, agreed to purchase the system for $59,000, and issued water revenue bonds in the amount of $65,000 to finance this acquisition. In the latter part of 1963 the plaintiff submitted a tentative plat of subdivision of the subject property to the Village of Northbrook. Plaintiff was advised by the Village that such approval would be given only if the land were first annexed to the Village, if the plaintiff agreed to pay to another real-estate developer a share of the cost of such developer in extending oversize water mains into the area east of the subject property, and if he agreed to obtain water service from the Village. The annexation was completed and payment was made to the other developer. It was further provided that to obtain Village approval of the plat the engineering plans had to first be approved by the Sanitary District. This latter approval was denied because plaintiff failed to agree to obtain water service from the Sanitary District. At the time approval was sought neither municipality was operating a water distribution system within the subject property.

Defendant Sanitary District first contends that it has exclusive jurisdiction of the property within its boundaries on both sewer and water matters by legislative grant as found in:

“An Act to create sanitary districts and to provide for the annexation of additional territory to any such district and to authorize sanitary districts to acquire by purchase or construction and upon acquisition to maintain and operate a waterworks or drainage system and to improve and extend the same and issue general obligation bonds, revenue bonds, or special assessment bonds to pay the cost thereof which revenue bonds shall be payable solely from the revenues of such waterworks or drainage system and to provide for a method of dissolution of such sanitary districts.” (Ill Rev Stats 1963, c 42, par 412, etseq.)

Section 32b of that Act (Ill Rev Stats 1963, c 42, par 443b) provides:

“Any sanitary district created hereunder, after being authorized by an affirmative vote of the legal voters of the district at an election to be held as is hereinafter provided, may acquire, purchase, or construct waterworks, and thereafter operate, improve and extend such waterworks as defined herein, and pay the cost of such purchase, construction, improvement or extension by the issuance and sale of general obligation bonds, revenue bonds, or special assessment bonds of the district, which revenue bonds shall be payable solely from the revenue to be derived from the operation of the waterworks.”

Nowhere does the above provision grant exclusive jurisdiction to the district involved. Neither does it provide that no other system of waterworks may be established within the territorial limits of the district. This section is further clarified by section 37 of the same Act.

“Whenever any territory contained within a sanitary district created under this Act is annexed to any municipality, the sanitary district shall remain responsible for providing sewers and collecting and disposing of sewage in such territory annexed to the municipality and, if the sanitary district is operating a water supply system in such territory at the time of such annexation, the sanitary district shall remain responsible for supplying water in such territory. The municipality to which any territory contained within a sanitary district is annexed shall not, because of such annexation, become responsible for any obligations, or part thereof, of any sanitary district in which such territory is also contained. The fact that territory in a sanitary district is annexed to a municipality shall not affect any obligations, contracts or duties existing between the sanitary-district and the municipality at the time of such annexation.” (Ill Rev Stats 1963, c 42, par 447.1.) (Emphasis supplied.)

This section imposes a clear duty on the trustees to continue operation of a sewage system within the whole territory, but imposes this same duty with regard to water service only within areas then being served. If jurisdiction or right to provide water service were nonetheless exclusive in the sanitary district, any area not then being served could be deprived of any waterworks system by failure of the district trustees to undertake the operation of a system therein. If, in fact, a rule of exclusive jurisdiction over the territory is more desirable, it is for the legislature to so provide. The courts can only interpret the provisions as enacted.

Furthermore, the operation of a sewage system differs from that of a waterworks system in its relationship to a municipality. The court in Ruth v. Aurora Sanitary Dist., 17 Ill2d 11, 158 NE2d 601, said at page 20:

“The governmental function granted to sanitary districts is the treatment and purification of sewage for the preservation of public health, People ex rel. Village of South Chicago Heights v. Bergin, 340 Ill 20, 172 NE 60. The abatement of the discharge of raw sewage or inadequately treated sewage is a direct and proximate obligation of that governmental function. (Citing cases.)”

On the other hand, the operation of a waterworks system is a proprietary function of any municipality. In City of West Frankfort v. United Ass’n of Journeymen, 53 Ill App2d 207, 202 NE2d 649, the court said on page 212:

“A municipal corporation selling water for private consumption does so in its proprietary rather than governmental capacity. No distinction is to be drawn between such business when indulged in by a municipality and when engaged in by a private corporation. City of Chicago v. Ames, 365 Ill 529, 7 NE2d 294. In Baltis v. Village of Westchester, 3 Ill2d 388, 121 NE2d 495, the rule is well stated as follows: ‘a municipal corporation owning and operating a water system and selling water to individuals, although engaged in a public service, does so in its proprietary capacity, not in any governmental capacity, and no distinction is to be drawn between such business whether engaged in by a municipality or by a private corporation.’ ”

Since the supplying of water is a proprietary function, the Sanitary District and the Village can operate water distribution systems with coequal jurisdiction.

Finally, the rule against two municipalities having concurrent jurisdiction of the same territory has arisen primarily from cases involving double assessments of the properties which assessments duplicate the costs without increasing the benefits received. In this case both water supply systems (of the Sanitary District and of the Village) are now financed through revenue bonds, which are to be paid off solely with operating revenue. Furthermore, plaintiff is choosing to connect up to the Village system with full knowledge of the financing of both systems.

Because of a lack of exclusivity of right to supply water to the property involved in this case, and a positive duty to supply sewage service to that same property, the Sanitary District was without right to deny its approval of plaintiffs’ engineering plans unless plaintiffs also agreed to purchase water service from the Sanitary District.

The Sanitary District next contends that the Village is seeking to oust the Sanitary District of its rightful jurisdiction. As pointed out above, the jurisdiction of the Sanitary District is not exclusive. In addition, this Village has the right to establish and operate a waterworks system or water supply system within or without of its corporate limits. (Ill Rev Stats 1963, c 24, par 11-129-1.) It is plain, therefore, that both the Village and the Sanitary District have the power to operate water systems.

The Sanitary District finally contends that it is unreasonable to give to the individual property owner the right to decree which of the two municipalities has the authority and responsibility over water in a given area. We have already determined that both municipalities have the power to supply the area in question with water. Either may undertake to do so, but it may be assumed that neither would so operate if none of the residents therein were willing to purchase available water. It follows that the choice must be made by the owner (s) or developer(s) who elect to contract with one or the other municipality for water service. Such choice will rest on benefits offered by the competing concerns. In this case the economic considerations are particularly important in that the Village offers Lake Michigan water for the price of 57% cents per 1,000 gallons, whereas the Sanitary District offers well water for the price of $1.05 per 1,000 gallons for the first 10,000 gallons. We further find no inherent danger in having the choice of a municipal water supplier in the hands of the ultimate user. This would be the case were the competing suppliers private corporations, and we have determined that in supplying water to residents a municipality is engaging in a proprietary function.

Because the Mission Brook Sanitary District and the Village of Northbrook had coequal jurisdiction and right to supply the subject property with water service, and because the plaintiff had the right to select which water distribution system will service the property, the judgment of the circuit court is affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Theodore Redd, Defendant-Appellant.
    Gen. No. 50,589. (Abstract of Decision.)
    First District, Second Division.
    November 4, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, 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 Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BRYANT. Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Isaac Jackson, Defendant-Appellant.
    Gen. No. 50,375.
    First District, First Division.
    November 9, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, 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 Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Isaac Jackson, was convicted of sale of narcotics in a jury trial and was sentenced to serve ten to twelve years in the penitentiary.

On appeal he contends he is entitled to be discharged because the State failed to carry its burden of proof and because he was entrapped. In the alternative, he asks for a new trial contending (1) that he was prejudiced because his counsel was prohibited cross-examination of the informer on promises of leniency; (2) that he was prejudiced by closing argument; and (3) the jury was confused by the evidence.

Officers Willis Cola and Waymon Crigler had a prearranged meeting with Nathaniel Parren, also known as Jack Long, an informer. Parren was searched by the officers and had no money or narcotics on his person. He was given three $1 bills, the numbers of which were recorded on a slip of paper which was signed by him and the officers. Parren testified that he entered a third-floor apartment of a building at 4314 Langley while the officers remained outside in their car. He said he received a tinfoil package from the defendant for the three $1 bills. Officers Cola and Crigler observed Parren go into the building, and ten or fifteen minutes later he came out, handed them a tinfoil package and gave them a description of the defendant. The officers immediately field-tested the substance in the foil which was stipulated to be heroin. Crigler searched the apartment while Officer Cola searched the defendant and found two of the recorded $1 bills in his sock with other money. They accused the defendant of selling narcotics and he denied the charge. When they came out of the building with Jackson they observed Parren tipping his hat which was the prearranged signal that Jackson was the man who sold him the narcotics.

The defendant testifying in his own behalf denied he sold the narcotics to Parren. He claimed that both he and Parren, who he knew for about a year, purchased a $3 bag from a Joseph Hogan in the hallway of the Langley building. He said Parren gave Hogan $3 and received a package from him. He testified that he gave Hogan a $5 bill and as change received two of the three $1 bills Hogan had received from Parren. He related that he then went into the third-floor apartment and while in the washroom he heard a scuffle and thinking it was a robbery he put the money in his sock. He said he was searched and the money was found in his sock and when accused of selling narcotics he denied making a sale to anyone.

The defendant, in seeking a reversal, contends that he was not proven guilty beyond a reasonable doubt as there was no adequate corroboration of the informer’s testimony. It is argued that the informer was paid with favors or money to turn in people he knew to the police and as an addict informer his testimony is not entitled to any degree of credibility. Also that the informer was out of the sight of the police during the entire time that he was in the building.

The fact that the informer is a narcotic addict and a police informer has an important bearing upon his credibility and his situation is sufficiently similar to that of an accomplice to warrant close scrutiny of his testimony. People v. Perkins, 26 Ill2d 231, 186 NE2d 330. The test is whether the informer’s testimony is credible under all of the surrounding circumstances and as we said in People v. Drumwright, 48 Ill App2d 392, 396, 199 NE2d 282, “the testimony of an accomplice or informer is not rendered incompetent because of his addiction to narcotics, it being merely an additional factor to be considered by the trier of the fact in assessing the probative value of the witness’s testimony.” We are satisfied that the testimony of the informer was amply supported by the testimony of the officers and the evidence of finding two of the recorded $1 bills in the possession of the defendant. The fact that the defendant did not have all of the marked money on his person at the time of the arrest is of no consequence. People v. Hines, 30 Ill2d 152, 195 NE2d 712. It is apparent that the jury rejected the uncorroborated testimony of the defendant who was the only witness on his behalf and chose to accept the testimony of the officers and informer. We find no reason to interfere with the finding of the jury.

From an examination of the record we see no basis to the contention that the defendant is entitled to discharge because the conviction was obtained upon evidence procured by entrapment. The defense cites People v. Strong, 21 Ill2d 320, 172 NE2d 765, which is not in point here as that defendant’s only sale was of narcotics supplied to him by a government informer. In the case at bar there is no evidence from which we could conclude that the defendant would not have sold the narcotics except for an inducement by the police and informer, or that the informer did not tell the police that he had reason to believe that the defendant would sell him narcotics. The use of a controlled purchase, as planned here, is permissible for the purpose of providing an opportunity for the commission of a crime of this nature by one so predisposed. People v. Gray, 27 Ill2d 527,190 NE2d 368.

The defendant further complains that he was unduly restricted by the trial judge by not being allowed to cross-examine the addict informer as to possible promises of leniency he may have received concerning the prosecution of his own pending narcotics indictment. We agree with the defendant that great latitude must be allowed in the examination of an addict informer to show bias and self-interest. A trial judge, however, has large discretion as to the limits of such cross-examination, (People v. Michaels, 335 Ill 590, 167 NE 857) and a clear abuse of discretion must be shown to reverse. The record reveals that the trial judge afforded the defense wide latitude in his questions on this point. After the informer was questioned about a case pending against him in the narcotics court he was asked:

Q. And did the officers tell you that the case will be pending against you until you testify in this case?

A. No.

Q. Did they tell you what will happen with that case?

A. No.

Q. They didn’t?

A. No.

Q. Do you know?

A. No, I don’t know.

Q. Well, are you expecting any particular thing to happen with that case?

Mr. Fleming: Object.

The Court: The objection will be sustained as to his expectations, the jury will disregard it.

Q. Did anyone tell you, Mr. Parren, that the case will be dismissed against you—

A. No.

Q. Just a minute let me finish the question, will you please? — that the case pending against you will be dismissed if you testify for the officers in this case?

A. No.

Q. No one told you that?

A. No.

The apparent purpose of defense counsel’s cross-examination as to the pending case against the informer was to make the jury aware of a possible motive for his testimony. On this record there is no basis for the claim that the defendant was deprived of the right to explore the possibility that Parren’s testimony had been motivated by hopes for leniency. People v. Baker, 16 Ill2d 364,158 NE2d 1.

It is urged that the defendant was prejudiced by the remarks of the prosecutor made in closing argument which were based on testimony ruled inadmissible. It appears from the record that when Officer Crigler entered the apartment, the defendant went into the bathroom and locked the door. On redirect the prosecutor asked him if he heard the toilet flush while he was outside. He answered he did and the court sustained an objection and instructed the jury to disregard the answer. The court also sustained an objection to the question whether the officer heard any strange noises from that room. In closing argument the prosecutor, after discussing the fact that one of the recorded dollars was missing, stated “Now, they talk about where is the other dollar, or, two dollars only were recovered and three were spent by Nathaniel Parren. This defendant was in a washroom and you heard Officer Crigler testify he heard a flushing sound.” An objection was sustained to the latter remark and the court instructed the jury to disregard this statement as not being in the evidence. When the prosecutor again referred to the word “flushing” he voluntarily apologized stating that he kept forgetting that the objection to this evidence was sustained. The court again admonished him not to forget because noises emitting from the closed door were not in evidence.

People v. Garrean, 27 Ill2d 388, 189 NE2d 287, cited by defendant involved a rape charge and the jury fixed the defendant’s sentence to a term of 199 years. There the prosecutor made certain remarks implying that the defendant had a propensity toward continuing • deviate sexual conduct. The remarks, which we do not need to repeat, were held to be prejudicial even though the objections were sustained. The court stated there was no evidence in the record to justify the remarks and that they were so clearly prejudicial that they could not be cured by an admonishment to the jury. In the case at bar the defendant admitted being in the bathroom and when he came out only two of the recorded $1 bills were found on his person. The remarks of the prosecutor, although improper, do not require a reversal as, in our opinion, they were of a minor character and not necessarily prejudicial. People v. Swets, 24 Ill2d 418, 182 NE2d 150. The prosecutor promptly acknowledged his mistake which was apparent to both the court and the jury, and it is unlikely to have influenced the verdict in light of the other evidence in the case. People v. Green, 27 Ill2d 39, 187 NE2d 708. No harm, in our judgment, appears to have resulted from this argument.

It is finally contended that the defendant was denied a fair trial because the jury was confused by the evidence. After the jury began its deliberations the jurors were permitted to return to the courtroom where one of its members asked the court whether “the transaction of money, of denominations, if it was singles or if it was five dollar bills involved.” The trial judge declined to answer the question and the jury renewed deliberation and subsequently returned a verdict of guilty. No objection was made to the juror’s inquiry, no motion for a mistrial was presented, nor was the jury polled. The evidence here so clearly indicates defendant's guilt that we cannot say the resulting verdict would have been different if the inquiry was not made. We find no merit to this contention.

For the reasons given the judgment is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J„ concur.