author: SMITH, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse Lee Arnold and Ronald Blaine Elliott, Defendants-Appellants.
    Gen. No. 10,904.
    Fourth District.
    January 22, 1968.

      Albert E. Hurt, Public Defender, of Decatur, for appellants.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, P. J.

Jointly tried on a charge of burglary, the defendants were found guilty by a jury and sentenced by the court to the penitentiary for a period of 5 to 20 years. On this appeal, they contend (1) that they should have been tried separately, (2) that a part of the combination to the safe involved in the burglary was obtained through illegal search and seizure and should have been suppressed on their motion, and (3) the evidence is insufficient to support a conviction. The defendants testified on the motion to suppress, but did not testify in the trial of the case.

The public defender was originally appointed to represent both defendants. His motion to withdraw in the representation of Arnold on the ground that the testimony to be given by Arnold would tend to incriminate the other defendant, that such testimony would be denied by Elliott, and that a conflict of interests existed was allowed. Separate trial counsel was appointed for Arnold and both defendants filed their respective motions for a severance stating that there was such conflict and inconsistency between the defendants that it would be highly prejudicial for them to be tried together. The proper appointment of separate counsel for jointly-indicted defendants is not, standing alone, the key that opens the door to separate trial. Circumstances which warrant the appointment of separate counsel do not necessarily mandate separate trial and vice versa. People v. Friedrich, 20 Ill2d 240, 169 NE2d 752.

The general rule is that persons jointly indicted for the commission of a crime shall be tried together and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court. People v. Wilson, 29 Ill2d 82, 193 NE2d 449; People v. Higginbotham, 56 Ill App2d 140, 205 NE2d 273. It is the responsibility of the defendant moving for a separate trial to show how he would be prejudiced by a joint trial and if he fails to do so, he cannot complain of the denial of his motion. People v. Lindsay, 412 Ill 472, 107 NE2d 614; People v. Bracken, 68 Ill App2d 466, 216 NE2d 176. Whether or not the trial judge has exercised a sound discretion depends upon the facts in each case. People v. Meisenhelter, 381 Ill 378, 45 NE2d 678; People v. Minnecci, 362 Ill 541, 200 NE 853. In the case at bar, the most that can be said for the record before us is the assertion by counsel that the two defendants had inconsistent alibis and that the defendant in a trial would give testimony that would tend to incriminate the defendant Elliott. In his argument on post-trial motion, defense counsel stated that if either defendant had testified in this case, his testimony, his evidence, would have been an alibi; that “I didn’t do it, but he might have”; and that certainly would have been an antagonistic defense. Alibis may well be different but not necessarily per force inconsistent. These statements are mere conclusions of counsel, albeit no doubt honestly and forthrightly made, but devoid of any factual basis in the record. To hold therefore that a severance should have been granted by the trial court on these statements alone is to hold that counsel is the one to exercise the sound discretion in the matter and not the court. The motions for severance properly died for want of any evidentiary oxygen to sustain them.

On the night of the burglary in question, a neighborhood witness testified that she went to the front door to call her dog shortly after 1:00 a. m. and noticed a car pulling up across the street behind their neighbor’s automobile with its parking lights on. It was a small Chevrolet, light colored, white or off-white, two men got out of the car and headed west towards the building which was burglarized. She did not identify them as the defendants. Later she heard a car door slam and went to the front room, looked out and saw the car back up to the north and around the corner to the west out of her view, but in the general direction of the store. Shortly thereafter, the car came back and headed in an easterly direction. When it came under the streetlight, she noticed the trunk lid was up, the headlights were on, it was picking up speed, and as it passed under the streetlight she saw something large and blocky in the trunk and noticed that on the right side of the car there were reddish-colored doors. She identified People’s Exhibit No. 1 as a picture of the car she saw. She testified that the car had a crumpled left fender and People’s Exhibit No. 6 showed the left side of the car that she described. It was a picture of the same Chevrolet.

The burglary occurred on December 3 and on December 8, the defendant Elliott was arrested at his home and taken to the sheriff’s office. Sometime during the afternoon of that day, they returned to the mobile home which was owned by one Phil Hardas and with whom the defendant Elliott was living. Hardas was also the owner of the automobile involved. The police officers asked for the key to the car and the defendant Elliott gave it to them. He says they opened the trunk; they say he did. In the trunk were found portions of the safe combination. The safe itself and other parts of the combination had been found by the police officers along a country road. Elliott suggested that they ought to ask Mr. Hardas about examining the car, but this they didn’t do. Hardas was standing in the window of the trailer observing all that was going on, but neither acted nor spoke. The police officers all testified that they asked Elliott for permission to look into the trunk and he said sure look all you want. The trial court heard the evidence and denied a motion to suppress the parts of the safe combination found in the trunk of the car. So far as the defendant Arnold is concerned, it is perfectly clear that he was not present at the time of the search and did not give his consent to the search. Even assuming an invasion of the privacy of another, such invasion does not aid him. He was clearly without any standing to make a motion to suppress the parts of the safe combination and it was properly denied as to him.

It is abundantly clear that the car belonged to Hardas and that the defendant Elliott not only had a key in his possession, but according to his own testimony on the motion to suppress had had the relatively free use of the car on the day of the crime and for three or four days thereafter. This free use is not necessarily possession at the time of the search. Elliott denied any knowledge of the parts to the safe combination and stated to the officers that had he known they were in the car, he certainly would not have given them the key. In any event, it is doubtful whether he had any possessory interest in the car that required a search warrant, but if he did, he freely consented to its search and waived any right that he might have had.

Search by consent is a waiver of the constitutional protection against illegal searches. People v. Ledferd, 38 Ill2d 607, 232 NE2d 684; People v. Harris, 34 Ill2d 282, 215 NE2d 214; People v. Henderson, 33 Ill2d 225, 210 NE2d 483; People v. DiGerlando, 30 Ill2d 544, 198 NE2d 503. Whether the consent has been given is a question of fact to be initially determined by the trial court and where the evidence on the issue is in conflict, the reviewing court will uphold the trial court’s finding unless it is clearly unreasonable. See Ledferd and the cases cited therein. It should perhaps be noted here that the articles found in the trunk of the automobile were not articles which may have been used in the commission of a crime nor fruits of the crime, but were articles “. . . which may constitute evidence of, an offense” within the meaning of our Code of Criminal Procedure, Ill Rev Stats 1965, c 38, § 108-1 (d), which authorizes a search without a warrant for such articles in proper cases. In Warden, Maryland Penitentiary v. Hayden, 387 US 294, 18 L Ed2d 782, 87 S Ct 1624, the court extends the right to search for evidentiary materials which are relevant to and have evidentiary value in proving the commission of a crime or the defendant’s connection therewith. Mr. Justice Douglas, in his dissent, condemns the invasion of the right of privacy yet seems to say that even this may be done if it is done by consent. In so stating he uses this language: “I would adhere to them and leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate. The existence of that choice is the very essence of the right of privacy.” Elliott made that choice, the parts of the safe combination were properly obtained and admitted into evidence and his motion to suppress was properly denied.

A representative of the State of Illinois Crime Laboratory identified the parts of the safe combination taken from the automobile and the parts found along the roadside and testified they were at one time a single piece. The victims testified in substance that they came from their safe. The witness Hider testified that on the night of the burglary, he and several others including both of the defendants had been out drinking together and travelled in a Chevy Nova, white with two red doors on the right side, and identified the car shown in People’s Exhibit No. 1 as the one which they used. He further testified that Elliott and Arnold talked together and said they were going down to see Arnold’s wife at her mother’s house. Arnold was driving the car. The witness was taken to Arnold’s apartment and let out there at about 1:30 a. m. on December 4. The two defendants were still in the car. The witness went to sleep in the apartment and about 9:00 a. m. he awakened and the defendant Arnold was there.

It is at once apparent that the evidence of the defendants’ participation in the crime is purely circumstantial. It is quite clear that the automobile of Hardas was involved in this burglary, that the parts of the safe combination found in the rear of that car was a part of the safe involved in the burglary, that the defendants in this case were in possession of the Chevrolet automobile at or about the time of the burglary. This record also shows that Elliott delivered soda pop to the victims’ store every Monday and had done so for many weeks and was familiar with the interior of the store. The evidentiary weather vane, circumstantial though it is, points directly at the defendants. This is so, say the defendants, solely because the parts of the safe combination found in the automobile were received in evidence. We need not conjecture as to what the results might or should have been absent the parts of the safe combination in evidence. Suffice it to say that this factor, coupled with the other evidence in the case, is sufficient for a jury to reasonably conclude beyond a reasonable doubt that this car was in the custody of these two defendants at or about the time of the crime, and at or near the scene of the burglary, that the safe was carted away in that car, and that both it and the safe were then in the custody of these defendants. While circumstantial evidence must not give rise to a reasonable hypothesis under which the defendants could be innocent of the crime charged, this does not mean that the trier of the facts is required to search out a series of potential explanations, compatible with innocence, but unsupported by any known evidence in the case and elevate them to the status of reasonable doubt. People v. Huff, 29 Ill2d 315, 194 NE2d 230; People v. Russell, 17 Ill2d 328, 161 NE2d 309. Jurors are not required to park their common sense in the cloakroom along with their hats and coats nor are they required to look into the crystal ball in a search for reasons unsupported by any evidence or any reasonable inference derived therefrom to structure a reasonable doubt. The evidence in this case satisfied us as it did the jury and the trial judge that the conviction of the defendants is supported by evidence establishing guilt beyond a reasonable doubt. Accordingly, the judgment of the trial court must be and it is hereby affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: ALLOY, P. J.

license: Public Domain

text:
    Nellie Gregory and Betsy Alice Clark, Plaintiffs-Appellants, v. The County of LaSalle, State of Illinois, and “Unknown Owners,” Defendants-Appellees.
    Gen. No. 67-5.
    Third District.
    January 24, 1968.

      White & Sinon, of Ottawa, and John R. Fielding, of Chicago, for appellants.

      Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellees.
   ALLOY, P. J.

In May 1956 an order was entered escheating the Estate of Walter Clark to the County of LaSalle and the order placed title to the real estate involved in the name of LaSalle County. Walter Clark had died a resident of LaSalle County in 1950 leaving substantial personal property and real estate in LaSalle County. No heirs were discovered and no beneficiaries designated by will were eligible to inherit. The estate was handled as an intestate estate. At the time of the death of Walter Clark, section 7 of the Escheat Act (Ill Rev Stats 1955, c 49) allowed a claimant five years after an escheat order in which to file as an heir and claim escheated property. This statute also provided that as to persons who are infants, or of unsound mind or beyond the limits of the United States, they had an additional five years after their disabilities were removed to claim escheated property. The latter section was amended in 1961 to provide as follows:

“The county treasurer shall keep just and true accounts of all moneys paid into the treasury, and if any person appears within 10 years after the death of the intestate and claims any money paid into the treasury as aforesaid as his, on legal representation such person may file a petition in chancery in the circuit court of such county, stating the nature of his claim and praying such money may be paid to him; . . . And if any person appears and claims any lands vested in the county as aforesaid, within 5 years after the judgment was rendered, such person may file his petition in chancery in the circuit court of such county in which the lands claimed lie, setting forth the nature of his claim and praying that the lands be relinquished to him; . . . And all persons who fail to appear and file their petitions within the times limited, aforesaid, shall be forever barred, saving, however, to infants and persons of unsound mind the right to apear and file their petition as aforesaid, at any time within 5 years after their respective disabilities are removed: . . .
“All persons beyond the limits of the United States, as to whom a right to petition under this Section is otherwise barred by this amendatory Act of 1961 or will be barred within one year after the effective date of this amendatory Act of 1961, may file a petition pursuant to this Section at any time within two years after such effective date. As amended by act approved August 21,1961.”

The effect of this amendment of 1961 was to establish a two-year limitation period as to persons living beyond the limits of the United States.

Following the escheat order entered in 1956, numerous heirs of Walter Clark began to appear. In July, 1960, Nellie Gregory and Betsy Alice Clark, residents of England, filed to recover the property from the County of LaSalle, contending they were heirs of Walter Clark. The petition set up that there were still “Unknown Owners” of the property and that they were made parties to the proceeding and publication was made as to “Unknown Owners.” In all, 29 people claimed to share the property as heirs of Walter Clark. Twenty-three of the persons filed in the Circuit Court of LaSalle County, 4 came into the United States District Court in a suit which later included 23 of the people in the Circuit Court, and 2 more have attempted to intervene in the Federal Court, in the Circuit Court, in this court and in the Supreme Court of this State.

For clarity, we must specify that there are three sets of heirs involved. (1) There are claimants through surviving first cousins of Walter Clark, being Nellie Clark Gregory and Betsy Alice Clark, who claim through children of Ellen Clark, aunt of decedent Walter Clark. Ellen Clark was never married so they claim through illegitimates. Betsy Alice Clark died after the action was instituted and that interest is represented by the administrator of her estate. (2) Joan Baxter and James Clark, children of William Henry Clark and grandchildren of William Clark, an uncle of decedent, Walter Clark, claiming through a surviving first cousin, sought to intervene in the Circuit Court and in this court but their request for intervention was denied as being filed too late. (3) Finally, there are 21 claimants under Betsy Clark, who are first cousins on.ce removed and these 21 claimants can succeed only if the two groups claiming through first cousins are incapable of taking. The question in such case would be whether the estate would escheat to the County of LaSalle or whether it should be distributed to the first cousins once removed.

As the issues are now presented in this court, there is one basic question and that is whether Nellie Gregory and Betsy Alice Clark should have been allowed to share in the estate as claimants through surviving first cousins. This involves a determination as to whether the Illinois statute in effect at the death of decedent, Walter Clark, barred them as descendants of illegitimates. The problem revolves around the construction of what was then paragraph 163 of chapter 3 of the Probate Act (1941 Ill Rev Stats, c 3, par 163). This is now section 12 of the Probate Act (1965 Ill Rev Stats, c 3, § 12). This statute at the time of the death of Walter Clark provided as follows:

“An illegitimate child is heir of his mother and of any maternal ancestor; and in all cases where representation is provided for by this Act an illegitimate child represents his mother and his lawful issue represents him and take, by descent, any estate which the parent would have taken if living. An illegitimate child whose parents intermarry and who is acknowledged by the father as the father’s child, shall be considered legitimate. 1939, July 24, Laws 1939, p 4 S 12.”

This particular provision had been changed by the act of 1939. Prior to 1939 the statute had provided in part that:

“An illegitimate child shall be an heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living.”

Prior to 1939 under this statute there could be inheritance through a parent who was an illegitimate child. Ellen Clark was an aunt of the decedent Walter Clark. Although she never married she was the mother of five children, one of whom was the mother of Nellie Gregory and another of whom was the father of Betsy Alice Clark.

The problem arises as a result of the omission from the 1939 statute of the words “of any person from whom its mother might have inherited, if living.” Prior to this enactment, illegitimates and descendants inherited through their mother from collateral relatives (Morrow v. Morrow, 289 Ill 135, 124 NE 386; Chambers v. Chambers, 249 Ill 126, 94 NE 108). The 1939 amendment was, however, construed in one case, Spencer v. Burns, 413 Ill 240, 108 NE2d 413. In that case the court looked first at the language that had been omitted from the 1939 act, being the phrase “any person from whom its mother might have inherited, if living.” The court then looked at the new language which was added to the statute and, after an analysis by the court, concluded that it was not the intention of the 1939 legislature to merely reword the former statute, but rather, to make a change in the substantive law. The court in seeking to construe the phrase “and of any maternal ancestor” to allow an inheritance by illegitimates, felt that the phrase “maternal ancestor” was not susceptible of such construction. The court in that case stated that although the language indicated that the court felt that the best result would be to allow illegitimates to inherit, they felt bound by the new wording of the statute. The court said there (at page 255) :

“Giving service to the common meaning of the words ‘maternal ancestor’ and avoiding a tortured meaning to produce what might be a more desirable result, it is our opinion that the trial court properly concluded that, as section 12 of the Probate Act is now constituted, it manifests a legislative intent and direction that the right of an illegitimate to inherit is now limited to a right to take only from his mother and from her lineal ascendants.”

In the case of Spencer v. Burns the court recognized the policy of the State of Illinois since 1872 had been to allow such inheritance by illegitimates, but in construing the statute the court felt bound to determine the legislative intent from its interpretation of the exact language of the statute itself. If nothing further had transpired since the Spencer case, we would be bound by the rule set forth in Spencer v. Burns, which, in effect, would be to deny the claim of Nellie Gregory and Betsy Alice Clark.

We must give consideration, however, to the fact that six months after the decision in Spencer v. Burns, the State Legislature in 1953, met and amended the statute of descent by reinserting the words “and of any person from whom his mother might have inherited, if living.” We are, therefore, confronted with the precise question as to whether this court can now consider the amendment of the 1953 legislature which came after the decision in Spencer v. Burns (and. possibly in consequence thereof) as an aid to the construction of the 1939 statute referred to.

The cardinal rule in construction of Illinois statutes, to which all other canons and rules are subordinate, is that a statute must be construed so as to ascertain and give effect to the intention of the General Assembly as expressed in the statute. It is the intention of the General Assembly which controls, and a statute should never be construed to defeat or override the intention of the General Assembly. Where the intention of the General Assembly has been ascertained, a court must give effect to that intention if it is not in conflict with constitutional provisions. (34 Illinois Law and Practice, pp 92-94.) As stated in the case of Lincoln Nat. Life Ins. Co. v. McCarthy, 10 Ill2d 489, 140 NE2d 687 at pp 494-495:

“A statute or ordinance must be construed according to its intent and meaning, and a situation that is within the object, spirit and meaning of the statute is regarded as within the statute, although not within the letter; and a situation that is within the letter is not regarded as within the statute unless also within its object, spirit and meaning. People ex rel. Barrett v. Thillens, 400 Ill 224.”

It is thus the intention of the General Assembly which we must seek to determine.

In determining the intention of the General Assembly which passed the statute, it is permissible to look to later actions of the legislature. These later actions can be amendments to the statute being construed. In Modern Dairy Co. v. Department of Revenue, 413 Ill 55, 108 NE2d 8, the court was construing the phrase “user or consumer” in connection with the Retailer’s Occupation Tax Act as applied to sales by a dairy to a Chicago State Hospital. A 1933 legislature had passed the first sales tax statute using in the title of the act the words “sale at retail.” This was found to be unconstitutional so it was amended in 1941 to refer to “purchasers for use or consumption.” The question in the Modern Dairy case was what the legislature intended by the words “user or consumer” in the title of the Retailer’s Occupation Tax Act. The court stated (at pages 64-65):

“If a broad and liberal definition of these terms was intended, the purchaser here could be considered the user or consumer as contemplated by the act, and the amendment could reasonably be within the title of the act.”

In the Modern Dairy case the court looked first to the statute itself and how it had originally been construed by the court and then looked to the amendments made by the legislature attempting to change the court’s original interpretation. After consideration of the amendments, the court changed its former interpretation of the statute. As a basis for this construction, the court stated (at page 66):

“The legislature has the power to make any reasonable definition of the terms in a statute, and such definitions, for the purpose of the act, will be sustained. (Smith v. Murphy, 384 Ill 34; Krebs v. Thompson, 387 Ill 471; Bohm v. State Employees’ Retirement System, 404 Ill 117.) Once the legislative intent is ascertained it should be given effect by the courts unless it is clearly in violation of some provision of the constitution, and captious and hypothetical reasoning should no longer be indulged. (Foltz v. Davis, 68 F2d 495.) When this court construes a statute and that construction is not interfered with by the legislature, it is presumed that such construction is in harmony with the legislative intent. (Consumers Co. v. Industrial Com., 364 Ill 145.) Conversely, if the legislature, after the courts construe the terms used in an act, attempts by amendment to define those terms used in that act, the reasonable presumption is that the court’s construction was not in accord with the original intent of the legislature. (Domarek v. Bates Motor Transport Lines, Inc., 93 F2d 522; In re Hurle, 217 Mass 223, 104 NE 336.) It would then seem incumbent upon the court to reconsider its construction of the act and, if it appeared to be clearly at variance with the interpretation of the legislature, to harmonize the court’s construction with the legislative intent.”

This same standard of statutory construction was affirmed in People ex rel. Spitzer v. County of LaSalle, 20 Ill2d 18, 169 NE2d 521. In that case the court stated, at page 28:

“Where a court has construed the terms used in an act, and the legislature thereafter attempts by amendment to define those terms, the reasonable presumption is that the court’s construction was not in accord with the original intent of the legislature. (Modern Dairy Co. v. Dept. of Revenue, 413 Ill 55). The trial court on June 6, 1958, found that section 25.16 of the law relating to counties as it existed in 1955, did not constitute authority for the contracts entered into between these defendants. We have a right to look to subsequent amendatory legislation to arrive at the correct meaning of the terms of the statute, where the legislature has attempted to define those terms. (Modern Dairy Co. v. Dept. of Revenue, 413 Ill 55.)”

We, therefore, feel that we are justified in looking to the 1953 amendment of the statute under consideration in the instant case and in construing the wording of the statute as it existed prior to such 1953 amendment. We note that the legislature reinserted the phrase “and of any person from whom its mother might have inherited, if living.” We conclude that this shows that it was the intent of the legislature in 1939 to allow illegitimates to inherit from collaterals. The mere change in the statute alone reinserting the omitted phrase six months after the Spencer v. Burns case is significant. We may also consider that the law was well settled from 1872 until 1939 that such illegitimates could inherit, and that it was also the policy in Illinois to remove “the onus of illegitimacy from unoffending children” (Spencer v. Burns, supra, page 255).

In the light of such amendment we feel that the legislature in 1939 did not intend to change the former law. It is apparent that the legislature in 1939 intended by the added phrase to restate the probate act to provide for inheritance by representation by the illegitimate child and thereby merely to restate the law as it existed prior to 1939. It is true that the court in Spencer v. Burns interpreted this differently, but the legislature had not added the amendment referred to at such time. It did, however, act quickly to reinsert the phrase thereafter. We conclude that this demonstrates that the 1939 legislature did not intend to change the former law. We are also aware of the fact that the 1939 change was not an isolated modification of a particular section of the statute alone but was a rewriting of the entire probate act. There is no showing of any basic reason why there should be a substantive change in the former 1872 statute relating to inheritance through illegitimates, particularly in view of the 1953 amendment. It is our conclusion that the General Assembly in 1939 omitted the phrase thinking it had accomplished the same result by the language which was added. When the Supreme Court in Spencer v. Burns, supra, interpreted this as a substantive change, the legislature quickly added the clarifying clause within six months thereafter. In our judgment this shows that the intention of the 1939 General Assembly was not to make a substantive change in the former 1872 law under consideration.

We, therefore, feel that we are not bound by the conclusion of the court in Spencer v. Burns, supra, in view of the legislative change. Those claiming through illegitimates should be allowed to inherit under the terms of the 1940 probate act (enacted 1939). We, therefore, conclude that plaintiffs Nellie Gregory and Betsy Alice Clark were entitled to inherit through first cousins of the decedent.

We also note that there is an action pending on appeal in the Supreme Court of the State of Illinois involving the rights of Joan Baxter and James Clark. Until final determination by the Supreme Court of that issue, the extent of the interest of Nellie Gregory and Betsy Alice Clark could not be determined. The order of the Circuit Court of LaSalle County with respect to Nellie Gregory and Betsy Alice Clark will, therefore, be reversed and cause remanded to said court with directions to set aside and vacate the order of escheat to the County of LaSalle and to proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

STOUDER and SCHEINEMAN, JJ., concur.


author: PER CURIAM

text:
    The People of the State of Illinois, Plaintiff-Defendant in Error, v. Linwood Sluder, Defendant-Plaintiff in Error.
    Gen. No. 66-54.
    Third District.
    January 24, 1968.

      George C. Hupp, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellee.
   PER CURIAM

opinion.

Defendant, Appellant, Linwood Sluder pled guilty in the Circuit Court of LaSalle County to the offense of burglary. On September 13, 1963, the court granted Appellant probation for a period of three years. On December 16, 1963, pursuant to petition, notice and hearing the court revoked Appellant’s probation for violation of the terms thereof and sentenced him to an indeterminate term in the penitentiary on the original offense. No appeal was taken from this judgment.

On August 29, 1966, Appellant filed his motion in the Circuit Court seeking relief under the Post Conviction Act (§ 122, c 38, Ill Rev Stats 1965) alleging violations of his constitutional rights. Appellant has perfected this appeal to this court seeking to reverse the order of the trial court denying such motion for relief.

Section 122 (7), chapter 38, Ill Rev Stats 1965, provides “any final judgment entered upon such petition may be reviewed by the Supreme Court as an appeal in civil cases.” Although this issue was not raised or discussed by the parties it is our conclusion based on the foregoing section and on former Supreme Court Rule 28 (present rule 302) that this appeal should be transferred to the Supreme Court.

On the court’s own motion the appeal is transferred to the Supreme Court of Illinois and the Clerk of this Court is directed to forward all documents pertaining to this appeal to the Clerk of the Supreme Court of Illinois.

Appeal transferred.


text:
    Cory Corporation, a Corporation, Plaintiff-Appellant, v. Hunter-Built, Incorporated, of Chicago, an Illinois Corporation, and Howard Shapiro, Defendants-Appellees.
    Gen. No. M-51,671. (Abstract of Decision.)
    First District, Second Division.
    January 23, 1968.
    Raymond I. Suekoff and Stanford Clinton, of Chicago (Stuart C. Katz, of counsel), for appellant; Lawrence Jacobs and Lester Slott, of Chicago, for appellees.
   Opinion by JUSTICE McNAMARA. Not to be published in full.


author: TRAPP, J.

text:
    Estate of Ellen V. Loeffler, Incompetent. Bank of America National Trust and Savings Association of Pomona, California, Petitioner-Appellant, v. Estate of Ellen V. Loeffler, Incompetent, Oak Park Trust and Savings Bank, Respondent-Appellee.
    Gen. No. 50,967.
    First District.
    January 24, 1968.
    Lowitz, Vihon, Lowitz, of Chicago (Donald S. Lowitz and Theodore G. Gertz, of counsel), for appellant.
    Herrick, Vette, McNeill & McElroy, of Chicago (Moore W. Peregrine of counsel), for appellee.
   TRAPP, J.

Bank of America National Trust and Savings Association of California, a California appointed conservator of the estate of Ellen V. Loeffler, appeals from an order of the Circuit Court of Cook County, Probate Division, denying a petition of said Bank for transfer to it of the assets of Ellen V. Loeffler, incompetent, for administration in California.

Rita M. Jagnow, an only daughter, had been appointed conservator of the person of her mother, Ellen V. Loeffler, and the Oak Park Trust and Savings Bank had been appointed conservator of the estate of said ward by the Illinois Court. The ward was residing in a nursing home in Illinois. Thereafter, on February 21, 1964, the daughter, Rita M. Jagnow, took her mother by airplane to California, and placed her in the Golden Nursing Home in Pomona, California. In June, 1964, the daughter was, on her own petition, appointed guardian of the person of her mother, and Bank of America National Trust and Savings Association was appointed guardian of the estate of the incompetent by the Superior Court of the State of California, San Bernadino County.

The California bank obtained permission of the California court to petition the Illinois court for transfer of the assets, which are somewhat in excess of $300,000, to California.

The petition, now under consideration, was filed December 29, 1964, and alleged among other things, (1) that Ellen V. Loeffler, incompetent, has been physically present in California since February 21, 1964, and resides in the Golden Age Rest Home under the supervision of the guardian of her person, Rita M. Jagnow, (2) that the ward is in good physical condition and appears happy and content living in the nursing home in close proximity to her daughter, Rita M. Jagnow, (3) that the guardian of the person intends to remain with the ward in California permanently, (4) that the property of the ward in the State of Illinois, held by the Oak Park Trust and Savings Bank, may be removed to the State of California without conflict with any restriction thereupon, and without impairing the right of the ward thereto, and (5) that it would be to the best interest of the ward that her entire estate be administered by petitioner under the supervision of the Probate Court of San Bernadino County, California.

The answer to the petition alleges, (1) admits that the ward is physically present in California but asserts that the ward was removed there without consent of the ward, was there for medical treatment only, and was, at the time of the appointment of the California guardians of the estate and person, a resident of the State of Illinois, (2) denies the validity of the orders of the California court appointing guardians of the person and property (a) because of the Illinois residence of the ward and (b) because the California orders fail to give full faith and credit to the previous Illinois orders, (3) asserts that the ward was mentally incapable of changing her residence, and (4) denies that it would be to the best interest of the ward to transfer the property to California.

The respondent filed a petition to have a psychiatrist appointed by the court to determine whether the ward had the mental capacity to change her residence, and asserted that lacking mental capacity the ward could not change her residence.

The statutory provision under which the petitioner seeks a transfer of the assets, chapter 3, § 264 (Ill Rev Stats) is as follows:

“When it appears to the probate court of any county of this state in which a guardian or conservator of the estate of a non-resident ward is appointed that the removal of the ward’s estate will not conflict with the interest of the ward, the terms of limitation attending the right by which the ward owns the estate, or the rights of creditors, the probate court may order the resident guardian or conservator to pay and deliver to the non-resident guardian or conservator the whole or any part of the ward’s estate. The order shall be entered only upon the verified petition of the non-resident guardian or conservator and the production of authenticated copies of his letters and of the order of the court which issued letters to him authorizing him to collect, receive, and remove the personal estate. Unless excused by the probate court for good cause shown, ten days’ notice of the hearing on the petition shall be given to the resident guardian or conservator.”

At the time of the hearing on the petition of respondent for the appointment of a psychiatrist, and prior to the date set for hearing on the merits of the petition of the California bank to transfer the assets, the trial court after considerable argument by counsel, but without hearing any evidence, denied the petition for appointment of a psychiatrist and denied the petition for transfer of the assets to the California conservator.

All parties agree that unless the ward is, in fact, a nonresident, there is no authority for an order under chapter 3, § 264 (Ill Rev Stats) to transfer the assets.

Petitioner concedes that the ward did not have the mental capacity to change her own domicile, and accordingly the appointment of a psychiatrist to determine this issue would have been an unnecessary expense. In order to reach the issue of what would be the best interest of the ward it is first necessary to determine the residence of the ward.

Since there was no hearing of evidence which would permit the court to validly determine whether the residence of the ward was, in fact, changed, or what was the best interest of the ward in the matter of transfer, the court’s order, in effect, held that as a matter of law the residence of an incompetent could not be changed on the initiative of the conservator of the person, and that since the ward was not competent to change her residence on her own volition, the status of Illinois residence could not be changed.

The case of Parcher v. Reese, 202 Ill App 509, while conceding that an incompetent person is incapable of changing his domicile of his own volition, nevertheless holds that a person’s “residence” for the purpose of the statute before us may become changed, and that the significant factor in this change is the determination of the guardian of the person. Of like effect is Langmuir v. Landes, 113 Ill App 134. The court in In re Estate of Spengler, 282 Ill App 607 at 613, held that the residence might be changed with the assent of the conservator. This case is construed in 96 ALR2d 1284 to be a case of effective change by a guardian without court order.

We are not directed to any provision of the statute which requires a conservator of the person to apply to a court to change the residence of an incompetent, even though it may be conceded that this might be a desirable practice. From a reading of the opinions in Parcher v. Reese, 202 Ill App 509, and Langmuir v. Landes, 113 Ill App 134, we also gather an attitude that prima facie, it is to the best interest of the ward to have the supervision of the person and property conducted by the same court. Normally, it would appear to be more efficient, and more to the interest of the ward, to have the person who is charged with the custody of the person of the ward in close touch with the court and the person or institution administering the property. We also take an inference from the frame of the statute that while the language of chapter 3, § 264 (Ill Rev Stats) is “may order,” the sentence structure suggests that the court “should” order the transfer to the guardian of the place of actual residence unless such order would conflict with the interest of the ward, the limitations under which the property is held or the rights of creditors.

If there is no conflict with regard to rights of creditors, the welfare of the ward should be the foremost consideration of the court. It is the sense of the decided cases in Illinois that if the person who is charged with the responsibility of the care of the person of the ward is, in fact, discharging that responsibility for the benefit of the ward, such person may change the residence of the ward and make the ward’s residence the same as the conservator’s residence. It is not necessary to pass upon the matter of domicile in the sense of citizenship, but only upon the matter of residence within the meaning of chapter 3, § 264 (Ill Rev Stats).

Evidence would be required to establish whether the conservator in this case has, in fact, established her own residence and the residence of the ward in the State of California. While the cases relied upon in fact involved quite a number of years of residence, no reason is perceived why a settled or "permanent” state of affairs cannot be established in a relatively short period of time such as that involved in this case. The conservator of the person in this case is an only daughter and the ward is an elderly mother. If the daughter is established in, or intends permanently to reside in California, it would seem most logical that in caring for the needs of her mother there would be the greatest benefit in moving the latter to a place where the former can visit frequently. If the evidence upon the question of residence establishes the fact that the incompetent is a resident of California for the purpose of this statute, it should not be difficult to establish by evidence whether the transfer would “conflict with the interest of the ward, the terms of limitation attending the right by which the ward owns the estate or the rights of creditors.”

It is asserted that by reason of the failure of counsel to introduce evidence on the matter of the best interest of the ward, there has been a waiver of the right to pursue this question. Our reading of the record in this matter discloses rather that the trial court made it clear to counsel that it had determined that the incompetent could not have been a nonresident and that pursuit of the second inquiry would therefore be futile.

Our view is that it would be presumed to be to the best interest of the incompetent, and that the transfer should be made unless it were shown by the party resisting the transfer, or it otherwise appeared to the court from the evidence, that an order of transfer would conflict with one of the three qualifications set forth in the statute.

The trial court’s order is reversed and the cause remanded for the taking of evidence and further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.

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


author: EBERSPACHER, J.

text:
    Emanuel Newman, Plaintiff-Appellant, v. Mitchell Spellberg, Defendant-Appellee.
    Gen. No. 51,458.
    First Judicial District.
    January 24, 1968.

      George Rabens, of Chicago (S. Joseph Formusa, of counsel), for appellant.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard, and Frederick W. Temple, of counsel), for appellee.
   EBERSPACHER, J.

This is a medical malpractice action brought to recover damages occasioned by the alleged negligence of the defendant physician arising out of a gastroscopic examination performed upon the plaintiff. At the close of the plaintiff’s case, the court sustained the defendant’s motion for a directed verdict. Judgment for the defendant was entered on the verdict from which the plaintiff brings this appeal.

The plaintiff, Emanuel Newman, is 48 years old. The defendant, Mitchell A. Spellberg, is a physician, has engaged in practice for 30 years and maintains his office in Chicago, Illinois. He was certified as a specialist in internal medicine and gastrology in 1942 and has been practicing his specialty since that time.

In early 1959, the plaintiff experienced discomfort in the stomach and consulted the defendant. Through the defendant’s examination it was determined the plaintiff had a peptic ulcer. Treatment was prescribed and in April 1959 the defendant advised the plaintiff that an X ray indicated that the ulcer was completely healed. The defendant further advised the plaintiff that in order to assure his opinion a gastroscopic examination was desirable. Accordingly, at defendant’s instruction, the plaintiff and defendant met at the out-patient surgery unit of Michael Reese Hospital, Chicago, Illinois, on May 7, 1959, at 8:00 a. m. The plaintiff was accompanied by his wife.

The plaintiff entered one of the rooms of the surgery unit and after removing a portion of his clothing was given two injections over a 15-minute period by a nurse. He was then given a fluid with which to gargle. Still later the plaintiff’s throat was swabbed with an anesthetic to “freeze” the throat. The defendant who had entered in the meantime inserted a rubber tube into the plaintiff’s stomach and drained its content. The tube was withdrawn and the plaintiff was instructed to lie upon his back with his head hanging over the edge of the table. The room was dark and a cloth towel was placed over the eyes of the plaintiff. The nurse leaned over the upper portion of the plaintiff’s body and held both of his arms, remaining in that position during the entire course of the gastroscopic examination, which the defendant then commenced.

Plaintiff further testified that he felt the instrument being passed into his throat and down into his esophagus and stomach; that it was uncomfortable but that he did not retch nor fight it in any way, and that as the instrument was being inserted defendant described what he was doing and told him his stomach was being inflated, and that he would be able to look around within the stomach with the aid of the light. He testified that the defendant then made his visual examination and informed plaintiff that everything was clear and there was nothing to worry about and that he had no ulcer. Plaintiff testified that he then heard someone walk into the room and defendant started to talk to this individual and began explaining to him the process of the examination and the practice in the use of the instrument. Plaintiff further testified that while defendant was talking to this individual “he took me under one arm and moved me upward toward him with his body and when he moved me, I felt a sharp pain in my back,” and that he had felt no pain in his back until defendant moved him at that time. Plaintiff testified that after defendant’s description of the use of the gastroscope to the third party, for about two or three minutes, the instrument was then removed very slowly; following the removal of the instrument, the lights were turned on, the towel removed, and plaintiff was propped up in a sitting position, and told the defendant that he had a pain in his back to which the defendant replied, “Don’t worry about the pain in your back. It was because of the position you were in that you probably got a kink in your back.” Plaintiff testified that defendant then introduced him to the third person in the room, who appeared to be an intern, wrote out a prescription for him, and left the room; that he complained constantly about the pain in his back and that it was a sharp pain when he first felt it and that it was continuous. On cross-examination, plaintiff testified that the movement that defendant induced was a movement of his body of one or two inches forward, when the defendant pulled plaintiff under the arm toward him, and that plaintiff was positive that such movement “caused the puncture.”

The plaintiff then dressed and, due to his weakness and pain, sat with his wife in the waiting room for some 15 minutes before leaving the hospital. This was at approximately 10 o’clock. During the drive home, the plaintiff’s pain continued in its intensity. Sometime after one o’clock the plaintiff’s wife contacted the defendant by telephone who prescribed codeine. She called back within ten minutes and the defendant advised her to return the plaintiff to the hospital. The defendant testified that at this time it occurred to him that there may have been a perforation of an internal organ.

Mrs. Newman returned the plaintiff to the hospital where they were met by the defendant. The plaintiff testified that he passed out after arriving at the hospital and remained unconscious for the next 48 hours. The defendant gave an injection to the plaintiff for the pain which he described as severe. The plaintiff was then taken to the X-ray department to determine whether there was indication of a rupture of an internal organ. The defendant then ordered the plaintiff put to bed and prescribed certain medication. The defendant testified that the examination, including the X rays, was inconclusive but that he formed a diagnostic impression of a possible viscus perforation. The defendant also determined that a surgeon should be notified. He informed the plaintiff’s wife of this decision. Shortly before 4 p. m. the plaintiff’s wife informed the defendant of her decision to employ Dr. Morris Parker for surgery. The defendant telephoned Dr. Parker and gave him the tentative diagnosis. Dr. Parker arrived at the hospital at 6:15 p. m. and commenced the surgical operation at 8:00 p. m. Another physician, Dr. Milton Mosko, an allergist and friend of the plaintiff, participated in the examination by Dr. Parker and was also present during surgery.

Dr. Parker testified that an incision was made in the abdominal cavity and that he located a longitudinal split of about two centimeters in length in the back wall of the esophagus at the point where it joins the stomach. Dr. Moskó testified that he saw a small tear in the esophagus which was pointed out to him by Dr. Parker. He further testified that, in his opinion, the perforation of the esophagus was caused by the procedure of the gastroscopio examination, and that the “tear” was produced by a portion of the gastroscope piercing the esophagus. After locating the wound Dr. Parker closed it with sutures. Following the operation the plaintiff experienced a long and difficult recovery.

The defendant, called under section 60 of the Civil Practice Act after describing the procedure used in preparation of a patient for a gastroscopio examination, described the procedure used in inserting the instrument through the throat, esophagus and into the stomach. He testified that in addition to himself and a nurse, there was also present an orderly supplied by the hospital, who held the patient’s head, who was unknown to him; that during the examination he did not describe the method of procedure to anyone, and that he “possibly told the orderly to rotate the head” into the best position for seeing the lining of the stomach, and that defendant at no time during the course of the examination moved plaintiff’s body. Defendant explained that during the course of such examination two movements are used, rotation of the head, and bending the knees to relax the muscles of the stomach and the back. The witness did not have an independent recollection of any movement, but testified that such movement must have been made “because the examination was satisfactory, and the patient was in proper position”; and that if there was a good optimum, he would not have given any direction for movement, and that he could not recall whether it was necessary to give such direction in this examination.

The defendant further testified that the instrument passed through the esophagus with a minimum of difficulty and was temporarily held up at the junction of the esophagus and stomach until the patient relaxed and the instrument passed into the stomach. He next inflated the stomach and the patient indicated no distress. He further testified that he then completed his visual examination, through the gastroscope, during which the patient showed no distress, and found no unusual pathology and that everything was in order, and confirmed his previous diagnosis that plaintiff’s ulcer was healed. His testimony was also that when plaintiff’s wife advised him by telephone of plaintiff’s extreme pain he told her “that it was strange and unusual, because the procedure — the examination itself was satisfactory.”

The defendant also testified that in performing this examination and insertion of the instrument, he followed the same procedure that he had followed on several thousand patients, and had, over a period of 30 years, performed approximately 5,000 gastroscopic examinations; and that in this experience he had experienced only one instance of a perforation. The defendant doctor did not recall that the patient complained to him of any pain in the back.

The complaint filed by the plaintiff, as amended, alleges in part that:

“. . . The defendant, without due regard for the health and safety of the plaintiff, carelessly, negligently, unskillfully and improperly prepared for, prepared the plaintiff for, and performed the said gastroscopic examination, and carelessly, negligently, unskillfully and improperly failed to provide requisite medical services and attention to the plaintiff following upon the said examination; and, particularly, but not in limitation of the foregoing, the defendant pierced and lacerated an internal organ of the plaintiff, to wit: at the gastro-esophageal junction, with an instrument described as a gastroscope, in the course of the examination aforesaid, and thereafter failed to afford to the plaintiff the medical attention and services which were thereby reasonably, necessarily, and properly required. . . .”

Since this cause was ruled upon below and the briefs filed herein, the Supreme Court, in a personal injury action based upon negligence, has, after reviewing the various standards used in determining the propriety of directed verdicts, spelled out the rule that “verdicts ought to be directed . . . only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504, 513-514. We are, therefore, called upon to determine whether plaintiff’s evidence, viewed in the aspect most favorable to him, so overwhelmingly favors the defendant doctor, that a plaintiff’s verdict could not possibly stand. As we understand plaintiff’s theory, it is that the defendant was negligent in lifting the patient while the nurse was holding him down, for the purpose of exhibiting to a third person the procedure which had been used in inserting the instrument and in making the visual examination after that procedure had been completed without injury to the patient — an act which was ulterior or extraneous to either the insertion of the instrument, or the visual examination or the subsequent removal of the instrument. The evidence offered by defendant, an acknowledged expert in his field, showed this was an act which in no way facilitated and was unnecessary for either the insertion of the instrument, its use in conducting the visual examination or the subsequent successful withdrawal of the instrument.

Plaintiff contends that there was sufficient evidence to establish plaintiff’s prima facie case under the law of Illinois and that the trial court failed to take into account the reasonable inferences from all of the testimony favorable to the plaintiff.

Defendant contends that plaintiff has failed to prove both the negligence of the defendant and the causal relationship, if any, between defendant’s unskillful or negligent conduct and plaintiff’s injury.

The theory of the court in directing the verdict was that a prima facie case could not be established without expert medical evidence to show want of care and that the rupture of the esophagus was caused by the lack of care.

Two recent cases, Graham v. St. Luke’s Hospital, 46 Ill App2d 147, 196 NE2d 355, and Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762, have discussed the necessity of expert testimony to prove both the negligence of the doctor, and the causal relationship, if any, between the defendant’s negligent conduct and plaintiff’s injury in malpractice cases. The latter case makes quite clear that there are exceptions; in that case spelled out, as the “common knowledge” and “gross negligence” exceptions. In Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762, at page 488, the court said:

“In a malpractice action a physician will be held responsible for injuries resulting from his want of reasonable care, skill and diligence in his practice. The plaintiff must prove by affirmative evidence the defendant was unskillful or negligent and that his want of skill or care caused injury to the plaintiff. It is not enough to prove that he made a mistake or that his treatment harmed the plaintiff; proof of a bad result or mishap is no evidence of lack of skill or negligence.
“Generally it is necessary for the plaintiff to show by expert testimony not only that the injury occurred, but that such an injury does not ordinarily occur in the normal course of events without negligence. (Citing cases.) The so-called ‘common knowledge’ and ‘gross negligence’ exceptions to the requirement of expert testimony are applicable if the negligence of the physician is so grossly apparent or the treatment is such a common occurrence that a layman would have no difficulty in appraising it.”

It is to be pointed out that in both Scardina and Graham the court was dealing with applications of the accepted rules where the plaintiff sought to recover for an unfortunate result which occurred as a result of an act that was an implicit part of the accepted procedure; in Graham, a nerve injury from the insertion of a hypodermic needle; in Scardina, a hemorrhage resulting from a hernia operation. Here plaintiff has presented evidence of a deviation from the proper standard of care, as defined and spelled out by the defendant doctor’s testimony when called under section 60. Plaintiff has furnished evidence of an extraneous act, as foreign to the standard procedure, as defined by the expert doctor, as if it were evidence that the doctor had blinded the patient by sticking his finger in his eye during the course of a gastroscopio examination. This is not the case of a bad result or mishap occurring while the doctor was inserting the instrument, or even making the visual examination; neither did it occur as a result of any of the accepted movements as defined by the doctor, that of flexing the knees to relax the patient for ease of insertion of the instrument, or rotation of the head to facilitate the visual examination. Both the insertion and visual examination had, according to the testimony of both plaintiff and the defendant doctor, been satisfactorily completed with a satisfactory result.

From the uncontradicted evidence that the nurse draped herself over plaintiff’s body and held both his arms, it could be reasonably inferred that defendant intended no movement other than the rotation of the head and the possible flexing of the knees. Obviously, from reviewing the doctor’s testimony, he had no independent recollection of what movement was necessary to successfully perform the examination in this case, since he did not recall whether the knees were flexed or the head rotated. There is no evidence that either of these permitted movements were made. The doctor, who had performed 5,000 gastroscopio examinations, did not include lifting the patient’s torso with the instrument inserted while a nurse held the patient down and thus putting an excess pressure on the patient as a part of the standard procedure in gastroscopio examination. Although the doctor’s evidence does not confirm that this movement, foreign to the procedure as outlined by the expert was made, there is in the record positive evidence that the doctor, after pronouncing the insertion and examination thus far satisfactory, deviated from the proper standard of care by lifting the torso of the patient to exhibit him to a third party. Evidence of such deviation from a proper standard of care certainly cannot be ignored in a proceeding in which the plaintiff’s evidence is to be viewed in the aspect most favorable to him.

Defendant contends that since perforation of the esophagus may result from excessive retching or gagging by the patient, or an unusual force needing to be applied to insert the instrument, or a natural weakness of the walls of the esophagus, that plaintiff must show by expert evidence that the alleged unorthodox movement by the defendant caused the injury. He further contends that the entire procedure of gastroscopy and rupture of the esophagus are of such great complication that neither are matters of common knowledge that can be readily appraised by a layman without the help of medical testimony.

There is no evidence here that once the instrument was inserted there was any retching or gagging, nor is there any evidence that any unusual force was necessary to insert the instrument, or that there was any weakness of the walls of the esophagus. In fact the evidence of both plaintiff and defendant was that the insertion of the instrument was successfully made without injury to plaintiff, and that the visual examination by the use of the inserted gastroscope was successfully completed without incident. Furthermore, it is not necessary that a plaintiff, in order to make a prima facie case, negate every theory or speculation which might be propounded by the medical profession as to what might have been the cause that would excuse the physician of his alleged negligence; particularly when plaintiff has proceeded on the theory that the negligence was the departure from the accepted standard of procedure.

To us it is plain common sense and common knowledge, that when a patient is being held to assure that his torso is not moved while a foreign object such as a gastroscope is inserted into his innermost organs, injury would probably be sustained when an excessive or unnatural pressure was put upon his torso by lifting it against the force attempting to hold it in place. Here the uncontradicted testimony is that the sharp pain was first felt at the time plaintiff’s torso was so lifted. It is a reasonable inference that it was at that time that the injury occurred.

Defendant contends that the entire subject matter of gastroscopy and injuries to the esophagus are beyond the scope of common knowledge so as to require expert testimony on the issue of negligence and causation. We find no reported Illinois cases dealing with injuries sustained during gastroscopio examination; and we do not consider the two Pennsylvania cases upon which defendant relies to support such premise, as being of sufficient breadth or scope to apply to the factual evidence here before us.

In Robinson v. Wirts, 387 Pa 291, 127 A2d 706, and Demchuk v. Bralow, 404 Pa 100, 170 A2d 868, 88 ALR2d 285, the Pennsylvania Supreme Court by divided opinion affirmed directed verdicts in favor of defendant physicians who had performed gastroscopic examination on the plaintiffs whose esophagi were punctured. In each it was taken as true that the gastroscope had actually pierced the wall of the esophagus. Here we have affirmative evidence that there was a “perforation” of the esophagus by two experts. In each of those cases the injury occurred while the instrument was being inserted in accordance with the established standard procedure. In both cases difficulty in inserting the instrument through the junction of the esophagus and stomach was encountered and after numerous attempts to insert the gastroscope into the stomach, the physicians in both cases, noted the discomfort of the patient, immediately suspected perforation and withdrew the instruments without making the visual examination. In neither of those cases was there any evidence of departure from the accepted standard procedure in attempting to insert the instrument. Here the insertion of the instrument was accomplished without injury, the visual examination successfully made, and all of the proceedings through that point carried out without any indication by either the patient or physician that any injury had been sustained. In fact, the procedure to that point was pronounced satisfactory to the patient by the physician at that time, and the physician admits that even hours later he declared the examination was satisfactory.

Plaintiff is not here contending, as plaintiffs did in those cases, that the physician was not skillful or did not use proper care in attempting to insert the instrument. He charges negligence in deviating from the standard procedure by lifting the torso of the patient while the patient was being held down with the instrument inserted for exhibition to a third party. This is not the case of the physician who “applied gentle pressure and insufflation aimed to distend the walls of the stomach and esophagus so as to clear the passage for the tube” in accordance with “the normal and recognized method in such cases of overcoming the obstacle created by the spasm.” Here the pressure which the evidence shows was violent and excessive under the circumstances, was not exerted in the course of either insertion or visual examination, nor for any purpose directly connected with the gastroscopic examination. Here there was no evidence of any spasm or muscular contraction which justified the use of any force by the physician, to accomplish the purpose to which plaintiff had consented (the exploratory examination). That purpose was accomplished without any force that resulted in injury to plaintiff.

While the majority in the Pennsylvania cases determined that the procedure of insertion of the gastroscope was not within the common knowledge and ordinary understanding of a layman, they were careful to point out that those cases did not involve “extraneous acts the judgment of which would not require scientific opinion.” (Emphasis ours.) See Demchuk v. Bralow, 404 Pa 100, 170 A2d 868, at p 871. In the Demchuk case the majority quoted from the Robinson case, emphasizing by the Court’s italics, the particular point of distinction to be here observed. The language of the Pennsylvania Court found at 170 A2d 870-871, is:

“It would be a matter of common knowledge and observation that such things do not ordinarily attend the service of one exercising ordinary skill and experience in the work of surgery because they involve ulterior or extraneous acts or omissions the judgment of which would not require scientific opinion”

Klein v. Arnold, 203 NYS2d 797, involved a procedure quite similar to the gastroscopy. In that case an esophagascope, which is apparently used to view the esophagus rather than the stomach, was inserted into plaintiff’s body, and the esophagus was perforated by the instrument. There was no expert evidence introduced by the plaintiff on the question of negligence, but the case was submitted to the jury which returned a verdict in favor of the defendant. On appeal the defendant raised the issue that the suit required dismissal because of the absence of expert testimony. The judgment was affirmed on other grounds, but the court concluded that expert evidence of negligence was not required. It was determined, that the result was of such character as to warrant the inference of want of care in the light of the knowledge and experience of the jurors themselves. Based solely upon the facts that the instrument was inserted, and plaintiff suffered injury from it, the New York court held that a prima facie case was established.

In the present case there is even a stronger showing of negligence for not only is the rare, unusual character of the result here to raise the inference of negligence, here is evidence that the act of the defendant which caused the injury was an unnecessary deviation from the ordinary examination procedure. Only the physician controlled the movement of the instrument and the patient; this was more than a mere happening of an accident or a bad result in the course of accepted procedure. The physician took a chance that he could exert pressure on the torso of the plaintiff to demonstrate, and that injury would not result; but it did, in what was not a critical or curative operation, but only an exploratory one, successfully concluded.

Here we have an injury which would not ordinarily have occurred but for an act of negligence (defendant had performed 5,000 gastroscopie examinations, with only one case in which there was a perforation, and his own experience in that regard was comparable to the general experience in the field of his specialization); there is evidence that the injury was caused by the agency or instrumentality within the exclusive control of the defendant, and there is no evidence that the injury was sustained due to any voluntary act on the part of the patient nor was it contributed to by him. When such conditions have been shown to exist, plaintiff has established a prima facie case and the burden of coming forth with evidence that the occurrence was due to a definite cause unrelated to any negligence on his part, or that the care given was such that the occurrence could not have been due to want of care, but must have been brought about by an unpreventable cause. We do not consider that there may be any departure from these principles in this case, in view of plaintiff’s evidence to the effect that the injury occurred as a result of the departure by the defendant from the accepted standard of procedure (lifting the patient against the weight of the nurse while the instrument was inserted to display the patient with the inserted instrument to the nonparticipant).

The trial court has failed to recognize the evidence of the extraneous or ulterior act as well as the reasonable inferences which logically arise from the established facts, and erred in sustaining the defendant’s motion for directed verdict. The evidence, viewed in its aspect most favorable to plaintiff, certainly does not so overwhelmingly favor defendant, that a plaintiff’s verdict could not possibly stand. We therefore reverse the judgment of the Circuit Court and remand the cause.

Judgment reversed, cause remanded.

GOLDENHERSH and MORAN, JJ., concur.

       The gastroscope, which was the same one used during the examination, was produced in court and described by the defendant. At the distal (far) end, which is inserted first, is a flexible rubber tip about an inch to an inch and one-half in length, followed by a metal portion approximately one inch long which contains the light bulb mirror and lens. Behind that is a firm rubber tube approximately one to one and one-quarter feet long which is connected to a metal tube of approximately the same length. At the opposite end of the metal tube are handles, dials and the eyepiece which enable the physician to scan the interior of the patient’s stomach. The rubber tip is to protect the patient from injury by the metal light source, and it can be bent right at the place where they connect if the instrument is pushed hard.
      The defendant, in his description of the procedure stated that it is necessary to inflate the stomach by use of a rubber bulb which forces air through the gastroscope and into the organ so that the interior surfaces of the stomach are moved away from the instrument and the physician is enabled to see the stomach lining.

       Ill Rev Stats 1965, c 110, § 60.

       Quoted language from Robinson v. Wirts, 387 Pa 291, 127 A2d 708.


author: MR. JUSTICE ADESKO

text:
    Leroy Morck, Plaintiff-Appellant, v. Frank Nicosia, Individually, and d/b/a Capital Construction Co., Defendant-Appellee.
    Gen. No. 51,289.
    First District, First Division.
    January 29, 1968.
    Epton, McCarthy, Bohling & Druth, of Chicago (Edward A. McCarthy, David S. Kreisman, and Alan R. Miller, of counsel), for appellant.
    McKinley, Price & Fako, of Chicago (Paul E. Price, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Leroy Morck filed his complaint against Frank Nicosia, alleging a violation of the Structural Work Act, Ill Rev Stats 1965, ch 48, § 60 et seq. A motion to strike and dismiss the second amended complaint was denied. An answer was filed and depositions of plaintiff and defendant were taken. Upon being assigned for trial, defendant moved for summary judgment, which motion was allowed. Plaintiff now prosecutes this appeal.

We note initially that there is no error in the procedure of entering a summary judgment after a motion to dismiss the complaint has been denied. Stanko v. Zilien, 33 Ill App2d 364, 179 NE2d 436 (1962).

Defendant’s motion for summary judgment adopted by express reference the discovery depositions of both plaintiff and defendant. The facts, as they appear from those depositions, show that defendant was a general contractor in charge of the construction of an apartment building. Plaintiff was a carpenter employed by one of the defendant’s subcontractors. At the time of the accident which gave rise to the instant law suit, he was working about 141/2 feet above the ground on “the first floor subfloor which would be, actually, the ceiling of the first floor and it would be forming the floor of the second floor.” Plaintiff was “leveling the joists . . . mak(ing) them the same height so that the floor would be perfectly straight.” The building was 24 feet wide and the joists involved spanned from wall to wall. The flooring, which had already been installed, was about 1,500 feet of flat surface with no openings, voids or holes.

Joists are “leveled” by placing shims, or wedges, underneath them. This operation is performed by raising the end joist to the desired height. A string is stretched from this end joist to the other end of the building. Plaintiff would stand on the wall, which was eight inches wide, facing the center of the building. From a squatting position, he would insert a crowbar under each joist and raise it to the proper height. The joists had to be raised, on the average, about one-half inch. Plaintiff carried the wedges or shims in his nail apron and after raising the joist, he would select a proper wedge, insert it under the joist and put in a retaining nail. He would then stand up and step over to the next joist, moving his tools with him. It was in making such a move to an adjacent joist that plaintiff’s feet slipped out from under him and he fell to the ground.

Plaintiff’s second amended complaint is in one count. It charges the defendant with willfully violating the Structural Work Act in that he failed to erect and provide a scaffolding for plaintiff to stand on while leveling joists. The actions of defendant, which the complaint alleges constituted the violations of the Act, are as follows:

“a. Willfully failed to erect and construct a scaffold upon which the said LEROY MORCK could work in a safe, suitable and proper manner, and willfully failed to erect, construct, place and operate the same for said LEROY MORCK to work upon, so as to give proper and adequate protection to the life and limb of the plaintiff working at said place, in violation of Section 60 of Chapter 48 of the Revised Statute (1957).
“b. Willfully failed to erect and construct a scaffold upon which said LEROY MORCK could work in a safe, suitable and proper manner, and willfully failed to erect, construct, place and operate the same for said LEROY MORCK to work upon so as to give proper and adequate protection to the life and limb of the plaintiff working at said place, in violation of Section 60 of Chapter 48 of the Revised Statute (1957).
“c. Willfully failed to supply a scaffold or support to said plaintiff to perform his work upon, and as a result there was created a dangerous, precarious and hazardous work condition.
“d. Willfully failed to provide a safe place to work for said plaintiff, which was hazardous and dangerous without the erection of a scaffold or support.
“e. Willfully failed to provide a handrail or other reasonable means to prevent the plaintiff from falling from the dangerous, precarious and hazardous position required of him by the defendant in the construction of the building.
“f. Willfully failed to comply with the custom and practice of safety adopted in the Building Construction Industry to protect the plaintiff from falling from a high hazardous position.
“g. Willfully failed to observe the safe rules of conduct in providing scaffolding, ladders, supports, handrails or other contrivance to adequately protect the plaintiff from falling from great heights, to which height he was required to ascend in completion of the defendant’s construction work.
“h. Willfully failed to properly inspect the area in which the plaintiff was required to work to make certain that scaffolding, supports, ladders or other contrivances were provided to insure the safety of the plaintiff.
“i. Willfully invited the plainiiff to work in an area which was imminently dangerous and unsafe.
“j. Willfully invited the plaintiff to work upon its building in hazardous weather conditions, whereby, as a result of inclement weather conditions ice and snow had formed on the joists, walls and other surfaces upon which the plaintiff was required to do his work, so that the danger to the plaintiff, in an already hazardous position was increased.
“k. Willfully failed to comply with the custom and practice of building industry in providing a scaffolding or other safe place upon which the plaintiff might stand while performing the functions required him by the defendant.” (Emphasis Added.)

We read plaintiff’s complaint as being based solely upon alleged violations of the Structural Work Act. In his brief filed in this court, plaintiff states that the case at bar is exclusively under that Act. It is not alleged that the permanent part of the building, upon which plaintiff was standing at the time the accident occurred, constituted a scaffold thereunder. See Bounougias v. Republic Steel Corp., 277 F2d 726 (7th Cir 1960); also Parizon v. Granite City Steel Co., 71 Ill App2d 53, 218 NE2d 27 (1966) holding that a permanent part of a structure is not to be treated as a scaffold. Language to the contrary in Louis v. Barenfanger, Fifth District, No. 66-61, September 14, 1966, was eliminated from the Opinion as modified on rehearing, 81 Ill App2d 104, 226 NE2d 85 (1967) . But see also 87 ALR2d 977, § 6.

Furthermore, it is clear from the facts that there is no scaffold present in the instant case. The pleadings, however, are not framed to state a cause of action in common-law negligence for failure to provide plaintiff with a “safe place to work.” Raxworthy v. Heisen, 274 Ill 398, 113 NE 699 (1916). Nevertheless, plaintiff takes the position that under the so-called “safe place to work” doctrine, defendant is required to provide scaffolding. This failure alone, contends plaintiff, is a willful violation of the Structural Work Act, because the Act embodies the safe place to work doctrine. We do not agree with this theory.

The safe place to work doctrine embodies many different facets and nuances which are not within the scope of this case. The controlling issue is limited to a determination of whether the Scaffold Act places a duty on the persons “in charge” of the construction to employ the use of scaffolding. We do not consider if the admitted failure to do so is negligence, but only whether this failure constitutes a violation of the Act. No prior Illinois case has ruled on this precise issue.

Section One of the Structural Work Act provides in relevant part as follows:

“(A) 11 scaffolds ... or other mechanical contrivances, erected or constructed . . . for the use in the erection ... of any house, ... or other structure, shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.” (Ill Rev Stats 1965, c 48, § 60, Emphasis added.)

We are fully aware that the Scaffold Act is to be given a liberal interpretation in accordance with its title which states:

“An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof.”

Schultz v. Ericsson, 264 Ill 156,106 NE 236 (1914); Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551 (1911), affirmed 228 US 680 (1913); Fetterman v. Production Steel Co., 4 Ill App2d 403, 124 NE2d 637 (1954). This rule of construction is also set forth in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961). But the Gannon case also requires that we refrain from doing violence to the language of the statute by deleting or substituting words.

The operative words of the statute for determining the scope of the Act, are, “All scaffolds . . . erected . . . for use . . . shall be safe ... as to give proper and adequate protection.” We cannot construe this language as imposing a duty on the person in charge to provide scaffolding on the construction site. However, once a scaffold or other mechanical contrivance is employed, the Act sets forth a standard of safety to which such scaffolds must comply.

Every case relied on by plaintiff involves fact situations where scaffolding of one type or another was used. There are three cases not involving the use of scaffolding which militate against plaintiff’s position, all of which, he argues, are distinguishable. The first of these cases is Parizon v. Granite City Steel, supra. As pointed out above, the issue of whether a permanent part of the structure is a scaffold, is not present in the instant case.

The second case is Bradley v. Metropolitan Sanitary Dist. of Greater Chicago, 56 El App2d 482, 206 NE2d 276 (1965). In Bradley, a workman was killed as the result of a cave-in of an excavation for a “drop manhole.” Plaintiff there argued that the failure of defendant to erect supports, protective sheets, stays, coverings and sidings, which would have prevented the soft mud, earth and clay from falling into the shaft-pit was a violation of the Scaffold Act. In that opinion, this court distinguished our Structural Work Act from a similar act in New York because our Act “app(lies) only when a scaffold is used.” The opinion goes on to state:

“Let us examine the Blinois Structural Work Act as it applies to the facts of the instant case.
“Section 60 defines the standards for mechanical contrivances that are ‘erected or constructed’ for use in activities encompassed by the Act. It does not prescribe standards to determine when such contrivances must be used. This is illustrated by the language: (1) ‘All scaffolds ... or other mechanical contrivances erected or constructed . . .’ and (2) the requirement that a safety rail for a scaffold ‘swung or suspended from an overhead support. . . .’ (Emphasis supplied.) In the instant case there was no scaffold, support or other mechanical contrivance. Even if the excavated hole was considered a ‘structure’ within the meaning of the Structural Work Act, there was no violation of any of the protective measures provided for in the statute.” (P 486.)

Plaintiff argues that the above quote from Bradley is obiter dicta because the court concluded that the excavation site was not a “structure” within the Scaffold Act. Regardless of whether we consider the court’s statement as obiter or an additional reason for its decision, we find the argument persuasive, and a proper interpretation of the Act.

The third case which does not involve use of any type of scaffolding is Thon v. Johnson, 30 Ill App2d 317, 174 NE 2d 400 (1961). Plaintiff was an electrician, who, in order to work on a particular switchbox, stood on a plywood form, covering a six to eight foot deep gap in a garage floor. “ (W) e do not feel,” concluded the court, “that the cement form upon which plaintiff stood in the case at bar can be considered to be a scaffold within the meaning of the statute. ... (I)f the statute were construed so as to cover the concrete form involved in this case, such a construction of the statute would be equivalent to holding that each and every place where a workman chooses to stand thereby becomes a scaffold within the meaning of the statute. No authorities have been cited which would justify such a construction.” (P 322.) On this reasoning the court reversed a judgment in plaintiff’s favor.

In his reply brief, plaintiff here argues that it was not proposed to the court in Thon that the person in control had a duty to provide the workmen with something safer than the plywood floor on which to stand. It is, however, significant to us that the court found it necessary to define a scaffold before it would impose liability under the Structural Work Act. Having found no scaffolding being used, the court properly denied recovery. See also Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552 (1966), where this court reversed a summary judgment for the defendant only after concluding that the plank on which plaintiff was standing could constitute a scaffold, depending on the intention of the parties.

There are several additional cases which contain statements concerning the scope of the Scaffold Act. In Kobus v. Formfit, 35 Ill2d 533, 221 NE2d 633 (1966), the Supreme Court stated:

“The Scaffold Act is a statutory enactment to protect those engaged in extra-hazardous work, and recognizes a duty upon certain categories of individuals to use specified safeguards and standards of safety in the erection of structures where such work employs the use of scaffolds.” (Emphasis added.) (P 537.)

In Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249 (1965), the court as in Thon v. Johnson, supra, found it necessary to determine if certain temporary shorings were included under the phrase “other mechanical contrivances” in the Structural Work Act because, “the Act relates to equipment used in the erection or repair of buildings and other structures.” (P 124, emphasis added.) This part of the Appellate Court Opinion was affirmed at 37 Ill2d 273, 226 NE2d 630 (1967). One further comment on the scope of the Act appears in Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136 (1965), wherein the court stated:

“The Scaffold Act extends protection to persons employed or engaged on a ladder or a scaffold.” (P 73.)

Plaintiff also argues that the case of Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134 (1958), creates a nondelegable duty upon the contractor creating liability upon him when injuries occur on a construction site. This contention has been fully rejected in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785 (1961). Secondly, as indicated above, we find the scope of the Structural Work Act limited to those situations where either a scaffold, hoist, crane, stay, ladder, support or other mechanical contrivance is used regardless of the defendant’s ability to delegate his duty.

Finally, plaintiff relies on the case of Louis v. Barenfanger, 81 Ill App2d 104, 226 NE2d 85 (1967), which reversed an order of the trial court dismissing a third amended complaint. The complaint alleged that although defendant furnished a planking type scaffold for use on the construction site, he did not properly place that scaffold so as to give proper and adequate protection to the life and limb of the plaintiff. Defendant’s motion to dismiss, of necessity, admitted that he furnished the scaffold and did not properly place it. The statute clearly provides that “all scaffolds . . . erected . . . shall be so erected and constructed, placed and operated as to give proper and adequate protection.” Consequently, that court concluded that plaintiff stated a cause of action under the Structural Work Act. The factual situation in Barenfanger is clearly distinguishable from the instant case.

For the foregoing reasons, the order of the Circuit Court of Cook County entering summary judgment for defendant, is affirmed.

Judgment affirmed.

BUBMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bernard E. Bendig, Defendant-Appellant.
    Gen. No. 51,375.
    First District, First Division.
    January 29, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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 Saul A. Perdomo, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the crime of deviate sexual assault in violation of chapter 38, section 11-3 of the Illinois Revised Statutes, 1963. A plea of not guilty was entered and trial by jury was waived. He was found guilty and sentenced to the Illinois State Penitentiary for not less than one, nor more than five years.

On this appeal, defendant argues that he was not proven guilty beyond all reasonable doubt and that there is a fatal variance between the charge in the indictment and the evidence.

The State’s evidence consisted of the testimony of the prosecutrix and the stipulated testimony of the doctor who examined her one day after the alleged incident. The nature of the facts in this case are of such a distasteful and degenerate character that we do not feel any purpose will be served by recounting them. This court has carefully scrutinized the entire record and assiduously reviewed the testimony of the prosecutrix. Suffice it to say that the prosecutrix met the defendant by prearrangement. They proceeded to his apartment where, by the use of force the defendant, who was a strong, husky young man, overcame the prosecutrix who was a rather small 20-year-old girl. By holding her arms down and sitting on her, he inserted his penis into her mouth.

We cannot say that the conclusion of the trial judge in finding defendant guilty was against the manifest weight of the evidence. As the Supreme Court stated in People v. Finley, 22 Ill2d 525, 177 NE2d 149 (1961):

“ (W) here a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. People v. West, 15 Ill2d 171.” (P 529.)

Defendant’s argument that the prosecutrix showed no desire to resist is without merit. As the Illinois Supreme Court said in People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965):

“There is no definite standard fixing the amount of force required and each case must be considered on its own facts. It is the general rule that if the female has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. However, resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, nor where she is overcome by superior strength or paralyzed by fear.” (P 92.)

As each case must be considered on its own facts, so must the degree of resistance required of each victim be judged. The evidence convinces us that the defendant was proven guilty beyond all reasonable doubt of the crime of deviate sexual assault.

The defendant next argues that there is a material variance between the indictment and the evidence. The indictment states that defendant “committed the offense of deviate sexual assault, in that he, knowingly by force and by threat of force, compelled one-to submit to an act of oral copulation, in violation of Chapter 38, Section 11-3 of the Illinois Revised Statutes 1963.”

Section 11-3 of the Criminal Code provides:

“Any person . . . who by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits a deviate sexual assault.”

Defendant contends that the Code contemplates two general alternative categories of behavior, that of “performing” and that of “submitting.” The two terms, he argues, are descriptive of mutually exclusive conduct. The present situation involves a male forcing a female to engage in an act of oral copulation. Thus, defendant argues, if the indictment charges “submit,” it must mean an act of cunnilingus; if the indictment charges “perform,” it must mean an act of fellatio. Defendant then concludes that since the indictment charges “submit” and the testimony establishes only an act of fellatio, there is a fatal variance between the crime charged and the indictment.

It is not necessary that an indictment employ the use of the language of the statute to charge an offense thereunder. People v. Love, 310 Ill 558, 142 NE 204 (1923); People v. Pronger, 48 Ill App2d 477, 199 NE2d 239 (1964). The purpose of the indictment is to enable the defendant to prepare his defense and to plead judgment in bar of subsequent prosecution for the same offense. People v. Martin, 62 Ill App2d 97, 210 NE2d 587 (1965).

The language of the indictment under consideration does not follow the language of the statute. The gist of the indictment is an act of oral copulation. The word “submit” is used in its common everyday meaning. “Submit,” as defined by Webster is to yield to the will of another. The defendant clearly forced the prosecutrix to submit to his will when he inserted his penis into her mouth. We cannot accept the argument that defendant was in any way hindered in the preparation of his defense by such use of the word “submit.”

As stated above, the indictment charges oral copulation as the offensive act. Thus, the defendant is erroneous in his argument that had he been acquitted, he could subsequently be prosecuted for an act of cunnilingus. Further prosecution would also be barred under section 3-3 of the Criminal Code. (Ill Rev Stats 1965, c 38, § 3-3.)

For the foregoing reasons, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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