author: Mr. JUSTICE STOUDER

text:
    Robert D. Haas et al., d/b/a Haas and Hodges Real Estate Agency, Plaintiffs-Appellants, v. Avie E. Cohen et al., Defendants-Appellees.
    (No. 72-271;
    Third District
    April 10, 1973.

      Harold H. Kuhfuss, of Pekin, for appellants.

      Dorothea O’Dean, of Rock Island, and Joseph J. Solls, Sidney D. Davidson, and John F. Sloan, all of Peoria, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Tazewell County in favor of the defendants, denying to the plaintiffs a recovery of a commission for selling real estate. The defendants, Avie Cohen and Robert Muzzy, each owned an interest in certain real estate located in Pekin, Illinois on which they built an apartment house in 1967. Haas & Hodges Real Estate Agency operated by the plaintiffs, Robert Haas and John Hodges, appellants, had engaged in activity in respect to the property since 1967, both as a rental agency for the leasing of the apartments and as a broker to sell the real estate.

Cohen, who lived in Peoria, did business both in Peoria and in Pekin, while Muzzy lived in Wheaton and only visited Pekin occasionally. Cohen had handled all matters concerning the construction, the leasing and the negotiations for the sale of the property. In 1967, soon after the apartment house was built, Cohen first signed a listing agreement with the plaintiffs’ agency, which Muzzy did not sign although he did have knowledge of it. Three years later in 1970, the listing contract in issue in this case was signed by the plaintiffs’ agent, Mayhugh, and by the defendant, Cohen. The real estate agency agreed to try to find a purchaser for a price of $236,000 with a commission of $16,000 to be paid to the plaintiffs upon consummation of the sale. The following month a prospective buyer, Robert Fuller, who was procured by the plaintiffs, offered to buy the real estate and a detailed offer to purchase signed by Fuller was submitted to Cohen and accepted by Cohen by placing his signature thereon. The defendant Muzzy had not signed the listing contract or the offer to purchase. When the deal was ready to be closed, Cohen and Muzzy refused to perform. The defendants urged that both the listing contract and the offer to purchase were subject to a condition precedent and unenforceable.

At the trial Cohen testified that both the listing contract and the offer to purchase were “subject to Muzzy’s signature” and that he had only signed in his own behalf. The plaintiffs’ agent, Mayhugh, and Hodges, one of the plaintiffs, testified that nothing had been said about obtaining Muzzy’s signature at the time Cohen signed the agreements. Muzzy denied having any authorization to Cohen to act as his agent in the sale of the property, although he did admit knowledge that Cohen had fisted the property with Haas and Hodges.

The defense of a conditional execution was supported by Cohens testimony, to which the plaintiffs objected at the trial. Ordinarily parol evidence is not admissible to vary, alter or contradict the terms of a written contract, which also would include a situation where a condition which is not provided for in the contract is imposed by parol. (Green v. Ashland Sixty Third Bank, 346 Ill. 174, 178 N.E. 468.) If, however, parol evidence is offered to show that a contract was intended to take effect only upon compliance with a certain condition it is admissible. (Kilcoin v. Ortell, 302 Ill. 531, 135 N.E. 16.) According to Kilcoin, the rule is that possession of a document unconditional by its terms by a party seeking to enforce an agreement is presumptive evidence, although not conclusive, that the agreement is binding and in full force and effect according to its terms. The strength of such a presumption is enhanced and may not be lightly disregarded where, as in the instant case, the alleged condition could have been easily included as a term of the document and the failure to do so is unexplained. Cohen had alleged in the pleadings that the contract was conditioned upon Muzzy’s signature. Evidence that there was a condition precedent to the existence of the contract is admissible. It was, therefore, proper for the trial judge to admit evidence of the condition offered by Cohen.

It is well settled that a party asserting a fact or issue generally has the burden of proof as to such fact or issue. (Noyes v. Gold, 310 Ill.App. 1, 34 N.E.2d 1.) The condition affirmatively alleged by Cohen in his answer was not part of the written agreement nor was there any evidence of the condition except for Cohen’s testimony. Those present at the signing denied the existence of a condition or even any discussion of one. Cohen alone had been in charge of the entire operation since 1967, which included the construction, leasing, and the listing of the property for sale. Throughout the plaintiffs’ entire course of dealings with the property it was only Cohen who had dealt directly with the plaintiffs, and he had also held himself out to the plaintiffs to be in charge of the property. Cohen admitted that he alone signed previous listing agreements prior to his signing of this listing agreement and that such agreements were not conditioned upon Muzzy’s joinder. The new listing agreement changed the purchase price from $260,000 to $236,000 representing Cohen’s decision to accept $220,000 net, if such an offer could be secured.

Cohen, having admitted that he signed the listing agreement, said that he intended it to be binding in his own behalf although conditional on Muzzy’s signature. One month later, however, Cohen alone signed the contract for sale with the prospective buyer without even inquiring of the plaintiffs, who submitted the offer to purchase, whether Muzzy had signed the listing agreement. Cohen claimed again that his acceptance of the offer to purchase was conditional on Muzzy’s concurrence.

Also there was evidence that after Mayhugh had severed his relationship with the plaintiffs and after this litigation had commenced, Cohen offered to let Mayhugh sell the property, if he could “recall” that Muzzy was to approve the listing agreement. Cohen, called as an adverse witness by the plaintiffs under Sec. 60, admitted calling Mayhugh after this litigation commenced. He neither admitted nor denied making the offer contingent on Mayhugh’s memory, merely indicating that he could not remember such offer. He did, however, concede that he may have offered to list the property if Mayhugh’s testimony would be favorable. All of these facts are inconsistent with any allegation that there was a condition precedent to the existence of the listing agreement.

The plaintiffs in their complaint alleged that Cohen had acted for Muzzy in signing the listing contract and the offer to purchase. Muzzy denied his liability based on the fact that he did not sign the contract himself nor did Cohen sign as his agent. Muzzy testified that he had never authorized Cohen to act as his agent in listing the property for sale nor in signing the proposal to purchase. Also he testified that there was no partnership agreement between them. Sufficient evidence was not presented to prove any agency, partnership or a joint venture relationship between the co-owners of the property. The trial judge, therefore, properly found for the defendant Muzzy since he could find from the evidence that the plaintiffs had not proved that in signing the listing contract Cohen was also signing for Muzzy.

The fact that the person employing a broker owned only a part interest does not relieve him from liability to the broker for commissions whether or not he had authority to contract for his co-owner. (Stone v. Deahl, 174 Ill.App. 421.) Since Cohen admitted that he signed the listing agreement intending to be bound by it, he is liable for the commission despite the fact that he had no authority to contract for Muzzy.

It was contended by Cohen that the brokers were not entitled to their commission because the offer to purchase was unenforceable. Where a broker enters into a listing agreement with the property owner and he procures a purchaser ready, willing and able to purchase upon the terms proposed by the seller, the broker is entitled to his commission. (Fox v. Ryan, 240 Ill. 391, 88 N.E. 974.) Cohen alleged that the purchaser had offered to purchase on terms other than those proposed by the seller. The listing contract stipulated a price of $236,000. In his offer to purchase tendered by the prospective purchaser, the consideration offered was $236,000 but the terms of payment were different than those specified in the original listing contract. We find that the plaintiffs are entitled to a commission even though these terms were not set forth in the listing contract. When Cohen signed the offer to purchase with the buyers, this showed that Cohen was in agreement with all of the terms. The listing contract specifically provides for payment of commission “in the event you find a purchaser ready, willing and able to buy said estate, * * * during said time for the price and upon the terms named herein, for any other price or terms, or consideration acceptable to * * The cases cited by Cohen are not applicable since they concern sales contracts signed by the broker on behalf of the seller (Hoyt v. Shepherd, 70 Ill. 309), and also a sales contract which the seller refused to sign because of additional terms. (Katz v. Brooks, 65 Ill.App.2d 155, 212 N.E.2d 508.) Here Cohen signed the contract in his own behalf approving and accepting the terms.

The plaintiffs had produced a buyer who remained ready, willing and able to purchase up until the time when the defendant refused to perform. The fact that the seller may not be the sole owner of the property neither renders the sales agreement unenforceable nor affects the sellers liability under the listing agreement where the broker has performed according to its terms. According to the rule set forth in Goldstein v. Rosenberg, 331 Ill.App. 374, 73 N.E.2d 171, when a broker is to receive a commission upon consummation of a sale, he is entitled to the commission should the transaction fail due to tire fault of the principal.

For the foregoing reasons, we find no error in the judgment of the Circuit Court of Tazewell County in favor of defendant Muzzy, but we do believe the court erred in its judgment finding Cohen not liable. Accordingly, the judgment in favor of Cohen is reversed and remanded with directions that the trial court proceed in accord with the views expressed herein.

Judgment affirmed in part and reversed in part and remanded.

SCOTT, P. J„ and DIXON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leon Bolton et al., Defendants-Appellants.
    (No. 71-182;
    Third District
    March 30, 1973.

      Rehearing denied May 1, 1973.

      John L. Barton, of Marseilles, for appellants.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This was a prosecution in the Circuit Court of Kankakee County for murder against Leon Bolton, Charles Marshall and Tommy Watkins. After a jury verdict of guilty, the trial judge sentenced the defendants for a term of from 90 to 150 years. All three defendants have taken this appeal contending, first that the People knowingly used perjured testimony to obtain the convictions.

On Dec. 15, 1970, the victim disappeared from her home. During the next four days her relatives, neighbors and the local police searched the fields around her house for some sign of her. On the fifth day, Dec. 20, her body was found in one of the fields. She had been shot six times.

Within two weeks, the police had five suspects in custody. The first of the suspects was Philip Troupe. Based on statements of Troupe, the defendants, along with a Leo Collins, were arrested and indicted for murder. (Collins also gave the State’s Attorney a statement. In it he said that Bolton and Marshall had killed the victim and that no one else was present. The State gave notice that Collins’ statement “may be exculpatory in nature with reference to said Tommy Watkins”. Collins was granted a severance. He did not testify in the instant case, nor was the exculpatory statement presented to the jury in behalf of Watkins.)

Troupe was called as a prosecution witness. The jury was excused and the judge questioned Troupe, his attorney, and the prosecutor Fontenot about Troupe’s willingness to testify. Both attorneys advised the judge that Troupe was testifying in return for the State’s promise that he would not be prosecuted for murder. The following appears:

“Mr. Fontenot: I might further show to the court that Philip Troupe was declared a delinquent on Feb. 10, 1971 under Case No. 70-J-4232 wherein he confessed to two counts of the Petition and Count I of the petition as to murder was stricken as to him. As far as—
The Court: When you say Count I as to murder — was that an agreement between you and defense?
Mr. Fontenot: That was by representation that the State would handle all matters with reference to Troupe as a juvenile at which time he did consent — and which he did do — to testify before the Grand Jury in the Indictment of the present case on trial. * * *
The Court: * * * And that if he does take the stand to testify, so far as tire witness is concerned, whatever statements he may make which are incriminating so far as murder is concerned will not be by the State used to charge him with murder. Am I correct in that.
Mr. Fontenot: That is correct, Your Honor.”

The Court then addressed Philip Troupe:

"Q. You are taking the stand because there has been an agreement between your lawyer and the State that the State will not prosecute you for murder?
A. Yes.”

The jury was thereafter brought in to hear Troupe’s testimony. He testified that on the night of Dec. 15, he and the defendants went to the home of the victim where she was raped and later shot in a field nearby. On cross-examination the following appears:

“Q. Did anybody promise you anything to come in and testify in this case?
A. No.
Q. Are you charged with murder?
A. No.
Q. Did anyone talk to you about charging you with murder?
A. I don’t remember.
Q. Are you telling, this jury that as far as you can recall nobody promised you anything to come in here and testify?
A. Yes. I was told I might go to the Youth Commission. Nobody mentioned the Penitentiary or the electric chair.
Q. Mr. Troupe, did you for your part — Mr. Troupe, did you have more than one conversation with anybody from the State’s Attorney’s office concerning the Youth Commission and the punishment you might receive for your part in this?
A. No, not that I remember.
Q. So nobody has made you any promises?
A. No.
Q. But they have mentioned the Youth Commission to you?
A. Yes.
Q. Did anybody from the State’s Attorney’s Office — at any of the meetings you were at — ever tell you you were not going to be charged with murder?
A. I had two meetings with People from the State’s Attorney’s office. One was in the courthouse on the third floor in a little room. At one of those meetings Mr. Fontenot and Mr. Drolet were present and so was Mr. Lucas and Mr. Yurgine and yourself. My lawyer, Michael Berz was also present at the meeting. On another occasion I had a meeting with just the State’s Attorney and myself being present. My lawyer was not at that meeting. I was not promised a deal to testify in this case.
Q. As a matter of fact, weren’t you promised a deal to testify in this case.
A. No.
Q. You weren’t?
A. No.”

Then, when the time came for re-direct examination:

“The Court: You have anything else, Mr. Fontenot?
Mr. Fontenot: Yes, Judge — just a moment, please — no further questions.”

On final argument by Mr. Fontenot the following appears: “Now, counsel for the defense may also tell you that Troupe — * s * they may say he was promised something — but you remember Troupe’s testimony. * * * Remember he was not promised anything.”

The only evidence connecting the defendants with the murder was the testimony of Philip Troupe. The State had at least promised Troupe that if he testified against the defendants, the charges against him would be handled in the Juvenile Court. The prosecutor at trial knew of the agreement. The witness knew of the agreement, yet repeatedly denied that he had been promised anything for his testimony. Instead of disavowing the false testimony the prosecutor based his closing argument on it to compound the matter.

In the case of Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, the United States Supreme Court reversed a conviction for murder because an accomplice testified that he had been made no promises for his testimony against the defendant when in fact, he had been promised a sentence reduction and the trial prosecutor knew it. The Court said,

“First it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. [Citing cases.] The same result obtains when the State, although not. soliciting false evidence, allows it to go uncorrected when it appears. [Citing cases.]
# # #
The principle # * does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. * * * The district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.”

Recently, the court has followed Napue’s holding in a case where the trial prosecutor did not know that a promise had been made (by another prosecutor on the staff). (Giglio v. United States, 31 L.Ed.2d 104.) The court stated, “* * * whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor”.

The People have cited People v. Nash, 36 Ill.2d 275; cert. denied 389 U.S. 906, 19 L.Ed.2d 223. There a co-defendant Triplett, testified for the State at defendant’s murder trial, denied that promises of leniency had been made to him, when in fact the evidence was otherwise. Triplett’s lawyer later testified as to the true facts. The Assistant State’s Attorney assigned to the case also testified that he had discussed with Triplett’s lawyer the recommendations which the People would make in return for his testimony. The court stated, “There is a material difference in the Napue and Lueck cases and this case, however. In Napue and Lueck the prosecutor did nothing to correct the false testimony and the false testimony was unknown to the defendant at the time of the trial. Here the defendant knew of the false testimony and evidence was presented to shoio that promises of leniency had in fact been made. Under these circumstances there has not been a denial of due process of law”.

In Nash the jury got the true story. In the instant case they did not.

In People v. Lueck, 24 Ill.2d 554, the Court held that failure of the prosecutor to correct the witness’s testimony which he knew to be false denied defendant of due process.

The waiver theory was rejected by the majority in Lueck. The dissenting opinion states, “* * 8 the fact that false testimony was being given was known to the defense at the time of trial, and the means of combatting the false testimony were available at the trial.”

Essentially the People’s argument here is that the defense after cross-examination of Troupe and failing to elicit the truth, could have called the court reporter, the prosecutor and Troupe’s lawyer (People v. Werhollick, 45 Ill.2d 459) and having failed to do so waived their right to claim denial of due process.

We have previously noted that the prosecutor made no attempt to correct or explain the false testimony by re-direct examination. Instead, he chose to stand by the false testimony and compounded it in his final argument. The prosecutor ably represented the State. His responsibility was not limited to the State. It was also his duty to see that the defendants received a fair trial no matter how guilty they might have been. When he knew that Philip Troupe testified falsely it was his obligation to inform the jury of this, not to mislead further in final argument. (People v. Faulkner, 7 Ill.App.3d 221.) The witness who could have brought out the truth were as accessible to the State as to the defense and it is the general rule of criminal law that a defendant has no duty to call anyone as a witness in his case. (People v. Munday, 280 Ill. 32.) Fundamental fairness demands that State officials not only refrain from producing testimony known to be false but that they correct statements known to be false even if unsolicited.

The People further argue that Troupe was not guilty of any crime and therefore was not an “accomplice” as in Napue. He was charged by the People in the Juvenile proceeding with murder, an instruction on accomplice testimony was given by the trial court, he was present from beginning to end and, in fact, even the next day was with the defendants when food stamps belonging to the victim were cashed at an A&P Store. Further, the rule of Napue is not limited to accomplice witnesses. See People v. Faulkner, 7 Ill.App.3d 221; People v. Martin, 46 Ill.2d 565.

The People argue that the testimony of Philip Troupe was initially given voluntarily and freely and was not induced by any subsequently discussed representation. This is a matter for jury determination.

Lastly, the People argue that if any promise had in fact been made, that promise was fulfilled in the adjudication of Troupe as a delinquent on Feb. 10, 1971 and therefore bore no threat to the witness that would influence his testimony. For one thing, although he had been adjudicated a delinquent, he was still awaiting a dispositional hearing. And secondly, benefit conferred i.e., whether he has received, been promised, expects to obtain, or hopes for, leniency or immunity in consideration of his testimony are all matters which may be brought to the attention of the jury. People v. Andrae, 295 Ill. 445; People v. Maggio, 324 Ill. 516.

Here the People’s case depended entirely on Philip Troupe’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Troupe’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to his prosecution would be relevant to his credibility and the jury was entitled to know it. A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. Napue v. Illinois, 3 L.Ed.2d on 1222.

The defendants are also seeking outright reversal. They contend that inconsistencies in the testimony of Troupe largely concerned with the exact time of the offense and the exact location of the shooting in the fields near the victim’s home along with his perjured testimony raise a reasonable doubt as to the truth of his testimony that defendants murdered the victim. We cannot agree. The argument is predicated on the question of credibility of Troupe. The resolution of testimonial conflicts is appropriately a matter for the tiler of fact and only where the evidence is so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt will there be outright reversal. People v. Hoffman, 45 Ill.2d 221.

For these reasons a new trial is required and the judgment of conviction is reversed and the case is remanded.

Reversed and remanded.

ALLOY, P. J., and SCOTT, J., concur.

       Troupe had committed aggravated battery and an armed robbery on Dec. 16, 1970 the day after the murder. At this time he was awaiting disposition on the charges.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lester Bain et al., Defendants-Appellants.
    (No. 71-228;
    Fifth District
    March 16, 1973,
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith James, of counsel), for appellants.
    Frank H. Walker, State’s Attorney, of Mt. Vernon, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In a jury trial in the Circuit Court of Jefferson County defendants, Lester Bain and Bradley Atchison, were convicted of armed robbery and each of them was sentenced to the penitentiary for a term of not less than three nor more than five years. Both defendants had previously pled guilty to the same charge and had received the same sentence, but after a post-conviction proceeding they had been allowed to withdraw their pleas and substitute pleas of not guilty. The present trial followed, and Charles Dismore, who had been indicted and who had pled guilty originally with defendants, was a principal witness against them. The main contention in this appeal is that the trial court committed reversible error in refusing to grant a mistrial when in cross-examination of a State witness defendants’ previous guilty pleas were revealed to the juiy.

Defendants did not testify. Their defense was based on the theory that the testimony of their alleged accomplice was unworthy of belief, and that the complaining witness could not identify them with certainty either prior to or at the trial. On cross-examination this latter witness admitted that subsequent to the robbery he was never asked to view the defendants, but, he stated, he had identified them from a group of pictures presented to him by the police. He was then asked, “Did you ever identify them by their face?” His answer was “Yes, when they stood, and pled guilty to the same deal here.”

Defense counsel immediately objected and moved for a mistrial. The trial court denied the motion without discussion, other than a direction to the witness to the responsive to the questions and not to volunteer anything. At the close of the State’s evidence the motion was renewed. The State argued that the jury may not have heard the answer. However the court stated that in his opinion the jury was attentive and probably heard the answer, and that it could have been prejudicial to the cause of defendants, but because the answer was made to a question by defense counsel he would let it stand.

The propriety and prejudicial effect of revealing to a jury a withdrawn guilty plea, however it might arise, is the subject of an annotation in 86 ALR2d 326. It is there stated that in some jurisdictions the plea may be shown as an admission against interest or as a fact inconsistent with defendant’s claim of innocence. In other jurisdictions it has been held wholly inadmissible and that the error in admitting such evidence is fatal, regardless of defective objections or even a failure to object. Further the error cannot be cured by judicial admonitions, or instructions to the jury to disregard it; and the sufficiency of other evidence to support a conviction is immaterial so that a new trial is mandatory.

There appears to be only one case in Illinois on tire subject, and it aligns itself with those jurisdictions last mentioned above. (People v. Haycraft, 76 Ill.App.2d 149.) In that case it was held reversible error when on cross-examination in a robbery case a probation officer very briefly revealed that the accused had previously pled guilty to the charge for which he was on trial. The court stated that even though the statement was promptly stricken and the jury was directed to disregard the testimony, irreparable damage had already been done and the accused could not thereafter receive a fair trial as guaranteed by the federal and state constitutions. The court cited a number of cases in support of its holding to the effect that it is utterly inconsistent to permit a defendant to withdraw his guilty plea and then allow it, even inferentially, to be used against him. Once an accused has been permitted to withdraw his plea he is entitled to all the privileges and presumptions that the law affords, including the presumption of innocence. See Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.1009; People v. Street, 288 Mich. 406, 284 NW 926.

We agree with this reasoning, and paraphrasing the language of the court in Haycraft, we too find it difficult to conceive a disclosure more apt to influence a jury; nor can we think of anything more damaging to an accused in the minds of the jury than to reveal, however briefly or inadvertently, that he at some previous time had admitted his guilt to the very crime for which he was being tried. It would be extremely difficult, if not impossible, for an average juror to contemplate that a man would ever have admitted guilt to a crime if in fact he were not guilty. Here the trial court expressly recognized the prejudicial effect that the revelation of the previous guilty pleas would have on the jury, but he endeavored to justify his ruling on the grounds that the statement of the witness was elicited by a question from defense counsel. We cannot agree. The question was not asked purposely, to cause a mistrial. Rather it was an inadvertence on the part of the witness without fault attributable to anyone. The fact remains that the former guilty pleas were revealed to the jury and at that point, as stated in Haycraft, the damage was irreparable. To proceed further could only result in a denial of defendant’s right to a fair trial.

We, therefore, find that the denial of defendants’ motion for a mistrial constituted reversible error, and the judgment of the Circuit Court of Jefferson County is reversed and the cause remanded for a new trial.

Reversed and remanded.

EBERSPACHER, P. J., and G. MORAN, J„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Lee Durham, Defendant-Appellant.
    (No. 72-273;
    Fifth District
    March 23, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, (James W. Jerz and Robert J. Morrow, both of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant is appealing the denial of his petition for post-conviction relief by the trial court. The defendant was found guilty of the charge of burglary by a jury in the Circuit Court of Madison County. He was sentenced to serve a term of from four to eight years and on June 4, 1970 he filed a petition for post-conviction relief through his two appointed attorneys. On September 11, 1970 the trial court judge denied all the relief prayed for and this is an appeal from that denial.

A petition in a post-conviction proceeding must make a showing that the petitioner’s constitutional rights have been violated and it is not sufficient that there be a mere allegation arriving at the conclusion that such rights have been violated. People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126, 131; People v. Reeves, 412 Ill. 555, 560, 107 N.E.2d 861.

A post-conviction proceeding is civil in nature and thus the petitioner has the burden of proving his allegations by a preponderance of the evidence. People v. Alden, 15 Ill.2d 498, 155 N.E.2d 617, 620.

The petitioners initial allegation is that he was in a drugged condition at the time of his trial and was unable to confront the witnesses against him thus violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution. It appears that the trial was originaEy scheduled for May 13, 1969, but due to an illness of the defendant two continuances were granted until May 16, 1969.

Petitioner had been suffering from a hemorrhoid condition and because of this, his trial was continued from May 13, 1969 until May 16, 1969. The physician who treated petitioner for his condition testified at the post-conviction hearing and stated that he gave a pill to the jaEor with instructions that it be given to the petitioner the evening of May 15,1969. The physician stated that the effects of the piE would last for two to four hours and would help relieve any pain the petitioner might have been experiencing. The physician also stated that he had seen the petitioner through coincidence on the morning of May 16, 1969, the day of petitioner’s trial, and the petitioner appeared normal to him.

Petitioner presented several witnesses, among them fellow inmates of the Madison County jail, including petitioner’s brother who stated that petitioner was “high” on püls the day of his trial. They stated that petitioner’s speech was slow and slurred and that the jailor had given him a handful of pills before breakfast the day of his trial.

Petitioner’s trial had been delayed for three days because of his illness. Petitioner had counsel and counsel, as weE as the judge, knew that the petitioner had been El for several days. Under these circumstances they would have had reason to observe his condition and thus it does not appear that he could have been as “high” as he alleges he was without this being noticed. There was ample evidence to support the trial judge’s conclusion on this point and we shall not interfere with his discretion. People v. Caise, 38 Ill.2d 486, 231 N.E. 2d 596, 598.

Petitioner’s second contention is that he was denied a fair trial because he was deprived of an opportunity to obtain counsel of his choice. The record indicated that John RaffaiEe, the attorney of petitioner’s choice, appeared at petitioner’s preliminary hearing and denied representing petitioner. Petitioner apparently was unable to persuade Mr. Raffaille to represent him.

Petitioner did accept the Public Defender as his attorney. On the morning of the trial defendant requested other counsel and at that time, the court held that the request came too late. Other than his own statements to the effect he was denied access to counsel, the record is barren of any evidence to support his allegation that he was denied access to counsel. We agree that the petitioner failed to sustain his burden of proof on this contention.

Petitioner’s final allegation is that he was prevented from obtaining his own counsel because of a sudden increase in his bond. The record reveals that petitioner’s bond was increased from $5,000.00 to $7,500.00 three weeks after his conviction. The petitioner has failed to sustain the burden of proof required by the Illinois Post-Conviction Act. Finding no error we affirm.

Affirmed.

EBERSPACHER, P. J., and G. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eutues White, Defendant-Appellant.
    (No. 71-70;
    Fifth District
    March 29, 1973.

      Paul Bradley, of Defender Project, of Mt. Vernon, (Kenneth L. Jones, of counsel,) for appellant.

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

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of St. Clair County sentencing him to the Illinois State Penitentiary for a minimum of 199 years and a maximum of 200 years after a jury had found him guilty of the crime of murder.

On November 27, 1968, Bruce Reinheimer was employed at a gasoline station in East St. Louis, Illinois. At approximately 10:00 P.M. that evening, he left the station to service a car and never returned. His body was found later that night in Centreville, Illinois. The cause of death was a gunshot wound to the head. There were no witnesses to the crime.

The defendant, Eutues White, was arrested on the morning of May 24, 1969 and incarcerated in the East St. Louis jail by two officers of the East St. Louis Police Department. He was interrogated for several hours on that day, the morning and afternoon of the following day and in the morning of the next day. In the afternoon of May 26, 1969, the defendant signed a formal statement which contained his written waiver of the rights afforded him under the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and a confession to the murder of Bruce Reinheimer. Later that day the defendant allegedly reenacted the crime in the presence of police officers and the State’s Attorney. Prior to the trial a hearing was held on defendant’s motion to suppress the confession. This motion was denied. At the trial the defendant testified that he did not kill Bruce Reinheimer, that he did not remember giving the confession in question, and that he did not remember re-enacting the crime.

The first issue is whether the trial court committed reversible error in allowing the introduction of irrelevant and immaterial testimony which inflamed the passions and prejudices of the jury against the defendant.

The State’s first witness was the father of the deceased. The defense objected to his testimony on the grounds that the only relevant testimony that he could offer, that his son was dead, would be outweighed by the prejudicial effect his testimony would have on the jury. The defense also offered to stipulate that the witness’s son was dead. The court overruled the objection, provided the State’s Attorney could advise the witness not to make any sort of emotional outburst. During the questioning of the deceased’s father, the witness in response to a question of whether he had any children, stated that he had one boy left and that one was killed. When asked how old the deceased was when he was killed, he responded “seventeen years, five months and six days”. Later, in questioning, the State’s Attorney again asked the witness how old the son was at the time of his death. The response was the same, “seventeen years, five months, six days”. During closing argument the State’s Attorney made a reference to the youth of the deceased. He said, “This is a seventeen year old boy. He was just a part-time man who had just started on his career in life.”

The appellant argues that such testimony by the father, especially the detailed account of tire age of his deceased son was evidence introduced to inflame the passions of the jury against the defendant. In support of his argument the appellant draws an analogy to a line of cases which hold that testimony concerning the family left behind by the deceased is so inflammatory that its introduction was reversible error. (State v. Bernette, 30 Ill.2d 359.) The rule set down in Bernette was that when testimony elicited in a murder case concerning a family left behind by the deceased was not elicited incidentally, but presented in such a manner as to cause the jury to believe it as material, its admission is highly prejudicial and constitutes reversible error. (See also People v. Washington, 54 Ill.App.2d 467, and People v. Tajra, 58 Ill.App.2d 479.) Although there is an obvious difference between testimony concerning the family left behind by the deceased and testimony which stresses tire youth of deceased at the time of his death, certainly a valid analogy can be drawn between the two. For the purpose of both types of testimony when not elicited incidentally is to prejudice the defendant ini the eyes and minds of the jury.

However, there is another line of cases since the holding in Bernette which tend to moderate Bernett’s impact. For instance, in People v. Jordan, 38 Ill.2d 83, the court held that every mention of the deceased’s family does not ipso facto entitle the defendant to a new trial, since in certain instances such a statement can be harmless. (See also People v. Lee, 44 Ill.2d 161 and People v. Tillman, 116 Ill.App.2d 24, for similar holdings.) The court in People v. Vasquez, 118 Ill.App.2d 66, explained that not all references to family require reversal. Rather, the court must determine if it is more than incidental. Likewise, all references to a deceased’s youth would not require reversal, but once again the court must determine if it was incidental.

There is also a line of cases which state that the State is entitled to present “fife and death witnesses” to show that deceased’s identity and to prove that he has died. Thus, in People v. Speck, 41 Ill.2d 17, the court said:

“A further contention is that the court erred in admitting certain alleged prejudicial evidence. It is argued that the defendant was prejudiced by reason of the fact that close relatives of the slain girls were called by the prosecution as ‘life and death’ witnesses to establish the identity of the girls and to the fact that they were deceased. Counsel for the defendant says that he was willing to stipulate to the identity of the girls and to the fact that they had met their death by criminal means. However, the defendant pleaded not guilty and the State had the right to prove every element of the crime charged and was not obligated to rely on the defendant’s stipulation.” 41 Ill.2d at 201.

The court went on to hold that there was no undue emphasis in the proof or in argument of the fact that the victims left a family surviving and cases such as People v. Bernette are not applicable. See also People v. Cannon, 49 Ill.2d 162, for a similar holding that life and death witnesses could be put on. Thus, the appellant’s argument that he wished to stipulate that the deceased was in fact dead and to his identity was not something which he could assert by right, for, as said in Speck, the State had the right to prove every element in the crime charged and was not obligated to reply on the defendant’s stipulation. Also, the State is allowed to put on ‘life and death” witnesses to establish the identity of the deceased.

This issue would have to be regarded as very close. However, in our opinion, the testimony was not so material as to have a significant effect upon the conviction of the defendant. Therefore, we do not find reversible error on this issue.

The next issue is whether improper conduct on the part of the State’s Attorney deprived the defendant of a fair trial.

The appellant argues that since the State’s Attorney participated in the alleged reenactment of the crime, it was improper for him to examine the witnesses concerning the reenactment. We have found no authority which holds that it is reversible error for a State’s Attorney to participate in a trial after he was a participant in the reenactment of the crime for which the defendant is being tried. In the absence of any authority on this question, we cannot say that the State’s Attorney committed error in so doing. However, we find that the State’s Attorney’s participation in the reenactment of the crime in the presence of the jury was highly undesirable.

Appellant also stated that during his final argument, the State’s Attorney argued not only the credibility of the State’s other witnesses, but also forcefully put his credibility before the jury. Appellant argues that this is improper conduct and in support of this argument cites People v. King, 276 Ill. 138, wherein the prosecutor stated his personal knowledge of defendant’s guilt and the court reversed because this put the prosecutor in the position of being a witness without giving the accused an opportunity to cross-examine him. However, People v. King is not in point because the State’s Attorney in the present case did not claim that he knew the defendant was guilty, but rather, during final argument claimed that he did not frame nor manufacture evidence. We therefore find no reversible error in this issue.

The next issue is whether the defendant was unfairly limited in examination of an expert witness.

At the trial the defendant attempted to introduce the opinion testimony of a psychiatric expert that such an individual as the defendant, while under the influence of drugs or suffering withdrawal symptoms, might confess to a crime he did not commit. The State objected to the form of the question because it felt there was no evidence in the record that defendant was hallucinating at the time of his arrest. In support of his claim, the defendant cites People v. Yonder, 44 Ill.2d 376. The appellant contends that Yonder stated that a proper hypothetical question must be limited to facts supported by the evidence in the case, but may also be limited to those facts favorable to the questioner. However, Yonder also stated that in asking a hypothetical question, a party may include only proved facts. There were no proved facts that defendant was suffering hallucinations at the time he gave the confession.

The appellant also cites People v. Penman, 271 Ill. 82, in which it was held improper to exclude an expert’s opinion as to the effects of cocaine poisoning based on an examination a day after the occurrence and without any specific testimony that the drug defendant had taken was in fact cocaine. However, Penman can be distinguished from the present case. For in Penman there was evidence of the defendant’s condition symptoms, the cause of which a witness having expert knowledge of the effect of drugs might form a reasonable opinion which would be a proper basis from which the jury might reasonably infer the taking of a particular drug. In the present case there was no evidence of conditions and symptoms at the time of the interrogation and confession which would allow the jury to infer tire taking of a particular drug.

Rather, it is submitted that the court properly determined that there was insufficient evidence in the case to support the hypothetical question, and it has been held that the trial court has a wide degree of discretion in determining the admissibility of expert testimony. In People v. Oberlander, 109 Ill.App.2d 469, the court held:

“It has been well established that the admissibility of expert testimony is to be determined by the trial judge and a wide latitude of discretion is given to the court in the determination of such admissibility, unless it is clearly and prejudicially erroneous.” 109 Ill.2d at 471.

We find no merit in this contention.

The last issue is whether the trial court erred in denying defendant’s motion to suppress the confession.

Defendant was arrested on the morning of May 24, 1969 by two police officers from the East St. Louis Police Department and incarcerated in the East St. Louis jail. He was questioned by a Lieutenant Johnson of the East St. Louis Police Department on the morning of the 24th and by William J. Stanis, an officer of the East St. Louis Police Department that afternoon. The record does not reflect whether he was advised at any time on that day of the rights afforded him by the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 Ed.2d 694, 86 S.Ct. 1602. Defendant was questioned again in the morning and afternoon of the second day by Stanis, and again the record does not indicate whether or not he was advised of his Miranda rights any time on that day. He was again questioned by Stanis in the morning and the afternoon of the third day, May 26, 1969, and on that afternoon in the presence of Stanis and of Captain Cornelius O’Sullivan, signed a written confession to the murder of Bruce Reinheimer, which reads in part:

“DEPARTMENT OF POLICE
East St. Louis, Illinois
Date: May 26, 1969
Time Started: 12:45 P.M.
Time Completed: 1:30 P.M.
STATEMENT
I, Eutues White, have been advised by Capt. C. O’Sullivan and Det. W. Stanis that I have a right to remain silent and that I do not have to make any statement, answer any questions or talk to Them nor answer any question directed to me; I have further been advised that anything I say or any statement I give can and will be introduced into evidence in Court against me; I have been further advised that if I want an attorney to be present at this time or anytime hereafter, I am entitled to such attorney, and that if I cannot afford to pay for any attorney that an attorney will be furnished to me if I so desire, and that if I do desire an attorney I do not have to make any statement or answer any question until such time as an attorney has consulted with me.
Having been advised of these rights as above, I hereby voluntarily agree to make a statement, to answer questions asked of me and I waive my right to have an attorney as above set forth. I further state that I have not been threatened or mistreated in any fashion nor have any promises of leniency been made to me in return for making this statement.
/s/ Capt. C. O’Sullivan /s/ Eutues White Witness
/s/ Det. W. Stands Witness”

A fair reading of the record, including the language quoted in the above statement indicates that the Miranda warnings were given on the third day of defendant’s incarceration, just before the statement was taken. The record does not reflect whether any Miranda warnings were or were not given on either the first or second day of his incarceration. Evidence surrounding the questioning on May 24 and 25 might disclose that the questioning was done without the Miranda warnings. Under such circumstances it could well be a deprivation of defendant’s rights against custodial interrogation if the questioning resulted in an inculpatory statement or confession, notwithstanding the fact that the written statement, when prepared and signed following the questioning, contained the requisite advisory of rights and a waiver thereof. (Westover v. United States, 384 U.S. 436, 16 L.Ed 2d 694, 86 S. Ct. 1602). After the hearing, the motion to suppress the confession was denied without any findings of fact or conclusions of law.

In Miranda v. Arizona, the Supreme Court of the United States said at 384 U.S. 444-445:

“Our holding will be spelled out with some specificity in the pages that follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of tire process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.”

Since there is no evidence in the record to indicate that the defendant was or was not given the required Miranda warnings prior to any questioning, we find that the evidentiary record before us is inadequate for a proper review of the propriety of the trial court’s dismissal of the motion to suppress the confession. Under these circumstances we can reverse and remand the case for a new trial because the trial court erred in overruling defendant’s motion to suppress the confession, or we can remand the case for a new full and complete hearing on the admissibility of the confession covering the time when defendant was first taken into custody up until the time he gave the confession.

The latter procedure was used by our Supreme Court in People v. McGuire, 35 Ill.2d 219, where the court said at 229:

“* * * We believe that this case should be remanded, not for a full new trial, but for a new hearing on the admissibility of the defendant’s statement. At such a hearing both parties will have an opportunity to present further evidence. [Cases cited.]”

In Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745, the United States Supreme Court held that in habeas corpus proceedings instituted by a State prisoner, a Federal district court must hold an evidentiary hearing if the applicant did not receive a full and fair evidentiary hearing in a State court, either at the time of the trial or in a collateral proceeding; a Federal evidentiary hearing is required unless the State-court trier of fact has after a full hearing reliably found the relevant facts. The court went on to say at 372 U.S. 314:

“We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by tire record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.”

Since the defendant did not receive a full evidentiary hearing in the trial court on the voluntariness of his confession, including the rights afforded him by Miranda, it is apparent that he could obtain such a hearing in the proper Federal district court if his conviction should be sustained by the courts of review of this State.

This case is remanded to the Circuit Court of St. Clair County for a new full and complete hearing on the admissibility of the defendant’s confession. If the confession is held inadmissible, the trial court will vacate the judgment of conviction and grant the defendant a new trial. If the confession is held admissible, the trial court will enter a new judgment of conviction (People v. Stark, 33 Ill Ill.2d 408, 411; People v. McGuire, 35 Ill.2d 219), and impose an indeterminate sentence pursuant to the sentencing provisions of the new Code of Criminal Corrections. (Ill. Rev. Stat. (1972 Supp.), ch. 38, pars. 1005 — 8—1(a), (b)(1) and 1008 — 2—4). People v. Lobb, 9 Ill.App. 3d 650; People v. Mize, 9 Ill.App3d 647.

Remanded with directions.

EBERSPACHER and JONES, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Haynes, Defendant-Appellant.
    (No. 71-202;
    Fifth District
    March 29, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Nicholas J. Schiralli, Senior Law Student, of counsel,) for appellant.
    Joe Harrison, State’s Attorney, of Fairfield, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Appellant was charged by complaint in Wayne County with forgery in violation of chapter 38, section 17-3(a)(2), Illinois Revised Statutes. Appellant appeared with appointed counsel and entered a plea of guilty to the charge after waiving preliminary examination and indictment. The guilty plea was accepted and appellant was placed on probation for five years, the first year of which to be spent at the Illinois State Penal Farm at Vandalia, and ordered to make restitution for the outstanding forged checks during his probation period. The plea was the result of negotiations between the appellant and his counsel and the State’s Attorney, and the sentence imposed was suggested by counsel as part of the agreement. There is no question here about the propriety of the negotiations or the voluntariness of the plea.

Appellant’s first contention is that the trial court erred by not holding a hearing in aggravation and mitigation or securing appellant’s waiver of such a hearing as required by Ill. Rev. Stat. ch. 38, sec. l-7(g). Appellant contends that the hearing is mandatory and must be held unless waived by the defendant and not requested by the State, citing People v. Evrard, 55 Ill.App.2d 270, 204 N.E.2d 777, and People v. Smice, 79 Ill.App.2d 348, 223 N.E.2d 548. Those cases did not involve a negotiated plea.

The Supreme Court of Illinois has held that a hearing in aggravation and mitigation is a non-jurisdictional matter which is waived by a voluntary guilty plea. (People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, citing People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225.) This was recently underscored on the appellate level. People v. Wisdom, 6 Ill.App.3d 840, 286 N.E.2d 749, and most recently by this court in People v. Hendrickson, No. 72-76, filed March 23, 1973. None of these opinions, however, were explicit in the reasons for the waiver by the plea or whether there were exceptions to the rule in light of the previously held mandatory nature of the hearing.

In People v. Watland, 4 Ill.App.3d 845, 281 N.E.2d 435, the court held that a hearing in aggravation and mitigation was not necessary where defendant pled guilty pursuant to a negotiated plea agreement which included suggestions subsequently followed concerning the sentence to be imposed. The court stated that under Supreme Court Rule 402(d) (Ill. Rev. Stat. 1971, ch. 110A, sec. 402(d)), and the holding in People v. Talbot, 2 Ill.App.3d 922, 274 N.E.2d 123, the policy of the courts is to encourage proper plea negotiation. In that case the issue before the trial judge was whether to accept the proposed agreement. It was held that where the court accepts the settlement as proposed and previously agreed to by the defendant (as in the instant case), the defendant “has received the full benefit of the plea negotiation procedure and under such circumstances a waiver of hearing in aggravation and mitigation is not required”. (People v. Watland, 4 Ill.App.3d 845, 848, 281 N.E.2d 435, 437). Rule 402(d) recognizes that a reduction in sentence from the statutory maximum is a significant inducement for defendant’s guilty plea. This means that defendant may want to negotiate a proposed sentence before pleading guilty. When an agreement is submitted for judicial approval, it may be accepted by the judge. If so, there is no further room for the exercise of the judge’s sentencing discretion. Both sides have concurred in the arrangement. To alter its terms would require further consideration and agreement by the parties involved and would begin the process anew. Where no discretion in sentencing remains, courts have held that no hearing in aggravation and mitigation is required. (People v. Curth, 398 Ill. 322, 75 N.E.2d 755 penalty fixed by statute.) Although the exercise of the trial judge’s discretion in accepting the negotiated plea is not in issue here, it should be noted that the trial judge was made aware of defendant’s criminal record and family background before accepting the plea.

Appellant’s second contention is that the sentence imposed was excessive. As noted before, defendant was placed on probation for five years, the first of which to be spent at the State Farm in Vandalia, and ordered to make restitution. At the time of its imposition the sentence was within the statutory limits prescribed by our statutes regarding probation. But since the judgment appealed from was imposed the Unified Code of Corrections (ch. 38, sec. 1001 — 1—1 et seq.) has become effective. For the reasons assigned in People v. Shadowens (1973), 10 Ill.App.3d 450 (see also People v. Hendrickson, supra), the sentences imposed in cases pending on direct appeal subsequent to the effective date of the Code must be adjusted to conform to the sentences in the Code. Under the provisions of ch. 38, sec. 1005 — 6—3 Ill. Rev. Stat. the so called split sentence under which a condition of probation providing incarceration at the State Farm, is specifically prohibited. (See council commentary following section 1005 — 6—3.) Here defendant has, before his release, served approximately four months of the one year imposed, and we consider in light of the public policy expressed in the Code that further incarceration is not required in this cause. Since in the case at hand the plea was negotiated, and defendant has been imprisoned, there is no necessity for demandant. However, in conformity with the Code we modify the order of probation to eliminate the condition of imprisonment and affirm as modified.

Affirmed as modified.

G. MORAN and JONES, JJ., concur.


text:
    Randall Kent Sarchet, A Minor, et al., Plaintiffs-Appellees, v. Terry L. Soots, A Minor, Defendant-Appellant.
    (No. 72-218;
    Fifth District
    March 30, 1973.
    Frank H. Schniederjon, of Effingham, for appellant.
    Rex Carr, of East St. Louis, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of Fayette County in favor of plaintiffs and against the defendant in a personal injury action.

Plaintiffs brought suit to recover damages for personal injuries to the minor plaintiff and for loss of service and expenses incurred by the father due to the alleged negligence and wilful and wanton misconduct of the minor defendant, when the car driven by the defendant struck the plaintiff while he was walking in a westerly direction on a path adjacent to the north side of Main Street in the City of Vandalia, Illinois. The jury found in favor of the plaintiffs and against the defendant on both the negligence and wilful and wanton issues. The trial court denied defendant’s motion for judgment notwithstanding the verdict for a new trial.

Appellant contends there was insufficient evidence for the jury to find him guilty of wilful and wanton misconduct; that the plaintiff was guilty of contributory negligence and contributory wilful and wanton misconduct as a matter of law; and that the trial court erred in failing to appoint a guardian ad litem for the appellant who was a minor at the time suit was filed, but who had reached his majority prior to trial.

There was sufficient evidence for the jury to find that the plaintiff was walking in a westerly direction on a path approximately a foot and a half from the pavement on Main Street in the City of Vandalia when a car driven in a westerly direction by appellant swerved off the pavement, struck the minor and injured him severely.

Appellant was a minor when the accident occurred on September 28, 1968, and when suit was filed on March 11, 1969. However, he was 20 years of age when the trial commenced on February 29, 1972. The legislature lowered the legal age for males to 18, effective August 24, 1971. (Ill. Rev. Stat., ch. 3, par. 131.) Therefore, the appellant was legally competent to handle his own affairs for six months prior to the trial of this case. We further note that the appellant was vigorously defended through all the stages of this proceedings by the same attorney who now argues that we should order a new trial because no guardian ad litem was appointed during the pleading stages of this case. Under these circumstances, the appellant has ratified all of the acts of his attorney who vigorously and ably defended him during the whole course of those proceedings, including this appeal.

We find that no error of law appears, that an opinion in this case would have no precedential value and that the judgment of the trial court was not against the manifest weight of the evidence.

We therefore affirm tire judgment of the Circuit Court of Fayette County in compliance with 50 Ill.2d R. 23.

Judgment affirmed.

JONES and CREES, JJ., concur.


author: Mr. JUSTICE JONES

text:
    James R. Fletcher et al., Plaintiffs-Appellants, v. Floyd D. Boxx, Defendant-Appellee.
    (No. 71-262;
    Fifth District
    April 2, 1973.
    Meyer & Meyer, of Belleville, (George R. Ripplinger, Jr., of counsel,) for appellants.
    Wagner, Conner, Ferguson, Bertrand & Baker, of Belleville, (John D. Bauman, of counsel,) for appeHee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiffs appeal from a summary judgment rendered by the trial court upon defendant’s motion supported by excerpts from discovery depositions of the parties. The action named four parties as defendants and summary judgment was granted as to all. The instant appeal is limited to defendant Boxx.

Section 57 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 57) provides that summary judgment shall be entered forthwith if the pleadings, deposition, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.

Summary judgment procedure is not designed to try an issue of fact but rather to determine whether one exists. If, upon examination of the record it can be fairly said that there does exist a triable issue of fact then the motion for summary judgment should be denied. Ray v. City of Chicago, 19 Ill.2d 593, 169 N.E.2d 73; Peterson v. Jack Donelson Sales Co., 4 Ill.App.3d 792, 281 N.E.2d 753.

Plaintiffs’ complaint was for personal injuries, property damage and loss of consortium and services. The alleged injuries and damages resulted from a collision between plaintiffs’ automobile, driven by Patricia Fletcher, and an automobile belonging to one Coyer and being driven by defendant Boxx. The incident occurred on July 3, 1969 between 8:30 P.M. and 9:00 P.M. on Route 50 in St. Clair County. A short time previously there had been a heavy rainstorm but it had subsided to a sprinkle or drizzle at the time of the collision. Defendant was driving Mr. and Mrs. Coyer from their home in Sandoval to the St. Louis airport to meet their son who was flying in on leave from his Navy duty. Just west of Trenton their automobile stalled apparently because of excessive water on the highway. Defendant managed to get the car off on the shoulder and Mr. Coyer caught a ride with' a passing motorist to a filling station two or three miles to the west. After about 15 minutes defendant tried the engine again and it started and ran alright. He and Mrs. Coyer-then went to the filling station to look for Mr. Coyer. A service station attendant told them a person answering their description of Mr. Coyer had been there and had left to the east with the service truck. Boxx and Mrs. Coyer then drove back east on Route 50 to continue then- search for Mr. Coyer. They stopped at a tavern opposite the site of tire stall and upon learning that Mr. Coyer had not been there they started to return to the filling station to the west. It was during this westbound trip that the collision occurred. Before reaching the filling station they decided to stop at a motel located on the south side of the highway to see if Mr. Coyer might be there and to call the Coyer son at the St. Louis airport to explain their delay.

According to the deposition of defendant Boxx he had to stop to let oncoming eastbound traffic go by. The pavement was two lane and the right shoulder was too muddy for a car to pass on that side. He turned on his left turn signal and waited. The signal had been on about 100 feet before he stopped. The pavement was wet and slick and it was sprinkling rain. There was no one behind him at the time. He claimed that he could see the front signal flashing in front of his car but could not tell if the rear signal was operating. He first saw the headlights of the plaintiffs’ automobile in his rear view mirror after two cars and a truck had passed him. After seeing the headlights of the plaintiffs’ automobile he noticed that his car had stalled and reached down to restart it. At that time all but the last eastbound vehicle had passed him. He had his foot on the brake while waiting for the passing traffic but did not have the brake on at the time of the collision. When he noticed that the car was stalled he put the car in neutral and took his foot off the brake. The turn signal on his car went off when the engine died and he gave no other signal. About a minute had transpired from the time he stopped to turn until the collision. At the point of the collision Highway 50 is straight and level for two miles east and two miles west. Neither defendant Boxx nor Mrs. Coyer were injured.

According to the deposition of the plaintiff Patricia Fletcher, she had just left a friend’s house approximately one-half mile east of the collision site. She did not see any cars going either direction until immediately before the collision. All of a sudden she saw a car shadow, she wasn’t sure whether her headlights, lightning or the the motel lights picked it up. The car was stopped on the highway in her lane opposite the entrance to a motel on the left. The car did not have any lights burning nor did she see anyone in the car. She pulled to the eastbound lane to pass the stalled car. She was driving about 35 miles per hour at the time and accelerated slightly in passing. Suddenly she saw headlights in the eastbound lane coming toward her. It was an automobile driven by one Green and it was near the west driveway of the motel when she first saw it. She didn’t think she could make it past the stopped car so she pulled back into the westbound lane and applied her brakes. It was at that time that the collision occurred. She did not remember the collision itself. She was severely injured and her car completely demolished.

It appears to be undisputed that the collision took place in the dark of night, while rain was falling and that defendant’s car was stalled on the roadway. The plaintiff claims there were no lights on the defendant’s automobile but this is disputed by the defendant although defendant did admit that his turn signal was not operating at the time of impact and immediately prior thereto.

In view of this state of the facts the trial court undoubtedly weighed and appraised the evidence to arrive at his decision to grant summary judgment to defendant Boxx. This he may not do. (Ray v. City of Chicago.) The evidence of the factors that contributed to tire collision are clearly disputed in the depositions. Neither the negligence of the defendant nor the contributory negligence of the plaintiff Patrica Fletcher are clearly shown by the depositions and pleadings which the trial court had to consider. The conflicting versions of the causal factors of the collision can only be resolved by a trier of fact upon a trial on the merits.

The summary judgment against the plaintiffs is reversed and cause remanded for further proceedings.

Reversed and remanded.

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


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gail Esparza, Defendant-Appellant.
    (No. 72-177;
    Fifth District
    April 2, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Edith James, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of St. Clair County sentencing her to a minimum of three years and a maximum of five years in the Illinois State Penitentiary after accepting her plea of guilty to the crime of robbery.

She contends that the minimum sentence is excessive.

The new Code of Corrections which became effective January 1, 1973 provides that if the prosecution of an offense has not reached the sentencing stage or “a final adjudication”, then for purposes of sentencing the sentences under the Code of Corrections apply if they are less than under the prior law upon which the prosecution was commenced. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1008 — 2—4.) The Appellate Court for the Fourth District has recently held that cases pending on appeal after the passage of the new Code have not reached “a final adjudication”, and that the sentencing provisions of the new Code of Corrections are applicable in such cases. People v. Lobb, 9 Ill.App.3d 650; People v. Mize, 9 Ill.App.3d 647.

Robbery is now classified as a Class 2 felony (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 18 — 1), and under par. 1005 — 8—l(c)3 the minimum term of imprisonment is one year, unless the court considers the nature and circumstances of the crime, the history and character of the defendant, and sets a higher minimum term limited nevertheless to one-third of the maximum set by the court. In the instant case, therefore, the minimum sentence should be one-third of the maximum.

Therefore, in accordance with the new Code of Corrections, the sentence in this case is modified and as modified the minimum shall be not less than one year and eight months and the maximum not more than five years. With the sentence thus modified, the conviction is affirmed and fliis cause is remanded to the Circuit Court of St. Clair County with directions to issue an amended mittimus reflecting the foregoing modification.

Conviction affirmed, sentence modified, and cause remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Isaac Ike, Defendant-Appellant.
    (No. 72-133;
    Fifth District
    April 3, 1973.
    Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Edith James, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Isaac Ike plead guilty to the crime of armed robbery on November 4, 1971 in the Circuit Court of St. Clair County and was sentenced to a term of five to ten years concurrent with a sentence he was then serving.

On this appeal the defendant contends that the trial court erred in over-ruling his motion for discharge. He had been found guilty on a separate charge on May 14, 1971 and sentenced on that charge June 2, 1971. Thus at the time of the motion for discharge 160 days had run from the time of the jury’s verdict but it was less than 160 days from the date of sentencing. The date of sentencing controls. Ill. Rev. Stat. 1971, ch. 38, sec. 102 — 14.

Further a plea of guilty waives the right of a defendant to a speedy trial. People v. de Cola, 15 Ill.2d 527.

Defendant has alleged numerous other errors which we have considered and find to be without merit.

Under the authority of People v. Shadowens, 10 Ill.App.3d 450, defendant is entitled to be sentenced under the new criminal code, ch. 38, sec. 1005 — 8—1. Under the new code the minimum sentence would be four years unless there was a special finding. Since defendant is serving a longer concurrent term, we deem it a useless act to remand for a hearing and possible special finding in the trial court.

The minimum term of defendant’s sentence is reduced to four years and with this modification judgment of the Circuit Court of St. Clair County is affirmed.

EBERSPACHER, P. J., and G. MORAN, J., concur.


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    Robert Martin, Plaintiff-Appellee, v. Cyril Austin, Defendant-Appellant.
    (No. 72-223;
    Fifth District
    April 4, 1973.
    Cyril Austin, pro se.

    No appearance for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from the judgment of the Circuit Court of Franklin County in favor of the plaintiff in the sum of $83:58, plus costs in a suit by the plaintiff against the defendant for a grocery bill. The case was tried before the court without a jury.

We find that the judgment of the trial court was not against the manifest weight of the evidence, that no error of law appears, and that an opinion in this case would have no precedential value.

We therefore affirm the judgment of the Circuit Court of Franklin County in compliance with 50 U1.2d R. 23.

Judgment affirmed.

EBERSPACHER, P. J., and CREES, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Steve Lamb, Defendant-Appellant.
    (No. 71-258;
    Fifth District
    December 19, 1972.

      Rehearing denied April 5, 1973.

    Frederick P. Erickson, of Decatur, for appellant.
    John H. Ward, State’s Attorney, of Taylorville, (Brenda Sweeney, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant was indicted for burglary and theft of property exceeding $150 in value. After a jury trial in the Circuit Court of Christian County, he was found not guilty of burglary and guilty of theft.

On this appeal, he alleges that the evidence was not sufficient, that the juiy was improperly instructed, and that the verdicts were inconsistent.

The main witness against the defense was an admitted accomplice. However, the testimony of the accomplice was corroborated in part by other testimony and exhibits in evidence. Furthermore, defendant received half of the proceeds of the crime. The whole record raises no reasonable doubt of defendant’s guilt.

Defendant tendered I.P.I. Criminal Instruction 3.12: “Evidence that a witness has been convicted of a crime is to be considered by you only insofar as it may affect the credibility of the witness.” This instruction was refused. A general credibility instruction and an accomplice witness instruction were given. Apparently the court refused the tendered instruction on the basis that it was repetitious. The instruction should have been given. However, in this case where the accomplice witness’ guilt of this and other crimes was clearly brought before the jury, in light of the instructions given we do not find fire error of sufficient importance as to require reversal.

Defendant’s final contention is that the verdicts are inconsistent. There was sufficient evidence so that the jury could have found the defendant guilty of both burglary and theft. However, because the jury did not find him guilty of burglary does not mean that the charge of theft which was proven cannot stand. People v. Hairston, 46 Ill.2d, 348, 263 N.E.2d 840.

Finding no reversible error, the judgment is affirmed.

Affirmed.

G. MORAN, P. J., and JONES, J., concur.


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    Sharon Schultz, Plaintiff-Appellant, v. Jackie Peeler, Defendant-Appellee.
    (No. 72-115;
    Fifth District
    April 5, 1973.
    Michael P. Seng, of Land of Lincoln Legal Assistance Foundation, of Cairo, for appellant.
    . No appearance for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This case involves a paternity suit seeking maternity expenses pursuant to Ill. Rev. Stat. 1967, ch. 106%. A bench trial was held in the Circuit Court of Union County and after the plaintiff rested her case the defendant moved for a judgment on the evidence alleging (1) that plaintiff had failed to prove any damages and (2) that plaintiff had failed to establish paternity pursuant to Ill. Rev. Stat. 1971, ch. 106%, the Paternity Act, in that the child’s death shortly after being bom deprived the defendant of the opportunity for a blood test. The trial court granted the defendant’s motion and this appeal followed.

The plaintiff’s evidence indicated that she first met the defendant in August of 1970. The defendant then returned to active duty with the Armed Forces and returned to Dongola on November 1, 1970. The plaintiff and the defendant had corresponded during his absence. Upon his return they had intimate relations and on December 21, 1970 the plaintiff consulted a physician and learned that she was pregnant. The plaintiff testified that the defendant was the only person with whom she had ever had intercourse.

Plaintiff first went into labor on May 26, 1971 and went to the hospital in Highland, Illinois. She was transferred to Southeast Missouri Hospital in Cape Girardeau, Missouri and was discharged on June 1, 1971. On June 3,1971 she returned to the Southeast Missouri Hospital and on June 5, 1971 gave birth to a boy. The child was two and one-half months premature. The child died on the day of its birth and was subsequently buried.

The judgment of the trial court in favor of the defendant based on the failure to introduce sufficient evidence to prove any damages is against the manifest weight of the evidence.

While many elements of damage were properly excluded because of insufficient foundation, we do not deem it necessary to discuss the ruling since these errors should be corrected upon re-trial of the case.

It is clear that the plaintiff in a paternity case must prove the charge against the defendant by a preponderance of the evidence. (Blackwell v. Welti, 46 Ill.App.2d 453, 197 N.E.2d 126.) It is equally clear that a father whose paternity is established shall also be liable for the reasonable expenses of the mother during the period of her pregnancy, confinement, and recovery. (Ill. Rev. Stat. 1971, ch. 106%, par. 53.) Par. 1 of the Paternity Act provides that the court may order blood tests. The results of such tests are admissible only if the results definitely exclude the alleged father. Par. 4 provides that if the experts who administer the tests disagree on their findings, such findings shall not be admissible and the question of paternity shall be submitted upon all the evidence.

The death and burial of the child prevented the taking of a blood test, but this does not require the abatement of the suit. The suit must now be tried as if there were no Act on Blood Tests to Determine Paternity or as if the results of such tests were inconclusive and inadmissible.

Judgment reversed and cause remanded for a new trial.

Reversed and remanded.

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


author: PER CURIAM:

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    The People ex rel. Paul Baykowski, Petitioner-Appellant, v. Elza Brantley, Warden, Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 72-52;
    Fifth District
    April 6, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    William J. Scott, Attorney General, of Chicago, (James B. Zagel and E. James Gildea, Assistant Attorneys General, of counsel,) for appellee.
   PER CURIAM:

Appellant was indicted for murder, and was sentenced in 1966 to a term of imprisonment in the penitentiary after a jury verdict finding him guilty of voluntary manslaughter. Associate Judge Dorothy Spomer presided over the proceedings and pronounced sentence. Appellant filed a petition for writ of habeas corpus in Randolph County, the county in which he was being held. The petition was denied after argument. The petition was, and the appeal is, based on an alleged lack of jurisdiction in the trial court.

Appellant claims that Judge Spomer did not, under Chapter 37, Section 626, Ill. Rev. Stat., have authority to preside over this criminal action, in which the maximum possible penalty exceeded one year’s imprisonment. Appellant also cites the Schedule for Transition to Article VI of the Constitution of 1870 as amended in 1964 which abolished the office of Justice of the Peace and transferred the duties of justices of the peace to the circuit courts. The Schedule also provided for decision at a later date concerning limitations on the powers of those who would handle the cases formerly handled by justices of the peace. In 1970, the new constitution created the office of associate judge, with limited jurisdiction, and Supreme Court Rule 295 (Ill. Rev. Stat. ch. 110A, par. 295), denied associate judges jurisdiction over serious criminal cases.

Appellant misapprehends the process of change between the old constitution and the new and the meanings of “associate judge” under the two systems. Pre-1970 magistrates, whose jurisdiction was limited by statute, became associate judges under the Constitution of 1970; pre1970 associate judges became circuit judges. While the magistrate’s powers were limited, the pre-1970 associate judges, including Judge Spomer in 1966, had all the power and responsibility of circuit judges. Illinois Constitution, 1870, art. VI, sec. 9 (as amended January 1, 1964); People ex rel. MacMillian v. Napoli, 35 Ill.2d 80, 219 N.E.2d 489.

Supreme Court Rule 295 outlines the jurisdiction of the new associate judges (formerly magistrates) and in no way alters the jurisdiction of the old associate judges (now circuit judges). While it is true that a magistrate in 1966 would not have had jurisdiction over appellant’s case, Judge Spomer was a competent and qualified associate judge and possessed full and unfettered power to preside over appellant’s trial and pronounce sentence.

For the foregoing reasons, the judgment of the Circuit Court of Randolph County denying appellant’s petition for habeas corpus relief is affirmed.

Affirmed.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Elliott, Defendant-Appellant.
    (No. 72-67;
    Fifth District
    April 10, 1973.
    Kenneth L. Jones, of Defender Project, for appellant.
    John H. Ward, State’s Attorney, of Taylorville, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   PER CURIAM:

Defendant appeals from a judgment of the Circuit Court of Christian County sentencing him to not less than three nor more than ten years in the Illinois State Penitentiary after his plea of guilty to the crime of forgery.

The defendant raises a single issue on appeal: Was the sentence imposed by the trial court manifestly excessive?

This Court has determined that the provisions of the Illinois Unified Code of Corrections are applicable to appeals involving sentences imposed prior to January 1,1973. (People v. Shadowens, 10 Ill.App.3d 450.) At the time defendant was sentenced, forgery was punishable by 1 to 14 years’ imprisonment and/or a fine not to exceed $1000. Under the new Code, forgery is a class 3 felony, punishable by 1 to 10 years’ imprisonment and a fine not to exceed the higher of $10,000 or the amount stated in the offense. Chapter 38, section 1005 — 8—1, directs that “* * * the minimum term shaU be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shaU not be greater than one-third of the maximum term.”

An examination of the record indicates that the circuit court thoroughly investigated and duly considered all material factors bearing upon the proper sentence. (Defendant had an extensive history of prior offenses, including two burglary convictions and a previous conviction for deceptive practices.) The check involved in the instant offense was, according to defendant’s statement, one of fifteen or more such checks passed in the period of a week.

Judgment affirmed.


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    Allan B. Reeves, Plaintiff-Appellee, v. Godfrey Red-E-Mix Concrete, Inc., et al., Defendant-Appellant.
    (No. 72-65;
    Fifth District
    March 22, 1973.

      Rehearing denied April 24, 1973.

    Richard A. Cagle, of Alton, for appellant.
    Maurice Dailey, of Granite City, for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of Madison County finding in favor of the plaintiff on his complaint and against the defendant, Louis A. Chaperlo, on his counterclaim.

This is an action growing out of a contract or agreement, whereby the plaintiff, in Count I of his complaint, sought to recover the balance of $14,000 plus interest on a promissory note which had been signed by the defendant, Godfrey Red-E-Mix, and which had been given to .the plaintiff in return for $15,000 advanced to the corporation for operating expense.

In Court II the plaintiff sought to have returned to him a certain promissory note in the amount of $32,000 which he had given to the defendant, Louis A. Chaperlo, to secure payment for 80 percent of the stock in Godfrey Red-E-Mix Concrete, Inc. Plaintiff sought certain other relief against the individual defendant for one payment made on the $32,000 note, with interest, and for obligations for truck rental, repairs and parts which plaintiff alleged that he furnished to defendant during the time that he was participating in the operation of Godfrey Red-E-Mix Concrete, Inc.

The court entered judgment for the plaintiff on both counts of his complaint.

Defendant filed a counterclaim for judgment in the amount of $31,500 with interest, being the amount unpaid on the $32,000 note and for specific performance of an alleged agreement between plaintiff and defendant Chaperlo, whereby defendant Chaperlo financed the purchase of the assets of Godfrey Red-E-Concrete, Inc., relying upon the promises and acts of the plaintiff to purchase 80 percent of the stock of that corporation from the defendant.

At the beginning of the oral argument of this case, plaintiff stated that the counterclaimant had sold the assets of Godfrey Red-E-Mix six months prior to oral argument. The only issues remaining for review are (1) whether the court erred in ordering the return to the plaintiff of the balance unpaid on the $15,000 promissory note, and (2) whether the court erred in refusing to allow defendant to amend his pleadings during the course of trial to include a count for money damages to an alternate remedy.

We find that no error of law appears, that an opinion in this case would have no precedential value, and that the judgment of the trial court is not against the manifest weight of the evidence.

We therefore affirm the judgment of the trial court in compliance with 50 Ill.2d R. 23.

Judgment affirmed.

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