text:
    Board of Education of Gardener School District No. 112, Peoria County, Illinois, Plaintiff-Appellant, v. County Board of School Trustees of Peoria County, Illinois, Board of Education of Peoria Heights School District No. 120, Peoria County, Illinois, and Joseph H. Batchelder, Jr., et al., Defendants-Appellees.
    Gen. No. 66-95.
    Third District.
    June 26, 1967.

      Robert L. Burhans and John Radley, of Peoria, for appellant; George R. Kennedy, State’s Attorney of Peoria County, Davis, Morgan & Witherall, and C. B. Ulrick, all of Peoria, for appellees.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John E. Givans (Otherwise Called) John E. Givins (Impleaded), Defendant-Appellant.
    Gen. No. 50,778.
    First District, First Division.
    May 8, 1967.

      Philip T. Reinstein, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

John E. Givans, otherwise called John E. Givins, was indicted for robbery. He was tried by the court and jury, found guilty and sentenced to serve a term in the penitentiary of one to eight years. The defendant is seeking a reversal of the conviction for the following reasons:

1. The prosecutor made prejudicial remarks to the jury during voir dire.

2. Defense Instruction #19 was improperly denied.

3. The Defendant was denied free transcript of preliminary hearing.

4. Testimony as to toy gun and its entrance into evidence was prejudicial.

5. Defendant was not appointed an attorney for the preliminary hearing.

6. Testimony of Dr. Geary should not have been allowed into evidence.

On May 27,1964, at approximately 10:00 p. m., Powatan Fluker, a taxi driver employed by the Yellow Cab Company, accepted two young men at State and Randolph Streets in the city of Chicago to be driven to the south side of the city. As the cab neared the destination, one of the men pulled out a toy pistol and held up the driver, taking $21.80. The defendant and his partner then instructed Mr. Fluker to drive on and after a number of brief stops the defendant and his partner left the cab. Mr. Fluker reported the robbery to the police and described the robbers. The police officers and Mr. Fluker searched the area and found the defendant and his partner. Both men were arrested. The toy gun was found on the person of the defendant’s partner and the money on the defendant. Mr. Fluker identified the defendant again in a lineup the next day.

On July 20, 1964, the trial judge ordered that defendant be examined by the Behavior Clinic of the Circuit Court of Cook County. On August 27, 1964, a jury found the defendant incompetent to stand trial and he was placed in a hospital. On January 21, 1965, a change of status statement from the hospital was received and the case was reinstated on the trial docket and set for trial on April 19,1965.

The defendant claims that the State’s Attorney remarked, during the examination of the jurors, that if they found the defendant not guilty by reason of insanity, he would walk the streets free. The defendant failed to object and there was no transcript made of the voir dire. However, the following day, in chambers, the trial judge did recall that the State, in its examination of prospective jurors, did say something similar to the remarks attributed to it by defense counsel. The judge also noted for the record that the defense asked the prospective jurors what they felt should be done with mentally ill persons. The answers were that they should be treated. Thus, in view of the overall examination of the jurors by both sides, the trial judge ruled that there had been no prejudice toward the defendant and that his right to a fair trial had not been interfered with. The record sustains the State’s position that the defendant was not denied a fair trial.

The defendant also tendered the following instruction, Number 19:

“If you find the defendant not guilty by reason of insanity, the State could at that time petition for defendant’s commitment to a mental institution, pursuant to the provisions of the Mental Health Act.”

Defendant claims that the failure to allow this instruction prejudiced him and violated his right to due process of law. A general instruction on the defense of insanity was given. The type of instruction requested by the defendant was one that might have been given, if at all, at the time the remark was made by the State’s Attorney. However, the trial judge had ruled that the remark was not prejudicial in light of the total voir dire and consequently it was not error to refuse to give the instruction at the close of the case. Nor was it error to refuse to give this instruction in light of all the instructions that were given.

The defendant claims another violation of due process because he was not provided with a free transcript of the preliminary hearing. There is no indication in the record that such a transcript was ever made. Neither the statute nor the case law require the State to provide a transcript of a preliminary hearing. People v. Morris, 30 Ill2d 406, 197 NE2d 433 (1964); People v. Ritchie, 36 Ill2d 392, 222 NE2d 479 (1966). Therefore, the defendant’s rights were not violated.

The defendant also urges that the testimony as to the existence of a toy gun and the admittance of such gun into evidence was prejudicial and denied him due process of law. The evidence shows that the toy gun was used in the robbery. It was identified by Mr. Fluker and by the arresting officer. In People v. Ashley, 18 Ill2d 272, 280, 164 NE2d 70 (1960), the court said:

“(W)here it appears that defendant participated in a crime in which the weapon was used, it may be admitted though he himself did not wield or possess it. People v. Maciejewski, 294 Ill 390; People v. Sobzcak, 286 Ill 157.”

There was sufficient evidence to connect the gun and the defendant with the crime and make the gun admissible.

It is further urged that the State’s failure to provide defendant with an attorney at the preliminary hearing was a violation of his rights. The defendant alleges that the preliminary hearing was held on May 29, 1964. The record discloses no such hearing. The first event in the record is the filing of the true bill by the grand jury on June 10, 1964. At that time bail was set at $5,000. On June 25, 1964, defendant was arraigned, Holland C. Capper was appointed his counsel, a plea of not guilty was entered and the case was set for trial. There is no question that defendant’s constitutional rights were fully protected from the time of his arraignment.

Relying on Escobedo v. Illinois, 378 US 478 (1964) and Miranda v. Arizona, 384 US 436 (1966), defendant claims that he was entitled to be represented by an attorney at the alleged preliminary hearing. Miranda is not applicable to the instant case because the entire proceedings were completed prior to June 13,1966. Johnson v. New Jersey, 384 US 719 (1966). Escobedo is also inapplicable, it being limited to the peculiar facts of the case. People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964); People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965).

The defendant also argues that on the basis of Crooker v. California, 357 US 433 (1958) and White v. Maryland, 373 US 59 (1963), he was entitled to an attorney at the preliminary hearing. However, even assuming such a hearing were held, “ (a) preliminary hearing in Illinois is not a ‘critical stage’ where rights or defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received.” People v. Morris, 30 Ill2d 406, 197 NE2d 433 (1964). The Crook-er and White cases were considered by the Supreme Court in Morris and held to be inapplicable to a preliminary. hearing in Illinois. As in the Morris case there is no showing here that the absence of counsel at the preliminary hearing prejudiced the defendant in any manner. We find no denial of due process of law to this defendant.

Defendant objects to the testimony of Dr. Geary, a psychiatrist called by the State in rebuttal. Defendant had called as witnesses on his behalf, his stepfather, his landlady, a priest from St. Leonard’s House and a psychiatrist, Dr. Parks, who had examined him 2 weeks prior to the crime. All these witnesses testified that they believed that defendant lacked the ability to appreciate the criminal nature of his act or conform his conduct to the requirements of the law on May 27, 1964, the date of the crime. The State then called Dr. Geary. Dr. Geary had examined the defendant in March, 1964, when he had been brought to Cook County Mental Health Clinic by his relatives, requesting that he be admitted to the hospital. Although Dr. Geary admitted defendant into the hospital, he discharged him the following day. The doctor did not see the defendant again until the middle of May, 1964. This was concurrent with the time that Dr. Parks, who testified for the defense, saw the defendant. These two doctors reached diametrically opposed conclusions about the defendant’s mental state and criminal responsibility.

Defendant now contends that it was error for the court to permit Dr. Geary to testify because his testimony was privileged under section 5.2 of the Evidence Act, Ill Rev Stats c 51, § 5-2 (1965). It was the defendant who raised the defense of insanity. The burden of proving the defendant sane at the time of the crime was on the State. By calling his own doctor to the stand, defendant waived his right to assert the privilege and prevent Dr. Geary from testifying. In State v. Sapp, 356 Mo 705, 203 SW2d 425, (1947), the defendant to a robbery charge had asserted the defense of insanity. He called as witnesses three doctors who had examined him. He then objected to the State calling two additional doctors. The Missouri Supreme Court stated that he “could not be permitted to call as witnesses only those doctors whom he desired to call, and then claim the right to object as to other doctors who treated and examined him for the same condition.”

We find no error on the part of the trial judge in allowing the testimony of Dr. Geary in the instant case.

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

Judgment affirmed.

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


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John D. Lighting, Defendant-Appellant.
    Gen. No. 50,748.
    First District, Second Division.
    May 9, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of murder and was sentenced to 15 to 20 years in the penitentiary. On this appeal he maintains the State failed to rebut his affirmative defense of compulsion and that the trial court erred in denying his pretrial motion to discover certain information allegedly in the possession of the State.

Defendant was indicted with Willie Saddle for the murder of Isabelle Simms on October 2, 1960. In January of 1961, defendant was found to be mentally defective and unable to cooperate with counsel, and was confined to the Illinois State Security Hospital. Shortly thereafter a nolle prosequi was entered on the indictment against Willie Saddle. On November 19, 1962, defendant was declared sane and able to cooperate with counsel. This trial was had in January of 1965.

Defendant testified he arrived in Chicago from his home in Mississippi some two weeks before he was arrested for the crime. At that time he was 16 years of age and had a fourth-grade education. Shortly after his arrival in Chicago defendant met Willie Saddle and at approximately 6:00 on the evening of October 1, 1960, Saddle requested defendant to accompany him to a girl’s house. At 12:00 or 12:30 a. m. defendant and Saddle proceeded to Isabelle Simms’ barbecue shop on the south side of Chicago.

Defendant testified that Saddle took him into an alley near the shop and told him to go into the shop and ask the woman for money. Defendant refused but went into the shop, purchased a bottle of soda pop, drank it and walked out. Defendant testified that Saddle then threatened his life with a gun if he did not return to the barbecue shop and demand money from Mrs. Simms. Saddle placed a grey coat on defendant’s shoulders, the right pocket of which contained a revolver. Defendant entered the shop and demanded money from Mrs. Simms with which demand she complied. As defendant was leaving the shop Mrs. Simms called to him, drew a gun and began firing at him. Defendant returned the fire and Mrs. Simms was mortally wounded. Defendant fled the scene accompanied by Saddle and was apprehended by the police in the vicinity of the barbecue shop a short time later.

Mrs. Anna Watts, employed by Mrs. Simms as a cook in the barbecue shop on the night of the shooting, testified that defendant entered the premises at 12:00 or 12:30 a. m., purchased a bottle of soda pop and left. Defendant returned to the shop three hours later and stood near the jukebox with his hand in his pocket. When Mrs. Simms received money from a customer and was about to put it into the cash register, defendant drew his gun and demanded the money as well as a gun which Mrs. Simms kept in the cash register. Mrs. Watts testified that defendant stated, “Give me that gun. I don’t want to kill you.” Mrs. Simms and defendant then exchanged gunfire after which Mrs. Simms fell to the floor and defendant fled the premises.

Defendant first maintains he advanced an affirmative defense of compulsion in that Saddle, by means of threats against his life, coerced and forced him into committing the robbery which resulted in the death of Mrs. Simms, and that the State failed to rebut his defense. Ill Rev Stats 1959, c 38, par 597 (presently par 7-11, c 38). Defendant’s argument presupposes the evidence in the record made out the defense of compulsion. On the contrary, the evidence was against the defense raised by defendant. Mrs. Watts testified defendant entered the premises alone about three hours after his first visit that morning and lingered near the jukebox for a short time pretending to make a selection from the music. He waited until a customer paid his bill, at which time he turned from the jukebox with his gun drawn and demanded money from Mrs. Simms. He also demanded the gun which Mrs. Simms kept in the cash register. After defendant received some money he told her “that is enough” and was on his way out of the premises when the gunfire was exchanged.

The trial court expressly stated that Mrs. Watts was an alert and credible witness and obviously chose to believe her account of the incident. People v. Reaves, 24 Ill2d 380, 382, 183 NE2d 169. Under this evidence defendant was not acting under coercion or compulsion when he shot Mrs. Simms. He was out of Saddle’s presence for some length of time prior thereto and had ample opportunity to withdraw from the robbery if he chose to do so. Defendant lingered at the jukebox for a time, waiting for a customer to pay his bill before demanding money from Mrs. Simms. Furthermore, the evidence shows defendant was predisposed to use the gun in his possession when he demanded Mrs. Simms’ gun during the course of the robbery, stating, “I don’t want to kill you.” Finally, defendant was on his way out of the barbecue shop when the shooting occurred. All of these facts show defendant was not acting under compulsion when he shot Mrs. Simms.

Assuming arguendo defendant was forced to perpetrate the robbery due to threats upon his life by Willie Saddle, the evidence shows the claimed compulsion had nothing to do with the shooting. The testimony of both defendant and Mrs. Watts shows defendant had already committed the robbery and was on his way out of the barbecue shop when the exchange of gunfire took place. The existence of the threat or coercion which defendant claims to have existed is doubtful for the reason that defendant was out of Saddle’s presence for a good length of time prior to the shooting. See Baxter v. People, 3 Gilm (8 Ill) 368, 383. The record is devoid of any evidence that defendant was acting under compulsion at the time he shot and killed Mrs. Simms.

Defendant’s other contention is that the trial court erred in denying his motion for information allegedly in the possession of the State. The scope of the motion was general and all-encompassing. The motion requested the Grand Jury minutes with regard to statements allegedly made by defendant and Saddle, memoranda of State interviews with several persons concerning the shooting, reports of police and detective investigations and statements received thereby, information pertaining to the arrest of Willie Saddle, and “any other items, photographs, laboratory reports, statements and documents which will assist your petitioner in preparing his defense. . . .” Under the circumstances we feel the trial court properly denied defendant’s motion.

Defendant cites the case of Brady v. Maryland, 373 US 83, in support of his position that he was entitled to receive the matters requested in his motion. The Brady case is not in point for the reason that defendant specifically requested the confession of a codefendant which was thereafter purposely withheld by the prosecuting attorney. Such is not the situation here. The State is not required to produce a defendant’s witnesses or to create his defenses. United States v. Di Gregorio, 148 F Supp 526, 528.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE BRYANT

text:
    Raymond Sansone, Plaintiff-Appellee, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, and Chicago Produce Terminal, a Corporation, Defendants-Appellants.
    Gen. No. 50,754.
    First District, Second Division.
    May 9, 1967.

      Floyd Stuppi, John J. Schmidt and Gus Svolos, of Chicago, for appellants.
    Barbera and Friedlander, of Chicago (Dom J. Rizzi and A. J. Hardiman, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County, wherein the defendants, the Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as Santa Fe) and the Chicago Produce Terminal were found guilty of negligence. Plaintiff was awarded $10,000 for the injuries he suffered. Several allegations of error are raised by the defendants. They contend that the trial court erred in not granting their motions for a directed verdict or a judgment notwithstanding the verdict and that the verdict was against the manifest weight of the evidence.

On August 19, 1957, the plaintiff, Raymond Sansone, drove to the Chicago Produce Terminal with an employee, Johnny C. Terrell, to unload a boxcar of potatoes located on track 36 on the premises of the Chicago Produce Terminal. Before going to the track where he was to unload the potatoes, the plaintiff stopped at the weight station where an employee of the Chicago Produce Terminal weighed his truck and gave him a scale ticket.

After the plaintiff and his employee had unloaded about one-half of the boxcar, there was “a sudden jolting action” which moved the cars and truck and the truck knocked the plaintiff backwards. Plaintiff struck the corner of the tail gate with his back and then fell to the concrete platform sustaining the injuries complained of at the trial. Neither he nor his employee saw what caused the boxcar to move.

The sum and substance of the plaintiff’s case against the Santa Fe is as follows: Leon Helton, an engineer for the defendant Santa Fe, testified that he was working at the Chicago Produce Terminal on the date of the accident and that he had engaged in some switching operations on track 36 on that date. The only other evidence connecting the Santa Fe to the scene of the accident is an answer to an interrogatory which disclosed that the defendant Santa Fe had moved a locomotive and cars on track 36 on the day of the accident. Nowhere is it shown when this movement was made on that date. Plaintiff also failed to introduce any evidence of negligence on the part of the Santa Fe.

It is clear that damages cannot be assessed upon a mere surmise and conjecture as to what possibly happened to cause an injury. The law requires affirmative and positive proof of actionable negligence as to the proximate cause of injuries suffered to warrant an assessment of liability. Deming v. Hallberg, 221 Ill App 180.

In regard to the Santa Fe, inasmuch as the plaintiff failed to (1) connect the defendant to the accident, (2) to establish the cause of the accident, or (3) to establish that the Santa Fe was negligent, it is clear that the plaintiff failed to make out a prima facie case against the Santa Fe and that the trial court erred in refusing to grant either a directed verdict or a judgment notwithstanding the verdict.

We will consider the remainder of the issues raised here as they apply to the Chicago Terminal.

It is clear that the Chicago Produce Terminal owned and controlled the premises on which the accident occurred. It is also clear that the defendant, Chicago Produce Terminal, knew of the presence of the plaintiff on the day in question. The Chicago Produce Terminal also directed the plaintiff to the track and railroad car where the alleged mishap took place. The definition of an invitee and of the duty to such a defendant is stated in ILP, chap 3, § 52, as follows:

“Within the meaning of the rule imposing the duty on an owner, occupant, or person in charge of premises to exercise ordinary care to keep the premises reasonably safe for an invitee, an invitee is one who enters on the premises of another in response to an express or implied invitation. More fully stated, an invitee is one who comes upon premises owned or controlled by another by his express or implied invitation in order to transact business in which the parties are mutually interested.”

And the duty in regard to warning of danger is stated in ILP, chap 3, § 51, as follows:

“One who owns or is in charge of premises owes his invitees thereon a duty to warn them of any danger of which he knows or should know and of which they are not aware.” Brunet v. S. S. Kresge Co., 115 F2d 713; Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153.

But there was no testimony in regard to the condition of the premises which would make it necessary for the defendants to warn the plaintiff of such condition or that the condition had anything to do with the alleged mishap.

The defendant, Chicago Produce Terminal, points to statements by the plaintiff that he was injured by falling down stairs at another place. There was also evidence from Johnny Terrell, plaintiff’s employee, on the day of the accident, that no such mishap took place and that plaintiff was not hurt at the Chicago Produce Terminal. Johnny Terrell was convicted of testifying falsely before the judge in this case and was fined therefor.

We find that it was error for the trial court to have refused to grant Terminal’s motion for judgment notwithstanding the verdict.

For these reasons the judgment is reversed as to both defendants and the cause is remanded with directions to enter judgments notwithstanding the verdict for both defendants and against the plaintiff.

Judgments reversed and cause remanded with directions.

LYONS, P. J. and BURKE, J., concur.


text:
    Arthur P. Miller, Plaintiff-Appellee, v. Community Discount Centers, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 51,012.
    First District, Second Division.
    May 9, 1967.
    Rehearing denied June 20,1967.

      Shaffer, Seelig, Handel & Shapiro, of Chicago (Robert S. Atkins, of counsel), for appellant.
    Ruttenberg & Ruttenberg, of Chicago (David C. Ruttenberg and Harvin H. Ruttenberg, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County which found that the defendant had breached its contract of employment with the plaintiff, Arthur Miller. Plaintiff was awarded a sum of $4,-062.93 in damages. Defendant, Community Discount Centers, Inc. (hereinafter referred to as Community) raises several allegations of error on this appeal, the chief of which is that there was no breach because the contract was a contract at will and terminable at any time.

The plaintiff, Arthur P. Miller, came from Toledo, Ohio, to Chicago, Illinois in response to a classified advertisement in a Toledo newspaper, which had been placed there by the defendant. Miller first came to Chicago for an interview with Community and to fill out an application for employment. A few weeks later, plaintiff was offered a position as a management trainee by Melvin Kent, personnel director for the defendant at a salary of $10,000 per year. Miller received a letter confirming his appointment from Kent. That letter is as follows:

“October 2, 1962
Mr. Arthur P. Miller 2945 East Lincolnshire Toledo, Ohio
Dear Mr. Miller:
First, let me again extend an official welcome to the Community family; we are certain you have a rewarding and satisfying career (emphasis added) ahead of you.
For the record, I should like to confirm the employment arrangements with you. Your beginning salary will be $10,000.00 per year as a Store Management Trainee. Regarding moving expenses, we will pay one-half now and the balance after one year.
Looking forward to seeing you soon.
Sincerely yours,
/s/ Melvin Kent Director of Personnel”
MK/af

Plaintiff began work in Chicago on October 15, 1962, leaving his family in Toledo. He worked first as an assistant manager at the Villa Park store of defendant and then was assigned to the defendant’s store at Belmont and Clark Streets in Chicago. During the first week in January, 1963, before plaintiff had moved his family to Chicago he was notified by Mr. Kent that his services were no longer required.

After leaving defendant’s employ, plaintiff consulted a local employment agency in Chicago and was placed with the Lincoln National Life Insurance Co. as agent and supervisor.

The primary issue on this appeal is whether the letter quoted above constitutes a contract at will or whether it constitutes a contract for a period of one year. The trial court found that the plaintiff was hired for a period of one year and that the breach by the defendant was wrongful.

In interpreting whether a contract of employment is at will or for a definite period, the rule in Illinois is stated in White v. American Elec. Fusion Corp., 328 Ill App 128, 65 NE2d 234, at page 4 of Abstract Opinion,

“In many states, courts have ruled that specification in the contract of an annual salary creates an inference of annual employment (100 ALR 728), but in this state the rule has long been established that a hiring at a monthly or annual salary, if no period of duration is specified in the contract, is presumed to be at will and either party may terminate the hiring at his pleasure without liability.”

This rule has recently been reiterated in Atwood v. Curtiss Candy Co., 22 Ill App2d 369, 161 NE2d 355; but, in addition thereto, that case held that where intention of parties can be ascertained from the written agreement it is unnecessary to consider extraneous circumstances. Therefore, the mention in the contract prepared by the defendant’s lawyers that a “satisfying career ahead of you” is sufficient to take it out of the general ruling in this state, and make it square with the ruling.

Defendant contends that the contract in issue on this appeal falls within the rule just stated. From an examination of the contract it is clear that a definite term of one year was contemplated by the parties. Nothing could be clearer than the statement, “Regarding moving expenses, we will pay one-half now and the balance after one year.” (Emphasis added.) This appeared in the same paragraph where the compensation of $10,000 per year was mentioned and was undoubtedly intended to be construed with it. It was not separated nor jumbled. It was as if the writer of the letter had disposed of other things and now came to the question of compensation. Furthermore, we find it inconceivable that a man of plaintiff’s age would leave his home to come to Chicago for the mere possibility that he would have a permanent position. It was clearly the intention of the parties, by their words, to have this contract be a contract for at least one year and nothing they can say changes that intention of the parties at the time the contract was made.

It was the intention of the parties that this man be hired for a year at least. This is made evident by the reference in the contract in regard to moving expenses. It is clear that if moving expenses are to be paid they are to be paid for coming to Chicago to take a position which would certainly be for a year or more. While it is true that the majority law in this country would hold if a man was employed for less than one year, still, as has been held in Putnam v. Producers’ Live Stock Marketing Ass’n, 256 Ky 196, 75 SW2d 1075, annotated in ALR 100 at pages 828, 829, where it is stated a hiring of one as a salesman for a livestock marketing association “at a salary of $3,300 a year, plus moving expenses from” one city to another, it may be construed to be for a year and not at will. This, is to be noted, is a construction of language and not the adoption of a new rule. It merely states that when the moving expenses are mentioned, it is to be construed for one year and not at will. This was analyzed and the court concluded, at page 831, as follows:

“Controlled by that general concept or canon of construction, it seems to be rather uniformly held that the circumstances of agreeing on weekly, monthly, quarterly, or semiannual payments of wages is sufficient of itself to establish the presumption of a hiring for the period covered by each payment. But, when the agreement was■ for employment ait a specified compensation per year, the decisions are not in accord as to the effect of such provision in relation to the duration of the contract.” (Emphasis added.)

And, at page 833:

“The letter to Putnam confirmed some oral understanding, and is on its face an unconditional contract to pay him $3,300 a year and his moving expenses to Louisville. We think it manifest that a yearly engagement may be legitimately inferred from this letter and the circumstances disclosed sufficient to sustain the cause of action.”

In the above case, also at page 833, it is pointed out that in Maynard v. Royal Worcester Corset Co., 200 Mass 1, 85 NE 877, it was held:

“that the word ‘salary’ is more frequently applied to annual employments than to any other, and that its use may import a factor of permanency. So, as we have stated, the mere stipulation that an employee shall be compensated at so much salary per year is of such major evidential value that it requires something to overcome it. The nature of the position to be occupied or the service to be rendered cannot be ignored; e. g., the employment of a manager of a business at a substantial annual salary cannot be viewed as a hiring at will without doing violence to the common understanding of business men.”

Defendant further wrote a letter about the moving expenses of the plaintiff, as follows:

“To Whom It May Concern:
This is to advise that Mr. Arthur Miller is an employee at Community Discount Centers, Inc., and that you are authorized to bill this company for the expenses in connection with Mr. Miller’s move from Toledo, Ohio to Chicago, Illinois.
Thank you; if there are any questions please contact the undersigned.
/s/ Melvin Kent MELVIN KENT Director of Personnel
MK/gj”

Both parties have stipulated that the entire agreement between them is contained in the letter of October 2, 1962. In regard to the denial of defendant’s prayer to file an amended answer, the allowance or dis-allowance of an amendment to the pleadings is a matter of discretion for the trier of facts whose exercise of said discretion will be disturbed on review only upon a showing of abuse of such discretion. Deasy v. City of Chicago, 412 Ill 151, 105 NE2d 727; Ready v. Ready, 33 Ill App2d 145, 178 NE2d 650.

Defendant, Community Discount Centers, further contends that the judgment below was against the manifest weight of the evidence. To support this allegation the defendant points to certain testimony of the plaintiff and to testimony of Melvin Kent, personnel director, for defendant at the time of the hiring of the plaintiff. Plaintiff first testified that in his conversations with representatives of the defendant no mention was made of the duration of the contract, while later he stated that the term was for one year. Employees of defendant testified that they had never had any conversation with the plaintiff relating to the duration of his employment. We are of the opinion that the contradictory testimony of the plaintiff merely went to the weight of the evidence, and that in view of the unequivocal nature of the contract, the judgment of the trial court was not against the manifest weight of the evidence.

“An instrument is to be construed most strongly against its author. Murray v. Kaskaskia Livestock Ins. Co., 204 Ill App 568; E. I. DuPont de Nemours & Co. v. Claiborne-Reno Co., 64 Fed2d 224; 12 Am Jur, Contracts, sec 252, p 795.”

Cemetery Ass’n v. Village of Calumet Park, 398 Ill 324, at page 333, 75 NE2d 874.

The defendant maintains that plaintiff did not produce evidence that he made the requisite effort to mitigate his damages by seeking similar employment. The evidence establishes that when his contract of employment was terminated by the defendant, the plaintiff immediately took adequate steps to mitigate his loss. He was a stranger in Chicago without any family or business ties. He procured the services of an employment agency, which he paid $350, to find him a position. We think that the record shows that the court was right in finding that the plaintiff exercised reasonable diligence in mitigating the damages by seeking other employment.

Plaintiff agrees with defendant that there was an error in computation and that the judgment should be reduced by the sum of $96.28. Therefore the judgment for plaintiff and against defendant is amended to read $3,966.65 in place of $4,062.93 and as amended is affirmed.

Judgment amended and affirmed.

LYONS, P. J. and BURKE, J., concur.


text:
    Estate of Irene C. Bors, Deceased. Jennie Borucki, Executor of the Estate of Irene C. Bors, Petitioner-Appellant, v. Raymond Borucki, Respondent-Appellee.
    Gen. No. 51,114.
    First District, Second Division.
    May 9, 1967.

      George Doyle and William O. Krohn, of Chicago, for appellant.
    Robert T. Markley, of Chicago (Avern B. Scolnik, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Irene C. Bors died on August 11, 1964. By her Will she named her mother Jennie Borucki, about 80 years of age, as her sole heir and executor. The Will was admitted to Probate and the mother was appointed executor. Irene Bors at the time of her death was a widow, her husband Henry having died about a year before her. They had no surviving children. On petition and citation to compel Raymond Borucki to turn over the funds of two joint savings accounts in the names of decedent and respondent at the time of her death, but claimed by respondent as surviving joint tenant and for the discovery of the contents of a safety-deposit box, the discovery phase was satisfied on pretrial deposition. The dispute as to the ownership of the joint account funds proceeded to hearing wherein the court awarded the funds to the respondent Raymond Borucki as his sole property. The executor appeals. Her theory is that no valid gift was made to respondent of the funds in the two accounts, that the accounts were established with the funds of the deceased for her convenience and remained the property of the deceased at the time of her death and thereafter became a part of her estate and should be turned over to her executor for administration. Respondent’s theory of the case is that the creation of the two joint accounts and the introduction of the deposit agreements establish a prima facie case of ownership of the funds in the surviving joint tenant; that the burden of showing a fiduciary relationship was on the petitioner who failed to prove such a relationship, that the burden was on the petitioner to prove lack of donative intent by clear and convincing evidence and that petitioner failed to make this proof.

Raymond Borucki is the son of a brother of Jennie Borucki, the executor. Raymond Borucki is a cousin of the deceased. There were other cousins, children of petitioner’s brothers and an Aunt Mary, widowed sister of petitioner. Henry Bors’ family and the Borucki cousins were friendly and visited each other often. Petitioner and the deceased lived together all of her life; after her marriage to Henry, and subsequently with the widowed Aunt Mary for the last 11 or 12 years together in a home in Chicago. Raymond did various jobs around the house before and after Henry’s death. The other cousins also did various jobs. Raymond was usually paid for his work.

The first joint account at the First National Bank of Skokie was opened February 8, 1963, in the name of “Irene C. Bors or Raymond Borucki” with the proceeds of a prior joint account between Irene C. and Henry Bors. The signature cards contain the standard joint tenancy provision. The second joint account was opened in the sole name of decedent on March 13, 1963, with a deposit of $6,000. She added $3,800 prior to adding the name of Raymond Borucki on June 20, 1963. At the time of the creation of the first joint bank account between decedent and respondent at the First National Bank of Skokie, the decedent told respondent to deal with this account just as she had dealt with the account with her husband at the Savings and Loan Association, and that decedent wanted him to have the proceeds for his own use after her death. On March 13, 1963, decedent opened an account at Hoyne Federal Savings and Loan Association in her own name alone and made deposits totaling $9,800 up to June 20, 1963. On or about June 20, 1963, decedent changed this account to a joint tenancy with respondent. Respondent asked her why she did not put her mother’s name on the account and decedent said that “if she wanted her mother to have this money she would have put her name on it” and that this “was for me and the kids.” Decedent, just prior to her death, asked the respondent to pay the funeral bill and to give $2,500 towards a car for Henry Borucki and to pay other miscellaneous items in connection with her last illness and funeral. This is confirmed by petitioner’s testimony. Petitioner was the sole legatee and as a result received a home worth $25,000; $1,400 in goods and chattels; the proceeds of a checking account in the First National Bank of Skokie in the amount of $940.-39, and the benefits under four insurance policies totaling more than $3,900. This was free and clear of expenses of last illness and funeral.

Both bank books were kept by the deceased. The only dealing respondent had with either account is when he was asked by deceased to make a deposit in the Skokie Bank during her last illness in the hospital. Petitioner brought the book to the hospital, respondent made the deposit and returned the book to petitioner the next day. He obtained the books from petitioner the morning her daughter died, changed the accounts to his name and returned the books to petitioner to keep until the Will was read. Called as the court’s witness, respondent testified that deceased asked him to sign the Hoyne card in June 1963, while she was driving with him and his family to his brother’s home for a birthday.

On July 9, 1963, deceased executed her Last Will leaving everything to her mother, the petitioner, and directing that her executor pay her debts and burial expenses out of her estate. She entered the hospital in July 1963 for removal of a cancerous breast. She recovered, worked a while, had X-ray treatments, reentered the hospital in July 1964, and died August 11, 1964. Prior to the death of Irene, respondent told no one except his wife that Irene wanted him to have the balance of the funds, after making some requested payments, but he did discuss the requested payments. After Irene’s death, respondent paid the funeral bill of $1,900, gave $2,500 for a car to Henry Borucki, paid $133.60 for a headstone, paid the last bill of the attending physician, and $500 to petitioner. He then claimed the remainder of the money as his own. Petitioner testified that deceased told her on the day before she died that she would get everything, house and money. Mary- Bors, sister-in-law of deceased testified that deceased told her that petitioner was to get everything. Martha Steele, a nonrelated fellow patient, testified that deceased had told her that the house, money and all of her possessions were to go to petitioner. All three testified that respondent was named jointly as a convenience to facilitate caring for petitioner and her sister. Petitioner had no car to get around in, never made out deposit slips and was generally unfamiliar with banking. Respondent admitted that he was to look after petitioner and Aunt Mary and do for them as he had been doing for deceased.

Petitioner maintains that the Probate Court improperly held that a valid gift was effected. She says that the evidence rebuts the presumption of a gift, and establishes the acts as a convenience. She also argues that the fiduciary relationship imposes a burden of full explanation upon respondent. Finally petitioner insists that proffered evidence of deceased’s intent was improperly excluded. We agree with the position of the respondent that the joint account agreements raise a presumption of ownership of the funds in the surviving joint tenant and which can be rebutted only by clear and convincing evidence that the decedent acted without do-native intent. Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470. We are asked to decide whether the judgment of the trial court is against the manifest weight of the evidence.

The experienced trial judge said that the decedent was a “fairly intelligent woman.” He commented that she said “Ray will get the money from the bank account and take care of the bills” and that “is exactly what he did.” The court was impressed that decedent “knew what a joint tenancy was, because she had that experience with her husband.” The judge said further, “she never directly said, by any of the evidence, anything about this joint tenancy problem. I have to follow the law and presume this joint tenancy was a joint tenancy with right of survivorship. Apparently she knew what a joint tenancy was because she had that experience with her husband. I wanted you to call the respondent, and apparently he is telling the truth and did what she told him to do. But the burden is on the one attacking the joint tenancy and that hasn’t been proven to my satisfaction. That is why I will have to find the money in the bank is the property of respondent here and dismiss the citation.”

The only conversations with the decedent with regard to the establishment of the joint accounts were those testified to by respondent. The trial judge had before him evidence indicating that the decedent knew what her estate consisted of. He believed that Irene Bors intended to leave the proceeds of the two accounts to respondent. Respondent carried out her wishes as to the distribution of certain parts of these accounts. It is apparent that the trial judge believed in the integrity of the respondent and he found that respondent was telling the truth that he did what Irene Bors told him to do. It is well settled that the findings of a trial judge will not be disturbed unless against the manifest weight of the evidence or unless the findings are palpably erroneous. The trial court has a better opportunity to determine the facts, having seen and heard the witnesses. We cannot say the findings of the trial judge are against the manifest weight of the evidence.

Petitioner urges that the existence of a fiduciary relationship imposes a burden of full explanation upon respondent. The respondent was examined by the court and cross-examined by the petitioner. He answered all questions. He gave a full explanation of the situation between himself and Irene Bors.

Petitioner offered evidence by two witnesses to show a family custom of both the Bors and the Borucki families to hold funds in joint tenancy with the duty upon the survivor to dispose of the funds in accordance with the directions of the deceased joint tenant, to consider the funds as part of the estate of the deceased joint tenant and the creation of the joint tenancy was not to be considered a present gift of any interest in the funds. In the case of Roherty v. Green, 57 Ill App2d 362, 206 NE 2d 756, the court stated at pp 371-372, that while it may be proper to show the manner or custom in which a person transacts business, it is not proper to attempt to prove his specific dealings with one person by his specific dealings with another. While the Roherty case is not directly in point, it is analogous to the situation here to the extent that petitioner attempted to show the intention entertained by Irene Bors when she opened the savings accounts in her name and in the name of Raymond Borucki, by way of evidence of what Irene Bors allegedly did with regard to other members of her family and evidence of what other members of the Bors and the Borucki families did among themselves. The alleged custom sought to be established in this regard was irrelevant to the question of whether Irene Bors intended to make a gift to respondent at the time she opened the accounts. (See also 29 Am Jur2d, Evidence §§298, 303.)

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Appellee, v. Edward Hill, Appellant.
    Gen. No. 50,794.
    First District, Second Division.
    May 9, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Thomas P. Cawley and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


text:
    Ardelia Baker, Plaintiff-Appellant, v. Spaulding Women’s Apparel, Inc., Harry Rubin, et al., Defendants-Appellees.
    Gen. No. 50,800.
    First District, Second Division.
    May 9, 1967.

      David S. Minor, of Chicago, for appellant.
    Morgan, Halligan, Lanoff & Cook, of Chicago (John A. Cook and Philip L. Bransky, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

In an action for conpensatory and punitive damages on allegations of false imprisonment and other wrongs and on issue joined, the jury returned a verdict against the defendants for $5,000 and judgment was entered thereon. On the hearing of the post-trial motion the court, without the consent of plaintiff, entered a remittitur of $4,250, thereby reducing the judgment to $750. The court also vacated the $5,000 judgment but did not otherwise rule on the post-trial motion. Plaintiff appeals.

Plaintiff’s first point is that the trial judge erred in substituting his judgment for that of the jury in assessing damages. Where the court finds that there should be a remittitur or a new trial the proper procedure is to give the plaintiff an opportunity to accept the remittitur, with the knowledge that a refusal to accept may result in an order allowing a new trial. The court had no authority to enter a remittitur without the consent of the plaintiff. Rasmussen v. National Tea Co., 304 Ill App 353, 358, 26 NE2d 523.

Therefore the judgments for $5,000 and for $750 are reversed and the cause remanded with directions to rule on the post-trial motion and for further proceedings.

Judgments reversed and cause remanded with directions.

LYONS, P. J. and BRYANT, J., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Brown (Impleaded), Defendant-Appellant.
    Gen. No. 50,947.
    First District, Fourth Division.
    May 12, 1967.
    Rehearing denied June 8, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Marshall J. Hartman 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 Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Unlawful sale of narcotics.

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

Judgment: After a jury trial the defendant was found guilty and was sentenced to the penitentiary for a term not less than 15 nor more than 20 years.

Points Raised on Appeal :

1) The trial court erred in admitting evidence of defendant’s silence upon arrest when being questioned by police;

2) The trial court committed error in admitting into evidence prejudicial out-of-court statements of a codefendant (subsequently severed) made to a police officer out of the presence and hearing of defendant and without his consent;

3) The trial court improperly admitted evidence of the sale of narcotics separate and distinct from the crime charged in the indictment;

4) The Assistant State’s Attorney prejudiced the defendant by his argument.

Evidence: The evidence in the record is to the effect that on October 4, 1964, at about 7:30 p. m., Officer Richard McKelvey of the Chicago Police Department, received a telephone call from Richard Frisch, a police informer, who also used the name of Robard Davis. Officer McKelvey, with two other police officers, drove in an unmarked squad car to the vicinity of Wells and Division Streets, in Chicago, where Frisch got into the car; they then drove to Elm Street and parked across from the building at 215 West Elm. Frisch was searched and no narcotics or money were found on him. He was given prerecorded money for which he signed in the name of Robard Davis; he then went to the basement apartment at 215 West Elm, where he stayed about 15 minutes, then returned to the car. Frisch and the officers later testified that at that time he gave the officers two packets containing a white powder; that Officer Kurowski field tested it and determined that the powder was “positive.”

The officers then went to the apartment at 215 West Elm and placed under arrest three persons found there— Bernadine Partee, Frank Wilson, and Edward Brown, the defendant. The apartment was searched and one packet of narcotics was found on the person of Bemadine Partee, who acknowledged ownership of the packet. The three persons arrested were then taken to the police station where Bernadine Partee and Edward Brown were charged with the unlawful sale of narcotics, and a disorderly conduct charge was placed against Wilson. At police headquarters the prerecorded money was found on the person of Partee. The two packets which Frisch had given the officers were subsequently tested by police chemists who testified that they contained heroin.

On the day of the trial Bernadine Partee was granted severance. She testified for the State as follows: On October 4, 1964, she heard a knock on the window of her apartment, looked out and saw Frisch. Edward Brown was in her apartment and she told him that Frisch was outside; he told her to let him in. Frisch said he wanted to get two “bags” of narcotics, and she got them from Brown, took the money ($20) from Frisch and gave him the bags which Brown had taken from a little medicine bottle. When they arrived at the police station later, she had put the money in her shoe.

Over the objection of the defendant, Officer Kurowski was allowed to testify to a conversation between himself and Partee at the police station, outside the presence of Brown, at which time Partee told the officer that the one foil package of narcotics she had was hers; that the other two packages were not hers, but were obtained from Brown and given to Frisch.

Officer McKelvey testified, over objection by the defense, that subsequent to the arrest and while they were in the Elm Street apartment, he questioned Brown, asking “how long have you been selling narcotics, why have you been selling narcotics, did you in fact sell narcotics to Richard Frisch and did you know that Bernadine Partee told us that you in fact handed her the narcotics?” To all of these questions the defendant remained mute; the only thing he said during the time of the questioning was, “Officer, you don’t know what you are talking about.”

Frank Wilson testified on behalf of the defendant to the effect that when Frisch came into the apartment he and the defendant commenced arguing about a previous transaction involving $25; that Bernadine Partee then took Frisch into the hall, and came back into the room with a package in her hand, saying that Richard had given it to her and that it was narcotics. At that time the police entered. Wilson testified that he did not see Partee give any narcotics to Frisch, nor did he see Frisch pass any money to her; that whatever occurred took place in the hall.

Brown denied that he made any sale of narcotics to Frisch in Partee’s apartment; he testified that Partee and Frisch had engaged in a conversation in the hall, outside Partee’s apartment; that after the conversation Partee came back in the room with a packet of narcotics which she said Frisch had given to her.

Opinion : Brown argues that the testimony of police officer McKelvey was prejudicial when he stated that after the arrest and while he was with Brown in the Elm Street apartment he asked Brown about the selling of narcotics, and that Brown was silent during the questioning. In People v. Rothe, 358 Ill 52, 192 NE 777 (cited with approval in People v. Lewerenz, 24 Ill2d 295, 181 NE2d 99), the Supreme Court held that it was error to permit the prosecution to prove by an officer that the defendants refused to make a statement at the police station, and said at p 57: “The admission of this evidence was prejudicial, and since it was neither material nor relevant to the issue being tried it should have been excluded.” This is particularly true where the accused has indicated he did not acquiesce in the statements made in his presence. People v. Nitti, 312 Ill 73, at 93, 143 NE 448. The rule was reaffirmed in People v. Wright, 65 Ill App2d 23, 212 NE2d 126. Under the circumstances in the case before us the evidence should not have been admitted.

Brown also objects to the evidence adduced by the State with reference to Officer Kurowski’s testimony regarding a conversation he had with Bernadine Partee which did not take place at the time of the arrest but later at police headquarters and out of the presence of the defendant. Kurowski had testified that Partee said two packages of heroin were not hers but were obtained from Brown and given to Frisch. The fact that the testimony is to a great extent the same as that of Partee on the stand does not prevent it from being prejudicial.

This evidence was improperly admitted and constituted reversible error. A case directly in point is People v. Smuk, 12 Ill2d 360, 146 NE2d 32, in which Smuk was indicted, together with one Heidman, for committing a criminal abortion. The court granted the defendant a severance. During the trial a policewoman testified to certain conversations she had had with Heidman out of the presence of Smuk. The court held that these statements “were clearly hearsay and highly prejudicial.” The court further stated: “We feel that the quantity and character of this highly prejudicial testimony warrants a new trial.” The court cited and quoted from People v. Colegrove, 342 Ill 430, 174 NE 536, where it was said:

“Declarations out of court or statements of any kind by a third person against the accused, made in his absence and without his knowledge, are inadmissible as evidence against him. The rule is elementary and a violation of it is a violation of the constitutional right of the accused that he shall not only be informed of the nature of the charge against him but be permitted to meet the accusing witness face to face.”

The court reversed and remanded the case for a new trial.

Brown argues that the court improperly admitted evidence of the sale of narcotics separate and distinct from the crime charged in the indictment. (Partee had testified that she had bought drugs from Brown before October 4, 1964.) In support of his contention Brown cites People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330, and other cases. In People v. Lewerenz, 24 Ill2d 295, 181 NE2d 99, the court said, at p 298:

“In prosecutions for offenses involving narcotics, authorities are in accord that evidence of other offenses is inadmissible unless it comes within one of the recognized exceptions to the general rule, i. e., where it is a part of the res gestae, or where it helps to disclose motive, intent, premeditation, guilty knowledge, malice or a common plan or scheme. (See: 22A CJS, Criminal Law, sec 691(25) and cases there cited.) Within the rule, we have held that in a prosecution for a sale of narcotics on a specified date, (the situation of the instant case,) the sale of narcotics on a prior date may not be shown to convict the accused of the crime charged. (People v. Rivas, 5 Ill2d 556.) ”

In answer to this contention the State in its brief quotes from a case without identifying it, to the effect that evidence of other offenses is admissible, if relevant for any purpose other than to show a mere propensity on the part of the defendant to commit the crime, and that evidence of the sale of narcotics by a defendant other than the one for which he is being tried, is admitted when such evidence is relevant to prove his identity, his guilty knowledge, or to show his design or system. The evidence in this case before us does not fall within the rule laid down either in the State’s brief or in the Lewerenz case. The evidence was improperly admitted.

To some of these matters objection was made and to others there was no objection; however, where the errors in the trial affect substantial rights they may be noticed although they were not brought to the attention of the trial court. People v. Wright, 65 Ill App2d 23, 212 NE2d 126; People v. Weinstein, 35 Ill2d 467, 220 NE2d 432.

Brown also objects to the argument of the State’s Attorney and claims he was prejudiced thereby. In his argument the Assistant State’s Attorney told the jury that if they believed the defendant had never sold narcotics before October 4, 1964, they should find him not guilty. This argument was certainly prejudicial.

Counsel for defendant argues that the conviction should be reversed without remandment because the only evidence against the defendant is that of Partee and Frisch; that Partee had been arrested with the defendant and would have a later trial in the Criminal Court; that Frisch was an addict, and consequently his testimony should be carefully scrutinized. It is undoubtedly the rule that where a witness is a narcotic addict and a police informer, it has an important bearing on his credibility, and the same rule applies where a person is an accomplice. People v. Perkins, 26 Ill2d 230, 186 NE2d 330. However, in this case there was corroboration in that Frisch, the informer, and Partee, the accomplice, both testified to the same facts, and their testimony was corroborated by the fact that the police officers had gone with Frisch to the apartment where the drugs were furnished.

While we are remanding for a new trial because of trial errors, without these errors the conviction would not be reversed, since the Appellate Court should not substitute its judgment on the credibility of witnesses and the weight to be given their testimony, unless we can say that the proof was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Romero, 54 Ill App2d 184, 203 NE2d 635. Also see People v. Johnson, 75 Ill App2d 42, 221 NE2d 59.

The judgment of the Circuit Court is reversed and the case is remanded for a new trial.

Reversed and remanded.

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

       Ill Rev Stats 1963, c 38, §§ 22 — 1 to 22-54. Uniform Narcotics Drug Act.


author: MR. JUSTICE BURMAN

text:
    Earl Dinschel, Plaintiff-Appellee, v. United States Gypsum Company, a Corporation, and Shaw, Metz & Associates, a Copartnership, Defendants, and Ragnar Benson, Inc., Defendant-Appellant.
    Gen. No. 51,166.
    First District, First Division.
    May 15, 1967.
    Rehearing denied June 12, 1967.

      Vogel & Vogel, of Chicago (L. H. Vogel, Robert C. Vogel, Richard A. Walkovets, and David F. Holland, of counsel), for appellant.
    Robert J. Hourigan and David G. Mountcastle, of Chicago (Robert J. Hourigan, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action brought by plaintiff, Earl Dinschel, under the Scaffold Act, Ill Rev Stats 1965, c 48, §§ 60-69, to recover for personal injuries resulting when the scaffold on which he was working fell. Defendant, Ragnar Benson, Inc., was the sole defendant at the conclusion of the trial, all other defendants having been previously dismissed on motion of the plaintiff. Judgment was entered upon the verdict of the jury in favor of plaintiff in the sum of $60,000 and defendant appeals.

It is contended by the defendant that (1) plaintiff failed to prove an essential element of his case in that it was charged that defendant constructed the scaffold in question and no evidence supported such allegation; (2) the defendant was not in charge of the scaffolding in question or the work in connection with which it was used; (3) that the defendant, as general contractor was required by the prime contract to employ S. J. Reynolds Co., Inc., by reason whereof defendant was relieved of liability for any misconduct of the subcontractor; (4) that the defendant did not construct the scaffold and therefore is not chargeable with “knowingly” or “willfully” violating the Act where the subcontractor furnished a defective scaffold, the defect of which would not be apparent upon a customary inspection; (5) the trial court erred (a) in permitting plaintiff’s counsel to read an excerpt from a prime contract and in refusing to permit the jury, on motion of the defendant, to hear explanatory provisions of the same, and (b) in refusing to admit in evidence the subcontract between defendant and S. J. Reynolds Co., Inc.; and (6) the defendant was entitled to a directed verdict or to a judgment notwithstanding the verdict of the jury.

On October 1, 1959, the defendant, Ragnar Benson, Inc., (contractor) entered into a prime contract with the United States Gypsum Company (owner) for the construction of the latter’s Research Laboratory in Des Plaines, Illinois. S. J. Reynolds Co., Inc., was the plumbing subcontractor and employed the plaintiff, Earl Dinschel, as a journeyman plumber. A pipe scaffold was delivered to the construction site by Reynolds and had been used for about two weeks prior to the date of the accident. On June 1, 1960, the plaintiff and Edward Lenea were working at the construction site on the scaffold at a height of approximately 20 feet when the scaffold started to move and sway and suddenly fell to the ground. Lenea escaped injury by being thrown onto a girder but the plaintiff fell to the concrete floor and suffered severe injuries.

The defendant insists that he did not have the “right to control” the work of Reynolds, the subcontractor, as that authority was “circumscribed and limited by the prime contract.” He argues that under the prime contract the authority and true control of the doing of the work, even to the selection of the subcontractors to be used, was and remained in the architect, who therefore, having in all respects the power of direction, was in complete charge of doing the work. He states that in this important particular the case at bar is clearly distinguished from Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247.

We are therefore required to consider the terms of the prime contract between the defendant and the owner to determine whether the architect and not the general contractor was in charge of the construction. The contract, issued by the American Institute of Architects, is headed as “the standard form of agreement between contractor and owner for construction of buildings” and was executed by Ragnar Benson, Inc., contractor, and the United States Gypsum Co., owner, on October 1, 1959. The parts of the agreement relevant to the issues are briefly these. Under Article I Ragnar Benson agreed to perform all the work as shown by the drawings and described in the specifications prepared by the architects. A lump sum was to be paid the contractor in the amount of $1,621,831 including the plumbing work in the amount of $104,275. Under Article 7, Section “B” it is stated, “Plumbing Work covered by Section 3 of Specification SMD #5906, Volume 2. Plumbing contractor to be S. J. Reynolds Co., Inc.”

The prime contract also incorporated another agreement executed by the same parties which is headed as “the general conditions of the contract for the construction of buildings.” Article I (c) of that contract states “the term Subcontractor, as employed herein, includes only those having a direct contract with the Contractor . . . .” Under Article 9 it provides that the contractor shall pay for all materials, labor, etc. Article 12 headed “Protection of Work and Property” provides in part that:

The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State and Municipal Safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen ....

Article 36 headed “Subcontracts” provides:

As soon as practicable and before awarding any subcontracts, the Contractor shall notify the Architect in writing of the names of the subcontractors proposed for the principal parts of the work, and for such other parts as the Architect may direct, and shall not employ any to whom the Architect may have a reasonable objection.
If before or after the execution of the Contract, the Contractor has submitted a list of subcontractors which has been approved by the Architect, and the change of any subcontractor on such list is required by the Owner after such approval, the contract price shall be increased or decreased by the difference in cost occasioned by such change.
The Contractor shall not be required to employ any subcontractor against whom he has a reasonable objection.
The Architect shall, on request, furnish to any subcontractor, wherever practicable, evidence of the amounts certified on his account.
The Contractor agrees that he is as fully responsible to the Owner for the acts and omissions of his subcontractors and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him.
Nothing contained in the contract documents shall create any contractual relation between any subcontractor and the Owner.

In Article 37 both contractor and subcontractors reciprocally agree to be bound to each other and to assume toward each other “all the obligations and responsibilities that” each “assumes toward the Owner.”

The defendant strongly maintains that he was not a free agent in selecting subcontractors as under the prime contract he was required by the architect to employ Reynolds as the plumbing subcontractor. He says, “the architect, therefore, was in all respects in complete charge of and had the power of direction in all matters in connection with the work,” whereof defendant was relieved from any misconduct of the subcontractor. We do not agree. Even assuming that the architect was in charge of the work, but was jointly liable with the defendant, it would not absolve the contractor. Griffiths & Son Co. v. Fireproofing Co., 310 Ill 331, 141 NE 739. Although the term “having charge of” may include supervision and control it is not confined to it, but must be determined by the associations and circumstances surrounding its uses. Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247. The Court in Larson went on to explain that:

Rather, consistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure. (Emphasis ours.) P 322.

Under the prime contract with the owner, the defendant was employed as the general contractor for the complete construction of the building. While the architect designated the Reynolds Company in the contract as the plumbing subcontractor it was agreed under the terms of the contract that the contractor was not required to employ any subcontractor against whom he had a reasonable objection. We find no evidence in the record that the defendant objected to the Reynolds Company. By the terms of the contract the defendant contractor agreed that he would be fully responsible for the acts and omissions of his subcontractors; that he “shall take all necessary precaution for the safety of employees on the work,” and “shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workman.” Moreover, the contractor under Article 37 specifically took the responsibility to bind every subcontractor to the terms of the agreement. The subcontractors, including Reynolds, were paid by the defendant and responsible only to that firm. In our judgment the defendant had complete control of the plumbing contractor within the meaning of Larson.

The defendant next contends that the trial court erred in permitting plaintiff’s counsel to read an excerpt from Article 12 of the general conditions of the contract, concerning defendant’s undertaking relative to safety on the job site, and in refusing to interpret and explain the same to the jury. The record reveals that during the trial the prime contract between the defendant and Gypsum was received in evidence without objection. Counsel for plaintiff requested permission of the court to read to the jury only those portions of the general conditions that were applicable to the case as most of it was not material. Defense counsel objected to reading a part of the contract and said, “If some of it goes to the jury all of it should. In any event, I submit it is a question of legal interpretation for the court.” It was the contention of the defendant that the contract should not be read or submitted to the jury, but “it is the province of the Court to interpret and submit its interpretation of these contracts and the legal effect thereof to the jury by way of instructions.” Counsel for plaintiff countered that counsel for defendant could read to the jury the parts of the contract he thought relevant.

The court commented that he didn’t see the need to interpret the contract to the jury and stated that plaintiff’s counsel could read to the jury the parts he was interested in and were relevant and that the defense counsel could do likewise. Defense counsel again objected to the reading of the excerpts and insisted the entire contract should go to the jury with written instructions. The trial judge ruled that the excerpts of portions of Article 12 of the prime contract which were discussed in chambers could be read to the jury. Defense counsel then requested that portions of the defendant’s contract with Reynolds should then be read to the jury and during his defense he offered that contract in evidence which was objected to, and after discussion the court sustained the objection.

It is clear from the record that after due consideration the trial judge concluded that not all of the provisions of the prime contract were relevant to the issues and after examining the document we agree. The defendant did not claim the contract was ambiguous. The court properly offered to permit the respective counsel to read relevant excerpts from the contract to the jury and defendant’s counsel did not choose to do so. The court also ruled that the contract between the defendant and the subcontractor, who was not a party to the suit, was irrelevant. Whether the admission of such evidence was admissible is a matter within the discretion of the trial judge. The trial court has the right to refuse evidence which, will serve no useful purpose in the trial or which is incompetent to prove an issue. Stenwall v. Bergstrom, 405 Ill 281, 90 NE2d 778. See also Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134.

It is further contended that defendant did not willfully or knowingly violate the Scaffold Act because he had no knowledge of the latent defect in the scaffold. He argues that the only evidence tending to establish a defective scaffold was testimony that the leg which broke failed because of fatigue or because of a slit or weld which was not apparent upon examination until after the accident, and that there is no liability when injuries result from latent defects, citing Illinois Steel Co. v. Laughran, 136 Ill App 432. In that case, which did not involve the Structural Work Act, a fireman, employed by the Steel Company was injured when a boiler which had been used for over two years exploded. It was held that employers were not insurers against injuries to employees which occurred from pure accident. It was pointed out that the usual and ordinary tests for determining the safety of the boiler had been taken, but were inadequate to discover the defect without taking out all the boiler tubes and hammering them under excessive pressure. It was held that the employer was not liable for latent defects in the boiler which could not have been known to him after a proper inspection.

In our opinion the Illinois Steel Co. case is not applicable and differs from the instant case. That case did not involve the Scaffold Act and occurred before the first Illinois Workmen’s Compensation Act. There the plaintiff had to establish negligence on the part of the employer and the employer’s defense was assumption of risk. Under the Scaffold Act there is no defense of assumption of risk and to insure maximum protection in the extrahazardous occupation the liability of the employer and other persons is made to extend not only to those persons who actually erect a scaffold, but also to others who have charge of the erection or alteration of any building or structure. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785; Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247.

Structural work frequently involves the operations of contractors, subcontractors, and architects who are in charge of a phase of the work, and the injured person has a right of action against any one of them, in addition to his employer, who may willfully violate or fail to comply with the Act. Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60. The Act requires that all scaffolds used in the erection of a structure shall be so erected, placed and operated as to give proper and adequate protection to the life and limb of any person employed or engaged thereon. It provides further that for “any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue . . .” (Ill Rev Stats 1965, c 48, § 69.) All persons in “charge” of the work are liable not only when the dangerous conditions are known to them, but also when by the exercise of reasonable care the existence of such dangerous conditions could have been discovered and become known to them. Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134. The evidence is clear in the case at bar that the scaffold was defective in willful violation of the Act. The Statute puts absolute and unconditional liability on the person or persons who have charge of the work wherein a scaffold or hoist is used. Otherwise workmen engaged in a hazardous employment would not be afforded the protection given under the Act.

Furthermore the record does not support defendant’s argument that the sole cause of the accident was metal fatigue. There was testimony (1) that the scaffolding customarily used on a job of this type is “patent scaffolding” which is of a heavier type than the involved scaffolding; (2) that there was no second stage to the' scaffolding, which would have increased the ground area, as was the custom when working that high; (3) that slits had been cut in the legs and 18-inch extensions with wheels were added without pins or cross-bracing as there was in the upper sections of the scaffold; and (4) that while the scaffold had been used for ten days on the job the defendant’s superintendent did not inspect it. Under the facts and circumstances the question of what constitutes a safe, suitable and proper scaffold under the Act is at most a disputed question of fact, which must necessarily be left to the jury for determination. Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270.

For the reasons given above the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    Mrs. Catherine Moran, Plaintiff-Appellant, v. St. Paul Federal Savings and Loan Association, Defendant-Appellee.
    Gen. No. 51,287.
    First District, First Division.
    May 15, 1967.

      Drake Leoris, of Chicago (George E. Downs, of counsel), for appellant.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard and Frederick W. Temple, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The plaintiff, Catherine Moran, brought this action to recover damages for personal injuries incurred when she slipped and fell on a stairway in a public building which was under the control of the defendant, St. Paul Federal Savings and Loan Association. At the conclusion of the defendant’s evidence the court directed a verdict in favor of the defendant. Judgment was entered on the verdict and plaintiff appeals.

On appeal we may not weigh the evidence as that duty belongs to the jury. The only function of this court is to ascertain, from the evidence most favorable to the plaintiff together with all inferences reasonably deductible therefrom, whether there was any evidence of negligence by defendant which warranted submission of the issue to the jury. Mueller v. Elm Park Hotel Co., 398 Ill 60, 75 NE2d 314.

The evidence and inferences most favorable to the plaintiff show that on the evening of March 19, 1958, the plaintiff accompanied by her son, took her ill grandson to see a doctor in defendant’s building. It was snowing at 5:00 p. m. when they entered the building and walked up the stairs to the doctor’s office on the second floor. They were in the office about fifteen minutes and after having a prescription filled on the same floor they proceeded to the stairway. As plaintiff reached for the banister at the top of the stairs she slipped and fell as she was about to put her foot on the first stair and was injured.

Plaintiff testified that she went back to the doctor’s office and after an examination and having the doctor’s prescription filled at the pharmacy on the second floor they again proceeded to the stairway. She said she then looked at the stairway for the first time and when asked whether she saw anything that caused her to fall she said:

A. It looked to me like it was — to me it looked like there was milk spilled and it had dried, but it wasn’t cleaned. And then the tracks from the snow was on it, too.
Q. You mentioned tracks. Where did the tracks lead from and go to, do you recall?
A. From the landing. From outside, the tracks in the snow. It had to start downstairs, from the entrance up.
Q. Do you recall whether or not they were tracked through the milky substance?
A. Yes, it was wet.
Q. And you described the milky substance as dirty ? What do you mean by that ?
A. Well, from the tracks it looked like it had been walked on.

William F. Moran testified that he is the son of the plaintiff and by occupation is a police detective. He testified that his mother was in front of him as they approached the stairway and that she was right at the top step when she reached for the banister and fell down the stairs. He said he noticed a “smudge” in the area where she slipped but “I didn’t look at it too close.” He said they then returned to the doctor’s office and after an examination the doctor gave his mother a shot and a prescription which was filled in the second floor pharmacy before they left the building. They went down the same stairs when he observed that “the stairway was wet from the people walking up and down.” He said he looked to see what she slipped on. He said he didn’t touch it “but it was out from the wall on the landing about eight to fifteen inches, I’d say. It was about the size of a pie tin. It looked like it was kind of a — like vaseline or thick oil. And then tracks through this. It was dark like dirt rubbed into it. On top of that there was water.”

Plaintiff contends that the jury should have been allowed to determine the question of the negligence of the defendant. In Olinger v. The Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 474, 173 NE2d 443, the Supreme Court stated the rule in an action for injuries sustained by slipping on a foreign substance to be as follows:

... if the substance was on the premises through acts of third persons or there is no showing how it got there, liability may be imposed if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered.

In the instant case the plaintiff’s son testified that while he didn’t look too close he saw a “smudge” on the stair soon after the accident. It was after plaintiff was examined by the doctor and a prescription given her at the time was filled in a pharmacy on the second floor of the premises that plaintiff testified that upon returning to the same stairway she saw a substance that looked like dried spilled milk and tracks from snow were on it. Plaintiff’s son testified that when they walked to the stairway for the second time he observed that the steps were pretty wet from people walking up and down. He describes a substance like vaseline or thick oil with tracks through it. “It was dark like dirt rubbed into it. On top of that there was water.” It is clear that the witnesses for plaintiff disagree as to the foreign substance on the stairway.

It is argued that “a jury could easily infer from the circumstances surrounding the accident, that is the tracks through the foreign substance as well as the dirty appearance of it, that the substance had been on the floor for a sufficient time under the circumstances so as to give the defendant notice.” We do not agree. There is no evidence as to the length of time the different substances had been on the stairway prior to plaintiff’s fall. It is clear that it was snowing and plaintiff and others had tracked in snow which could account for the wetness observed. The defendant is not an insurer of the safety of invitees to the premises. Olinger v. The Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443.

The facts in the case at bar are distinguishable from those in Burns v. Goldammer, 38 Ill App2d 83, 186 NE 2d 97. There a bowler’s foot stuck on the alley while. making an initial “approach” and he was injured. The evidence showed that there was a piece of gum on the alley near the site which was flattened, dark and dirty except in one spot where plaintiff’s foot had struck the gum. A piece of gum was found on plaintiff’s shoe which matched the gum on the alley. The court held that in view of defendant’s business and the circumstances of the case, plaintiff made a sufficient showing of constructive notice to take the case to the jury. In Guidani v. Cumerlato, 59 Ill App2d 13, 207 NE2d 1, the plaintiff returned from the rest room of an establishment and while attempting to bowl, fell and was injured because water had gotten on his shoe in the rest room without his knowledge. The evidence showed that forty-five minutes before and several minutes after the occurrence there was water on the floor of the rest room from which the jury could infer plaintiff’s shoe was prevented from sliding properly. In each of these cases cited by plaintiff the involved substance which caused the fall was proved and there was ample evidence of notice to the defendant.

In Hartman v. Goldblatt Bros., Inc., 19 Ill App2d 563, 154 NE2d 872, a jury verdict in favor of plaintiff was reversed with directions to enter judgment for defendant. The facts showed that plaintiff came out of a revolving door entrance to the store and stepped on the concrete which was wet and slippery causing the fall and injury. There too, as in the instant case, it had been snowing and there was no evidence of any accumulated snow or any other debris. The court held that the wetness of the concrete was plainly visible to all persons and did not constitute negligence. This same situation appears in the case at bar.

In Wroblewski v. Hillman’s, Inc., 43 Ill App2d 246, 193 NE2d 470, a directed verdict for defendant was upheld. There plaintiff’s foot came in contact with a vegetable leaf and she fell. The court stated:

In the instant case there is no evidence in the record as to the length of time the vegetable leaf had been in place prior to plantiff’s fall; no evidence that anyone observed it on the floor for any length of time prior to the fall; no evidence as to its condition before or after plaintiff slipped on it. Accordingly, there is no evidence from which a jury might infer That the vegetable leaf had been in place for a sufficient length of time to charge defendant with constructive notice of its presence on the floor, p 249.

The record clearly shows that there was no evidence of any defect on the stairway or on the handrail. The stairs were apparently wet from snow tracked in by people using the stairs. The substance on the stair was not hidden from plaintiff’s view nor was there any evidence of the length of time it had been on the stairway. There is nothing to show that the defendant failed to take any precaution which would have been practicable or reasonable nor is there any evidence sufficient to support an inference of negligence against the defendant. Under the circumstances the trial judge had no other alternative but to direct a verdict in favor of the defendant. Accordingly the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Appellee, v. James Williams, Appellant.
    Gen. No. 51,282.
    First District, Fourth Division.
    May 5, 1967.

      Ragan and Robinson, of Chicago (Edmond W. Ragan, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial the defendant, James Williams, was found guilty of Public Indecency and was fined $500.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt;

2. Defendant’s motion for a new trial was erroneously denied, ex parte, by a judge other than the trial judge.

Evidence

According to the evidence adduced by the prosecution, on May 8, 1965, at approximately 7:15 a. m., the complaining witness, Juanita Moses, was walking her dog on Calumet Avenue near 72nd Street in Chicago, Illinois; a white Chevrolet pulled alongside her, she looked directly at the driver (whom she later identified as the defendant) and saw that he was undressed from the waist down and was “shaking his penis”; the witness turned around and started to return home but the defendant turned his car and pulled across her path; she again observed the defendant, in the same condition. Miss Moses then walked around the car and went home. She testified that she clearly observed the man and that she memorized the license number of the car and that it was NH 3332. Upon arriving home she reported the incident to her mother who notified the police. Miss Moses gave the police a description of the man and also the license number of the car. A week later she was called to the police station and identified the defendant from a lineup.

Officer Richard O’Connell testified that he was assigned to the case and found the aforesaid license number to be registered to defendant’s mother, with whom he lived. He further stated that the defendant was arrested and identified from a lineup, consisting of the defendant and two other men who resembled him, by Juanita Moses.

Defendant, who was older than seventeen years of age, testified in his own behalf and denied the charge. He stated that he was employed at the post office but that he did not work on either May 7 or May 8; that he and a brother, Ronald, lived with their mother but another brother (Fritz) lived elsewhere; that on the evening of May 7 he was out with his brothers and Fritz was driving the white Chevrolet in question; and that Fritz dropped off defendant and Ronald at home at about 5:00 a. m. and drove off in the car. While defendant initially stated that he did not work on May 8, he later stated that he slept from 5:30 that morning until 1:30 in the afternoon, after which he went to work. Defendant admitted being identified by Juanita Moses at the lineup but stated that the identification was made only after he was ordered to face the wall, and after a police officer “punched a finger in his back” and asked her “Is this the one ?”

Defendant’s alibi was corroborated in each detail by various members of his family. His brothers, Fritz and Ronald, testified that all three brothers were out the night before until 5:00 a. m. and that Fritz retained custody of the automobile. Mary Ann Williams, defendant’s sister (who also lived in the same house as defendant) testified that she arrived home at approximately 5:00 a. m. and saw defendant arrive home at the same time; that she went to bed at about 7:00 a. m. and awoke only two hours later at 9:00 a. m., at which time she looked out the window and saw the white Chevrolet parked outside. Fritz Williams, however, testified that he kept the automobile parked outside his house (several blocks from defendant’s residence) until 2:00 p. m. that afternoon. Defendant’s mother testified that she was asleep in the living room and was awakened at 5:00 a. m. when Ronald and James returned home; that she heard Fritz drive away in the automobile; and that defendant was in bed until 1:30 on the afternoon of May 8.

Opinion

The record shows that Juanita Moses had ample opportunity to view the defendant on the morning of May 8. He pulled his car alongside her and she looked directly at him; when she tried to walk away he pulled his car across her path and she looked directly at his face. The record shows that it was daylight at that time. In People v. Brinkley, 33 Ill2d 403, 405-406, 211 NE2d 730, the court stated:

Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made.

In the instant case the complaining witness viewed the defendant under circumstances as would permit a positive identification. The credibility of the witnesses is for the trial judge, as trier of fact, to determine. Prior to finding the defendant guilty the trial judge stated:

The Court need not give any comment on its judgment, yet I would like to point out the fact that I was impressed with the demeanor of Juanita Moses, who is not a little girl who is easily shaken by an occurrence such as this, and who might be hesitant about an identification.

The credibility of the alibi testimony was also for the trier of fact. People v. Ault, 28 Ill2d 34, 190 NE2d 815.

Therefore, we find that the defendant was proven guilty beyond a reasonable doubt.

We also find no merit in defendant’s contention that it was reversible error to deny, ex parte, his motion for a new trial. The motion was denied ex parte only because defendant and his counsel failed to appear on the date set for hearing thereon. Moreover, defendant’s motion is not included as a part of the record on appeal. Therefore we are not apprised of the contents of the motion and it is not properly before this court.

Holding on Appeal

The judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       Illinois Revised Statutes, 1963, c 38, § 11-9 provides:
      (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
      (1) An act of sexual intercourse; or
      (2) An act of deviate sexual conduct; or
      (3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; or
      (4) A lewd fondling or caress of the body of another person of either sex.
      (b) “Public place” for purposes of this Section means any place where the conduct may reasonably be expected to be viewed by others.