text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Amos McKinney, Defendant-Appellant.
    (No. 57933;
    First District (4th Division)
    May 9, 1973.
    James J. Doherty, Public Defender, of Chicago, (John E. Hughes, Assistant Public Defender, of counsel,) for appellant.
    No brief filed.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Amos McKinney, appeals from a judgment of the Circuit Court of Cook County sustaining the State’s motion to dismiss his post-conviction petition. Amos McKinney pleaded guilty to violation of probation on April 7, 1971, and was sentenced to three to five years in the Illinois State Penitentiary. On May 24, 1971, he pleaded guilty to eight indictments and was sentenced to three to eight years on each, such sentences to run concurrently with the sentences imposed for probation violation.

On February 7, 1972, the defendant filed an amended post-conviction petition asserting that he was misled and induced to enter pleas of guilty in return for a sentence of one to two years, rather than the longer sentences he received. He also maintained he was denied the right to make restitution, was denied copies of the transcript of the hearing of April 7, 1971, and was arrested without a warrant for the crimes charged.

The State filed a motion to dismiss on the grounds the petition failed to raise any constitutional questions within the meaning of the act, the allegations were bare allegations and not sufficient to require a hearing, a plea of guilty waived all errors or irregularities not jurisdictional, and the transcript established that the defendant willingly, knowingly, intentionally and voluntarily pleaded guilty. After the trial court heard arguments it sustained the State’s motion to dismiss the defendant’s petition.

The defendant chose to appeal and the Public Defender was appointed to defend him. The Public Defender now asks leave of this court to withdraw from the case pursuant to the case of Anders v. California, 386 U.S. 738, and has filed a brief in support of his motion. He states the only possible issues on appeal are whether the trial court fully admonished the defendant as to the significance and consequences of his change of plea from not guilty to guilty, and whether the defendant entered his plea based upon misrepresentation of his counsel.

Section 115 — 2 of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, § 115 — 2) makes provision for when the court may accept a plea of guilty:

“(a) Before or during trial a plea of guilty may be accepted when:
(1) The defendant enters a plea of guilty in open court;
(2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”

Supreme Court Rule 402 provides in part that a trial judge must admonish the defendant with respect to his understanding of a guilty plea and state the results of any tentative plea agreements reached by the parties which contemplate a plea of guilty in the expectation that a specified sentence will be imposed. In the case at bar the court admonished the defendant, in part, as follows:

“THE COURT: Mr. McKinney, your lawyer has indicated that you wish to change your plea from not guilty to guilty * * * is that correct?
THE DEFENDANT: Yes.
THE COURT: You know, of course, Mr. McKinney, you have a right to plead not guilty?
THE DEFENDANT: Yes.
# # #
THE COURT: Furthermore, you are aware there has been a conference between your lawyer, the State’s Attorney and the Court in this case?
THE DEFENDANT: Yes.
THE COURT: And you have been told by your lawyer the results of that conference?
THE DEFENDANT: Right.
THE COURT: And were you told that your pleading guilty, of course, are you not, because in fact you are guilty?
THE DEFENDANT: Was I told — repeat that?
MR. PATT [The defendant’s attorney]: You are pleading guilty because you are guilty.
THE COURT: You are pleading guilty because you are in fact guilty?
THE DEFENDANT: Yes.
THE COURT: In consequence were you told by your lawyer that on your plea of guilty because in fact you are guilty the Court would sentence you to a term of a minimum of three and a maximum of eight years on each indictment to run concurrently?
THE DEFENDANT: Right.”

These statements in the record show that the defendant was appropriately admonished and had ample opportunity to mention any promise of a lesser sentence, but he did not. After reading the entire record, we conclude the trial court complied with the statute and Supreme Court Rule 402.

The defendant also contends his failure to make restitution on the original charge was the basis of his probation revocation in violation of the Illinois Constitution, and that he was arrested without a warrant. However, the trial judge explicitly stated that the revocation of probation was based on his repeated criminal acts while on probation, and it is well settled that a properly accepted plea of guilty operates as a waiver of all defects and errors which are not jurisdictional. People v. Scott (1963), 29 Ill.2d 429; People v. Evans (1967), 37 Ill.2d 27.

The defendant received a copy of the Public Defender’s motion and brief and was also sent a letter on February 13,1973, advising him he had an opportunity to file any arguments and authority in support of his appeal in this court within 40 days. He has neither responded by letter nor filed anything in support of his petition. After an examination of the record, we conclude the Public Defender is correct and there is no merit to this appeal. The motion of the Public Defender to withdraw as counsel for the defendant is allowed, and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and ADESKO, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorothy Daniels, Defendant-Appellant.
    (No. 55989;
    First District (4th Division)
    May 9, 1973.
    Sidney Z. Karasik, Gary E. Dienstag, and Stuart N. Litwin, all of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a conviction for selling heroin in violation of section 22 — 3 of the Uniform Narcotic Drug Act (Ill. Rev. Stat., ch. 38, §22—3). After a jury trial the defendant, Dorothy Daniels, was sentenced to the penitentiary for a term of 20 to 30 years.

Her basis of appeal is that the trial court erred in allowing the State to present testimony concerning prior offenses for which she had been indicted but not tried.

At trial, Russell Cerceo, a special agent for the Illinois Bureau of Investigation, testified he had a telephone conversation with the defendant on April 20, 1970, in which she agreed to have a sample of heroin ready for him the next day. The following day Cerceo entered the Easy Way Out tavern, where the defendant worked as a barmaid. There were two people in the bar at the time, one of whom was another special agent. Cerceo inquired whether the sample was ready, and the defendant told him' it was taped under the customers side of the bar where he was sitting. Cerceo located the packet and a few minutes later placed $60 in an empty peanut package and left it on the bar. He indicated to the defendant where he had placed the money, and she took the package and threw it on her side of the bar. Cerceo and the other agent left and returned to his office where they field tested the contents of the packet and found that it contained heroin.

The witness was then asked whether he had occasion to purchase any other heroin from the defendant. Over objection by defense counsel and aftér the judge denied a motion for a mistrial, Cerceo testified that on March 27 he and a special investigator of the United States Treasury Department wént to the Easy Way Out tavern and paid the defendant for a packet which he found taped under a telephone in the bar. When subjected to a field test, he found it contained heroin. He also described over defense objections how on April 8, 1970, he went to the bar and asked the defendant whether the sample was ready, as agreed in a telephone conversation. She told him it was and that he could find it taped in the back room. He retrieved the packet from under a towel rack, returned to the bar, and placed the payment in a towel on the bar after catching the defendant’s attention. This packet was also determined to contain heroin.

The defendant took the stand and admitted knowing agent Cerceo, but denied selling him narcotics or accepting money from him.

The defendant contends the trial court erred by allowing testimony concerning other sales of narcotics, alleging it was put into evidence merely for prejudicial purposes; that if the State was going into the other pending indictments, it would be necessary to try them at the same time; and it went outside the bounds of the present indictment. The State argued the evidence was admissible to establish the defendant’s identity, to establish a pattern or scheme on the part of the defendant, and to establish her intent.

The court relied heavily on the case of People v. Cole (1963), 29 Ill.2d 501, in which the court said 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, citing cases in which such evidence was relevant to show the defendant’s identity, guilty knowledge, or his design or system. In Cole, the court said the facts of that case warranted the introduction of evidence of other offenses because “[t]hese prior transactions explain and lend credence to the otherwise unrealistic ease with which the Federal agent managed the controlled sale on October 10.”

In the case of People v. Steele (1961), 22 Ill.2d 142, 146, cited in Cole, the court held that evidence of prior crimes was admissible because of the “unique nature of the crime with which the defendant was here charged * *

In the case at bar, the sale for which the defendant was being tried was not unique and the evidence given by the agents with respect to it was sufficient to have sustained a guilty verdict if believed by the trier of fact. The evidence of prior crimes was not a necessary element of the State’s case: the identity of the defendant was not in issue, the intention of the defendant was well established by the testimony that she knew where the narcotics were placed and accepted money in payment for them, and the circumstances surrounding the transfer were not so bizarre and unbelievable that corroboration was required. Neither was there an attempt to prove the sale in issue was merely a part of a larger continuing plan, scheme or conspiracy.

The effect of the introduction of the evidence of the prior transactions could only have been to show the propensity of the defendant to commit the crime on April 21, 1970, and was error.

The defendant also made an argument with reference to the inappropriateness of the sentence, but we need not reach that issue in view of our decision on the merits.

For the reasons stated, the judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.

ADESKO and JOHNSON, JJ., concur.


author: Mr. JUSTICE McGLOON.

text:
    Leroy Pestka, Plaintiff-Appellee, v. Safeway Insurance Company, Defendant-Appellant—(Safeway Insurance Company, Third-Party Plaintiff-Appellant, v. State Farm Insurance Company, Third-Party Defendant-Appellee.)
    (No. 56908;
    First District (3rd Division)
    May 10, 1973.
    James J. Hoffnagle and Alfred C. Tisdahl, both of Chicago, for appellant.
    Robert J. Parrillo, and David J. Weiss, both of Chicago, for appellee.
   Opinion by

Mr. JUSTICE McGLOON.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    Vinci Riha and Alice Riha, a/k/a Alice Longo, Plaintiffs-Appellees, v. Western National Bank of Cicero et al., Defendants—(Ann Longo, Intervening Petitioner-Appellant.)
    (No. 55690;
    First District (2nd Division)
    May 22, 1973.
    Gomberg, Missner & Schaps, of Chicago, (Sidney D. Missner, of counsel), for appellant.
    Clarence J. Walsh, of Chicago, (Earl R. Reynolds, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Intervenor, Ann Longo (the wife of Joseph Longo), appeals from a judgment in favor of plaintiffs in an action to reform a trust agreement. Her sole contention on appeal is that plaintiffs failed to prove their case by clear and convincing evidence.

On June 24, 1965 a trust agreement was executed naming Western National Bank of Cicero as trustee and Alice Longo, Vinci Riha and Joseph Longo as beneficiaries in joint tenancy with the right of survivorship. The subject matter of the trust is real estate located in Oak Park, Illinois.

Plaintiffs, Vinci Riha and Alice Riha, are mother and daughter, respectively. Joseph Longo is the father of three illegitimate children born to Alice Riha. Alice Riha used the name of Alice Longo until the disappearance of Joseph Longo in August, 1966.

On May 26, 1967 plaintiffs filed a complaint to reform the trust agreement hereinbefore mentioned, alleging that the subject real estate was purchased with their money without contribution from Joseph Longo; that they were represented in the transaction by Joseph Longo, a person in whom they reposed the utmost faith, trust and confidence; and that Joseph Longo fraudulently caused his name to appear on the trust agreement as a beneficiary contrary to the desires of plaintiffs.

Intervenor, Ann Longo, is the wife of Joseph Longo. She filed a suit for separate maintenance after his disappearance in 1966 and was awarded all of his real estate including his interest in the trust property. Plaintiffs filed a petition to vacate the separate maintenance award, insofar as it purported to include an interest in the trust property. The court entered an order referring the issue of the trust property to the court hearing plaintiffs’ complaint for reformation of the trust agreement. Thereafter Ann Longo filed an intervening petition in that proceeding contesting the requested reformation and alleging that the money contributed by Alice Riha toward the purchase price of the subject real estate was furnished by Joseph Longo.

After a trial the court found in favor of plaintiffs and entered an order requiring the name of Joseph Longo to be deleted from the trust agreement.

Intervenor’s sole contention on appeal is that plaintiffs failed to prove their case by clear and convincing evidence. There is, however, a difference of opinion between the parties as to what plaintiffs’ case consists of. Intervenor urges that plaintiffs’ case is founded upon a theory of constructive trust arising out of a breach of a fiduciary relationship. Plaintiffs agree that that is one theory on which they proceeded below, but assert that the pleadings and proof would also support the judgment under a resulting trust theory.

A resulting trust arises where one person furnished the consideration for the purchase of property while legal title is taken in the name of another. (Harnois v. Harnois, 10 Ill.App.3d 1062, First District, March 27, 1973, No. 56449; Scanlon v. Scanlon, 6 Ill.2d 224, 127 N.E.2d 435.) It is created by operation of law the instant legal title is taken, based upon a presumed intent of the parties. (Kane v. Johnson, 397 Ill. 112, 73 N.E.2d 321.) The burden of proof is upon the party seeking to establish the trust, and the evidence, to be effective for this purpose, must be clear and convincing. Scanlon v. Scanlon, supra.

The complaint in the case at bar alleged that plaintiffs paid the consideration for the purchase of the subject property without contribution from Joseph Longo, and that he was named as beneficiary of the trust which held legal title to the property contrary to the desires of plaintiffs. It is our opinion, therefore, that if these allegations were supported by satisfactory evidence, the judgment appealed from is correct based upon a resulting trust theory.

Plaintiff Alice Riha testified that she paid $500 earnest money and $2000 as a down payment in connection with the purchase of the subject real estate. Cancelled checks for these amounts drawn on her account with the Berwyn National Bank, payable to Baird and Warner (the real estate agency involved) and bearing her signature under the name of Alice Longo, were admitted in evidence without objection. She testified that she withdrew money from a savings account to cover the amount of the checks, and a savings account passbook issued by Capitol Federal Savings and Loan Association, which corroborated her testimony, was admitted in evidence without objection. She further testified that she drew a check payable to the Berwyn National Bank as part payment of the purchase price of the subject realty. A cancelled check substantiating her testimony was admitted in evidence without objection. Both plaintiffs testified that Vinci Riha obtained $10,000 to cover the check by withdrawing that sum from two savings accounts. Passbooks corroborating this testimony were admitted in evidence. The balance of the purchase price was financed through the Berwyn National Bank. In connection with this financing a promissory note payable to bearer in the amount of $10,000 was executed by the trustee, Western National Bank of Cicero, and guaranteed by plaintiffs and Joseph Longo. Alice Riha testified that Joseph Longo never contributed any money toward the purchase of the subject real estate.

Based upon all the evidence the trial court found that Joseph Longo contributed no money toward the purchase of the subject real estate. Intervenor has directed us to no contrary evidence in the record. Under these circumstances we hold that plaintiffs proved a resulting trust in their favor by clear and convincing evidence.

Accordingly, the judgment is affirmed.

Affirmed.

LEIGHTON and HAYES, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    E. Todd Wheeler et al., Plaintiffs-Appellees, v. The Aetna Casualty and Surety Company, Defendant-Appellant.
    (No. 57607;
    First District (1st Division)
    May 14, 1973.

      Kirkland & Ellis, of Chicago, (Gary M. Elden, Donald J. Duffy, and William H. Symmes, of counsel,) for appellant.
    Tom L. Yates and Frederick L. Goff, both of Chicago, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

This is an appeal from a summary judgment entered in a declaratory judgment action for the plaintiff architects against their public liability insurer, holding, in substance, that it should have assumed their defense in a Structural Work Act suit filed against a hospital, its general contractor and them by a worker who fell from a scaffold when a plank gave way.

On November 11, 1968, Aetna issued to Perkins and Will a Public Liability insurance policy which included by endorsement, the following exclusion:

“EXCLUSION

‘(ENGINEERS, ARCHITECTS OR SURVEYORS PROFESSIONAL LIABILITY)

‘IT IS AGREED THAT THE INSURANCE DOES NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE ARISING OUT OF ANY PROFESSIONAL SERVICES PERFORMED BY OR FOR THE NAMED INSURED, INCLUDING ‘(1) THE PREPARATION OR APPROVAL OF MAPS, PLANS, OPINIONS, REPORTS, SURVEYS, DESIGNS OR SPECIFICATIONS AND

‘(2) SUPERVISORY, INSPECTION OR ENGINEERING SERVICES."

On April 20, 1969, Perkins and Will also took out a Professional Liability insurance policy from another (CNA) insurer, the coverage being stated as follows:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages if legal liability arises out of the performance of professional services for others in the insured’s capacity as an architect or an engineer and if such legal liability is caused by an error, omission or negligent act."

On June 20, 1964, Perkins and Will entered into a contract with the Silver Cross Hospital for professional services in connection with additions and alterations to that hospital. John Wagner, an ironworker employed by a subcontractor, claims to have been injured on September 29, 1969, while working on that job and on January 22, 1970, filed a Structural Work Act suit against the hospital, the general contractor, S. N. Nielsen & Company, and the architects, Perkins and Will.

Said complaint, inter alia, alleged:

“2. That on September 29, 1969, the defendants, SILVER CROSS HOSPITAL, E. TODD WHEELER AND THE PERKINS & WILL PARTNERSHIP, AND S. N. NIELSEN & COMPANY, A Corporation, and each of them, were entities simultaneously and concurrently in charge of the erection and construction of the aforesaid building or other structure located on the premises of the Silver Cross Hospital, located at 500 Walnut, in said city, county and state.
3. That on September 29, 1969, and prior thereto, the plaintiff, and other construction workers, were required to work upon certain scaffolding which was then and there being used in the erection and construction of the said building or other structure.
4. That on the above date, and prior thereto, the aforementioned scaffold was erected, controlled and placed in a manner which was not safe, suitable and proper for the protection of working men working on or about the same.
5. On the above date, the plaintiff, in the course of his employment, was upon the aforementioned scaffold and fell therefrom when a plank broke or gave way by virtue of the faulty erection, operation and placing of said scaffold.”

On January 27, 1970, Perkins and Will forwarded a copy of the Wagner complaint and summons to Aetna with an accompanying letter demanding that it defend them. A copy of this was sent to CNA that same day with an accompanying letter advising that the architects had asked Aetna to assume their defense but stating that, if Aetna declined, they would expect CNA to defend and hold them harmless under the said Professional Liability policy.

On February 4, 1970, Aetna wrote Perkins and Will, taking the position that the allegations of the complaint were not covered under the Public Liability policy and were expressly excluded under the endorsement above quoted. It suggested that the complaint be forwarded to their Professional Liability carrier.

CNA then engaged Tom Yates and Fred Goff to defend the said Wagner suit, which they are doing and said action is still pending in the circuit court.

On July 27, 1971, the instant declaratory judgment action was filed by said attorneys Yates and Goff in the names of the architects, with CNA paying their fees. After the filing of various pleadings, motions and affidavits and the taking of a deposition of William Hurley, house counsel for Perkins and Will, both parties moved for summary judgment, which was entered in favor of the plaintiff architects and against the defendant Aetna. In said summary judgment order the trial judge took the position, inter alia, that:

“paragraph 4 means, to me, that each defendant ‘erected, controlled and placed in a manner which was not safe, suitable and proper a scaffold,”

and therefore that:

“the complaint stated a cause of action potentially covered by Aetna breached by refusing to defend and is now estopped to deny coverage.”

This appeal followed.

As the plaintiff points out, there is a line of cases in Illinois which holds generally that an insurer is bound to defend its insured when the allegations of the injury complaint bring the claim potentially within the coverage of the policy; or, in other words, the injury complaint must show on its face that there is no coverage before an insurance carrier can safely refuse to defend. Three cases, Sims v. Illinois Nat. Casualty Co. of Springfield, 43 Ill.App.2d 184, 193 N.E.2d 123 (3d Dist. 1963), Mc Fadyen v. North River Insurance Co., 62 Ill.App.2d 164, 209 N.E.2d 833 (2d Dist. 1965), and Palmer v. Sunberg, 71 Ill.App.2d 22, 217 N.E.2d 463 (3d Dist. 1966), are cited. All arose where the insured, whom the company involved had refused to defend, had suffered a judgment. In the first (Sims), the injury complaint alleged that plaintiff was injured while riding as a passenger in a truck owned and operated by Sims. The insurer refused to defend on the ground that plaintiff was the defendant’s ,

employee in the course of his employment at the time and was thus excluded under a Workmen’s Compensation exclusion. In the second (McFadyen), the insurer refused to defend on the ground that the automobile being driven at the time of the accident was not an “owned” automobile and was hence excluded; and in the third (Palmer), a minor bitten by a dog, sued the owner thereof under a Home Owner’s policy and the company refused to defend on the ground that the premises were being used for business and not residential purposes and were thus excluded. These are representative of the cases generally.

Assuming for the present that the general statements above set out correctly state the Illinois law (there are certain limitations and exceptions, particularly when the allegations collide with what the court judicially knows, which will be referred to later on), let us put ourselves in the places of the claim supervision for the defendant Aetna and of the trial court as we read the complaint in this case against the two policies involved.

As set out in the above factual resume, the plaintiff architects had entered into a contract with the Silver Cross Hospital for professional services in connection with additions and alterations to that hospital.

In January, 1970, John Wagner, an ironworker employed by a subcontractor filed a Structural Work Act suit against said hospital, the general contractor, S. N. Nielsen & Company, and the plaintiff architects; and copies of said complaint, with covering letters were sent to Aetna, the Public Liability carrier and to CNA, the Professional Liability carrier.

Insofar as is here pertinent the Structural Work Act complaint alleged:

“2. That on September 29, 1969, the defendants, SILVER CROSS HOSPITAL, E. TODD WHEELER AND THE PERKINS & WILL PARTNERSHIP, AND S. N. NIELSEN & COMPANY, A Corporation, and each of them, were entities simultaneously and concurrently in charge of the erection and construction of the aforesaid building or other structure located on the premises of the Silver Cross Hospital, located at 500 Walnut, in said city, county and state.
3. That on September 29, 1969, and prior thereto, the plaintiff, and other construction workers, were required to work upon certain scaffolding which was then and there being used in the erection and construction of the said building or other structure.
•4. That on the above date, and prior thereto, the aforementioned scaffold was erected, controlled and placed in a manner which was not safe, suitable and proper for the protection of working men working on or about the same.
5. On the above date, the plaintiff, in the course of his employment, was upon the aforementioned scaffold and fell therefrom when a plank broke or gave way by virtue of the faulty erection, operation and placing of said scaffold.”

It would appear to us to be clear that paragraph 2, if it aHeges anything against these architects, alleges liability arising' only out of their “(1) Preparation or approval of Maps, Plans, Opinions, Reports, Surveys, Designs or Specifications”, or “(2) Supervisory, Inspection or Engineering Services” and which was expressly excluded from the coverage afforded by the Aetna Public Liability poficy and fell precisely within the coverage of the CNA Professional Liability policy which provided that:

“The company will pay on behalf of the insured all sums which the insured shall become legaHy obligated to pay as damages if legal liability arises out of the performance of professional services for others in the insured’s capacity as an architect or an engineer and if such legal liability is caused by an error, omission ■ or negfigent act.”

It is interesting and instructive to note that, subsequent to the trial court’s summary judgment here, the Supreme Court published its opinion in Van Dekerkhov v. City of Herrin, 51 Ill.2d 374, 282 N.E.2d 723. In affirming the trial court’s dismissal of the Structural Work Act suit against the City as the owner of the premises involved, the court at pages 375-377, said:

“The complaint aHeged that the defendant was the owner of a block of business buildings ‘and was in the process of, had charge and control of the demolition of said braidings.’ It also aHeged that the plaintiff ‘was employed as a foreman and laborer by John Vander, a general contractor, engaged in the demolition and removal of said buildings;’ that there were no scaffolds erected by the defendant as required by the statute, and that as a result of the defendant’s wilful violation of the statute the plaintiff was injured.
The narrow issue is the sufficiency of the allegation that the defendant “had charge of the work. That allegation is in the language of the statute, which imposes liability upon ‘[a]ny owner, contractor, subcontractor or foreman or other person having charge of the * * * removal # * of any budding * * *’ who wilfully fails to comply with its provisions. Apart from the allegation that the defendant owned the buildings being demohshed, the complaint states no facts from which it may be concluded that the defendant ‘had charge of the demohtion * * e.
The complaint in this case contains two aHegations which, if they are not contradictory, certainly do not appear upon their face to be consistent. It is alleged: (1) that the plaintiff was employed as a “foreman and laborer” by the general contractor who was engaged in demolishing the buildings, and (2) that the defendant had charge of and was in the process of demohshing the same buildings. The situation described in the complaint is at best ambiguous, and the plaintiff, although afforded an opportunity to remove the ambiguity, refused to do so.
If there were circumstances, either resulting from the terms of the contract between the owner and the general contractor whom the owner had employed to demohsh the buffdings, or from the conduct of the parties under that contract, which indicated that the owner had retained control, they should have been stated in an amended complaint. Numerous cases have described the kind of conduct or contractual terms which indicate that an owner has retained ‘charge.’ (See, e.g., Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316; Kobus v. Formfit Co. (1966), 35 Ill.2d 533.) When the plaintiff, who was one of those upon whom the statutory duty was imposed, refused to take advantage of the opportunity afforded him to amend his complaint to show upon what he based his claim that the owner had charge of the work, the trial court was warranted in dismissing his complaint.”

Passing now to paragraphs 3, 4 and 5, whffe said paragraphs allege that certain scaffolding was erected which “was not safe, suitable and proper for the protection of working men working on or about the same,” and that the plaintiff feH from said scaffold when a plank broke or gave way, there are no allegations whatsoever as to which, if any, of the three defendants erected, controlled or placed said scaffold.

The trial judge, however, in the summary judgment expressed the view that:

“paragraph 4 means, to me, that each defendant ‘erected, controlled and placed in a manner which was not safe, suitable and proper’ a scaffold,”

and therefore that:

“the complaint stated a cause of action potentially covered by Aetna that Aetna breached by refusing to defend and is now estopped to deny coverage.”

We disagree and are of the considered opinion that, insofar as the scaffolding is concerned, there are no allegations whatsoever to tie the defendant architects into the coverage of the Aetna Public Liability policy and that the liability, if any, falls clearly within the coverage of the CNA Professional Liability policy.

In this aspect of the case, the plaintiffs cite and rely heavily upon Shaw v. Aetna Casualty and Surety Co., 407 F.2d 813 (7th Cir. 1969), which was an action by some architects, represented by the same counsel as here represent the architect plaintiffs, against the same Public Liability carrier (Aetna) as is sued here. There a worker was hurt when an outrigger used on a hoist fell upon him. The complaint, among other things, alleged that:

“* * * a certain material hoist was erected or constructed for use in the erection of the aforesaid structure; that each of the defendants by and through their servants or agents in their behalf were in charge of the erection of the aforesaid structure.”;

and that:

“* # * the defendants, and each of them, wilfully did fail to do one or more of the following in violation of the above mentioned statutes: wilfully failed to place and operate the hoist so as to prevent the falling of material and to give adequate protection to those underneath, and wilfully failed to provide the hoist with a covering and a safeguard to protect persons working at or near the hoist.” (Emphasis supplied).

In reversing a judgment for the defendant and remanding the case for the assessment of damages, the Federal Court of Appeals at pages 814-815, said:

“Aetna relies primarily on Endorsement T-28, a part of the policy which provides that the policy does not apply to injury arising out of defects in maps, plans, designs or specifications, prepared, acquired or used by the insured, or due to general supervision of the insured in connection with the operations of any contractor..
It is apparent the trial court relied heavily on its interpretation of the allegation in the Ivanov complaint that Shaw’s duties as an architect were to design and supervise and that those were Shaw’s only duties at the construction site, and that any liability of Shaw necessarily arose out of defects in design or resulted from general supervision.
However, nowhere in the Ivanov complaint is there any allegation that Shaw designed the hoist in question or that there was any defect in any map, plan, design or specification prepared or used by Shaw. But there are allegations that Shaw, themselves, among other things, wilfully failed to place and operate the hoist properly.
We think the allegations in the Ivanov complaint were sufficiently broad and if established by evidence, would spell liability by Shaw, and that Aetna should have defended since such liability was potentially within its policy.”

Since, in Shaw the injury complaint alleges that Shaw, themselves, had failed to place and operate the hoist properly, whereas in the case at bar, no similar allegations are made, the case is not applicable. Furthermore, we tend to doubt that Shaw was correctly decided by the Federal Court. What said opinion ignores completely is the very old and well established doctrine of judicial notice.

The solemn arguments in this case, for the most part, ignore the realities which everyone knows. Although the Bellman, in Lewis Carroll’s (Charles Dodgson) “Hunting of the Snark,” successfully tells his crew that:

‘What I tell you three times is true,”

such should not be so in a court of law, or else, as Charles Dickens says in Oliver Twist,

“The law is a ass, a idiot.”

Perhaps the primary principle of judicial notice is that “judges ought not to be more ignorant than the rest of mankind” or stated otherwise that “courts should at least know what everyone else knows.”

One of the earliest statements to this effect is from Judge Coleridge’s dissenting (but often quoted) opinion in Lumley v. Gye, 118 Eng. Rep. 749 (Queens Bench 1853), where he said that:

“* * # Nor, I think, can [267] it be successfully contended that we may not take judicial cognisance of the nature of the service spoken of in the declaration. Judges are not necessarily to be ignorant in Court of what every one else, and they themselves out of Court, are familiar with; nor was that unreal ignorance considered to be an attribute of the Bench in early and strict times. We find in the Year Books the Judges * * * distinguishing between private chaplains and parochial chaplains from the nature of their employments: * *

In 15 R.C.L. 1054, it is said, at pages 1057-58,

“* * # justice does not require that courts profess to be more ignorant than the rest of mankind. * *

This has often been quoted and relied upon by the courts. In Mills v. Denver Tramway Corp., 155 F.2d 808 (10th Cir. 1946), the court, at page 811, said:

“* * * Courts will take judicial notice of all facts which are generally known and accepted. The Colorado Supreme Court, in Gray v. Huntley, 77 Colo. 478, 238 P. 53, 55, quoted with approval the following statement from 15 R.C.L., Judicial Notice, § 2: ‘Justice does not require that courts profess to be more ignorant than the rest of mankind.’ It is doubtful if a case could be found in which it was ever intimated that a plaintiff must prove that a railroad engine had a bell or whistle before he could charge the company with negligence in failing to ring the bell or blow the whistle. We have judicial knowledge, together with all intelligent men, that automobiles are equipped with horns, because we know that such is the fact. * ” *”

To the same effect, see Sundene v. Koppenhoefer, 343 Ill.App. 164, 167-168; Jones v. Fritz, 353 S.W.2d 393, 395 (Mo. App. 1962); Cameron v. Goree, 182 Ore. 581, 189 P.2d 596, 603; Markulics v. Maico Co., 74 Cal.App.2d 66, 168 P.2d 35, 36; Keefe v. O’Brien, 116 N.Y.S.2d 286, 288; Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17, 19-20; Hersum v. Kennebec Water District, 151 Me. 256, 117 A.2d 334, 338.

This is true of prevailing trade practices and professions. '

In Lynn v. Farm Bureau Mutual Automobile Insurance Co., 264 F.2d 921 (4th Cir. 1959), the court at page 924, points out:

“* * # In North Carolina, as in other states, courts take judicial notice of the general course of business and the usual methods of transacting it. Southeastern Express Co. v. City of Charlotte, 1923, 186 N.C. 668, 120 S.E. 475, 477. * * ” .

In Dystra v. State, 42 Ohio App. 141, 181 N.E.2d 488, the court, at page 490, said:

“* s * It is a matter of common knowledge that the duties of a steward and those of a chef are distinct and different.
A ‘chef’ is defined by lexicographers as a male head cook.
A ‘steward’ is defined as a person intrusted with the management of affairs not his own; one who manages or disburses for another or others; one in general charge overseeing the servants, etc.
It is therefore apparent that there is a wide distinction' between the duties of a chef and those of a steward. * * *” '

In Elizabethtown Lincoln Mercury v. Jones, 313 Ky. 321, 231 S.W.2d 42, the court, at page 44, took the view that:

“* * * Courts may take judicial knowledge of prevailing economic conditions and trade practices. Burton v. Burton’s Committee, 262 Ky. 499, 90 S.W.2d 687; Bryan v. Security Trust Co., 296 Ky. 95, 98, 176 S.W.2d 104; Am. Jur. ‘Evidence’ Vol. 20, Sec. 110.”

In an article entitled “Judicial Notice” 15 R.C.L., in section 51, page 1123, it is said:

“* ” * The general custom and course of business in any trade if they be sufficiently notorious are also proper subjects of judicial observation. * * *” (Footnote omitted.)

See also Wohl v. Yelen, 22 Ill.App.2d 455, 459,161 N.E.2d 339; Robertson Products v. Nudelman, 389 Ill. 281, 286; Gaster v. Coldiron, 297 A.2d 384 (Del. S.C. 1972); Stenberg v. Buckley, 245 Iowa 622, 61 N.W.2d 452, 455; Porter v. Karavas, 157 F.2d 984, 986 (6th Cir. 1946).

The second principle of judicial notice is that courts must read pleadings as though containing a statement of all matters of which they are required to take judicial notice, even when the pleadings contain an express allegation to the contrary.

In Chas. L. Harney, Inc. v. State, 31 Cal. Rptr. 524, the court, at pages 529-530, took the occasion to say:

“ ‘That matters judicially noticed may be considered in construing the pleadings is well settled.” (Contractor’s Safety Assn. v. California Compensation Insurance Co. (1957 ) 48 Cal.2d 71, 75, 307 P.2d 626, 628 and cases there collected.) As was said in Chavez v. Times-Mirror Co. (1921) 185 Cal. 20, 23, 195 P. 666, 668 ‘in the consideration of a pleading the courts must read the same as if it contained a statement of all matters of which they are required to take judicial notice, even when the pleading contains an express allegation to the contrary.’ The rule is therefore well established that a complaint good on its face is nevertheless subject to demurrer when facts not alleged but judicially noticed render it defective. (Watson v. Los Altos School Dist., supra, 149 Cal. App. 2d 768, 771, 308 P.2d 872; Byrne v. Harvey (1962) 211 A.C.A. 109, 113, 27 Cal. Rptr. 10.) Witkin states the reason for such rule: ‘The theory is that the pleader should not be allowed to by-pass a demurrer by suppressing facts which the court will judicially notice. The principle is that of truthful pleading, and is applied for the same reason as in the similar situation of pleaded exhibits which contradict allegations.’ (2 Witkin, Cal. Procedure, Pleading § 208, p. 1185; original emphasis.) We therefore proceed to examine plaintiff s second amended complaint in the light of the above-mentioned official files and records of which we take judicial notice in order to determine whether they render the pleading defective.”

In Taliaferro v. County of Contra Costa, 6 Cal. Rptr. 231, the court, at 234, said:

“While the allegations of a complaint are deemed true in ruling upon demurrers, where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity. French v. Senate, 146 Cal. 604, at pages 607-608, 80 P. 1031, 69 L.R.A. 556. * * *”

In a long article on Judicial Notice in 15 R.C.L., it is said, in section 5, at pages 1062-1063:

“* * * Since judicial notice is not generally dependent on the pleadings, it has been held that matters properly subject thereto are not affected by a demurrer. In such case the demurrer is not taken to admit anything that is contrary to the judicial knowledge of the court. * * *”

Illinois follows this rule. In Jackie Cab Co. v. Chicago Park Dist., 366 Ill. 474, 9 N.E.2d 213, our Supreme Court, at pages 479-480, said:

“* * * While it is charged that white drivers have violated the ordinance, no single, specific instance is cited, nor is any company or person named. The allegations are entirely general in their character as to the white drivers and are mere conclusions of the pleader. Courts are not at liberty to entirely disregard facts of general knowledge of which the courts, themselves, are cognizant. The fact is that, aside from the allegations of the bill, general information among residents of the Chicago area indicates that any person hiring a cab would presume that he had the right of direction. * * *”

And in Cohen v. North Ave. State Bank, 304 Ill.App. 413, 26 N.E.2d 691, the judgment debtor’s attorney, in instituting garnishment against some 27 banks, expressly alleged in his affidavit that:

“affiant hath just reason to believe that the 27 banks (naming them), are indebted to said defendant herein for the estate or effects of said defendants in their hands.”

In affirming the trial court’s order quashing the garnishment writs, this court, at page 421, said:

“The area in which the 27 banks are located contains a population of about 3,500,000 and we think it is so self-evident that even the court will take judicial notice of the fact that one practicing lawyer in Chicago did not have just reason to believe that the 27 banks were indebted to the 48 persons. * * *”

The third principle of judicial notice is that the failure or even refusal of a trial court to take judicial notice of a fact does not prevent an appellate court from doing so.

In Ward Manufacturing Co. v. Miley, 131 Cal.App.2d 603, 281 P.2d 343, that court, at page 347, said:

* * Indeed, a reviewing court will take judicial notice of matters properly the subject thereof even if it appears that the trial judge did not do so. Varcoe v. Lee, 180 Cal. 338, 341-342, 181 P. 233; Greif v. Dullea, 66 Cal.App.2d 986, 998, 153 P.2d 581; Rogers v. Cady, 104 Cal. 288, 290, 38 P. 81.”

In De Martini v. Department of Alcoholic Beverage Con., 30 Cal. Rptr. 668, the court, at page 681, said:

“* # # An appellate court may properly take judicial notice of any matter of which a trial court may take judicial notice (Varcoe v. Lee, supra, 180 Cal. 338, 343, 181 P. 223) and the failure or refusal of a trial court to take judicial notice of a fact or matter does not preclude an appellate court from giving proper effect thereto. (People v. Tossetti (1930) 107 Cal. App. 7, 12, 289 P. 881; Ward Mfg. Co. v. Miley (1955) 131 Cal.App.2d 603, 609, 281 P.2d 343; Varcoe v. Lee, supra; Rogers v. Cady (1894) 104 Cal. 288, 290, 38 P. 81.)”

And, in Chas. L. Harney, Inc. v. State, 31 Cal. Rptr. 524, the court, at page 529, said:

* * The fact that the instant record does not affirmatively show that the trial court took judicial notice of these records in arriving at its decision does not affect or impair our power to do so. (Taliaferro v. County of Contra Costa (1960) 182 Cal. App. 2d 587, 592, 6 Cal. Rptr. 231.) * * *”

In Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031, the court, at page 1033, said:

“* # » jf fhe trial court does not take notice of a fact cognizable by it, the reviewing court may do so, even so. 5 C.J.S., Appeal and Error, § 1488, p. 134, Hill v. Bice, 65 Idaho 167, 139 P.2d 1010; Standley v. Knapp, 113 Cal.App.: 91, 298 P. 109.”

In an article on Judicial Notice in 15 R.C.L., it is said, in section 6, at pages 1063-1064:

“6. Appellate Courts. — A higher court on appeal will take judicial cognizance of any matter of which the court of original jurisdiction might take notice.
e e #
In several cases too appellate courts, without attempting to lay down any rule on the subject, have recognized facts which had been ignored by the trial court and certain it is that the failure or refusal of a trial court to take notice of a proper fact does not prevent the appellate court from giving effect thereto. * # (Footnotes omitted.)

Summarizing the cases dealing with judicial notice, three general principles emerge:

First, that judges ought not to be more ignorant than the rest of mankind; that courts should at least know what everyone else knows;

Second, that courts must read pleadings as though containing a statement of all matters of which they are required to take judicial notice, even when the pleadings contain express allegations to the contrary; and

Third, that the failure or even refusal of a trial court to take judicial notice of a fact does not prevent an appellate court from doing so.

Applying these principles to Shau>, even though the injury complaint there expressly alleged that the architects themselves wilfully failed to place and operate the hoist properly, the court should have judicially noticed what everyone else knows (i.e., that employees of contractors and subcontractors place and operate hoists and that architects and their employees never do so) and should have dismissed the defendant architects from the case, unless they could be held in on allegations to the effect that they had failed in their professional duties as architects in connection with their planning or supervision of the work, which would, of course, put the duty to defend squarely on their Professional Liability earner, not on their Public Liability carrier.

In conclusion, we are of the considered opinion that, in the case at bar, the allegations of the basic injury complaint are such as to fit precisely into the Professional Liability exclusion set forth in the defendant Aetna’s Public Liability policy and to fit just as precisely into the Professional Liability coverage of the policy issued to the plaintiff architects by CNA, which is concurrently defending them in the basic Structural Work Act suit which precipitated the case at bar. In our view, that is where the duty to defend belongs and we leave it there.

The declaratory judgment in favor of the plaintiff is reversed and the cause remanded with directions to grant declaratory judgment to the defendant Aetna and against the plaintiff architects.

Reversed and remanded with directions.

BURKE, P. J„ and GOLDBERG, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David McGath (Impleaded), Defendant-Appellant.
    (Nos. 58202-03 cons.;
    First District (5th Division)
    May 11, 1973.
    James J. Doherty, Public Defender, of Chicago, (Bradley Harris and Lee Hettinger, Assistant Public Defenders, of counsel,) for the appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Sharon Grossman, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE STOUDER

text:
    Edward A. Siemans, Plaintiff and Counterdefendant-Appellee, v. Alan Thompson, Defendant and Counterclaimant-Appellant—(Thompson Motor Sales, Inc., Defendant-Appellant.)
    (No. 72-227;
    Third District
    May 29, 1973.

      Robert D. McKnelly, of Watseka, for appeUants.
    Paul T. Manion, of Hoopeston, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by defendants-appellants Alan Thompson and Thompson Motor Sales, Inc. from a decree of the Circuit Court of Iroquois County in which Edward Siemans, plaintiff-appellee, was granted equitable rescission of a contract.

On October 1, 1968, defendant Thompson, the sole stockholder of the defendant corporation, entered into a contract with the plaintiff whereby defendant Thompson granted to plaintiff the right to purchase up to 49 percent of the outstanding stock of the defendant corporation in return for plaintiffs payment of $6,000. Plaintiff agreed to purchase 245 shares for the total sum of $49,000, excluding the $6,000, and agreed to pay $7,000 yearly on each October 30th plus interest on the unpaid balance. Pursuant to the contract, plaintiff was employed full time by the corporation and was to assist in the management of the business. The contract provided for equal salaries of not less than $1,000 per month, for plaintiff and defendant, plus quarterly bonuses.

Plaintiff began working for the corporation on September 26, 1968, received a salary of $1,000 per month in 1968 and the first ten months of 1969 and also received the bonuses to which he was entitled. In the fall of 1969 the corporation’s cash balance was extremely low. Plaintiff refused to sign a written request by the defendant to refrain from drawing his salary in order to help the cash position of the corporation. Under such proposal, payment for plaintiff’s services would be only the quarterly bonus. Prior to November 1, 1969, defendant Thompson informed plaintiff that both of their salaries would not be paid until the cash position of the corporation was improved.

On December 12, 1969, plaintiff served notice of termination of the contract to defendant and thereafter filed this suit seeking equitable rescission of the contract and the recovery of the value of his services for the period he worked and received no salary. Defendant Thompson counterclaimed for damages for breach of contract alleging plaintiff refused to purchase stock and pay interest as agreed in the contract, an interest payment being due on October 30, 1969.

The court, following an advisory verdict by a six-man jury, entered a decree in favor of plaintiff as to both the complaint and the counterclaim. The court found that the provisions relating to employment and to the right to purchase stock were indivisible and that neither existed independent of the other; that defendant unilaterally extinguished the employment aspect of the contract without sufficient cause which constituted a material and substantial breach of the contract; and that plaintiff was entitled to rescission. To put the parties in status quo, plaintiff recovered $6,000, the amount he had paid to defendant for the option to purchase stock and also the sum of $1,400 from the corporation on a quantum meruit basis for services rendered.

Defendant contends the court erred in finding the breaches were substantial and the contract was indivisible and contends also the plaintiff’s breach should bar any recovery. We are of the opinion that the trial court’s findings that there was a material and substantial breach by the defendant, and that the contract provisions as to employment and purchase of stock are inseparable, are based upon sufficient evidence.

The plaintiff was working full time and devoting his full efforts to the business pursuant to the contract. After November 1, he no longer received compensation for his services. There was no promise of when salary would be resumed and no attempt by defendant to borrow money in order to meet the obligations of the corporation. Defendant, who owned the real estate, which was leased to the defendant corporation, continued to receive rent and in fact he increased the rental payments from $600 to $650 per month. Plaintiff was also deprived of his managerial rights when defendant revoked his contractual right to draw checks on the corporation account. Even though defendant claimed the cessation of salary was temporary and insignificant, we believe there is ample evidence from which the trial court could infer the failure to pay was deliberate, indefinite and substantially affected the relation between the parties.

From the evidence it appears that the parties’ agreement was intended to be inseparable since one intending to purchase a share of a business and to help manage, operate and obtain his livelihood from that business would hardly have an interest in the purchase provision if he was deprived of his status of employee-manager. The questions of substantiality of- the breach and divisibility of a contract are decided by the trier of fact. It is our opinion that it cannot be said that the circuit court’s findings were against the weight of tire evidence as a matter of law.

Although the trial court’s finding on the counterclaim is not explicitly stated, it was apparent from the evidence that the plaintiff’s failure to pay interest on October 30 was not a breach barring his recovery. Plaintiff was told by the defendant prior to October 30 that he was not going to receive salary starting November 1 and this justified the plaintiffs act in terminating his obligation under the contract.

Finally, the defendant contends the plaintiff had an adequate remedy at law and therefore a court of equity had no jurisdiction to grant relief. According to the rule in Illinois, when there is a substantial breach by one party to a contract the other party has the right to rescind the contract and to be restored to his former status. (Sampson v. Marra, 343 Ill.App. 245, 98 N.E.2d 523, 12 I.L.P. Contracts, sec. 347.) In order that the plaintiff obtain full and complete relief, he sought to have the contract set aside by judicial action which only a court of equity can accomplish. Any money damages he could have recovered in a court of law would not have been adequate since his main concern was to have the contract cancelled and rescinded. Only in this manner could the whole controversy concerning the contract be settled once and for all.

For the foregoing reasons, the judgment of the Circuit Court of Iroquois County is affirmed.

Judgment affirmed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas H. Rhinehart, Defendant-Appellant.
    (No. 73-24;
    Third District —
    May 23, 1973.

      Kenneth E. Critser, of Monmouth, for appellant.
    Fred Odendahl, State’s Attorney, of Monmouth, (Edward Morris, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Thomas H. Rhinehart appeals to this court from a sentence imposed by the circuit court of Warren County, Illinois, following a plea of guilty to the possession of cannabis in violation of section 704(e), ch. 5672 of Illinois Revised Statutes. Ill. Rev. Stat. 1971, ch. 5672, § 704(e).

The record discloses that defendant Rhinehart, together with three other young men cut marijuana plants on a farm and took a large pile of the cut marijuana plants to a place where they examined the plants and concluded that they were “no good”. They then placed the plants in a grain room on a farm to dry. Following the arrest of defendant and his three companions, defendant pleaded guilty to a charge of possession of marijuana as indicated. A hearing was held in aggravation and mitigation on the same day as the sentencing. The probation officer filed a report in which he recommended probation for Rhinehart. The probation report indicated that defendant had not been arrested or convicted for any violation of law other than violations of the Motor Vehicle Act.

Defendant is 25 and unmarried. He had served in the Army, including service in Vietnam, and was honorably discharged. He admitted to the interviewer that he had started using marijuana in Vietnam. Testimony on behalf of defendant indicated that he would be a good subject for probation. The probation officer had recommended probation without a jail term. The court, however, sentenced defendant to 3 years on probation with the first 6 months to be spent at the Illinois State Farm at Vandalia, Illinois. In the course of announcing such sentence, the court stated that he thought it would be a fair statement that the marijuana which had been obtained, “was probably intended for sale somewhere along the line.” There was no evidence of any sale or of any intention to make a sale. The charge was simply one of possession but not of sale.

On appeal in this court, defendant requests that this court exercise its power under Supreme Court Rule 615 (Ill. Rev. Stat. 1971, ch. 110A, § 615) and modify the sentence by eliminating the portion thereof requiring a jail sentence as part of the probation sentence.

At the time of the sentencing of defendant on November 28, 1972, it was permissible to imprison a defendant as a part of the condition of the sentence of probation imposed by a court. (Ill. Rev. Stat. 1971, ch. 38, § 117—2.) Under the new Unified Code of Corrections, however, which became effective on January 1, 1973, a court may not require as a condition of probation that the defendant be committed to a period of imprisonment unless the imprisonment is “periodic”. (Ill. Rev. Stat. 1971, Ch. 38, § 1005 — 6—3(b)(1) * * * (d)). In Section 1008 — 2—4 of the new Unified Code of Corrections it is specifically provided that the penalty for any violation of law occurring prior to the effective date of the Act is not affected or abated by the Act, but, also, that if the offense being prosecuted had not yet reached the sentencing stage or final adjudication, then for the purposes of the sentencing, sentences under the Code of Corrections would apply if they are less than under the prior law upon which the prosecution was commenced. Technically, therefore, the new Unified Code of Corrections would not be applicable to the cause before us because the possible penalty for defendant’s offense was actually increased under the new Code.

We discern, however, in the provision with respect to elimination of imprisonment as a condition of probation, a substantial and mitigating basic public policy. The courts of this State have sought to adapt sentences in which a final adjudication has not been made to the general public policy expressed in amended or later applicable statutes where the ends of justice will be best subserved thereby. (People v. Carleton, 116 Ill.App.2d 450, 252 N.E.2d 702; People v. Bailey, 1 Ill.App.3d 161, 273 N.E.2d 74.) There has been no final adjudication in this case since it is pending on direct appeal. As we interpret the legislation in the Unified Code of Corrections with respect to incarceration, it is apparent that the legislature has concluded that if a defendant is a valid probation risk he should have probation without incarceration unless such incarceration is “periodic” as outlined in the Unified Code of Corrections. In view of the evidence with respect to the defendant’s potential for rehabilitation, we feel that probation is the best method of punishment as a reforming discipline under the facts in this case, and that rehabilitation of defendant does not require that we rigidly adhere to prior concepts, but in fact, calls for application of the spirit of the change and modification as expressed in the Unified Code of Corrections to eliminate the imposition of incarceration as to defendant in this cause.

We find it is, therefore, appropriate that the sentence be modified to eliminate the 6-month period of incarceration so as to constitute a sentence solely of probation for a period of 3 years. The sentence is accordingly modified to probation only for a period of 3 years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

STOUDER and DIXON, JJ., concur.


text:
    The City of Joliet, Plaintiff-Appellant, v. Eugene Briick et al., Defendants-Appellees.
    (No. 72-229;
    Third District
    May 21, 1973.

      James M. P. D’Amico, of Joliet, for appellant.
    Britt Barr, of Joliet, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by the City of Joliet from an order of the circuit court of Will County granting the motion of defendants Eugene Briick and Herbert Briick to dismiss the complaint of the City. The complaint charged that defendants were operating a food store in the City of Joliet without first obtaining a permit in accordance with the city ordinance which required that a valid permit issued by the designated health authority be first obtained.

The City of Joliet had enacted an ordinance prohibiting the operation of a “food store” in the city by any person not in possession of a valid permit issued to him by the county health authority. The requirements of the ordinance specified that an inspection of the proposed food store premises by tire appropriate health authority was required to determine whether the store was in compliance with the health and cleanliness requirements imposed by the ordinance. The complaints which are very brief, simply alleged that defendants were operating a food store Without a valid permit in that they “failed to procure a valid permit from the Will County Health Department as a requirement to the issuance of a permit to operate a food store in the City of Joliet, Illinois * * * in violation of Ordinance Section 13 — 38 of the Ordinances of the City of Joliet and against the peace and dignity of the Citizens of Joliet.” In defendants’ motion to dismiss the City’s complaint, they asserted (1) that the ordinance was invalid as applied to defendants’ food store because the Meat and Poultry Inspection Act of the State of Illinois, Ill. Rev. Stat. 1971, ch. 56½, § 3301 et seq., had pre-empted for the State or Federal Government, the regulation of the establishment and licensing thereof; (2) that the State had not delegated to municipalities, the power to inspect, license and regulate businesses primarily engaged in the wholesale sale, manufacturing and processing of meats and poultry, and that only a fractional part of the defendants’ total business was retail; and (3) that the City’s refusal to issue a permit to defendants, even though they were in compliance with all State regulations, was an arbitrary and unreasonable exercise of the City’s police power. The motion filed by defendants was not verified. As we have indicated, the trial court granted the motion to dismiss.

It is first contended by the City of Joliet that the granting of tire motion was improper because, for the purpose of evaluating the motion, all well-pleaded facts are to be taken as true and that the motion is to be regarded as testing the sufficiency of the complaint as a matter of law. It is asserted that material issues of fact existed with respect to (1) the type of business in which defendants were engaged, (2) whether defendants’ business was of a type which may be licensed by the State or Federal governments, and (3) whether defendants in fact are licensed by the State or Federal governments.

An examination of the City ordinance and state legislation is essential to an understanding of the issue before us in this case. The state legislation involved in Ill. Rev. Stat. 1971, ch. 56½, § 1302(e) provides that agencies of the State or Federal governments may license premises where animals or poultry, or both, are slaughtered or otherwise prepared for food purposes. Municipalities are pre-empted from licensing such establishments under Section 304(a) of the Act. The Act, however, does provide in such section that the Meat and Poultry Inspection Act “does not prohibit any city, village, or incorporated town from enactment or enforcement of ordinances establishing a system of continuous meat and poultry products inspection, provided such ordinances establish a system at least equal to State inspection.” It is further provided that “recognition is extended to the various municipal inspections departments now in existence or which may be inaugurated within the State.” Such State Act in Section 304(b) provides, however, that “a copy of each municipal ordinance including any amendments, shall be forwarded by the municipality to the [State], If such ordinances provide a system of inspection at least equal to State inspection, the ordinance shall prevail in lieu of the State inspection system.” The remainder of Section 304(b) provides the means by which the State is to determine whether the municipal system complies with the condition imposed in such section. A further section, 304(c), specifies the quality of recognition which-would be accorded to the municipal system, “when a system of municipal inspection is approved by the [State].”

From the State Act, it is apparent that a municipal system of inspection is accorded recognition, subject to the pre-emption principles outlined, only upon fulfillment of the condition that the municipality seeking such recognition complies with the provisions of section 304(b) and, also, obtains approval as shown in section 304(c). Presumably, the mere existence of a municipal inspections system does not automatically accord to it recognition, but it must be “approved” before there is such recognition.

An examination of the very brief record and the brief complaint in this case indicates that the contention of the City of Joliet on appeal is well taken in its assertion that a material issue of fact -is presented concerning the nature of defendants’ business, and the applicability of the ordinance to that business under the provisions of Section 304 (Ill. Rev. Stat. 1971, ch. 56½, § 304). It is clear that for the purpose of testing the sufficiency oí the city’s complaint, an unverified motion to dismiss could not eliminate the factual issues. Defendants apparently attempt to assert that the ordinance was inapplicable to defendants as a matter of law, simply because they were subject to the licensing apparatus of a federal or state agency. To establish such contention for the record, defendants would be required to comply with section 48(1) of an Illinois Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 48(1)). Defendants in such event are required to supply the factual allegations by the prescribed affidavit in conformity with Illinois Supreme Court Rule 191 (Ill. Rev. Stat. 1971, ch. 110A, § 191). If facts justifying a dismissal were not then controverted by the city, a situation authorizing dismissal could have been shown.

It is clear that a municipality, under some conditions, may be authorized to regulate food stores. The complaint alleges that defendants were operating a food store and it is also asserted by the city that an admission was made by an attorney representing the defendants on oral argument before the trial court, that defendants were in fact operating a retail food store in the city of Joliet. We have noted that, by the terms of the State Act, Ill. Rev. Stat. 1971, ch. 56½, § 304(a), a municipal corporation may enact an ordinance establishing a system of meat and poultry inspection as to retail food stores within the municipal limits. A city ordinance is likewise presumed to be valid. (Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473.) In the state of the pleadings in the trial court, therefore, the trial court should have presumed the validity of the ordinance, since there was no affirmative verified statement showing that the ordinance was deficient in any respect. Defendants did not establish, by affidavit or otherwise, that the ordinance was not properly adopted as specified in the State Act authorizing municipal legislation through action of the municipal legislative authority followed by approval by the State. As the record stands, the trial court should have denied the motion to dismiss, since it is clear that a municipality may enact ordinances which may be applicable to retail food stores if such ordinances are enacted in accordance with the directions contained in the State Act and not otherwise inapplicable to defendants by the terms of Section 304(a) referred to.

All the issues to which we have referred may be raised in actual trial and hearing of this cause in the trial court. For the reasons stated, therefore, the order of the Circuit Court of Will County is reversed and cause is remanded to such court with directions to deny the motion to dismiss the appeal and to proceed in this cause in accordance with the views expressed in this opinion.

Reversed and remanded.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
      In re Estate of Elizabeth Miller, Deceased—(Sarah R. M. Storch, Admr., Petitioner-Appellant, v. Lillian M. Tester, Respondent-Appellee.)
    (No. 71-328;
    Second District
    May 25, 1973.
    Charles O. Brizius, of Chicago, for appellant.
    Gatenbey, Spuller & Law, of Chicago, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff, administrator of the estate of her deceased mother, commenced proceedings against defendant, her sister, for the turnover of certain assets claimed to be the property of the estate. From an order denying the requested relief, plaintiff appeals.

This court is asked to determine whether the assets of the estate were transferred by the surviving heirs to the defendant as a gift or for the purpose of collecting all assets for distribution without the necessity of probate.

Decedent left as her heirs, seven children: Lillian (defendant), Sarah (plaintiff), William, Daniel, Rebecca (Jane) and Francis (who were full brothers and sisters) and Edward (a half-brother to tire others). At the time of her death (January, 1959) she was sole owner of three parcels of real estate, various shares of stock and a savings account. Held in joint tenancy with defendant, and not involved here, was the home of the decedent and a note.

On the day of the funeral, defendant, Jane, Francis and an attorney, met at Daniel’s home. The attorney, with the secretarial help of Jane, prepared certain assignments and warranty deeds. The instruments, which defendant claims were there executed by the four heirs present, transferred the heir’s shares in the estate to the defendant. Plaintiff and William, who were not present, executed the assignments and deeds the next day. Edward’s whereabouts were then unknown; nine months later, however, he executed a separate assignment of personalty, quitclaim deeds to two parcels of Illinois realty and a warranty deed to realty located in Michigan.

During March of 1959, defendant filed for letters of administration and introduced proof of heirship; no further action was taken and letters never issued.

In February, 1966, plaintiff was appointed administrator and filed an inventory including the assets in question. Upon petition of plaintiff, the court, in June, 1969, issued a citation upon defendant to discover assets.

At the hearing, evidence was introduced which bore upon the intent of the parties in transferring the estate assets. Defendant testified that the transfers were made a gift to her in consideration for her having supported her mother.

Jane corroborated defendant’s testimony, asserting that she signed the documents with the intent of relinquishing to the defendant, any right she (Jane) might have in the estate. She additionally testified that the attorney present when the documents were drawn had explained that the assignments served to extinguish the heir’s rights in the estate and that probate proceedings would be had only to account for the absence of Edward.

Francis, by way of an evidence deposition, testified on behalf of the estate, asserting that during the after-funeral meeting it was suggested that defendant act as administrator of tire estate, that he executed the papers the next day at plaintiiFs home, and that it was his intent to share in the estate expecting that the administrator would distribute the estate and “equalize” the assets.

Plaintiff and William were not present at the time the instruments were drawn, did not participate in the discussions relative thereto, and signed the instruments without defendant present. They testified that they executed the instruments to enable defendant to act as administrator, not for the purpose of giving her the assets in the estate.

At the close of evidence, defendant moved to dismiss the petition. The motion was denied and it was ordered, upon stipulation of the parties, that the testimony and exhibits introduced would stand as the record for any further proceedings.

Prior to adjudication, a judge, other than the one who presided at the hearing, reviewed the proceedings and determined that the instruments executed by the hens conveyed the assets of the estate to defendant in consideration for her support of her mother; she was ordered discharged under the citation. Ordinarily, since the trial court has observed the witnesses’ demeanor and is thereby better able than the reviewing court to judge their credibility, the judgment of the trial court should be affirmed unless found to be against the manifest weight of the evidence. Under the circumstances here, we are not bound by this rule.

The record reveals that there were three assignments of personalty: one, a savings account in the First National Bank of Chicago, another to shares of stock in Northern Illinois Gas Company and the third, to shares of stock in Goldblatt Bros., Inc. (Although not introduced into evidence, defendant states that a fourth assignment to shares of stock in Commonwealth Edison Company was established by her testimony and claims, under the assignment, that the shares are her sole property.) The assignments were all alike, one pertinent portion reading:

“We, the undersigned, * * * hereby agree to settle tire estate of said decedent without probate proceedings and hereby request said First National Bank of Chicago to transfer said savings account, or to issue its check or cash, without requiring administration of said estate, to and in the name of Lillian M. Tester, hereinafter called transferee * * # the undersigned do hereby assign and transfer * * * all right, title and interest * * * and that the undersigned will reimburse said First National Bank of Chicago for any loss which it may sustain on account of the transfer s *

Plaintiff relies on the phrases “to settle the estate of said decedent without probate proceedings,” and “without requiring administration of said estate,” to substantiate her position, while defendant argues that the terminology was used to conform to section 95 of the Probate Act (Ill. Rev. Stat. 1959, ch. 3, sec. 247) which allows parties of interest to settle an estate without administration. Defendant contends that the assignments of personalty (signed by all but Edward) were unambiguous, showed an outright gift, and that plaintiff is therefore estopped in the claim that they were executed only to establish a fiduciary relationship. Defendant’s own argument on the terminology serves to accentuate the issue of ambiguity. While the contested phrases may be used to accomplish the conveyance of a gift, their language is not determinative of a gift, in fact, having been made. We find the language of the instruments to be ambiguous.

Edward’s assignment does not refer to probate proceedings or its avoidance, nor does it contain any indemnity provision, but states:

“* * * we do hereby voluntarily give and transfer all of our rights to, and interests in * * * [the personalty in question].”

All agree that Edward’s conveyance amounted to a gift.

To create a gift, there must be some communication, oral or written, of a donative intent between the donor and donee. Defendant admits that she conversed with neither plaintiff nor William and no written communication was evidenced other than the assignments themselves. Having found the instruments ambiguous, it becomes necessary to resolve the question of intent from other evidence. Plaintiff and William testified that in executing the documents, it was their intent to place their shares of the estate in defendant’s name as administrator with the expectation that she would eventually distribute the assets. Francis, present at the time the instruments were drawn and apparently a participant in the conversation with the defendant, testified to a like understanding. The indemnification clauses within the assignments (not found in Edward’s) and the conveyance of realty by warranty deeds (in contrast to Edward’s use of a quit-claim deed) further support plaintiff’s position that the transfers were not intended as gifts.

The burden of proof of a gift is upon the donee and the proof must be clear, satisfactory, unequivocal and convincing. There should be no uncertainty as to either the claimed intent or the claimed delivery. In re Estate of Skinner, 111 Ill.App.2d 267 (1969), cert. denied, 40 Ill.2d 581 (1969).

We hold that, except in the instances of Jane and Edward, the defendant faffed to meet her burden of proof necessary to establish a donative intent.

The order appealed is reversed and the cause remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Theodore Godellas et al., Plaintiffs-Appellees, v. Georgia Godellas, Defendant-Appellant.
    (No. 71-395;
    Second District
    May 25, 1973.
    Peter W. Boznos, of Chicago, and Burek & Field, of Wheaton, for appellant.
    Thomas C. Kelleghan, of Wheaton, for appellees.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Georgia Godellas, brings this appeal from a judgment entered on the pleadings in favor of the plaintiffs on their complaint in forcible entry and detainer.

The complaint, filed September 29, 1971, was brought by Theodore Godellas and William Godellas as trustees under a trust created by the last will and testament of Christopher Godellas, deceased, known as the Christopher Godellas-Chrisanti Godellas Trust. It alleged that the plaintiffs were entitled to possession of certain property located at 4 N 480 Park Street, Bensenville, Du Page County, and that Nicholas C. Godellas and Georgia Godellas, his wife, were unlawfully withholding possession of the property from them.

On October 20, Nicholas Godellas filed his answer and admitted the allegations of the complaint. On October 26, Georgia Godellas filed her answer wherein she denied the allegations that the plaintiffs were entitled to possession of the property and raised five special defenses to the action. On November 2, the plaintiffs filed a motion for judgment on the pleadings which was granted, over the objection of Georgia Godellas, on the same day.

It appears from the agreed statement of facts entered in the cause that Georgia Godellas raised at the hearing on the motion, as a sixth special defense, the contention that the complaint was improperly brought by the plaintiffs since legal and equitable title to the premises was vested in Pioneer Trust and Savings Bank as trustee under a land trust known as Trust No. 16011. The court granted the motion of the plaintiffs, over objection, to add Pioneer as an additional party plaintiff and to amend their complaint on its face. Judgment was then entered in favor of the plaintiffs on their amended complaint on the grounds that the admissions of Nicholas Godellas that the plaintiffs were entitled to possession of the property and that it was unlawfully withheld by the defendants were binding on Georgia Godellas, as his wife, and conclusive of the material issues in the suit.

It has been held that an admission by a husband as to ownership of realty by the holder of paramount title is admissible against his wife where both were in possession without right. “Where the husband is the head of the family, as he is in the eye of the law, his taking a lease of the property is binding upon her, so far as it operates as a recognition of title of the true owner.” Chicago and Alton R.R. Co. v. Keegan, 185 Ill. 70, 86 (1900); Pullman Car Corp. v. Stroh, 349 Ill. 492, 508 (1932).

The defendant would have us hold that this rule is “a musty relic of medieval law” and as relevant to these days of enlightenment and progress as the “bones of a dinosaur”. Although that contention is not without interest, the case can be disposed of on a more mundane level.

It is well established that a forcible entry action must be instituted by the trustee where title to the property has been conveyed to a land trust. Wilkins v. Paul, 346 Ill.App. 212; Barnett v. Levy, 331 Ill.App. 181; Handler v. Alpert, 331 Ill.App. 405; Liberty Nat. Bank v. Kosterlitz, 329 Ill.App. 244, 246.

From the statement of facts it appears that title to this property was in Pioneer Trust as trustee and that it was, therefore, the party entitled to bring the suit for possession. In his answer, however, Nicholas C. Godellas admitted that Theodore Godellas and William Godellas as trustees were entitled to possession of the property, not Pioneer. Since Georgia Godellas denied that any or all of the plaintiffs were entitled to possession, it was improper to enter judgment in favor of Pioneer on the pleadings. Therefore, the judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded.

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN.

text:
    The John Allan Company, Plaintiff-Appellant, v. Louis Neuendorf, Defendant-Appellee.
    (No. 72-21;
    Second District
    May 25, 1973.
    Allan L. Blair, of Chicago, for appellant.
    No appearance for appellee.
   Opinion by

Mr. PRESIDING JUSTICE THOMAS J. MORAN.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    Richard H. Grant, Jr. et al., Plaintiffs-Appellants, v. Paul Oberschneider et al., Defendants-Appellees.
    (No. 72-91;
    Second District
    May 25, 1973.
    Geister, Schnell, Richards & Brown, of Elgin, for appellants.
    Selwyn Coleman, of Roselle, for appellees.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George E. Gibson, Defendant-Appellant.
    (No. 72-137;
    Second District
    May 25, 1973.

      Foos & Sexner, Ltd., of Chicago, (William L. Meyers, of counsel,) for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Defendant entered into a plea agreement and was sentenced to 2-4 years for theft of four tires and rims of a value of over $150. The mittimus was stayed for fourteen days so that he could put his affairs in order. During this period he obtained the services of another lawyer and moved to withdraw his negotiated plea of guilty. The court after a somewhat extended hearing denied the motion.

The defendant was apprehended in the act of stealing four tires and rims from a new car in a parking lot of the Shamrock Oldsmobile agency. At the time of his arrest he was placing one of the four tires in his car and the other three tires and rims were on the ground nearby.

Defendant was first represented by the public defender. He then employed private counsel, Robert J. Wojcik, who filed motions for pretrial discovery and for substitution of judges, both of which motions were granted. Approximately seven weeks later after several pretrial conferences with the State’s Attorney, the defendant moved to withdraw his plea of guilty and enter into a negotiated plea of guilty. The facts of the theft were stipulated to by the State and defendant’s counsel, and after being admonished by the trial court as to his rights, the negotiated plea was accepted by the court.

The first contention of the defendant is that the admonition of the trial court pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402(b)) was insufficient, the specific allegation being that while defendant was asked as to whether any “promises” were made to him for his plea of guilty, the court did not inquire whether any “force or threats” were used. The court then advised the defendant of his right to persist in his plea of not guilty, his right to remain silent, his right to a jury trial, and the confrontation of the witnesses. The court further inquired of the defendant as to whether he wished to waive his rights and if he were making a voluntary plea of guilty, to which the defendant replied “Yes, I just want to get it over with.” In addition, the defendant was asked by the court whether he was satisfied with the agreement that his counsel had made with the State’s Attorney, to which the defendant replied in the affirmative. Lastly, the defendant was asked in front of the Judge whether any promises were made for his plea of guilty to which the defendant answered “No.” The court thereupon accepted the plea and imposed the sentence pursuant to the negotiated plea agreement as disclosed to the court.

The State insists that substantial compliance was had with Supreme Court Rule 402(b) and that the totality of his statements indicated that the defendant was not acting under any threat or coercion in entering into the plea agreement. This court is unable to find any case in Illinois involving the omission of inquiry as to force or threats as set forth in Supreme Court Rule 402(b).

In People v. Covington (1970), 45 Ill.2d 105, 257 N.E.2d 106, the court stated at 109:

“Again in respect to aH convictions, the petition alleged that the change of pleas had been induced by fear engendered in defendant by representations of his counsel that he would receive more severe sentences if he did not plead guilty. The record shows that defendant had made extra-judicial admissions of guilt as to three of his crimes; that he had, in two instances, been apprehended near the scene with weapons and the proceeds of the robberies in his possession; and that he had been identified by victims of all of the robberies. If he thus had any fear as to the results of trial, it arose out of his own conduct and therefore did not render his guilty pleas involuntary. [Citation.] Moreover, so far as the 1968 conviction is concerned, the record discloses that defendant changed his plea after an agreement had been reached with the court that his sentence would be 4 to 8 years.”

In People v. Scott (1969), 43 Ill.2d 135, 251 N.E.2d 190, the court stated at 142:

“The claim that the pleas were involuntary is based upon the defendant’s testimony that he was threatened with a sentence of 40 to 80 years if he did not plead guilty and promised a recommendation of 10 to 25 years if he entered such a plea. It is probably true that the defendant feared that a severe sentence would be imposed. If he were, in fact, guilty of the vicious offenses described by the victims his apprehension was well founded, but this fear arose out of his own conduct. [Citation.] According to the testimony of counsel at the post-conviction hearing, which was believed by the trial judge, the defendant had admitted his guilt of all of the offenses and the fact that he feared the imposition of a severe sentence does not render the pleas involuntary. Nor does the fact that the prosecutor recommended a reduced sentence constitute duress. [Citation.] The record does not support defendant’s claim that his pleas of guilty were involuntary.”

Under People v. Worley (1966), 35 Ill.2d 574, 576, 221 N.E.2d 267, the court stated:

“The general rule is that it is within the sound discretion of the trial court whether a plea of guilty may be withdrawn. [Citations.] This discretion will ordinarily not be disturbed unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is a doubt of the guilt of the accused and the ends of justice would better be served by submitting the case to a trial. [Citations.] Defendants do not contend that they entered pleas of guilty through misapprehension of the facts or law. The record shows they were thoroughly admonished of the nature of the charge, their constitutional rights to trial, and the consequences of their pleas of guilty. There is nothing in the record to show that defendants had any defense to the charges of burglary.”

Where the defendant is apprehended in the act of committing a crime of theft and the facts are stipulated, it is difficult to ascertain what meritorious defense could be raised. (See also People v. Spicer (1970), 47 Ill.2d 114, 264 N.E.2d 181; People v. Wash (1972), 8 Ill.App.3d 686, 290 N.E.2d 409.) The defendant was not a novice having previously been convicted and having previously served a sentence of 4-7 years in the state penitentiary. It is obvious because of his record the defendant desired to enter into a plea of guilty because of this fact. The new counsel for the defendant in his motion to withdraw the plea of guilty argued that the negotiated plea was entered into as a result of threats and coercion. The trial court found that no threats affected the decision of the defendant, and overruled the motion for leave to withdraw the negotiated plea. Considering the entire admonition of the court to the defendant and defendant’s acquiescence we are of the opinion that the negotiated plea was voluntarily entered into.

Since the adoption of Supreme Court Rule 402 it has been stated repeatedly that upon a plea of guilty that substantial compliance with the rule is sufficient. The most recent case in this regard is People v. Jackson (1973), 10 Ill.App.3d 146, 294 N.E.2d 36, where the court stated that it was not necessary that there be strict or literal compliance with Supreme Court Rule 402 and that substantial compliance was sufficient. We are not swayed by new counsel’s statement that defendant’s previously retained counsel coerced the defendant into pleading guilty. While the better practice might have been for the trial court to include an inquiry as to threats or force in the instant case where there was a negotiated plea of guilty upon stipulated facts, we find that there was substantial compliance by the trial court with the requirements of Supreme Court Rule 402 in accepting the plea of guilty.

Defendant next contends that the court should have held a hearing in aggravation and mitigation. His counsel insists that such a hearing is mandatory unless waived by the defendant. This contention is without merit. The hearing in mitigation and aggravation must be requested by the defendant and if he does not do so he is deemed to have waived that right. People v. Fuca (1969), 43 Ill.2d 182,185; People v. Nelson (1968), 41 Ill.2d 364, 367.

The basic contention of the defendant herein is whether the court abused its discretion in not allowing the defendant to withdraw his plea of guilty. This contention is based primarily upon defendant’s new counsel contending or insisting that the prior retained counsel of defendant was incompetent and unprofessional to the point where defendant was denied due process. At a separate hearing conducted by the trial court to ascertain whether the motion to allow defendant to withdraw his negotiated plea should be granted, the State called the defendant’s prior counsel who testified as to his experience in criminal matters. He had been an Assistant State’s Attorney for Cook County for a period of over three years, had handled over a thousand criminal cases, and his primary practice involved criminal matters. It could scarcely be said that Mr. Wojcik was incompetent or unprofessional. He testified in his considered opinion that in view of the fact that defendant had served 4-7 years in a burglary charge, he advised the defendant and defendant’s step-father that defendant should plead guilty under a negotiated plea. This attorney conferred with the State’s Attorney upon several occasions who insisted upon a greater sentence at first and finally agreed to a sentence of 2-4 years. This was conveyed to the defendant and his step-father and counsel stated that he did not want to appear ridiculous in trying a case but if the defendant wanted it tried on a not guilty plea, he was willing to do so. Defendant’s new counsel, in support of his contention that his prior counsel was incompetent, insists that prior counsel did not ascertain the value of four new tires and four new rims. Prior counsel testified that he had called two car dealers and ascertained that the value of one rim and tire was at least $80. It was stipulated upon the negotiated plea of guilty and the factual determination by the court, that the value of the four new tires and rims exceeded $150. In our opinion the conduct of the private counsel was neither incompetent nor unprofessional.

As the court stated in People v. McNair (1971), 133 Ill.App.2d 832, 272 N.E.2d 286, 288, the standard for review of an order denying a motion for withdrawal of a guilty plea is well established.

“* * * Permission to do so rests in the sound discretion of the trial court, to be granted not as a matter of right but rather as necessary to correct a manifest injustice based on the facts of the individual case. [Citation.] It has been stated that where it appears that the plea of guilty was entered on a misapprehension of the facts or the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea. [Citation.] On the other hand, the mere fact that an accused knowing his rights and the consequences of his act, hopes and believes that he will receive a shorter sentence, or milder punishment or some other favor of pleading guilty than he would upon a trial and conviction by a jury, presents no ground for permitting withdrawal of the plea after he finds his expectation has not been realized. [Citations.]”

The last contention of the defendant is that the sentence of 2-4 years is excessive. It appears that another party was with the defendant at the time of the theft. Upon a plea of guilty of theft of less than $150 the other party was granted probation for a period of six months and fined $50.

Defendant concedes that a reviewing court is not compelled to reverse or reduce a sentence because of disparity. While we do not have the record, if any, of tire co-defendant before us, it is obvious that the greater sentence was imposed because of the defendant’s prior felony conviction.

In the instant case even though this was a negotiated plea, in our opinion the Unified Code of Corrections is applicable. (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1003—1—2 et seq., effective January 1, 1973.) We have previously held in similar instances that a case has not reached final adjudication within the meaning of this statute when it is on appeal to us on the merits. The offense of theft of property exceeding $150 is a Class 3 felony. (Ill. Rev. Stat. 1972, Supp., ch. 38, sec. 16 — 1(e)(2).) Sentence for a Class 3 felony may be from 1 to 10 years, but the minimum shall not exceed one third of the maximum. (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—8—1 (b) (4) and (c) (4).) Under the authority of Supreme Court Rule 615 (b) the sentence is therefore reduced to a minimum of one year and four months and a maximum of four years.

Conviction affirmed; sentence modified.

SEIDENFELD and ABRAHAMSON, JJ., concur.