author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Barry N. Johnson, Defendant-Appellant.
    Gen. No. 66-51.
    Second District.
    February 7, 1967.
    Rehearing denied March 13, 1967.

      John O. Vogel, of Glen Ellyn, and Edwin L. Douglas, of Warrenville, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, and Kevin P. Connelly, Assistant State’s Attorney of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Barry N. Johnson, was tried without a jury by the Circuit Court of DuPage County, 18th Judicial Circuit; found guilty as charged in a two count indictment; and sentenced to the Illinois State Penitentiary for a term of not less than one, nor more than two, years. This appeal followed.

Count I of the indictment was captioned “Leaving The Scene of An Accident” and charged that Johnson, on the 5th day of September, 1965,

“. . . while operating a motor vehicle on a certain public highway known as Ogden Avenue situated in the Village of Downers Grove, County of Du Page and State of Illinois, did operate said motor vehicle in such a manner as to strike ALFRED B. STOCKMAN and cause the said ALFRED B. STOCKMAN to sustain numerous and varied personal injuries and the said BARRY N. JOHNSON knowing that said injuries had been caused did leave the place of the accident without stopping, giving his name, address and the registration number of the vehicle he was then and there driving, and did wilfully fail to report said accident within forty-eight (48) hours after said accident occurred at a police station or sheriff’s office near the place where said accident occurred,”

contrary to section 138(b) of chapter 95% of the Illinois Revised Statutes.

Count II of the indictment also charged Johnson with “the offense of leaving the scene' of an accident” and is worded in the same manner as Count I except that it does not mention his failure to report within 48 hours and states that his actions were contrary to section 133 of chapter 95% without a designation of a subparagraph.

The defendant contends that the indictment, as captioned, charged him only with the commission of an offense contrary to section 133, subparagraph (a), which is a misdemeanor, and that therefore the sentence imposed by the trial court was improper. He urges that it was necessary that the indictment be captioned “Failure to Report After Leaving the Scene of an Accident Involving Death or Personal Injuries,” or some similar wording, for it to be a proper charge of a violation of section 133, subparagraph (b), the felony for which he was convicted.

Section 133 is itself captioned “Accidents involving death or personal injuries.” The subparagraphs are not captioned. Subparagraph (b) provides that a person who fails to stop after an accident as required in sub-paragraph (a)

“. . . shall, within 48 hours after such accident . . . report the place of accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any, of such vehicle, at a police station or sheriff’s office near the place where such accident occurred.”

Although the defendant contends that the indictment does not conform with the requirements of section 111-3 (a)(1) of the Criminal Code (c 38, Ill Rev Stats, 1965), it does contain all of the essential elements enumerated in that section. It cites the statutory provision alleged to have been violated; it sets forth the nature and elements of the charge; it states the date and county of the offense; it names the accused precisely. To quibble that it is improperly captioned borders on the facetious. The subparagraph itself has no caption and to require the State to draft captions to meet the particular technical or literary tastes of the defense is wholly unreasonable. The purpose of an indictment, or any formal charge, is to accurately and correctly notify the accused of the exact charge against him so that he can prepare his defense accordingly. Toward that end, it is the body of the indictment, rather than the caption, that should include the essential elements of the charge. The People v. Sellers, 30 Ill2d 221, 223, 196 NE2d 481; The People v. Duden, 3 Ill2d 16, 19, 119 NE2d 742.

There is no room for the question that the defendant, when presented with a copy of the indictment in this case, was completely and accurately informed as to the charge against him in Count I — a violation of section 133, subparagraph (b), a felony. Under the circumstances, the sentence of the court was not improper for that reason.

The defendant next argues that the conviction for failure to report was not supported by the evidence. As we have seen, subparagraph (b) requires that a report be made “at a police station or sheriff’s office near the place where such accident occurred.” The only law enforcement officials to testify at the trial were police officers of the Village of Downers Grove. Since the accident occurred near the Village limits, it would, so the defendant argues, have been possible for him to make the necessary report of the accident at the police station of the next closest municipality, the Village of Westmont, or at the Sheriff’s office of the County of Du Page. The defendant would have us conclude that the State failed to establish its case by its failure to show that a report was not made by the defendant at either of those two alternative stations.

Aside from the consideration that the defendant’s logic would compel the State to prove a negative, the record does disclose sufficient evidence that no report was, in fact, made. Johnson testified, on direct examination, that he was unaware of any accident until advised by his roommate that the Downers Grove police were looking for him. He then went, voluntarily, to the police station and gave them a statement of his activities on the night of the accident and stated that he did not “recall hitting anyone.” This testimony was, of itself, sufficient evidence of the fact that no report of the accident was made as required by the statute.

The record discloses ample evidence to support the court’s conclusion of the defendant’s guilt. A witness for the State testified that he was driving on Ogden Avenue immediately behind Johnson’s vehicle as it crossed the intersection of Cumnor Avenue on the night in question; that he heard a loud noise and saw a body “fly away” from Johnson’s automobile; and, that, immediately thereafter, Johnson’s car accelerated and left the scene. An expert witness from the Chicago Crime Laboratory testified that paint fragments taken from Stockman’s clothing matched paint samples from the front of Johnson’s car. Johnson himself testified that he drove through the intersection at the time of the accident but that he was in a “dazed” condition due to a recent fist fight and the alcohol he had consumed that night and was unable to recall that he hit anyone.

When a cause is tried without a jury, it is the function of the trial court to weigh the evidence, determine the credibility of the witnesses and to make factual determinations. The People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631; The People v. McCreary, 29 Ill2d 295, 300, 194 NE2d 233. A court of review will not impose its judgment where, as here, there is sufficient credible evidence to substantiate the judgment of the trial court, as trier of the facts.

The defendant also argues that the statement given to the Downers Grove police was a “report” as required by the statute since it contained all of the information of the event known to him. Such a claim is manifestly foolish. The statement was given more than 48 hours after the accident and it was a report, not of an accident, but that Johnson did not recall “hitting anyone.” If anything, it was a report of a “nonaccident.” For this reason, we also reject the contention that the statement was improperly admitted into evidence contrary to sub-paragraph (b) of section 133 (Ill Rev Stats, ibid.), although it also appears that it was offered, not by the State, but by the defense.

Lastly, it is urged that the court committed reversible error by granting the State’s motion for a continuance after the trial had commenced. The trial began on February 25, 1966. After several witnesses had testified, the State moved for a short continuance so that the expert witness from the Crime Laboratory could testify. It was represented to the court that a subpoena had been served on the witness only the day before the trial and that the State had learned only that day that he would be unavailable for some ten days. The motion was granted, over objection, and the trial was continued to March 7.

It is recognized by the defendant that ordinarily the question of continuances is left to the sound discretion of the trial court. The Criminal • Code provides in section 114-4 (Ill Rev Stats 1965, c 38) at sub-paragraph (f) that “After trial has begun a reasonably brief continuance may be granted to either side in the interests of justice.”

There is nothing in the record to indicate that the defendant was prejudiced by the continuance or that it was granted for any reason other than the interests of justice. We do not feel that the trial court abused its discretion in this instance.

Although it was not raised in the brief of the defendant, we do question the propriety of the trial court’s imposition of a second sentence on Count II of the indictment, even though that sentence was to run concurrently with the sentence imposed on Count I. It is well established that separate offenses can be charged in different counts, or in one count, of one indictment if the offenses are part of a single transaction. The People v. McMullen, 400 Ill 253, 255, 79 NE2d 470; The People v. Fitzgerald, 297 Ill 264, 266, 130 NE 720. (Formerly, it was also considered proper to impose sentences on both counts if the sentences ran concurrently, rather than consecutively. The People v. Griffin, 402 Ill 247, 249, 83 NE2d 746. Although the State was entitled to only one satisfaction, it was held that the rights of the defendant were not prejudiced by the multiple sentence if they ran concurrently. The People v. Stingley, 414 Ill 398, 404, 111 NE2d 548. However, the Supreme Court later ruled that the imposition of the second sentence might well prejudice the rights of the defendant, even if it ran concurrently with the first sentence, if only as a disadvantage in any subsequent application for parole. The People v. Schlenger, 13 Ill2d 63, 64, 67, 147 NE2d 316. In such cases, the only sentence to be imposed should be for the greater offense charged in the indictment. The People v. Duszkewycz, 27 Ill2d 257, 261, 189 NE2d 299; People v. Ritchie, 66 Ill App2d 302, 313, 314, 213 NE2d 651.

Although to date the only reported cases on this point involve separate felonies occurring as a result of the same conduct or transaction, there is no good reason why the argument does not apply to a situation, such as here, where the same transaction involves both a felony and a misdemeanor. Therefore, the judgment on Count I of the indictment will be affirmed and the judgment on Count II reversed.

Judgment on Count I affirmed, judgment on Count II reversed.

DAVIS and SEIDENFELD, JJ„ concur.


source: Caselaw Access Project

author: TRAPP, J.

license: Public Domain

text:
    In the Matter of the Conservatorship of Lloyd H. Baker, an Incompetent. The John Warner Bank, a Corporation, Conservator of the Estate of Lloyd H. Baker, an Incompetent, Petitioner-Appellee, v. Claud Kellerhals, Respondent-Appellant.
    Gen. No. 10,792.
    Fourth District.
    February 9, 1967.

      Summers, Watson & Kimpel, of Champaign, for appellant.
    Herrick, Rudasill & Moss, of Clinton, for The John Warner Bank, Conservator of the Estate of Lloyd H. Baker, an Incompetent, appellee.
   TRAPP, J.

Respondent appeals from an order of the Circuit Court entered at the conclusion of citation proceedings under chap 3, § 183 et seq. (Ill Rev Stats, 1965), requiring him to deliver to the Clerk of the Circuit Court for the use of the conservator of Lloyd H. Baker, incompetent, the sum of $30,156.33.

Respondent urges, substantially as set forth in his post-trial motion, that the citation was issued pursuant to a petition limiting the court’s authority to the discovery of information so that it was without jurisdiction to (1) adjudicate a controversy and enter into a formal judgment, (2) enforce collection of a debt, (3) conduct hearings and make finding of fact with reference to indebtedness and related matters, (4) deprive respondent of his right to a jury trial, and (5) enter a formal order or judgment in the absence of pleadings seeking such relief.

The order of the court included findings that the respondent had established a fiduciary relationship with the incompetent, Lloyd Baker; that there was no debtor-creditor relationship existing between the parties, and that the balance of funds named in the order had been converted by the respondent and unlawfully held from the conservator. For purposes of clarity, it is noted that at the time respondent and Baker engaged in the transactions relating to the money, Baker was not an incompetent person, some three years intervening between the transactions and the appointment of the conservator.

The petition stated that the conservator had been unable to discover the exact nature of the investments made by the ward with the respondent, or to discover how much respondent is indebted to the estate of the ward, and the prayer of the petition is as in the language of the citation as follows:

“. . . then and there to answer such interrogatories as may be propounded to him concerning his business transactions with Lloyd H. Baker during the past ten years, and to produce, at such time and place for the examination of this Court, such papers, documents, records, cancelled checks, notes, receipts and every other thing, of any kind and character, relative to his transactions with Lloyd H. Baker during the past ten years now in his possession.”

Pursuant to such citation, respondent appeared and answered questions propounded in behalf of the conservator on some three days of hearings held throughout a period of several months. Upon his being assured by counsel and the court that there were no more questions on discovery and that he would not be held in contempt upon the citation, respondent and his counsel left the court and were not present while the hearings continued with certain testimony given by the incompetent, the conservator, and others.

This record requires analysis of the statute concerned and the procedures thereunder. Art XV of the Probate Act, chap 3, § 183 et seq. (Ill Rev Stats, 1965) entitled “Citation To Recover Property and Discover Information” includes § 183 providing for a verified petition under which the court shall order a citation directed to any person:

“. . . whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, . . . which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator, guardian, or conservator or (2) to have information or knowledge withheld by the respondent from the ... or conservator and needed by the ... or conservator for the recovery of any property by suit or otherwise. . . .”

Section 184 designates the persons entitled to file such a citation and includes the language:

“. . . In addition to the prayer for the issuance of the citation the petition shall contain papers for the relief sought by the petitioner as in other cases.”

Section 185 of the Act provides:

“At the hearing the court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires. . . .”

The section continues to authorize the enforcement of the court’s order if the respondent refuses to answer proper questions put to him, or refuses to obey an order relating to property or other matters provided.

In this case the prayer of the petition was in the language of the citation heretofore noted, and included language:

“That such order or orders may be entered by the court, and such action taken by the court, pursuant to Chap 3, Art (sic) 183 and following ... as may be in the best interests of the estate of Lloyd H. Baker, an incompetent.”

Section 186 provides that upon demand of a party to the proceeding, questions of title and rights of property shall be determined by a jury.

The record shows that at the hearings, the court did not proceed to examine as provided in section 185, but rather counsel for the conservator made extensive inquiry as to the details of the transactions. The record suggests that the court did not follow the statutory procedure of examination of the respondent under oath for the reason that, in fact, no matters relating to title or claim of property were alleged or cited in the petition. Respondent’s answers to the queries made were substantially that he had borrowed the money from Baker. We repeatedly find from the record, that when respondent’s counsel made objection to the line of inquiry, counsel for the conservator would reply that the proceedings were to discover the nature of the transaction. Upon three or more occasions, the court, at the time of such objections, referred to the proceedings in terms of getting information, and upon several occasions remarked upon the difficulty in determining whether the questions related to obtaining information, or to the prosecuting of a suit. Consistently, upon respondent’s objection, the court overruled objections because the proceedings were on discovery. Notwithstanding such circumstances, however, the respondent was repeatedly admonished that any time he wanted a jury he should ask for it. As petitioner’s counsel concluded the discovery interrogatories, he stated in open court that the petitioner was going to present further witnesses and that respondent could bring witnesses and produce such evidence as he wished. He further stated that after the hearing was concluded on all of petitioner’s evidence, the court would determine whether a debtor-creditor relation existed, and that he would ask the court to enter judgment as justified. At this point the respondent and his counsel departed the court after being assured that there were no more questions on discovery, and that he would not be held in contempt upon the citation. The proceedings continued with the petitioner calling several witnesses, including the incompetent. It may be noted that whilst the court finds a fiduciary relationship existed, there was no interrogatory made, nor any colloquy spoken in court relating to such an issue while the respondent was present at the proceedings.

It is the law in Illinois that where title or right of property is to be determined during such citation proceeding, it is error to deny a jury trial. Keshner v. Keshner, 376 Ill 354, 33 NE2d 877; Hansen v. Swartz, 345 Ill 609, 178 NE 246. The statute expressly provides for it.

It seems obvious that where an order determining rights and property, or claims of title, are to be determined, orderly procedure requires that the right to a jury should be ascertainable at the commencement of the proceeding, for such a right is properly available only when issues are ascertained. It is proper for a respondent to answer the matters alleged in the petition. Schwaan v. Schwaan, 320 Ill App 287, 50 NE2d 861. In In re Jarmuth’s Estate, 329 Ill App 619, 70 NE2d 336, the citation directed the respondent to answer the verified petition.

We have found no cases wherein a citation limited to discovery, has been developed into a determination of claims to property. In fact, the authorities provide that where the petition is for discovery only, there can be no adjudication of title or of claim, for there are no issues on which to enter judgment. Schwaan v. Schwaan, 320 Ill App 287, 50 NE2d 861. In In re Estate of Curley, 43 Ill App2d 389, 193 NE2d 607, it is said that where a petition for citation is for discovery alone in the probate court, the circuit court is not deprived of jurisdiction to determine the validity of a transfer as there is no adjudication to be made in the probate court.

In Keshner v. Keshner, 376 Ill 354, 33 NE2d 877, there is some discussion of the nature of the statutory proceedings. Amongst other things, the court noted concerning the statute:

“It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law on demand of the parties, where questions arise concerning claims of adverse title or interest, and this provision is valid .... The proceeding may be merely for the purpose of obtaining information with no adversary aspects, or it may develop into an out and out suit for the recovery of money.”

The court continues to say:

“Neither the executor nor the creditor would necessarily have been proceeding for the recovery of a money judgment or even of specific property, although either of these results might have occurred. It might have been merely a fishing expedition for the discovery of evidence, or evidence of title, or for the names of witnesses, or for any proper information necessary ... in the recovery of assets of the estate, . . . .”

In Schwaan v. Schwaan, 320 Ill App 287, 50 NE2d 861, the court notes that no cases had been called to its attention where it has:

“. . . been held that a party who uses the statute for the purpose of discovery has cast upon it the duty of making up and trying out the issue with reference to the matter in controversy, in such a way as to cause a final determination of it to be made. To do so would make its use as a means of discovery, for which it is primarily intended, precarious indeed.”

Such principle is equally applicable to the respondent so far as the raising of issues is concerned.

It has been held that an order in such citation proceedings beyond the issues raised in the petition is a nullity. Moser v. Feciura, 324 Ill App 552, 58 NE2d 920. In In re Estate of Carlin, 5 Ill App2d 241, 125 NE2d 649, the petitioner asked to recover bank accounts and a check payable to the decedent. Respondent answered and upon motions the trial court dismissed the petition for citation, but ordered the petitioner to endorse a check to the respondent. The Appellate Court reversed and remanded, holding that the respondent had filed no pleading in which affirmative relief was requested, and that there was “no justification” for the order to endorse the check.

While the authorities cited refer to proceedings for citation in the probate court, the establishment of a single circuit court, pursuant to the Judicial Article, does not alter the right to a jury trial as to matters alleged in petition, so that issues are formed for the jury’s consideration.

We conclude that where a verified petition under the provisions of the statute, chap 3, § 183 (Ill Rev Stats, 1965), is only directed to the discovery of information or knowledge withheld by the respondent, as distinguished from the discovery of property or assets of an estate, the procedures provided in chap 3, § 185 (Ill Rev Stats, 1965) do not apply, and that the jurisdiction of the trial court is not invoked by such petition.

In behalf of the conservator it is argued that the petition did, in fact, pray that the court enter such orders as may be in the best interests of the estate, but we must conclude that under this petition such orders are necessarily limited to the discovery of information upon interrogatories put to such respondent.

In In re Estate of Rackliffe, 366 Ill 22, 7 NE2d 754, the court ordered an individual subpoenaed as a witness to turn over certain property. The Supreme Court said:

“The probate court was without jurisdiction of the person of appellant and it matters not that it may be shown, on proper legal procedure, by which due process of law is exercised, that the bonds in question belonged to the estate of the incompetent. Short-cut court proceedings cannot be substituted for the provisions of a special statute where the rights and liberty of a citizen are involved.”

By reason of these conclusions, we are not called upon to consider the brief and arguments submitted upon issues of the existence of a debtor-creditor relationship as opposed to that of a fiduciary.

While there is no order discharging the respondent upon the citation for the discovery of information, the record clearly discloses that neither the petitioner, nor the court, had further questions to ask, and respondent was assured that he was not in contempt of court upon the citation as of the time he ceased to participate in the proceedings.

It appearing that the respondent had no further responsibilities pursuant to such citation, the order of the trial court is reversed.

Reversed.

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


author: STOUDER, P. J.

text:
    Raymond Anthony, et al., The Holy Trinity Parish of the Polish National Catholic Church of America, a Religious Organization, and Donald E. Kazubowski, et al., Plaintiffs-Appellants, v. The City of Kewanee, Illinois, a Municipal Corporation, and Harold W. Hill, et al., Defendants-Appellees.
    Gen. No. 66-62.
    Third District.
    February 10, 1967.
    Rehearing denied March 8, 1967.

      Welch & Blachinsky, of Kewanee, for appellants.
    Fred J. Brown and Don J. McRae, of Kewanee, and William Kirman, of Annawan, for appellees.
   STOUDER, P. J.

Plaintiffs-Appellants, filed this action for declaratory judgment in the Circuit Court of Henry County requesting in two counts that a rezoning ordinance of the City of Kewanee be declared void. Count one alleges in substance that Defendants-Appellees, filed a petition with the Kewanee Zoning Board of Appeals requesting that the permitted use of their property be changed from residential to commercial. Objections were filed by Plaintiffs. Hearing was had before the Board which filed its report with the Kewanee City Council for council action. Harold Hill, an attorney and also a member of the Kewanee City Council, represented Defendants in the preparation of their petition and the hearing before the Board. Applicable statutes and ordinances required that where objections were made to a rezoning ordinance the adoption of such ordinance required the favorable vote of two-thirds of the members of the city council. There were five members of the Kewanee City Council and hence four favorable votes were required to adopt a rezoning ordinance. At the time the rezoning ordinance was considered by the council, three members voted for and one member voted against the adoption of the ordinance, Harold Hill abstaining from voting. The ordinance consequently failed of adoption. Thereafter Defendants filed a second petition with the Kewanee Zoning Board of Appeals requesting reclassification of substantially the same property. Again objections were filed by Plaintiffs, hearing was held and a report was filed by the Board with the City Council. In these proceedings the Defendants were represented by attorneys not associated with Harold Hill. When the matter was again considered by the City Council the rezoning ordinance was adopted by a vote of four to one, Harold Hill voting with the majority. This count was dismissed on Defendants’ motion for failure to state a cause of action.

Count two alleges in substance that the rezoning ordinance is void because it is unreasonable, arbitrary and capricious. Defendants’ answer denies the allegations of count two. At the hearing in the trial court Plaintiffs offered four documentary exhibits. Exhibits one and two were respectively the ordinance and the objection filed by Plaintiffs before the zoning board of appeals which exhibits were admitted into evidence. Exhibits three and four were respectively transcripts of the hearings before the Zoning Board of Appeals, the admission into evidence of these exhibits being denied on motion of Defendants. There being no other evidence offered, judgment was entered against the Plaintiffs and in favor of Defendants.

This appeal is before us on the contentions of Plaintiffs that the court erred in dismissing count one of the complaint for failure to state a cause of action and in denying the admission of exhibits three and four into evidence.

Plaintiffs argue that Harold Hill as member of the council had a personal interest in the result of the rezoning ordinance because of his representation as an attorney for Defendants, that his vote in favor of the rezoning ordinance was void and consequently the rezoning ordinance itself is void. We do not find it necessary to determine whether Harold Hill’s conduct was in fact improper. The primary question before us is whether or not his motives or purposes as affected by his alleged personal interest may be inquired into in order to defeat the validity of the ordinance. Zoning ordinances are enacted under legislative authority to provide for the public health, safety and welfare. A zoning ordinance is a legislative act as is a rezoning ordinance which is in effect an amendment to the original ordinance. Village of Justice v. Jamieson, 7 Ill App2d 113, 129 NE2d 269. Where the ordinance is within the grant of power conferred by the legislature the presumption is in favor of the validity of the ordinance and the burden is always on the person attacking its validity to show such invalidity. The courts are without power to inquire into the wisdom of an ordinance or the motives which prompted its enactment with the possible exception that municipal ordinances may be impeached for fraud by persons injuriously affected thereby. Stearns v. City of Chicago, 368 Ill 112, 13 NE2d 63; Keig Stevens Baking Co. v. City of Savanna, 380 Ill 303, 44 NE2d 23 and 2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill 138, 69 NE2d 827. In Murphy v. Chicago, R. I. & P. R. Co., 247 Ill 614, 93 NE 381, the court applied the rule where the complaint alleged that an ordinance was passed on account of the corrupt motives of the members of the municipal authority, it being alleged that such members had each received before and after the passage of the ordinance, free transportation privileges on the railroads of the Defendants who benefited from such ordinance. The court reiterated the rule that the motives of the members of the municipal authority are not proper subjects of judicial inquiry. If a member of a municipal authority be deemed to have violated his duty to act in accord with the public interest, it is the responsibility of the electorate to assess his conduct. We do not believe that the general principle is affected by the fact that Harold Hill is an attorney. Matters relating to the ethical conduct of an attorney, even though subject to censure, as in In re Becker, 16 Ill2d 488, 158 NE2d 753, are irrelevant to and independent of the legislative process. In the instant case count one of the complaint alleges only that one of the members of the city council acted from motives of self-interest and not that any fraud was committed. Under such circumstances the trial court did not err in dismissing the complaint for failure to state a cause of action.

Plaintiffs next contend that the transcripts were properly admissible in order to show compliance with the procedural requirements of due notice and a proper hearing. No doubt if these issues had been raised by count two of the complaint, such transcripts or a portion thereof might be admissible under such theory. However count two is addressed only to the merits of the ordinance and does not allege improper notice or hearing or that Plaintiffs were denied full and fair participation in the hearing before the Board. We find no merit in this contention of Plaintiffs.

Plaintiffs lastly argue that the transcripts are admissible because in determining the reasonableness of a municipal ordinance, the court will consider the existing circumstances and contemporaneous conditions, the object to be accomplished, the means provided therefor, and the necessity or want of necessity for its adoption. We agree that facts bearing on the foregoing considerations are appropriately considered in determining the validity of an ordinance, the nature and effect of the ordinance being the primary considerations. Maskal v. Catholic Bishop of Chicago, 315 Ill App 461, 43 NE2d 206. To indicate the nature of the facts or circumstances which may be appropriately considered as relating to the validity of an ordinance is not determinative of how such facts and circumstances may be proved. The hearing before the Zoning Board of Appeals with relation to the amendment of a zoning ordinance is a part of the legislative process, the Board being deemed a legislative committee. The Board’s reports or recommendations are advisory only and it is not required that the evidence produced at the hearings support the Board’s conclusion. More importantly, the municipal authority is acting in the performance of its legislative function and the propriety of the exercise of its discretion is not-dependent on the adequacy or sufficiency of its knowledge or of supporting evidence. Village of Justice v. Jamieson, 7 Ill App2d 113, 129 NE2d 269 and 2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill 138, 69 NE2d 827. In the instant case the validity of the ordinance is presumed and such validity does not depend on the evidence presented at the hearings before the Zoning Board of Appeals. The transcripts of the testimony are at best secondary evidence, self serving and hearsay. The attack upon the validity of the ordinance is an independent action unrelated to the hearings before the Board of Zoning Appeals. To permit the introduction of the transcripts would deprive the Defendants of their right to have primary or direct evidence presented in open court for assessment and evaluation by the court. In the trial court, counsel for Plaintiffs moved that such transcripts be admitted to expedite the hearing. Although such motive is salutary it is not a substitute for compliance with the rules of evidence. Since such transcripts were inadmissible, the trial court had no alternative except to enter judgment against Plaintiffs.

Finding no error in the judgment of the Circuit Court of Henry County the judgment of said court is affirmed.

Judgment affirmed.

ALLOY and COBYN, JJ., concur.


author: JUSTICE ATTEN.

text:
    John Comer, Plaintiff-Appellee, v. Santo J. Corpora, Defendant-Appellant.
    Gen. No. 66-93.
    Second District.
    February 7, 1967.
    Knight, Ingrassia and Schirger, of Rockford, for appellant; Andrews, Peterson and Spelman, of Rockford, for appellee.
   Opinion by

JUSTICE ATTEN.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    Edna Mae Development Co., Inc., Plaintiff-Appellant, v. Chicago Title and Trust Co., an Illinois Corporation, and Robert Stefaniak, Defendants-Appellees.
    Gen. No. 50,837.
    First District, Second Division.
    December 6, 1966.

      Seymour J. Kurtz, of Chicago (Ben Copple, of counsel), for appellant.
    Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellee, Robert Stefaniak.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment in favor of defendant in an action brought to restrain the payment of a real estate broker’s commission in the amount of $5,500. The defendants are the Chicago Title and Trust Company, whose escrow department holds the funds pursuant to an escrow and Robert Stefaniak (hereinafter referred to as defendant), a broker, who plaintiff claims is not entitled to the funds because of his improper activity against his principal, the plaintiff.

On June 17, 1963, defendant entered into an exclusive brokerage contract with plaintiff, to sell a parcel of real estate on which was located a motel and restaurant. Plaintiff was represented in said dealings by Emil and Neal Mermall, both officers. The agreement between plaintiff and defendant provided that a $170,000 asking price be established for the realty. After defendant was employed he placed an advertisement in the local newspapers and received many inquiries, all of which were communicated to either one or the other of the Mermalls.

On or about August 27, 1963, defendant received an inquiry from one Frank Zela, an old acquaintance, from whom he received a verbal offer of $75,000. This offer was communicated to the Mermalls and refused. On August 28, 1963, defendant reported that Zela would go up to $85,000. On August 30, 1963, a meeting was held between Zela and Emil Mermall. Mermall indicated he would accept an offer of $90,000 plus payment of delinquent water bills, delinquent taxes and the unpaid balance on an electric sign attached to a building on the premises. Zela indicated he was not sure he could raise that amount of money. Whereupon Emil Mermall said, “Well, don’t you have any friends that hang around the gym, any of your friends who might be interested in investing?” Zela then turned to defendant and said, “Well, Bob, your dad has been hanging around for years, do you feel that he might be interested ?”

On August 30, 1963, the date of the original conference with Zela, the purchaser, a further conversation was had at the office of defendant. Emil Mermall suggested to defendant that the commission ought to be reduced in that defendant’s father was to become one of the purchasers and furthermore in that he was anxious to sell the property and therefore cut the price as low as he could. Defendant thereupon agreed to accept $5,500 as and for his commission and disbursements in full.

On September 3,1963, at the office of defendant, in the presence of Frank Zela, Emil Mermall, Neal Mermall and himself, Emil Mermall asked Zela, “Were you able to get some of your friends in?” and Zela said, “Yes, Orville Ragovan, possibly Bob Dahl, possibly a Mr. Murray and then possibly Casey (Stefaniak) would come in,” to which Emil Mermall responded, “I am glad that a group of men could get together.” A written contract was prepared and signed, providing for a total consideration of $90,000 plus the payment of the delinquent taxes, water bill and the unpaid balance on the sign, with the provision that said contract could be rescinded on or before September 6 in the event either financing or a liquor license could not be obtained.

On September 6, an escrow was set up at the Chicago Title and Trust Company, which provided for payments as stipulated in the contract. At that time, a further conversation took place between Emil Mermall and the prospective purchaser relative to the identity of the other investors. Some discussion then followed with reference to who was to be the grantee and it was suggested by attorney Thomas Bobak, representing the purchaser Zela, that a corporate entity should be created to take title as a matter of convenience, in view of the multiple investors. Defendant, pursuant to the suggestion of Emil Mermall, made inquiry of several savings and loan associations for the maximum possible loan to be secured by the property in question.

On September 19, 1963, a charter was issued to Active Associates, Inc. Defendant was a member of the Board of Directors of Active Associates, Inc. on September 26, 1963, when said firm applied for a liquor license with the State of Illinois.

On October 28, 1963, title to the realty was transferred from plaintiff to Active Associates, Inc. Plaintiff contends that stock in Active Associates, Inc., was owned by defendant on this date. Defendant contends that he did not receive any stock in Active Associates, Inc., until after November 15, 1963, at which time the stock was transferred from Casey Stefaniak to defendant. Casey Stefaniak acquired the stock by investing $10,000 in the corporation. Casey Stefaniak explained the transfer of the stock to his sons, defendant and Thomas Stefaniak, on the ground that he was a city official of Calumet City and could not be an owner of any property used in the liquor business. Defendant was not an organizer of Active Associates, Inc.

On November 14, 1963, a recording machine was set up in the office of Emil Mermall and questions were put to defendant as to whether he personally was one of the purchasers, whether he bought any stock and whether he was an officer or director of the corporation. On November 15, 1963, the escrow at the Chicago Title and Trust Company was closed out except for the $5,500, the sum being contested in this action.

Plaintiff’s theory of the case is that defendant is not entitled to his broker’s commission because his activity was adverse to that of his principal.

It is defendant’s theory of the case (1) that a broker for the sale of land is at liberty to deal with a purchaser for a joint interest in the property after the sale has been completed, and (2) that a broker is not barred from recovery of his commission if there is a proper disclosure of his interest.

At the outset, the oral conversations between Mermall and defendant Stefaniak that were recorded on November 14, 1963, were properly excluded as evidence. Tape recordings of an oral conversation are not admissible into evidence against any party who does not consent to the recording of the conversation. People v. Kurth, 34 Ill2d 387, 216 NE2d 154 (1966) and People v. Wolfson, 79 Ill App2d 309.

We likewise find no merit in plaintiff’s other arguments. The obligation of a broker for the sale of realty terminates at the time he procures a ready, willing and able purchaser. Short v. Millard, 68 Ill 292 (1873). From that time on the broker is at liberty to deal with the purchaser for a joint interest in the realty. In any event, after the sale was completed, defendant was free to act adversely to his principal. Hardy v. Davis, 223 Md 229, 164 A2d 281 (1960). In the instant case, a contract was signed on September 3, 1963. The activity of the broker in acquiring an interest in the realty occurred subsequent to the day the contract was signed, in that the formation of the corporation, the subscription to stock and the issuance of stock to defendant occurred after the aforesaid contract date.

Plaintiff contends that issuance of shares in the corporation took place prior to the date title passed to Active Associates, Inc. and that this date is controlling as to whether or not defendant Stefaniak was acting adversely to the interest of plaintiff. We disagree with plaintiff. The controlling date was the date the contract was signed and not the date the title to the realty was passed. See Hardy v. Davis, supra.

Furthermore, there is evidence in the record that transfer of the stock to defendant in Active Associates, Inc. did not occur until November 15, 1963, which was subsequent to the acquisition of the title to the realty by said Active Associates, Inc.

Finally, we find evidence in the record that plaintiff knew, prior to the signing of the contract, that defendant’s father would be one of the purchasers. Slemmons v. Dime Savings & Trust Co., 340 Ill 385, 172 NE 821 (1930). It is axiomatic in cases tried without a jury that it is within the province of the trial court to determine the credibility of the witnesses and the weight to be attached to their testimony and that the findings of fact, made by the trial judge, will not be disturbed by a reviewing court unless said findings are against the manifest weight of the evidence. Emil Mermall denied that he was ever told that Casey Stefaniak, the broker’s father, was to be one of the purchasers. Zela, the initial purchaser, testified, however, that the name of Casey Stefaniak was mentioned at the time of the first conference on August 30th and again on September 3rd, the date the contract was signed and that the name was mentioned again on the day the escrow was being set up at the Chicago Title and Trust Company. This later testimony was substantiated by defendant and Thomas Bobak, the attorney for Zela. The trial court heard this testimony and resolved it in favor of defendant. We will not disturb its findings. For the above reason the decision of the lower court is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


text:
    In the Matter of the Estate of George William Morey, Deceased. Forrest L. Morey, Administrator of the Estate of George William Morey, Deceased, Plaintiff-Appellant, v. Mary O’Brien and Villa Grove Building and Loan Association of Villa Grove, Illinois, a Corporation, Defendants-Appellees.
    Gen. No. 10,767.
    Fourth District.
    December 22, 1966.
    Rehearing denied and opinion modified February 28, 1967.

      Williams & Resch, of Casey, for appellant.
    Lemna & Lee, of Tuscola, for Mary O’Brien, appellee.
   TRAPP, J.

Plaintiff, Forrest L. Morey, Administrator of the estate of George William Morey, appeals from a judgment of the Circuit Court of the Sixth Judicial Circuit, Douglas County, Illinois, holding that the defendant, Mary O’Brien, is the owner of Certificate No. 2352 issued by the Villa Grove Building and Loan Association, representing 50 fully paid shares in said Association.

George W. Morey, now deceased, purchased 50 installment shares in the Association, and the Association originally issued Certificate No. 2175 representing the shares. On July 2, 1958, Certificate No. 2175 was surrendered and Certificate No. 2276 was issued. George W. Henson, Vice-President of the Association, testified that on September 17, 1962, Mr. Morey paid the remaining balance due on the fifty shares, endorsed and surrendered Certificate No. 2276 and requested the reissuance of the certificate, stating that he would like to have it made out to “George W. Morey or Mary O’Brien or survivor.” Donald E. Ryan made out the new certificate as directed, bearing Certificate No. 2352, and delivered it to Mr. Morey in exchange for Certificate No. 2276, which Mr. Morey endorsed. Mr. Morey stated, at the time, that Mary O’Brien was the only one that was good to him.

The face of the certificate was as follows:

“Number 2352
Class A
“CERTIFICATE OF INSTALLMENT SHARES OF
VILLA GROVE BUILDING AND LOAN ASSOCIATION, VILLA GROVE, ILLINOIS
“This Certifies that George W. Morey or Mary O’Brien or survivor member(s) of this association (is) (are) the owner(s) of 50 Installment Shares upon which the initial payment of dues per share has been made.
“The shares participate in the net earnings of the association such earnings to be apportioned periodically as the by-laws may provide. Dues payments are 60 cents per share each month and shall continue until the total dues paid in and all profits so apportioned aggregate the matured value of One Hundred Dollars per share.
“Shares represented by this certificate are subject to ‘Conditions’ on reverse side hereof and are transferable only on the books of the association by the holder in person or by attorney upon surrender of the certificate properly indorsed.
“In Witness Whereof, The association has caused this certificate to be signed by its duly authorized officers this 17th day of September, A. D. 1962.
(SEAL)
/s/ D. E. EYAN /s/ J. E. HENSON
Secretary V. President”

Included in the conditions on the reverse side is the following:

“Second. The association may enforce retirement of shares in the manner provided by law. Shares may be withdrawn by the owner subject to such notice as may be required by the by-laws. Application to withdraw before the shares have reached matured value will be filed in the order in which they are received. Maturing shares are automatically filed as of the date of maturity. Payments will be made in the order filed from appropriations made by the directors out of the regular receipts of the association — except that in the event of unusual demands they may be paid, as- provided by the laws of Illinois, in such other manner as the Board of Directors may from time to time by resolution determine.”

The only passbook issued was a payment record showing installments paid. It was not required that the payer bring in his passbook.

Mr. Eyan testified that at the time the Certificate in question was issued, the Association had full paid shares and installment shares. These were represented by certificates. The Association also had withdrawable capital accounts which were represented by passbooks and account numbers. He stated that the Certificate, in the case of installment shares, was the only document which showed the owners of the shares, and that it was transferable only on the books of the Association. He stated that the Certificate representing installment shares was never referred to as a withdrawable capital account.

Mr. Henson, Vice-President, testified that a signature card was not required with installment shares, that if Mr. George W. Morey had brought the Certificate No. 2352 in, he could have exchanged it for $5,000. He stated that if Mary O’Brien had brought the Certificate in, she could have exchanged it for $5,000. He also stated that the installment shares are now obsolete.

It is agreed that there was no contract signed by George W. Morey and Mary O’Brien creating a joint tenancy or making any other disposition of the shares, nor was any signature card obtained from Mary O’Brien.

Plaintiff contends that Illinois Revised Statutes, 1961, chap 76, § 2(c) and chap 32, § 770 require that to establish a joint tenancy in respect to the shares here involved, there must be a writing or agreement signed by both joint tenants expressing the agreement that payment may be made to the survivor.

Defendant’s brief relies upon chap 32, § 952 and chap 76, § 2(b) and § 2(c) (Ill Rev Stats, 1961).

The Supreme Court of Illinois in Frey v. Wubbena, 26 Ill2d 62 on 67-68, 185 NE2d 850, adhered to the doctrine announced in Doubler v. Doubler, 412 Ill 597, 107 NE2d 789, that in the case of a bank account it was necessary that an agreement be signed by the parties in order to create rights of survivorship in a bank deposit. The court also determined that the right to create a survivor-ship account in respect to savings and loan associations was provided by both the statute relating to joint rights and obligations, and the Illinois Savings and Loan Act. It further held that the right to create a joint tenancy-in corporate stock is recognized by the statute on joint rights and obligations, chap 76, §2(b) (Ill Rev Stats, 1961). In respect to corporate stock, the court held that the registration of the stock ownership upon the books of the corporation in the statutory language was sufficient to vest the title. The court distinguished corporate stock from bank accounts upon the difference in the statute and the difference in the nature of the property. Section 2(b) of chap 76 (Ill Rev Stats, 1961) does not require a writing as to corporate stock. The court explained that corporate stock was issued in fixed units of ownership (shares of stock) which remain fixed, whereas, a bank account is a fluctuating res subject to daily change in amount by the act of any of the joint owners. Even if one assumes that the certificate for shares had not been fully paid, it was a certificate for a fixed number of shares transferable by its terms, only on the books of the corporation and upon surrender of the certificate. It is clear that the ownership of the shares was to be fixed by corporate registration and not by other agreements. The registration of shares of corporate stock in joint tenancy by oral request for registration is supported by Lytle v. Northern Trust Co., 39 Ill App2d 372,188 NE2d 743.

It is our view that the shares of stock represented by the certificate, at least when matured as they were at the time of the issuance of Certificate No. 2352, fall into the category of corporate stock and not into the category of a bank account. Both the form of the certificate and the testimony of the officers of the association bear witness to the fact that the shares in question do not represent a withdrawable capital account.

There remains the question that the registration of the stock was not in the exact statutory language in that the term “as joint tenants” was not used. That there was a donative intent as opposed to providing a convenience account seems clear both from the nature of the registration and the testimony of Mr. Henson as to Mr. Morey’s statements at the time of registration. In Reder v. Reder, 312 Ill 209, on p 213, 143 NE 418, langauge putting an account in the name of the depositor and another “payable to either or the survivor of them” was considered sufficient to create a joint bank account where both had possession of the book from time to time. While the Reder case would not be authority for creation of a joint account today without an agreement between the parties, it does clearly indicate that the use of the specific words “as joint tenants” is not necessary to create an effective gift which results in the survivor taking.

We believe that Frey v. Wubbena, 26 Ill2d 62, 69, 185 NE2d 850, must be taken as holding that where the personal property is evidenced by a certificate of ownership of a fixed number of units or shares in a corporation or association, which certificate of ownership is registered upon the books of the corporation or association and is by its terms transferable only upon the books of the corporation upon surrender of the certificate, a joint tenancy may be created by the act of registration on the corporate books and the issuance of a certificate using apt language to describe a joint tenancy; under the authority of chap 76, § 2 (Ill Rev Stats, 1961). This could be done either under the authority of the first paragraph of this section as an exception to the section or under § 2(b) of chap 76. Such a method of creation of a joint tenancy need not be accompanied by an agreement signed by either of the parties to the joint tenancy.

Our analysis of Frey v. Wubbena leads us to the conclusion that the Supreme Court, in that case, made an exception of those cases where the shares of stock or indebtedness were evidenced by a certificate, and where the normal method of transferring ownership required the transfer or surrender of the certificate. In the case of shares of stock in a corporation, a joint tenancy can be created by surrender of an existing share of stock by the person entitled to surrender the same, and the registration of the stock upon the books of the corporation in language appropriate to create a joint tenancy. In the case of certificates of deposit and promissory notes, the court there held that this can be done by the act of the person issuing the certificate of deposit or making the note.

The certificate of shares of stock in the Villa Grove Building and Loan Association, in this case, was a reissuance of a certificate originally issued in 1952, prior to the enactment of Illinois Savings and Loan Act of 1955. No proper question is presented in this case whether the association issued these shares under a proper plan approved by the auditor. They were, in fact, treated by all parties as shares of corporate stock, and the manifest intention of the owner to create a joint tenancy with right of survivorship was carried out by the corporation in the usual manner for creating joint tenancies in such property.

The type of certificate involved in this case which was transferable only on the books of the corporation was of the same nature as the type of certificate involved in Allmon v. Salem Building & Loan Ass’n, 275 Ill 336, 341, 114 NE 170, where the association was held to be negligent in paying the registered owner without requiring a surrender of the certificate. This, we believe, reinforces our view that the property here involved should be treated as corporate stock rather than as a bank account or withdrawable account, and should be transferable as provided in chap 76, § 2(b) (Ill Rev Stats, 1961), without a signed agreement between the parties.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    Sally H. Fairweather, Plaintiff-Appellant, v. Robert Breen, Defendant-Appellee.
    Gen. No. 66-32.
    Second District.
    December 29, 1966.
    Rehearing denied and supplemental opinion March 3, 1967.
    Seyfarth, Shaw, Fairweather and Geraldson, of Chicago, for appellant; Albert S. Salvi, of Lake Zurich, for appellee.
   Opinion by

JUSTICE ATTEN.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois ex rel. Geraldine Covington, Plaintiff-Appellee, v. Quinnon Johnson, Defendant-Appellant.
    Gen. No. 50,580.
    First District, Third Division.
    January 12, 1967.
    Rehearing denied February 9,1967.

      Ira I. Silbar, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order denying both a petition and a motion to vacate a judgment for the plaintiff finding the defendant to be the father of a male child born out of wedlock on January 3, 1959. The petition and motion were filed some five years after the judgment. The judgment was entered under the Paternity Act (Ill Rev Stats 1959, c 106%,, pars 51 to 66).

The facts are these:

On October 30, 1959, the defendant appeared in court and was called upon to answer the complaint of Geraldine Covington charging him with fathering a child delivered by her out of wedlock. The defendant in open court admitted paternity. The court, sitting without a jury, held a hearing and there was a finding that the defendant was the father of the child. The record also discloses that the court at that time heard evidence upon the requirements of said child for its support, maintenance, education and welfare, and ordered the defendant to pay, to the Clerk of the court the sum of $12 weekly commencing November 7, 1959.

On October 26, 1964, the defendant filed a petition to vacate the judgment which had been entered on October 30, 1959. The petition to vacate the judgment and subsequent motion to sustain the petition were denied in the trial court.

The defendant contends that the court erred in treating this case as criminal in nature instead of civil by accepting an oral plea of guilty; in failing to issue a warrant for the apprehension of defendant; in failing to require a signed written acknowledgment of paternity; and in entering judgment the day of the preliminary hearing instead of setting a later date for a trial on the merits.

Section 5 of the Paternity Act (Ill Rev Stats 1959, c 106%, par 55) provides in part as follows:

“Upon the filing of a complaint as provided in Section 4, . . . the Court shall thereupon issue a warrant for the apprehension of the defendant, .... Upon the appearance of the accused and in his presence, the Court shall examine the woman, upon oath or affirmation, on the charge that he is the father of the child. ... If the accused admits the charge, or waives examination of the complainant, or if after the accused has controverted the charge the court, upon examination, determines that sufficient cause appears, it shall bind the accused person, in bond, ... to appear in court on a designated return day occurring within 30 days from the date of the bond, ... to answer the charge and to abide the final order or judgment. . .

Section 9 of the Paternity Act reads in part as follows:

“If the defendant has in writing acknowledged that he is the father of the child, either at the preliminary hearing provided in Section 5, or at the subsequent trial of the issue, ... or if on the trial of the issue the court or jury, as the case may be, finds that he is the father, the court shall enter judgment to that effect. . . .”

As to the first point urged by the defendant, namely, that the court erred in treating this case as criminal in nature instead of civil, the defendant argues that the plea of guilty accepted by the court was improper because cases involving the Paternity Act are civil cases and not criminal. Prior to 1957 cases of this kind were covered by the act known as the Bastardy Act. In 1957 the legislature saw fit to give this chapter a more imposing and dignified title and named it the Paternity Act. Cases construing the procedures in the Bastardy Act are applicable to the statute now entitled Paternity Act.

In People v. Woodside, 72 Ill 407, the court decided that in a bastardy case where a plea of not guilty was filed it was sufficient, though not as formal as it might be, and the issue was thus made.

We think there is no substantial point raised by the defendant’s first contention merely because the defendant pleaded guilty to the charge rather than to file a formal answer to the charge against him. The Civil Practice Act is applicable to the Paternity Act, and while it would have been more appropriate for the defendant to file an answer or other pleading, he cannot now complain of his failure to provide a more formal issue. Cornmesser v. Laken, 43 Ill App2d 324, 193 NE2d 337; People v. Humbracht, 215 Ill App 29. Furthermore, in the order entered after the hearing it is recited that the defendant admitted the paternity of the child.

The defendant also argues in his brief that by virtue of section 5 of the Paternity Act the court should have issued a warrant for the apprehension of the defendant and cites the case of Toms v. Lohrentz, 37 Ill App2d 414, 185 NE2d 708. In the Toms case the court on page 418 said the following:

“Upon the filing of a complaint, the Paternity Act provides that the ‘Court shall thereupon issue a warrant for the apprehension of the defendant.’ This is the only method provided for obtaining jurisdiction of the putative father.”

In that case the plaintiff had brought suit against the administrator of the estate of the putative father after his death, and the language above quoted was used to support the court’s reasoning that an action under the Paternity Act did not survive the death of the putative father. We do not construe that case to hold that the court could not obtain jurisdiction of a putative father who voluntarily appears before the court.

In People v. Estep, 6 Ill2d 127, 128, 126 NE2d 637, the court said that “the object of process is to secure the appearance of the party, and process is unnecessary if the party appears voluntarily. Any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.” Section 5 of the Paternity Act set forth above reads in part as follows: “Upon the filing of a complaint . . . the court shall thereupon issue a warrant for the apprehension of the defendant.” Here there was no necessity for apprehending the defendant as he voluntarily appeared in court and submitted to its jurisdiction.

The defendant next contends that because he did not file a written acknowledgment that he was the father of the child the proceeding was conducted contrary to the provisions of the Paternity Act. Section 5 of the Paternity Act provides that if the accused admits the charge after appearing in court upon the filing of the complaint, it shall bind the accused person to appear in court on a designated return day. Section 5 does not require a written acknowledgment of the paternity of the child. Section 9 of the Paternity Act relates to the trial and provides that if the defendant has acknowledged in writing the paternity of the child, either at the preliminary hearing or at a subsequent trial, or if on the trial of the issue the court or jury, as the case may be, finds that he is the father, the court shall enter judgment to that effect. Here the court by its order stated that the defendant had been held to trial on the issue and upon the evidence the court found the defendant guilty of being the father of the child.

The defendant finally contends that the court erred in entering judgment the day of the preliminary hearing instead of setting a later date for a trial on the merits.

The court in the case of People v. Humbracht, supra, in construing the word “shall” in the Bastardy Act said on page 34:

“Furthermore, we think that the word ‘shall’ in section 4 of the statute (wherein it is provided that the County Court or Criminal Court, as the case may be, ‘at its next term, shall cause an issue to be made up,’ etc.) should be construed as merely directory and not mandatory. ‘The word shall may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction.’ (Wheeler v. City of Chicago, 24 Ill 105-107; Canal Commissioners v. Sanitary Dist. of Chicago, 184 Ill 597-604.)”

We consider the requirement that a hearing be held at a subsequent date within thirty days after the preliminary hearing to be directory and not mandatory in a case like this. Also, by the defendant’s voluntary appearance for the preliminary hearing and his participation in the trial which immediately followed, without having sought or even, possibly, desired a hearing on a later date, he must be held to have waived a later hearing.

In Rose v. People ex rel. Stansell, 81 Ill App 128, 130 the court said:

“A prosecution under the bastardy act is a civil proceeding, and in such case a defendant may waive any irregularity in process or preliminary proceedings by the same acts and to the same extent as in other civil cases.”

The order entered by the trial court recited that the defendant having been present in open court, and having admitted the paternity of the child out of wedlock, and having waived examination of relatrix and the court having held the defendant to trial on the issue and upon the evidence presented the court found Quinnon Johnson guilty of being the father of the child (male) born out of wedlock January 3, 1959. The court thereupon ordered the plaintiffs have judgment on the finding and that the defendant is the real father of the child of the relatrix. The order further recited that the court heard evidence upon the requirements of the said child for its support, maintenance, education and welfare, and ordered that the defendant pay to the Clerk the amount found necessary therefor. Since the order recites that evidence was heard on the issues and that the defendant was present in open court, and since there is no report of proceedings in the record, we are bound by the recital of the final order.

The defendant has contended that the judgment entered in this case was void because of the irregularities in the proceedings. We do not consider that any of the points raised by the defendant deprived the trial court of jurisdiction at the time of the hearing and the entry of the judgment, and we conclude the judgment entered on October 30,1959, is valid.

The plaintiff in its brief asserts that since the judgment of October 30, 1959, was not void and since the petition to vacate the judgment was not timely filed under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72), the court was correct in denying the defendant’s petition. With this we agree. The petition was filed on October 26, 1964, some five years after the entry of the judgment. A motion was subsequently filed by the defendant. The motion and the petition of the defendant were properly denied and the orders are affirmed.

Orders affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. C. B. Caldwell, Defendant-Appellant.
    Gen. No. 50,420.
    First District, Third Division.
    January 12, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

A jury found the defendant, C. B. Caldwell, guilty of murder and the trial judge sentenced him to the penitentiary for a term of fifty to one hundred years.

He was indicted for the murder of Bessie Mae Woods in Cook County, Illinois, and he contends that either his conviction should be reversed because the indictment was defective in not specifying the place of the offense, or that he should be given a new trial because (1) the court failed to give a manslaughter instruction; (2) the prosecutor’s closing argument was prejudicial; (3) his confession was obtained under circumstances which violated his constitutional rights, and (4) his confession was allowed to be taken into the jury room. In the alternative he requests this court to reduce his sentence.

Mrs. Woods lived with her husband in an apartment in Chicago. Caldwell, who had known Mrs. Woods all his life, lived in a room adjoining the Woods’ apartment. His room was separated from their apartment by a connecting bathroom. In the middle of the afternoon of April 24, 1964, he was talking to Mrs. Woods in her kitchen. Her uncle, William O’Neil, an elderly man who walked with a cane, was visiting her and was sitting in the living room. O’Neil heard his niece and Caldwell arguing about two dollars. Mrs. Woods said she “didn’t have no two dollars.” She kept repeating this and, upon hearing a scuffle, O’Neil went to the kitchen door. Caldwell was holding his niece by the collar and O’Neil told him to stop what he was doing and to get out.

Caldwell went to his own room but came back in a minute or two with a gun in his hand and headed for the kitchen. O’Neil tried to stop him but he shoved O’Neil aside. O’Neil fell over a chair; before he could get up he heard Caldwell follow his niece out the back door. A moment later he heard a shot. He found his niece lying in the back areaway. Caldwell had disappeared.

About 5:00 p. m. on the same afternoon a Chicago policeman, dressed in plain clothes, was sitting in his auto in front of the Woods’ apartment. He observed a man walking on the opposite side of the street. The man stopped and then walked on. A boy called out, “Hey, Sonny Boy.” The officer, knowing that this was Caldwell’s nickname, got out of his car, identified himself as a police officer and, with his gun pointed at the man, started across the street. The man, Caldwell, put his hands in the air. He was searched and a .22 caliber revolver with two expelled bullet casings and five unexpended cartridges was found in his pocket. He was disarmed, handcuffed and placed in the automobile.

Before taking Caldwell to the police station the officer asked him for his side of the story. Caldwell told him that the argument with Mrs. Woods was carried over from the night before and was about another boy friend; that he and “Uncle Neal” [William O’Neil] also argued and the uncle hit him with a stick. He walked to his room, got his gun and returned. He pushed O’Neil aside and shouted into the kitchen, “You started this whole thing.” At this Mrs. Woods ran out of the back door and he chased her. He caught up to her at the bottom of the steps, “grabbed her collar and she started to struggle and that’s when I let her have it.”

Caldwell said that he told some boys who were in front of the building that he had shot “Bessie” and for them to call the police. He explained that he was returning to give himself up when the officer arrested him.

At the station Caldwell was not placed behind bars but his handcuffs were attached to a radiator while the officer went to the hospital to speak to Mrs. Woods. He was unable to talk to her. She had been shot in the left temple and was unconscious. She died three weeks later. About an hour and a half had elapsed from the time the officer left the station until he returned. A typed statement was then taken from Caldwell which he signed. This statement was substantially the same as the oral one.

At the trial Caldwell testified that he and Mrs. Woods did not argue or scuffle; that O’Neil came into the kitchen with a cane in his right hand and a knife in his left and, without saying a word, hit Caldwell with the cane and put the knife to his neck. Mrs. Woods exclaimed, “No, Uncle William! Don’t cut him.” O’Neil replied, “He ain’t got no business in here” and told him to get out. Caldwell left and when he came back O’Neil stepped toward him. They had a few words and Mrs. Woods screamed and ran out of the back door. He followed her into the yard and asked why she was running. She replied she was afraid of guns. As they were walking back to the house she grabbed his hands, the gun fired and she fell. He said he did not fire the gun, that it went off when she snatched it and that he did not aim it at her or intend to shoot her. When he saw that she was bleeding he became frightened and ran away through an alley.

There is no merit to the defendant’s contention that the indictment was defective. A long line of cases, starting with People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 325 (1965), has held that an indictment which alleges that an offense occurred in a certain county complies with the statutory requirements (111 Rev Stats, 1963, c 38, § 111-4 (a) (4)); People v. Zeravich, 64 Ill App2d 150, 212 NE2d 282 (1965); People v. Blanchette, 33 Ill2d 527, 212 NE2d 97 (1965); People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966).

The jury was not given a manslaughter instruction and the defendant protests that this was error. On the' first day of the trial, during a recess at the close of the State’s case, the defendant’s counsel inquired about the propriety of such an instruction and the trial judge replied that, as of that time, he would refuse to give an instruction on manslaughter. At the termination of all the testimony, while going over the instructions, the defense counsel asked that the record show that he proposed to offer a manslaughter instruction but that it would be useless. The judge recalled the discussion of the previous day and observed that an instruction had not been tendered. The defendant’s counsel said that he would prepare an instruction for the record, but none was ever offered.

A trial judge has no duty to give instructions where a defendant does not tender them and the defendant cannot now fairly object that none was given. People v. Carvin, 20 Ill2d 32, 169 NE2d 260 (1960); People v. Baker, 8 Ill2d 522, 134 NE2d 786 (1956); People v. Weisberg, 396 Ill 412, 71 NE2d 671 (1947). Moreover, if a manslaughter instruction had been refused it would not have been error. The theory of the defense was that Mrs. Woods came to her death as a result of an accident. In his opening statement the defendant’s attorney said that the evidence would disclose that the shooting “was an accidental act.” The defendant testified that the shooting was accidental; his attorney argued to the jury that it was accidental and at the defendant’s request the court instructed the jury on the theory of accident. If the State’s evidence was believed, the defendant was guilty of murder; if the defendant’s testimony was believed, Mr. Woods’ death was accidental. There was no evidence that the killing was manslaughter — either voluntary or involuntary — and it would have been error to have given instructions on that subject. People v. Burnett, 27 Ill2d 510, 190 NE2d 338 (1963); People v. Wheeler, 57 Ill App2d 452, 206 NE2d 727 (1965).

One of the two remarks of the prosecutor which the defendant protests as being inflammatory occurred in the opening argument when the prosecutor said that Caldwell’s initials “C. B.” meant “cold blooded.” The prosecutor stated that Caldwell did not go after O’Neil with whom he testified he had quarreled, but that he pursued Mrs. Woods, grabbed her by the collar and raised his gun to fire. He then added: “Well, that does one thing for us. It tells us what ‘C. B.’ means in front of Caldwell —‘cold blooded.’ ” We see nothing wrong in this characterization. The purport of this argument was that Caldwell was not provoked with O’Neil; that Mrs. Woods was his target; that she knew it and fled, and that the killing was deliberate. The argument was supported by evidence and the characterization was a fair comment on the evidence. It is not improper for a prosecuting attorney to reflect unfavorably on a defendant or to comment on his actions if based on pertinent evidence. People v. Miller, 13 Ill2d 84, 148 NE2d 455 (1958).

The second remark occurred in the final argument of the prosecutor. He said that according to Caldwell’s statement Caldwell was choking Mrs. Woods while he pointed the gun at her. The defendant objected. The court overruled the objection saying, “There is evidence in the statement that he said, T grabbed her by the collar.’ ” The prosecutor was in error when he said Caldwell admitted choking Mrs. Woods, but the error was not a grievous one and the trial judge, although he did not sustain the objection, immediately corrected the prosecutor’s error by quoting the exact language used by Caldwell.

It is contended that the defendant’s confession was taken under circumstances which violated his constitutional rights and that its admission into evidence over objection constituted reversible error. The circumstances enumerated are: (a) the defendant was handcuffed to a radiator prior to the confession; (b) the provisions of the “Rights of Accused” (Ill Rev Stats, 1963, c 38, article 103, as set out in section 103-7) were not read to the defendant and they should have been because he could not read the printed, posted notice of these rights; (c) the statement was taken by the arresting officer only and this amounted to a secret inquisition because no third person was present; (d) the defendant was not told of his right to remain silent; (e) he was not told of his right to counsel; (f) the typed statement was not read to him and, (g) he did not sign the statement.

The oral statement of guilt made by the defendant upon his arrest was not objected to in the trial court and is not challenged in this court. When the written statement was offered in evidence the defendant’s attorney objected on the ground that there was no proper foundation, but at no time, either before trial or during the trial, did he object that it was involuntary, and no motion to suppress was ever made. The written statement was taken within three hours of the defendant’s arrest. He was not subjected to repeated questioning. He does not claim that he was harassed or badgered into confessing; he does not claim that he was beaten or that physical force was used upon him. His only complaint in this respect is that before his statement was taken he was handcuffed to a radiator. This could be an important factor in considering the voluntariness of the statement. However, there is no evidence that he was not seated or was otherwise uncomfortable during the time the arresting officer was away. Instead of being confined in a cell he was held in custody in another room while the officer attempted to check his version of the shooting with his victim. What was done was reasonably necessary to prevent his escape, and what was done did not influence his written statement — his written and oral statements were substantially identical.

At his trial the defendant testified that he did not read the statement because the room was too dark. In rebuttal the officer who took the statement said the defendant did read it and that the room was brightly lighted with fluorescent lights. In surrebuttal the defendant, for the first time, said he could not read. In the statement itself the defendant, who was 34 years old and had gone through the fifth grade, said he could both read and write. Whether he could read or not was for the jury to determine. After a confession has been received in evidence the weight to be given the confession is entirely for the jury. People v. Hurry, 385 Ill 486, 52 NE2d 173 (1944).

The defendant’s assertion that he could not read would have to be accepted as true before weight could be lent to his further contentions that the statement was not read to him and that the posted “Rights of Accused” should have been read to him. At best his ability to read was a question of fact which the jury resolved against him.

Nor can we accept his assertion, made for the first time in this court, that he did not sign the statement. He did not dispute his signature at the trial and we do not think he can truthfully dispute it now. We note that the same signature appears elsewhere in the record, e. g.: on his Notice of Appeal and on his petition for a Stenographic Transcript of Proceedings.

The defendant did not request counsel and none was prevented from seeing him. However, he was not told before he made either his oral or written statement that he could remain silent and that he had the right to the assistance of counsel. But it has been held that the failure to warn an accused of his right to remain silent and (in the absence of a request for counsel) a failure to inform him of his right to counsel, do not make statements involuntary but are circumstances to be weighed in considering their voluntariness. People v. Jackson, 35 Ill2d 162, 220 NE2d 229 (1966); People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965); People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964). Since the defendant did not request counsel, Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed2d 977, upon which he relies is not applicable. Nor is the decision in Miranda v. State of Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed2d 694, of benefit to the defendant. The trial in the present case started on February 8, 1965, and the standards established in the Miranda decision apply only to those defendants whose trials began after June 13, 1966, the date of that decision. Johnson v. New Jersey, 384 US 719, 86 S Ct 1772, 16 L Ed2d 882; People v. Heise, 35 Ill2d 214, 220 NE2d 438 (1966); People v. McGuire, 35 Ill2d 219, 220 NE2d 447 (1966).

The remaining contention in reference to the voluntariness of the confession, that a third person was not present when it was taken, is without merit.

A more meritorious contention is that the court improperly permitted the written confession to be taken into the jury room. This was done over the objection of the defendant. In People v. Spranger, 314 Ill 602, 145 NE 706 (1924) two brothers appealed a murder conviction in which the trial court, over objection, permitted the confession of one of the defendants to be taken to the jury room. The Supreme Court stated: “It is error to permit the jury to take with them for consideration in the jury room depositions and dying declarations. . . . The same rule applies to confessions or other instruments of evidence depending for their value on the credibility of the maker.” In the case of People v. Allen, 17 Ill2d 55,160 NE2d 818 (1959) it was held that whether exhibits may be taken to the jury room is a matter resting largely in the sound discretion of the trial judge. In Allen, however, and in People v. Ciucci, 8 Ill2d 619, 137 NE2d 40 (1956) cited in the Allen case, the exhibits which went to the jury room were physical objects, not a confession. Although Allen seems to have been interpreted in recent cases (People v. Somerville, 71 Ill App2d 381, 219 NE2d 116 (1966), leave to appeal denied September 28, 1966; People v. Dixon, 75 Ill App2d 77, 221 NE2d 35), as impliedly overruling Spranger, we are of the opinion that Spranger, and its underlying rationale, is still the controlling law.

In People v. Somerville and People v. Dixon, supra, convictions were affirmed although written statements had been permitted in the jury room. Both cases distinguished the Spranger decision. In People v. Somerville, an armed robbery case, an incriminating statement of an accomplice, who was indicted but not tried with the three defendants, was given to the jury when it retired. The accomplice had testified to the substance of the statement and its contents had been read to the jury. The opinion stated that while it was not necessary to have the statement read to the jury or sent to the jury room after the accomplice had testified to its contents “we hold that it was not an abuse of discretion to do so, and the defendants were not prejudiced thereby.” In Dixon, also an armed robbery case, the defendant’s confession went to the jury room without objection but the point on appeal was raised under the “plain errors” statute. (Ill Rev Stats 1963, c 38, § 121-9). The court said:

“While we feel that a trial judge should exercise great caution and consider the problem very carefully before permitting the jury to take a confession with them to the jury room, we hold that under the circumstances of this case the defendant could not have been prejudiced thereby.”

In a third case, People v. Bailey, 76 Ill App2d 310, 222 NE2d 268, a murder case, the same court affirmed a conviction where the defendant’s statement had been taken to the jury room, and People v. Spranger was again distinguished. In Bailey, as in the case at bar, only the defendant and the deceased were present when the latter was shot and the defendant claimed that the killing was accidental. The court said: “As to allowing the defendant’s statement to go to the jury room we do not find any abuse of discretion to the prejudice of the defendant.”

Unlike the Somerville, Dixon and Bailey cases we find no meaningful distinction between People v. Spranger and the present case. We do have, however, a reason in common with those cases for holding in the present case that no prejudicial error resulted from permitting the jury to have the confession. In those cases, as in this, the evidence of the defendants’ guilt was conclusive apart from the written statements. In Somerville the court stated: “We have carefully reviewed the entire record and find the evidence of the guilt of the defendants to be overwhelming.” In Dixon the court found that “there was persuasive independent evidence of the defendant’s guilt.” In Bailey the court was of the opinion that “the jury could not have reached any other conclusion than they did. . . .”

In the case at bar the proof of the defendant’s guilt did not depend on his written confession and furthermore it did not depend on his oral confession. Independent of either or both statements, the evidence established his guilt beyond a reasonable doubt — and if the oral statement is added to the evidence the proof of guilt is beyond question.

Another phase of the confession going to the jury room is also advanced as error. The written confession was marked Exhibit 2 and was introduced into evidence. A copy of the confession, which had been given to the defendant’s attorney and used by him in the trial, was marked Exhibit 2A and was not introduced into evidence. By inadvertence Exhibit 2A was sent to the jury room instead of Exhibit 2. This was error but no prejudice to the defendant resulted from it.

The purpose of a review in a criminal case is not to decide whether the record is perfect, but to determine whether the defendant had a fair trial free from substantial and prejudicial errors, and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. People v. Naujokas, 25 Ill2d 32, 182 NE2d 700 (1962). If the errors complained of could not reasonably have affected the result of the trial the judgment should be affirmed. People v. Cardinelli, 297 Ill 116, 130 NE 355 (1921). The evidence of the offense of murder and of the defendant’s guilt is of the convincing character required to justify an affirmance of the judgment despite the two errors which occurred during the trial.

Before imposing the sentence of fifty to one hundred years the trial judge analyzed the evidence. Among other things, the court said that Caldwell did not quarrel with O’Neil: “The story about the old man was utter nonsense. That old man could barely stand to get on the witness stand.” The Judge said that Caldwell got his gun and went for Mrs. Woods; that “he killed her in cold blood for no reason whatsoever”; that he was satisfied that he killed her, let her lie where he had shot her and walked away. The State had recommended the sentence and the court accepted it, observing that it was a reasonable and appropriate one in this case.

A reviewing court in Illinois has the power to reduce the punishment imposed by the trial court (Ill Rev Stats, 1963, c 38, § 121-9 (b) (4)) but in this case, in view of the nature of the crime and the record before us, we cannot say that the sentence imposed was improper. Although the sentence may, at first blush, seem severe, the minimum term of fifty years is not as rigid as it appears. Any minimum term in excess of twenty years is treated as one of twenty years for the purpose of parole eligibility. (Ill Rev Stats, 1965, c 38, § 123-2(3).) With the time credit which may be received for good behavior, a prisoner serving a minimum sentence of twenty or more years becomes eligible for parole at the expiration of eleven years and three months. In the present case there is, therefore, a wide spread between the minimum and maximum terms which the defendant may serve. This flexibility of incarceration will permit the parole board to exercise the judgment contemplated by the sentencing and parole laws of our State.

The judgment and sentence are affirmed.

Affirmed.

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


author: JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elijah Barren (Impleaded), Defendant-Appellant.
    Gen. No. 50,521.
    First District, Third Division.
    January 12, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton P. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.