author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William H. Palmer, Defendant-Appellant.
    (No. 54480;
    First District
    September 10, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (John T. Moran, Jr., and James Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and James Stemik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

This is an appeal from a conviction for the crime of voluntary manslaughter. Defendant was charged by indictment with murder. He entered a plea of not guilty to that charge. However, at trial, on May 6, 1969, he entered a plea of guilty to the reduced charge of voluntary manslaughter. The plea was accepted by the court and defendant was sentenced after a hearing in aggravation and mitigation to a term of three to ten years. On appeal it is argued that acceptance of the plea was error for the reasons that before accepting the plea the court: (1) failed to ascertain whether defendant understood the nature of the charge against him; and (2) failed to warn him that his plea of guilty waived his privilege against self-incrimination and his right to confront his accusers.

The record reflects the following exchange at trial:

“Mr. Starke: [Defense Counsel] Good morning, Your Honor. May it please the court, I have had a substantial conference with my client this morning and as of yesterday, and after a full conference with him he has authorized me to move the Court to withdraw his plea of not guilty to the indictment of murder and enter a plea of guilty to involuntary manslaughter which is an included count in the indictment.
# # #
Mr. Van Zeyl: [Assistant State’s Attorney] Judge, in view of the representations which have just been made to the Court, the State at this time would move to reduce the charge in the indictment from murder to voluntary manslaughter.
The Court: All right. Sustained. All right. Now, Mr. Palmer, do you know what a jury trial is?
The Defendant: Yes, I do.
The Court: And you realize that when you withdraw your plea of not guilty to the reduced charge of manslaughter * * *.
Mr. Van Zeyl: Judge, this is voluntary.
The Court: Sorry.
Mr. Cusick: I think the correction should also be made on the plea.
Mr. Starke: We will change it accordingly.
The Court: In other words, the plea is to voluntary manslaughter.
When you withdraw your plea of not guilty and enter a plea of guilty, you automatically waive your right of trial by jury.
Do you understand that?
The Defendant: Yes.
The Court: Now, on a plea of guilty to voluntary manslaughter, I could sentence you to the penitentiary for a term of not less than one year, nor more than twenty years.
Knowing this do you still persist in your plea of guilty?
The Defendant: Yes.
The Court: Now, has there been any coercion or force been used upon you to induce a plea of guilty?
The Defendant: No.
The Court: You do this voluntarily of your own free will?
The Defendant: Yes.
The Court: Now, you have had the advice of counsel and you are satisfied with your attorney?
The Defendant: That’s right.
The Court: All right. I will take the plea.”

Defendant argues first that the court erred in not determining before accepting the plea whether he understood the nature of the charge against him. In asserting this argument defendant relies upon McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, and People v. Washington (1955), 5 Ill.2d 58.

We do not find defendant’s argument based upon People v. Washington, supra, to be persuasive. In that case the defendant’s conviction was reversed for the reason that he had been permitted to plead guilty to “Count One and Count Nine of the Indictment” without the court’s determination on the record that he knew what offenses were charged by those counts or the penalties attached thereto.

Examination of the opinion in McCarthy v. United States, supra, indicates that that decision was expressly based upon the court’s construction of United States Supreme Court Rule 11 rather than constitutional grounds and is therefor not controlling here. Although, the Illinois Supreme Court has stated in People v. Mims (1969), 42 Ill.2d 441 that the reasoning of McCarthy is applicable to Supreme Court Rule 401 (Ill. Rev. Stat. 1967, ch. 110A, par. 401,) that rule does not require that the comt state all of the acts which constitute the offense, but that it give its “essence, general character, kind or sort.” People v. Carter, (1969), 107 Ill.App.2d 474, cert. den., 397 U.S. 1008. See also People v. Burdick (1969), 117 Ill.App.2d 314.

In the case at bar the comt specifically asked defendant if, knowing that he could receive a sentence of one to twenty years on a plea of guilty to voluntary manslaughter, he wished to persist in his plea. Defendant’s plea was accepted after an affirmative response to that question. We believe that defendant was properly apprised of the charge. See People v. Kontopoulos (1962), 26 Ill.2d 388 and People v. Evans (1970), 45 Ill.2d 265.

Defendant also contends that the comt erred in failing to warn him that by entering a plea of guilty he waived his privilege against self-incrimination and his right to confront his accusers. Defendant’s argument on this point is premised on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709. However, in People v. Williams (1970), 44 Ill.2d 334, cert. den., 399 U.S. 914, the Supreme Comt analyzed at length the ruling in Boykin and concluded that the constitutional principles there enunciated are inapplicable where the plea of guilty was entered prior to June 2, 1969. Because defendant entered his plea on May 6, 1969, the decision in Boykin is not controlling here. See People v. Plecko (1970), 47 Ill.2d 301 and People v. Moore (1970), 47 Ill.2d 60.

The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ENGLISH

license: Public Domain

text:
    Bank of Lyons, Plaintiff-Appellant, v. Alvin A. Schultz, et al., Defendants.—(Mary Schultz, Defendant-Appellee.)
    (No. 54602;
    First District
    September 10, 1971.

      Hoffman & Davis, of Chicago, and Crowley, Sprecher, Barrett & Karaba, of Chicago, for appellant.
    Edward J. Barrett, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

By amendment to a creditor’s complaint on a judgment against Alvin Schultz, plaintiff sought to recover from Mary Schultz (hereafter defendant) $24,387.08 which it alleged represented its loss (1) for a personal check drawn by her and credited to her account with the plaintiff bank, but returned by the drawee bank uncoHected, and (2) for various cashier’s checks issued by plaintiff to defendant with no consideration therefor. At the close of plaintiff’s case, the Master in Chancery (to whom this part of a larger complaint was referred) ruled that plaintiff had failed to prove a prima facie case. The trial court overruled plaintiff’s exceptions to the Master’s Report, and entered judgment for defendant, from which plaintiff appeals.

The record discloses very little dispute as to the facts. Defendant, Mary Schultz, and her husband, Alvin Schultz, owned substantially all of the outstanding stock in the Knox Steel and Wire Company, a corporation engaged in the business of manufacturing nails. (Alvin Schultz died prior to the hearing on the portion of plaintiff’s suit involved herein.) From 1956 until 1959, defendant engaged herself in the business of Knox, reconciling bank statements, helping to get out merchandise, and doing general office work. Although she was a professionally trained bookkeeper, she performed no bookkeeping functions for the company. Defendant maintained two checking accounts in her own name, one at plaintiff bank in the name “Mary Schultz, Special Account,” and the other at the Oak Park Trust and Savings Bank. She was the only person authorized to sign checks on either of these accounts. Her account at plaintiff bank was for the purpose of paying the bills of Knox. The account at the Oak Park bank was her personal account, but was sometimes used to pay bills of the company. She reconciled the monthly bank statements of both these accounts.

The first part of plaintiff’s claim concerns $10,200 credited to defendant’s account with plaintiff bank. On August 24, 1956, a check in the •amount of $15,000 was deposited in defendant’s personal account at the Oak Park bank. Prior to this deposit, her balance in that account had been $129.89. Defendant did not recall making this deposit, nor did she know the origin or purpose of this check, nor the bank on which it was drawn. She later found out that it had been deposited by her husband. On August 29, 1956, the $15,000 check was not honored by the drawee bank, and was charged back against her Oak Park account. She noted this fact in reconciling the August statement of the Oak Park bank. Her notation also bore the initials “H.V.G.,” indicating that the check had come from Harry V. Gralnek of Highway Casualty Company.

On August 24 (the same day the $15,000 check had been deposited), a check for $10,200 bearing her signature was drawn on her Oak Park bank account. She acknowledged her signature as drawer, but said she had not typed the amount and payee, and did not know who had. The check was payable to the order of Knox Steel and Wire, Special Account, and on August 25, was deposited in and credited to her account at plaintiff bank, which had been overdrawn by $538.71 immediately prior to the deposit. When the $10,200 check was put through for collection by plaintiff, the Oak Park bank, as drawee, returned the check uncollected, hishonored, and marked N.S.F., apparently due to the dishonor of the $15,000 check referred to above. In the few days after deposit of the $10,200 check, defendant drew checks on the account at plaintiff banlc and at the end of August, 1956, her balance in that account was $1,585.65. In an audit at the plaintiff bank almost three years later, it was determined that, although the $10,200 check had been dishonored, it had never been charged back against defendants’ account. The facts relating to this check represent the first part of plaintiff’s claim, as plaintiff alleges that defendant used the credit' allowed for the dishonored .check and has never been charged therefor.

Plaintiff’s first contention is that the trial court erred in holding that plaintiff did not establish a prima facie case as to the liability of defendant to plaintiff on the check bearing her signature as drawer in the amount of $10,200. In this regard the Master made the following findings of fact (incorporated into the decree by reference), which plaintiff does not dispute, but which it claims entitles it to recovery: (1) The $10,200 check, drawn on defendant’s account at the Oak Park bank on August 24, 1956, payable to Knox Steel and Wire Company, was signed by defendant Mary Schultz in blank; (2) The payee’s name and amount on the check were typed in after she signed it; (3) Someone other than defendant deposited the check in her account at plaintiff bank, and the sum of $10,200 was credited to her account by plaintiff bank; (4) The check was returned to plaintiff by the Oak Park bank for insufficient funds; (5) At the time of the deposit and return of the check, defendant was unaware of the amount inserted or who deposited the check in her account; (6) Defendant did not know that there were insufficient funds in her Oak Park bank account at the time of issuance or negotiation of the check; (7) When defendant drew checks on her account at plaintiff bank, she did not know that there were insufficient funds in the account; (8) The proceeds of the $10,200 check were used to pay bills of Knox Steel and Wire Co. through checks drawn by defendant against her account at plaintiff bank; (9) Plaintiff failed to give to defendant timely notice of the dishonor of the $10,200 check.

Plaintiff’s argument is that, contrary to the trial court’s finding that plaintiff had not proved a prima facie case, defendant is liable to plaintiff for the $10,200 check under the provisions of the Negotiable Instrument Law which were in effect at the time of the transactions involved herein. Concerning this check, the Master’s conclusions of law, adopted by the trial court, were that defendant was not liable because her signature as endorser thereon was a forgery, within the meaning of Section 23 of The Negotiable Instruments Act (Ill. Rev. Stat. 1955, ch. 98, par. 43); and, further, that under Section 102 of the Act (Ill. Rev. Stat. 1955, ch. 98, par. 123) plaintiff was estopped from recovering against defendant as drawer of the check because of its failure to give defendant timely notice of the check’s dishonor.

Plaintiff concedes that, under Section 102 of the Act, defendant would not be liable on the check by virtue of the endorsement (forged or not) because she was not given the notice of dishonor necessary to fix liability on a person secondarily liable. Plaintiff argues, however, that as a drawer, defendant is liable on the check, as her liability is discharged only to the extent of her loss, if any, suffered by reason of plaintiffs fail-rue to give her timely notice of dishonor, and that the evidence, disclosed no such loss. Plaintiff cites Section 185 of The Negotiable Instruments Act (Ill. Rev. Stat. 1955, ch. 98, par. 207):

“A check must be presented for payment within a reasonable time after its issue, and notice of dishonor given to the drawer as provided for in the case of bills of exchange, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” Plaintiff also calls our attention to the case of Heartt v. Rhodes, 66

Ill. 351, 354, where the court held:

“The want of due presentment, or notice of the dishonor of a check, does not discharge the drawer unless he has suffered some loss or injury thereby.”

Granting this proposition, the applicable rule concerning the burden of proof in this regard, is that it rests on the holder of the check to show that the drawer suffered no loss as a result of delay in notice of dishonor. In Stevens v. Park, 73 Ill. 387, 389, the court explained the rule and the reason for it:

“Although the holder of the check did not, by the mere act of delay, lose his right of recourse on the drawer, still it was his duty to present the check for payment within a reasonable time, and give notice to the drawer of its dishonor within a like reasonable time; and if he failed to do so, the delay was at his peril. Story on Promissory Notes, § 492. By his omission he assumed the burden of showing that the failure to obtain payment of the check was through no fault of his; and, necessarily, that no damage had occurred to the drawer by his delay. [Citation omitted.]”

(See also Arnold v. Mangan, 89 Ill.App. 327, 333, and Forgan v. Allen Bros., 224 N.W. 500, 502 (Iowa).) Further, in National Plumbing & Heating Supply Co. v. Stevenson, 213 Ill.App. 49, 54-55, the court restated the rule of the Stevens case, quoted above, and affirmed a trial court judgment for the defendant drawer, because the plaintiff holder had failed to present any evidence on the subject of the loss or lack thereof to the drawer.

Plaintiff contends that the above cited cases are inapplicable to the facts of the instant case because they involved a failure of due presentment rather than notice of dishonor, and it argues that there is apparently no case in which a drawer has been shown to suffer loss by a lack of timely notice of dishonor. We recognize that in the instant case due presentment was established, and that, ordinarily, loss due to delay in presentment is readily provable. In Section 185 (quoted above), however, the two situations (delay in either presentment or notice of dishonor) are linked together, and the rule locating the burden of proof is

appropriate to both, since both situations arise from failure of timely action by the holder.

Plaintiff next argues that since defendant drew checks against the full amount of the credit in her account for the dishonored check, she could have had no loss resulting from its failure to give her notice of dishonor; and that plaintiff therefore met its burden of proof. We think this oversimplifies the question of loss caused by delay in notice of dishonor. For example, it is quite apparent in this case that if the $15,000 check which defendant deposited in her Oak Park bank account had been cleared for payment, then the $10,200 check drawn against that account would also have cleared. Without ever having received notice that the $10,200 check had not been honored, defendant was not given a timely opportunity or necessity to attempt a recovery of funds from the drawer of the $15,000 check. As another example of possible loss, if defendant had been given timely notice of dishonor, it might have been possible for her to tap other sources of funds (perhaps her husband) to make good the $10,200 credit she used to pay the company’s debts, and, thus, to have insulated herself from potential personal liability. We do not intend to exhaust the possibilities of loss which defendant might have sustained, but only to point out that such possibilities existed and were not negatived by plaintiff’s proof.

Under ordinary circumstances, the failure of the $10,200 check to clear would have come to the attention of defendant in the reconciliation of her bank statements, but the circumstances here were not ordinary: she had signed the check, but had no knowledge as to its payee or amount; she did not know the source of all deposits in her account, which was used for “company” purposes; and the check itself was never returned to her. All she could have determined from examining the statements of the two banks was that the check on the Oak Park bank which she had signed in blank had never been charged against that account, from which fact she could reasonably have assumed that it had never been used, had been voided, or had never been presented for payment.

In conclusion on this point, we believe that while the evidence does not show that defendant suffered loss by virtue of plaintiff’s failure to give notice of the check’s dishonor, neither does it show that defendant suffered no loss thereby. Since plaintiff had the burden of proof, the decision of the trial court must be affirmed, even though, as can be seen, we do not agree with either of the reasons expressed by the trial comt for its decision in this regard.

The second part of plaintiff’s claim concerns a total of $14,187.06 represented by seven cashier’s checks issued by plaintiff to defendant without any payment therefor. This situation was disclosed when it was discovered that the bank was short funds; that its cashier, Rudolph Belasick, had been fraudulently issuing cashier’s checks without the bank’s receiving any payment; and that the bank had been honoring the checks out of its general funds. The bank records concerning these checks had been wrongfully removed from the bank. During the audit in April, 1959, to discover the recipients of the bank’s funds on these checks, John Kotlar, vice-president of plaintiff, went to the home of Belasick, searched the premises, and found bank records and other documents throughout the house. Among these papers was found the check for $10,200 and the seven cashier’s checks involved in the instant case.

The cashier’s checks were as follows:
No. 69452: Dated August 7, 1956, in the amount of $1,150, payable to defendant, Mary Schultz. It bore a stamped endorsement and was deposited in defendant’s account at the Oak Park bank.
No. 74259: Dated February 25, 1958, in the amount of $1,800, payable to Alvin Schultz. It was endorsed by defendant and deposited in her account at the Oak Park bank.
No. 75282: Dated June 19, 1958, in the amount of $3,000, payable to defendant, Mary Schultz. It was endorsed by her and deposited in her account at the Oak Park bank.
No. 75283: Dated June 19, 1958, in the amount of $1,137.06, payable to Alvin and Mary Schultz. It was endorsed by defendant and deposited in her account at the Oak Park bank.
No. 75285: Dated June 19, 1958, for $5,000, payable to Alvin and Mary Schultz. It bears an endorsement by Alvin and Mary Schultz, but the name of Mary Schultz, as endorser, was not in her handwriting. The record does not disclose who endorsed this check. Defendant did not recall receiving any of the proceeds, and the check did not go through her bank. This was a credit to the account of the Bank of Lincolnwood, and was so endorsed by that bank.
No. 75286: Dated June 19, 1958, in the amount of $1,100, payable to Alvin and Mary Schultz. It was endorsed by defendant and deposited in her account at the Oak Park bank.
No. 76994: Dated January 2, 1959, in the amount of $1,000, payable to Alvin Schultz. It was endorsed by defendant and deposited in her account at the Oak Park bank.

Belasick signed all of these checks as cashier, none of which had been properly negotiated through plaintiff bank. There was no record that payment for them had ever been received, or that any account had ever been debited therefor. Defendant testified that she did not recall having purchased any of the above cashier’s checks; that Alvin Schultz had procured them; but that she did not know what funds, if any, he had used.

Belasick was called as a witness by plaintiff, but he was not required to testify when he claimed the privilege against self-incrimination under the Fifth Amendment of the United States Constitution.

Plaintiffs second point on appeal is that the trial court erred in holding that plaintiff did not establish a prima facie case against defendant when it showed the use by her of funds represented by six of the seven cashier’s checks previously listed. Plaintiff has, in effect, abandoned its claim of right to recover on cashier’s check number 75285 in the amount of $5,000 because the evidence established that defendant’s signature thereon as endorser was a forgery and that check had not been deposited to her account. Specifically, concerning the remaining six cashier’s checks totaling $9,187.06, the trial court concluded that defendant was not liable to plaintiff because she “had no duty to inquire into the circumstances behind the issuance by the Plaintiff of the cashier’s checks * * and that plaintiff had therefore failed to prove a prima facie case. Plaintiff’s position is that defendant can properly be permitted to retain the proceeds of these checks only if she meets the burden of establishing that she had the status of a holder in due course, and that the court erred in placing upon plaintiff the burden of showing that defendant had acquired the checks with notice of the fraud committed on the bank in connection with their issuance. In support of this contention, plaintiff cites The Negotiable Instruments Act, Section 59 (Ill. Rev. Stat. 1955, ch. 98, par. 79), which provides in pertinent part: “Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.” Emphasis supplied.

A holder in due course is a holder who has taken a negotiable instrument under conditions set forth in the following parts of Section 52 of The Negotiable Instruments Act (Ill. Rev. Stat. 1955, ch. 98, par. 72):

“3. That he took it in good faith and for value.
4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Plaintiff contends that when it showed that the checks were delivered without consideration therefor, a defect in title was demonstrated under section 59 quoted above, and, consequently, defendant should have been required to prove that she or someone under whom she claims, had acquired the checks as a holder in due course.

Defendant replies that the concept of “title” is determined by section 55 of The Negotiable Instruments Act (Ill. Rev. Stat. 1955, ch. 98, par. 75) which provides:

“Tire title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

Defendant then argues that the record does not show that defendant’s title to tire cashier’s checks was defective. In this regard, defendant misconstrues plaintiff’s contention which is not that defendant’s title was shown to be defective, but that a prior title was defective, and she had not been shown to be a holder in due course.

When plaintiff’s evidence showed the circumstances under which the cashier’s checks were issued, and demonstrated that no payment had been received therefor, it did, indeed, establish a prior defective title, and, under the statute (Section 59, supra), the burden then fell upon defendant to prove that she, or one under whom she claims, had thereafter acquired title as a holder in due cornse. See Bell v. McDonald, 308 Ill. 329, 334-335; Traders Investment Co. v. Kolas, 246 Ill.App. 511, 516-517; and Hunt v. Green, 271 Ill.App. 228, 233.

When called by plaintiff as an adverse witness under Section 60 of the Civil Practice Act, defendant’s testimony concerning the cashier’s checks was as follows:

No. 69452. She did not pay plaintiff bank for this check, and did not remember getting it. She was used as a nominee.
No. 74259. This check was given her in repayment of funds she had advanced to Mr. Schultz and Knox Steel and Wire. These were funds she had advanced from her personal account over a period of time beginning in 1956. To the best of her knowledge, Mr. Schultz had purchased the check.
No. 75282. She did not advance any money to Knox Steel and Wire in payment for this check, nor did she personally pay the consideration for it. She did not know what funds were used to purchase the check.
No. 75283. As far as she could remember, this was repayment to her for some of the funds she had advanced to Knox Steel and Wire and to her husband. She did not recall the date of the advancement, which had been made from her Oak Park bank account.
No. 75286. The proceeds of this check also represented reimbursement of funds advanced either to Knox Steel and Wire or Mr. Schultz. The advancements had been made at various times and she did not remember their dates. Neither at the time she received this check, nor at the date of its issuance, did she have any idea of the amount of money she had advanced to Mr. Schultz or the amount of money he owed her. She did not know what funds had been used by Mr. Schultz to purchase the cashiers checks. She had no books or records to show the sum he owed her, and did not know if there had been any accountings between them.
No. 76994. This might have been payment for advances made by her to her husband. She never saw Mr. Schultz purchase the cashier’s checks. She did not purchase these checks individually or as an employee or agent of Knox Steel.

Defendant further testified that from time to time she advanced money to Knox Steel and Wire and was reimbursed by her husband. She never received a check from Knox Steel and Wire in repayment for advances she made. The cashier’s checks in question “had something to do with it, with part of the payment of all of those checks.” She did not remember executing a requisition on plaintiff bank for any of these checks.

This evidence is not, in our opinion, sufficient to sustain defendant’s burden of proof that she had taken the checks in good faith and for value; that she had no notice of any defect in title; and that she was therefore a holder in due course. Traders Investment Co. v. Kalas, 246 Ill.App. 511, 517, is not a case precisely in point, but the court there commented on the character of evidence necessary to sustain such a burden of proof: “The plaintiff upon rebuttal introduced some evidence tending to show that it was a holder in due course, and it showed that it purchased the note in question on the date of its execution and paid cash for it, but how much cash is not disclosed by the evidence. It offered no evidence other than this tending to show good faith on its part. This proof did not exclude the possibility of bad faith, and one purchasing in bad faith would not be a holder in due course.”

Although the trial court did make some findings that defendant had given value for the checks, its findings were not adequate to cover all of the statutory requirements just referred to, nor would they have been expected to be, because it found as a matter of law, at the close of plaintiff’s case, that plaintiff had failed to prove a prima facie case.

Since all of the testimony on the issue of defendant’s being a holder in due course was given by defendant while she was testifying as an adverse witness for plaintiff, we think that defendant should be given an opportunity to develop her own evidence in this regard. On remand, therefore, hearings should be held to determine, under the views expressed herein, whether .or not defendant acquired title to the cashier’s checks as a holder in due course.

The judgment of the trial court concerning the $10,200 check is affirmed. The judgment concerning the six cashier’s checks is reversed, and tire cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, and reversed and remanded in part.

DRUCKER and LORENZ, JJ., concur.


text:
    Frank Perko, et al., Plaintiffs-Appellants v. City of Palos Heights, Defendant-Appellee, (Standard Bank and Trust Company, et al., Intervenors-Appellees.)
    (No. 54711;
    First District
    September 10, 1971.

      Paul Peter Black, of Skokie, for appellants.
    Warren L. Swanson, of Palos Heights, for Defendant-Appellee, Gallagher & Petrak, of Chicago, for Intervenors-Appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff landowners brought this action seeking a declaration of the unconstitutionality of the City of Palos Heights’ zoning ordinance as applied to plaintiffs’ property. The Circuit Court gave judgment for the defendant City and plaintiffs appeal.

Plaintiffs are the owners of two vacant lots fronting on Harlem Avenue south of 128th Street. They desire to erect a self-service car wash thereon. Plaintiffs’ property is zoned “B Business District.” Automatic car washes under the City’s zoning ordinance are permitted in a “B” Business District only as “Special Uses”. Plaintiffs made application to the City for a special use permit to erect the proposed car wash. On February 26, 1968, a public hearing was conducted by the City’s zoning board of appeals. At that hearing plans illustrating the type of structure proposed were presented and plaintiff Frank Perko testified in detail concerning the location and construction of the proposed structures. Thereafter the zoning board recommended approval of a special use permit. Subsequently, the City’s Council’s Planning and Zoning Committee considered the recommendation of the zoning board and in turn recommended to the City Council that a special use permit be granted. However, upon presentation of the application to the full City Council the special use permit was denied.

Plaintiffs thereafter brought this declaratory judgment action which inter alia, prayed:

“(1) That the Court declare the zoning ordinance of the City of Palos Heights as applied to the subject property to be arbitrary and unreasonable, bearing no substantial relationship to the health, safety, morals and welfare of the community and that it is therefore unconstitutional and void.
(2) That the court declare the zoning ordinance of the City of Palos Heights as applied to the subject property to be destructive of and irreparably damaging to the value of the subject property and constitutes a taking of plaintiffs’ property without due process of law; that it is discriminatory, and that it is therefore unconstitutional.”

At the outset we must consider the City’s contention on appeal that the denial of a Special Use permit by the City Council is a legislative decision and not subject to judicial review. Zoning ordinances employing the concept of “special uses” retain the usual residential, commercial, and industrial zones,, specifying the uses permitted in each zone. For each zone, however, special uses also are designated which wiH be permitted within the zone only if specificaHy approved by the zoning board or the governing legislative body. (See Kotrich v. The County of Du Page, (1960) 19 Ill.2d 181.) Because approval or denial of the permit in each instance is a legislative act it has been held that the jurisdiction of the courts to review special use permit proceedings is limited. See Klein v. Village of La Grange (1968), 93 Ill.App.2d 318.

However, there can be no doubt that judicial review of special use proceedings is available in appropriate cases. In Pioneer Trust & Savings Bank v. McHenry Cty. (1968), 41 Ill.2d 77 the court said at 84:

“Because a special or conditional use zoning ordinance does not aUocate any particular zones for the establishment of these unique uses as a matter of right, the local zoning authorities are vested with broad powers in determining the suitability of a given site for a proposed special or conditional use. For this reason avenues of judicial review must be at least as readily available to the property owner who seeks to establish a special or conditional use as they are in the normal zoning case where courts stand ready to determine whether the exercise of zoning power “involves an invasion of private rights without reasonable relation to the public welfare.”

The decisions in this area were recently reviewed in Elmhurst-Chicago Stone Co. v. County of Kane, 129 Ill.App.2d 190 (1970). The court there concluded at p. 197:

“In a declaratory judgment proceeding of this nature, as opposed to administrative review, plaintiff may not purely seek judicial review from an adverse legislative determination which denies a special use permit, without directly attacking the constitutionality of the underlying zoning classification as appfied to his property. See Klein v. Village of LaGrange, 93 Ill.App.2d 318, 325, 236 N.E.2d 351 (1968). Judicial review of the denial of the special use permit is available in this action only by a chaUenge to the constitutionality of the underlying zoning classification. Hartung v. Village of Skokie, 22 Ill.2d 485, 498, 177 N.E.2d 328; Pioneer Trust & Savings Bank v. McHenry County, supra, at page 84.
However, from a review of the pleadings and the evidence, we believe that the plaintiff has essentiaUy challenged the underlying zoning. We, therefore, approach the record from this standpoint and apply the traditional tests which govern review of zoning ordinances. These have been often stated. See Pioneer Trust & Savings Bank v. McHenry County, supra, at page 85; Hedrich v. Kane County, 117 Ill.App.2d 169, 174, 253 N.E.2d 566 (1966); Whittingham v. Village of Downers Grove, 101 Ill.App.2d 166, 172, 173, 242 N.E.2d 460 (1968); Schiffer v. Village of Wilmette, 105 Ill.App.2d 80, 245 N.E.2d 143 (1969)."

As plaintiffs’ complaint, supra, indicates, their challenge is directly aimed at the constitutionality of the underlying zoning ordinance as applied to their property. Accordingly, defendants’ motion to dismiss the appeal is denied. See Elmhurst-Chicago Stone Co. v. County of Kane, 129 Ill.App.2d 190 at 197.

We now turn to plaintiff’s contention on appeal that the corut erred in refusing to permit redirect examination of plaintiff Frank Perko which they argue would have proved the identity of the plan offered at trial and the plan previously acted upon by the City Council.

At trial plaintiff Frank Perko was the first witness. He testified at length, using exhibits to illustrate certain details of the proposed construction and its position upon the subject property. On cross-examination he admitted that the exhibits he offered at trial were not the same ones presented to the zoning authorities.

Thereafter the City moved to dismiss on the grounds that plaintiffs had failed to exhaust their administrative remedies because they had not presented to the zoning authorities the proposal they were advancing before the court. The Court stated, “I’m going to dismiss the complaint, because you asked the court for one thing. You submitted another thing.”

Subsequently, in a post-trial motion to vacate the judgment plaintiffs submitted a written offer of proof. The offer of proof indicated that if plaintiff were permitted to testify on redirect examination he would give testimony which would show that the proposal presented to the zoning board through exhibits and testimonial modification thereof did not differ in any material respect from the proposal offered at trial. The court denied the post-trial motion.

We agree with plaintiffs that the court erred in refusing to permit the redirect examination of the witness. (See, for example Smith v. City of Rock Island (1959), 22 Ill.App.2d 389.) Nor could it be argued that plaintiffs were obligated to present precisely the same evidence at trial as had been presented to the zoning board. Fiore v. City of Highland Park (1966), 76 Ill.App.2d 62, 66.

The judgment is therefor reversed and the cause remanded for further proceedings.

Reversed and remanded.

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


text:
    Adolph E. Levi, et al., Plaintiffs-Appellants, v. Adkay Heating and Cooling Corporation, et al., Defendants-Appellees
    (No. 54871;
    First District
    September 10, 1971.
    Davis, Dietch & Ryan, of Chicago, (William L. Ryan, of counsel,) for appellants.
    Crooks & Gilligan, of Chicago, (John W. Gilligan, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Plaintiffs brought an action for damages sustained in a fire on the premises they occupied under a lease in which the lessor was designated as American National Bank and Trust Company of Chicago, as Trustee under Trust No. 16283, by Tudor Co., agents. (A second count was filed against a heating contractor but is of no concern on this appeal.) A motion to dismiss was filed by the bank on the ground that it did not operate or control the premises but merely held legal title “in a naked land trust.” By court order, the beneficiaries of the trust were disclosed, after which the bank was dismissed and an amended complaint was filed against the beneficial owners. Those defendants filed a “motion to strike and dismiss and for judgment” based on an exculpatory clause in the lease. The motion was granted and this appeal followed.

The pertinent clause in the lease provides: “Lessor shall not be liable for any damage occasioned by failure to keep said premises in repair, nor for any damage done or occasioned by or from plumbing, gas, water, sprinkler, steam or other pipes or sewerage or the bursting, leaking or running of any pipes, tank or plumbing fixtures, in, above, upon or about said building or premises, nor for any damage occasioned by water, snow or ice being upon or coming through the roof, skylights, trap door or otherwise, nor for any damages arising from acts, or neglect of co-tenants, or other occupants of the same building, or of any owners, or occupants, of adjacent or contiguous property.”

Plaintiffs’ position is that this exculpatory clause does not operate to immunize the beneficial owners of a “naked land trust” from liability because they hold no legal or equitable title to the real estate and are not lessors under the exculpatory clause in the lease. Plaintiffs also contend that paragraph 17 of the lease, which extends the rights of the lessor to its “agents, employees, or representatives” does not help defendants, because beneficial owners of a land trust are not agents, employees or representatives of the trustee, simply by virtue of the trust relationship.

In support of their position, plaintiffs rely on numerous decisions involving land trusts, especially Koehler v. Southmoor Bank & Trust Co., 40 Ill.App.2d 195, and Brazowski v. Chicago Title and Trust Co., 280 Ill.App. 293. While it is true that these cases do, indeed, sustain plaintiffs’ contentions, they do so only by way of interpreting the precise provisions of the trust agreements which in all the cited cases were in the record before the court. Here, the trust agreement is not before us at all. Defendants correctly point this out, and then argue that this should resolve the case in their favor since the trust agreement could have expressly provided that the beneficial owners were to be the “agents, employees, or representatives” of the trustee bank. It seems quite unlikely that this would be the case (in regard to the subject matter of this litigation), and would be inconsistent with the usual purpose of a land trust; but it is possible, since the available variety of trust provisions is practically limitless, and we know nothing of the content of the actual trust agreement other than the bank’s conclusion in describing itself as the trustee of a “naked land trust.” We do not agree with defendants, however, that this works to their advantage. In our opinion, it requires a contrary result because the decision of the trial court held, in effect, that defendants, as beneficial owners, were entitled to the protection afforded the trustee, the named lessor, under the lease, and, if that decision is to stand, it must find support in the record. In looking for that support, without having available the terms of the trust agreement, we would be required to find that defendants were the designated lessors under the lease — which they were not — or, by speculation on our part, that the trust agreement (or some other action by the trustee) designated them as “agents, employees, or representatives” of the trustee. Defendants overlook the fact that in their motion for judgment on the pleadings, the burden rested on them to show, to the satisfaction of the court, not simply that they could have been, but, rather, that they actually were duly appointed agents of the trustee, and thus were protected in that capacity by the exculpatory clause of the lease. The record simply does not lend itself to this latter conclusion, even though it might be properly reached after further pleadings or proof.

Defendants also argue, in effect, on general principles of law, that the opinions in Koehler, supra, Valentin v. D. G. Swanson & Co., 25 Ill.App.2d 285, and Moss v. Hunding, 27 Ill.App.2d 189, declaring that exculpatory clauses are to be strictly construed against the lessor, were the product of the times in which they were written, and that on the same issues currently the opposite result might well be reached by the Illinois Supreme Court. They point in this regard to the emphasis on the intent of the parties as the overriding rule of construction in Sweney Gas Co. v. T.P. & W. R.R. Co., 42 Ill.2d 265, and Schek v. Chicago Transit Authority, 42 Ill.2d 362 (involving an indemnity rather than an exculpatory clause). We are not prepared, however, to say that either of these decisions would require different results from those reached in Koehler, Valentin and Moss.

The trial court in the instant case may have been misled into its decision by the quotation of the exculpatory clause presented to it in defendants’ motion for judgment. Paragraph 2 of the motion reads:

“2. That said lease, Exhibit 1, provides in part as follows:
6. Lessor shall not be liable for any damage occasioned by failure to keep said premises in repair * * * nor for any damages arising from acts, or neglect of * * * any own-_ at a it 99 ers .

In that form it would be understandable that the court may have read the clause as exculpating from liability “any owners.” Comparison with the clause quoted in full at the beginning of this opinion, shows conclusively, we believe, that the words “any owners” are properly read only in the context of owners of adjacent or contiguous property. We assume, however, that the quotation of the clause in its misleading form was done inadvertently.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Hobson, Defendant-Appellant.
    (No. 54882;
    First District
    September 10, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Robert Armstrong, Senior Law Student, Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago (Nicholas Talbert, Robert A. Novelle and Stephen J. Connolly, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSE CHARGED

Robbery. Ill. Rev. Stat. 1967, ch. 38, par. 18 — 1.

JUDGMENT

After a bench trial, defendant was found guilty and sentenced to a term of two to six years.

CONTENTIONS RAISED ON APPEAL

1. The identification of defendant should have been suppressed as the product of an arrest made without probable cause.

2. The trial judge, in denying the motion to suppress the identification testimony, based his conclusion on irrelevant and contradictory facts.

3. Defendant was not proven guilty beyond a reasonable doubt. OPINION

A consideration of defendant’s first contention — that there was no probable cause for the arrest — necessitates our setting out the evidence adduced at the hearing to suppress the identification testimony.

Frank Harmon

On October 21, 1968, between noon and 3:00 o’clock, defendant and a man named Tucker took some money from him. When he was robbed, he called for help, a porter came through a door, saw the robbers, and followed them. About five minutes after he was robbed, police officers brought defendant and Tucker back to the witness for identification. The police did not say anything to him when defendant and Tucker were brought to him. The witness said, “those are the fellows,” as soon as he saw them in the police car. He also identified Tucker and defendant in the courtroom.

Joseph Danzl

He is a police officer. On October 21, 1968, at about 1:45 P.M., he arrested defendant and Tucker. Thirty seconds to one minute prior to that time, a man named Benson had stopped his squad car and said that an old man “was just robbed by two colored guys.” Benson said that they had run south on Morgan, then west on Monroe, and he pointed in that direction. The witness did not think Benson said anything else. He did not remember seeing anyone on the street in the location Benson pointed to. He later testified that he saw one other colored man on the street. The first time he saw defendant and Tucker, they were standing in a doorway at 1008 W. Monroe (just around the corner from Morgan). He and his partner asked them what they were doing, and they said they were visiting a friend. When asked the name of the friend, they replied that they did not know his name, and they did not indicate which apartment they had visited. Defendant was out of breath and the witness noticed excessive perspiration on his forehead. Tucker was not out of breath. They searched the doorway for money, but did not find any. They told defendant and Tucker about the robbery and said that they wanted to bring them back to the scene to see if anyone would identify them. They escorted the two men to the squad car and placed them in the back seat. They then went to the corner of Morgan and Madison where they saw Benson who said, “those are the men that robbed the old man.” They told Benson to get Harmon, and Benson returned moments later with Harmon who identified defendant and Tucker as the men who had robbed him. The only question they asked Harmon at that time was whether he was sure, and Harmon said yes.

Robert Benson

He is a porter at the Ideal Hotel at 1005 Madison. On October 21, 1968, between 12 and 3:00 o’clock in the afternoon he was involved in an incident at the hotel. He flagged down a police car at the corner of Madison and Morgan and told the officers that a man had just been robbed in the hotel. He described the robbers to the police as two colored men, one short, wearing a car coat, and one tall, with a light tan or green jacket on. He said they were running down Morgan toward Monroe. A few minutes later the police returned with the men, asked him if he could identify them, and he did so. He then went to get Harmon and told Harmon that the police had caught the robbers. Harmon identified defendant and Tucker.

After hearing the testimony of the three witnesses set out above, the trial court denied the motion to suppress the identification testimony. Defendant contends that since the testimony of Officer Danzl indicated that the only information given to him was that the robbers were two colored men and the direction in which they had run, he could not have had reasonable grounds to believe that defendant had committed the offense; that the arrest being without probable cause, the subsequent identifications must be suppressed, citing People v. Bean, 121 Ill.App.2d 332.

The State argues, in the alternative, that there was no arrest until after Benson and Harmon identified defendant, or that, if the arrest took place prior to those identifications, the police had probable cause to make the arrest. While there is testimony in the trial record supporting the State’s argument that the initial questioning of defendant was a preliminary questioning without arrest, that evidence was not before the court when the motion to suppress was denied, and the trial court assumed that the arrest had taken place prior to the identifications. The trial court’s ruling was nevertheless correct because the evidence supported its finding that there were reasonable grounds for the arrest. Therefore, even if we were to assume that the Bean case, cited by defendant, is a correct statement of the law on the question of the suppression of identifications, we find that it would not apply to the facts in the case before us.

A peace officer may arrest a person without a warrant when “[h]e has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1967, ch. 38, par. 107 — 2 (c).) The Supreme Court said in People v. Jones, 31 Ill.2d 42, 46: * * while a completely satisfactory and inflexible definition of what constitutes reasonable grounds is not possible to formulate, it is generally agreed that reasonable grounds or probable cause for arrest exists if the facts and the circumstances known to the officer would warrant a prudent and cautious man in believing that the person arrested was guilty of an offense.”

In the instant case, the arresting officers were told that two colored men had just committed a robbery, and that they had run down the street and turned the corner. The officers gave chase and saw two colored men standing in a doorway just around the corner where the robbers had turned. Only one other black man was in the vicinity. When the officers questioned the men, they attempted to explain their presence by saying that they were visiting a friend in the building, but they did not remember his name, nor did they identify his apartment. One of the men was perspiring and breathing heavily. The totality of these circumstances warranted the officers’ belief that defendant and Tucker had just committed the robbery, and thus justified the arrest.

Defendant also contends that the trial court found probable cause for the arrest because of an erroneous belief that a clothing description of the robbers had been given to the police by Benson. The trial court indicated, in denying the motion, that the arresting officers had been given a clothing description, and the testimony of Benson indicated that this was the case, whereas the police officers’ testimony was not corroborative. Apart from that evidence, however, the other circumstances, as we have indicated, were sufficient to warrant the arresting officers’ belief that defendant had just committed the offense, and the court’s denial of the motion to suppress was correct.

Defendant’s last contention is that he was not proven guilty beyond a reasonable doubt due to the vagueness and testimonial inconsistencies of the State’s identification witnesses, and because of the lack of independent corroboration. The testimony at the trial follows:

Frank Harmon, for the State:

He lives at the Ideal Hotel at 1005 W. Madison and is 83 years of age. He had been to the grocery store on October 21, 1968, and was returning to the hotel when he saw two colored men standing in front of the door laughing at him. He did not pay too much attention to them and started upstairs. As soon as he passed the middle landing, he was grabbed from behind around the neck. His assailant jabbed his right arm into the witness’ right pocket and ripped off the pocket. The other person went to his left pocket. He identified defendant in court as one of the assailants. One of the men hit him in the back of the head, stunning him. He fell forward and started to roll down the stairs. Earlier, he had yelled “Help,” and a workman, Benson, looked in the door. Upon regaining his footing, the witness saw the men going out the door. He followed them to the corner of Madison and Morgan where he saw Benson talking to officers in a squad car, pointing to the two men running down toward Monroe. The robbers got $147 and some change from him. He went back to the hotel and then returned to the street where he saw defendant and the other robber in the squad car. He recognized both of them.

He testified that defendant had been wearing a brown-grey hat, but could not describe any other clothing, nor did he notice if either man had a beard. His glasses were knocked off during the robbery, but he can see without them.

Robert Benson, for the State:

He lives at the Ideal Hotel where he was a porter on October 21, 1968. Sometime before 2:00 o’clock that afternoon, he heard somebody holler, “Jackrollers,” in the hallway. He opened a door, saw Harmon rolling down the stairs and two fellows on the first landing on their way out the door. He identified defendant in court as one of these two men. As he chased them out the door, they turned around, and he got a look at both them faces. The area was well fit. He chased them around the comer where he flagged down a passing squad car. He told the police what had happened, was instructed to wait on the corner, and the police soon returned with the robbers in the squad car.

He testified on cross-examination that the tall robber wore a light jacket and the other had a dark car coat. He did not remember if the robbers had beards or mustaches. As defendant ran down the street, he attempted to remove his jacket. When the witness stopped the police, he told them that one robber was tall, the other short, and he described their clothing. He pointed them out to the police while they were still running, before they turned the corner out of view.

Joseph Danzl, for the State:

He is a police officer and was working with his partner, Donald Macak, on October 21, 1968. He arrested defendant and Tucker about 1:45 that afternoon. Defendant was not wearing a hat when he was arrested. Benson had given him a description of the robbers as two colored men, and pointed a direction, but had not given him a clothing description. He and his partner proceeded in that direction but did not see anyone running, nor did he see anyone on the street. He saw a woman sitting on a porch. He arrested defendant and Tucker standing in a hallway at 1008 W. Monroe. The witness and his partner searched them and found less than a dollar in change. The elapsed time between Bensons report and the arrest was 30 seconds to a minute.

William Hobson, in his own behalf:

He is 22-years-of-age. On October 21, 1968, at approximately 1:30 or 1:45 in the afternoon, he was arrested in the doorway of 1008 Monroe, on his way out of the building. He had been visiting two friends in the lobby for over an hour. He did not know their real names, but only their nicknames, and had not seen them since his arrest. When he was leaving the doorway, he was alone, and another man was coming in. This other man was Tucker, whom he knew by name, but who was not his friend. Defendant had one penny on his person when he was arrested, and the police found a dime in his cuff. He was wearing a light grey hat at the time of his arrest and was wearing a darkish green three-quarter-length coat and green trousers.

When the police first approached him, they asked him if he had robbed anyone. He said, “No,” and the officer told him to come around the corner with him because if he did not rob anyone, he had nothing to worry about. The witness said, “Okay.”

Defendant argues that the testimony of the identification witnesses was unsatisfactory because they had little opportunity to observe the assailants. Defendant relies on People v. Cullotta, 32 Ill.2d 502, 504, in support of his contention that to make a positive identification, an ample opportunity to observe the accused must be demonstrated. He argues, for example, that since neither witness could testify as to whether defendant had a beard or mustache at the time of the robbery, their lack of an opportunity to observe defendant had been demonstrated, citing People v. Kincy, 72 Ill.App.2d 419, 424—25. In that case, there was no evidence that the sole identification witness had seen the robber’s face at the time of the crime. She apparently identified him solely through the color of his hat and jacket, and she was not positive as to that. There, the totality of the witness’ testimony and other evidence was so unsatisfactory as to leave court with a reasonable doubt of defendant’s guilt. Not so in the instant case.

The record testimony here does demonstrate that the witnesses had ample opportunity to observe the assailants. Harmon saw them as he walked into the hotel, when he was assaulted, and as they fled. Benson also saw their faces under good lighting conditions. The testimony of one witness, when positive and credible, is sufficient to sustain a convic-

tion. (People v. Novotny, 41 Ill.2d 401, 411.) The trial judge obviously believed the testimony of these witnesses and indicated that he did not believe defendant. That is the proper province of the trial court and not ours. We conclude that the evidence supported the court’s finding of guilty beyond a reasonable doubt.

The judgment is therefore affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Smith (Impleaded), Defendant-Appellant.
    (No. 54820;
    First District
    September 13, 1971.
    Gillis, Gildea & Rimland, of Chicago, (Jack P. Rimland and E. James Gildea, of counsel,) for appellant.
    Edward V. Hanrahan, States Attorney of Cook County, of Chicago, (Robert A. Novelle and Nicholas Taubert, Assistant State’s Attorneys, of cousel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. JUSTICE STAMOS

text:
    Alfred J. Lauer, Sr., Plaintiff-Appelleee, v. Donald Blustein, Defendant-Appellant.
    (No. 52847;
    First District
    September 14, 1971.

      Coe, Rubenstein & Shafran, of Chicago, (Emil Shafran, of counsel,) for appellant.
    Hoffman & Davis, of Chicago, (Maurice L. Davis and Alvin L. Kruse, of counsel,) for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal by defendant Donald Blustein from a summary judgment granted in favor of plaintiff Alfred J. Lauer, Sr.

Defendant contends:

1. The contract sued upon is unenforceable because of lack of consideration;
2. The indemnification clause of the contract was intended to apply only to a guaranty executed by plaintiff on November 4, 1964, and not to any subsequent guaranties;
3. Plaintiff did not allege satisfaction of the conditions precedent to defendant’s liability under the contract and thereby failed to show that he was entitled to recover under the contract;
4. Plaintiff should not be allowed a summary judgment since defendant has a counterclaim against plaintiff in excess of plaintiff’s claim;
5. The renewal of the loan without notice to defendant relieved defendant from liability; and
6. The summary judgment in plaintiff’s favor was improper because material issues of fact are in dispute.

The parties had been associated with each other in various business transactions over a number of years. As a result of these transactions defendant and another acquired all of plaintiff’s interest in Lauer Finance Corporation.

On November 4, 1964, the parties entered into an agreement whereby defendant agreed to hold plaintiff harmless from liability on any guaranty executed by plaintiff as required by National City Bank of Chicago in connection with a loan from that bank to Lauer Finance Corporation. In exchange for defendant’s promise plaintiff agreed to provide collateral for said loan and execute a guaranty thereof if required to do so.

Plaintiff provided the necessary collateral for the loan and National City Bank of Chicago completed the transaction with Lauer Finance Corporation making the loan for a six (6) month period to become due on May 4, 1965. No guaranty of the loan was executed by plaintiff and apparently none was required until that date. On that date plaintiff executed a guaranty to National City Bank of Chicago of the loan to Lauer Finance Company.

On May 12, 1965, no part of the loan had been repaid and plaintiff caused the loan to be repaid thereby discharging his obligation under the guaranty. Plaintiff instituted this action on June 15, 1965, to recover from defendant under the indemnity clause of the November 4, 1964, agreement and was granted a summary judgment by the trial court. Defendant appeals.

OPINION

Defendant initially contends that the contract is unenforceable because of lack of consideration. We disagree. Defendant promised to indemnify plaintiff from liability under a required guaranty if plaintiff would provide collateral and guaranty the loan from National City Bank of Chicago to Lauer Finance Corporation. Even though defendant received no direct benefit in exchange for his promise there was consideration therefor, since a promise based upon consideration to a benefit to a third person constitutes sufficient consideration for a promise or agreement. (Sherow v. Hirsch, 62 Ill.App.2d 479; Riddle v. LaSalle National Bank, 34 Ill.App.2d 116; Cwik v. Condre, 4 Ill.App.2d 380.) Plaintiff provided collateral for the loan from National City Bank of Chicago to Lauer Finance Corporation thereby benefiting a third person, Lauer Finance Corporation, in exchange for defendant’s promise to hold plaintiff harmless from liability on a guaranty of that loan required by the bank. Therefore, the agreement was supported by consideration.

Defendant next contends that the agreement was intended to apply only to a guaranty executed by plaintiff on November 4, 1964, and not to any subsequent guaranties such as plaintiff executed. We also disagree with this contention.

It is well established that where there is an unambiguous written agreement the intent of the parties thereto is to be determined solely from the language therein. This court recently reiterated this rule in Nathan v. Leopold, 108 Ill.App.2d 160, stating at page 170: “Since the contracts involved in this case are clear and unambiguous, we have decided the rights and obligations of the parties thereto solely from the terms of the contracts which they signed and without regard to any parol evidence, for in such cases the instrument itself affords the only criterion of the intention of the parties. [Cases cited.]”

The agreement in the instant case was unambiguous and was clearly not intended to be restricted to a guaranty executed by plaintiff on November 4, 1964. The agreement, in pertinent part, recited that defendant agreed:

“(1) To hold you and your wife and son harmless from all obligations upon any guaranty agreement or agreements executed or to he exe cuted by you and any of you, in favor of National City Bank in Chicago, in respect of obhgations incurred or to be incurred by Lauer Finance Corporation;
(2) To effect the discharge, at or before maturity, of any obligations of Lauer Finance Corporation, incurred or to be incurred in respect of which obligations (or any thereof) you or your wife or your son may be or become a guarantor;
(3) To make all payments and do all acts needful in order to prevent any default from arising under any obhgation or obhgations of Lauer Finance Corporation in favor of National City Bank in Chicago, in respect of which obligation or obligations you or your wife or your son may be or become a guarantor”; (Emphasis added).

It is apparent from the language above cited that defendant intended to indemnify plaintiff from all liability incurred as a result of a guaranty required by National City Bank of Chicago in conjunction with any loan from that bank to Lauer Finance Corporation. Therefore, if National City Bank of Chicago at any time required plaintiff to guaranty a loan from that bank to Lauer Finance Corporation defendant would have been required to hold plaintiff harmless from liability incurred as a result of such guaranty.

Defendant next contends that plaintiff did not show his right to recover because satisfaction of the condition precedent to defendant’s liability under the contract was not alleged and that, therefore, the granting of summary judgment in favor of plaintiff was improper. Defendant claims that he agreed to indemnify plaintiff only if National City Bank of Chicago required plaintiff to guaranty the loan from that bank to Lauer Finance Corporation. If plaintiff was not required to guaranty the loan, defendant contends, then he could not be liable under the agreement. We agree with this contention.

The parts of the agreement pertinent to this issue state:
“You and members of your family have heretofore executed guaranty agreements in favor of Continental Illinois National Bank and Trust Company of Chicago, in respect of obligations of Lauer Finance Corporation to said bank. National City Bank in Chicago may or will require you and members of your family (your wife and your son) to guarantee obligations of Lauer Finance Corporation to be incurred in favor of said bank.
We request that you and your wife and son execute such instruments of guaranty and that you pledge such collateral as may be required by National City Bank in Chicago in connection with the transaction described above. [Emphasis added.]
# # * We hereby acknowledge that you and your wife and your son have, in accordance with our request herein made, concurrently herewith executed such instruments of guaranty and effected the pledge of collateral, required by National City Bank of Chicago, in connection with the transaction with said bank, described herein.”

These excerpts from the contract make it clear that the parties were referring to a guaranty required by National City Bank of Chicago in conjunction with the loan transaction with Lauer Finance Corporation. Defendant agreed to hold plaintiff harmless only on a guaranty required by the bank. Conversely, if plaintiff was not required to guarantee the loan the indemnity clause of the agreement would not be effective and defendant could not incur any liability thereunder. Thus, it was a condition precedent to defendant’s liability under the agreement that plaintiff be required to guarantee the loan and that he do so.

Plaintiff’s complaint alleges the contract and a copy thereof is attached as an exhibit thereby incorporating the agreement into the complaint and making it a part thereof. Ill. Rev. Stat. 1969, ch. 110, § 36. Plaintiff then alleges that he executed a guaranty and later paid the principal amount of the guaranteed loan thereby discharging his obligation under the guaranty. Plaintiff does not allege that the guaranty he executed on May 4, 1965, was required by National City Bank of Chicago. The last above cited paragraph from the contract dated November 4, 1964, recites that defendant acknowledged that plaintiff “* * * executed such instruments of guaranty and effected the pledge of collateral, required by National City Bank of Chicago * * This does not indicate that a guaranty was required by the bank. Rather, it shows that no guaranty was, in fact, required at that time since the bank completed the loan transaction although plaintiff had not executed a guaranty. At no point in the proceedings below did plaintiff allege that a guaranty was required of him by National City Bank of Chicago. As stated in Williston on Contracts, 3d Ed., § 674: “It is always the duty of the plaintiff in his declaration or complaint to allege facts sufficient to make out a prima facie cause of action. * * * In order to show a breach of duty by the defendant, it must then be alleged that all conditions qualifying the promise have happened or been performed or been excused.”

Since plaintiff did not allege satisfaction of the conditions precedent, he thus failed to establish his right to recover. Therefore, the granting of summary judgment in plaintiffs favor was improper. Ill. Rev. Stat. 1969, ch. 110, par. 57(3).

Defendant’s other contentions need not now be considered since we have decided to reverse the judgment on the issue of plaintiff’s failure to allege satisfaction of the conditions precedent to defendant’s liability under the contract.

Therefore, the judgment in favor of plaintiff is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles V. Altobelli, Defendant-Appellant.
    (No. 53420;
    First District
    September 14, 1971.
    Angelos & Angelos, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and James Veldman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON,

delivered the opinion of the court:

The defendant, Charles V. Altobelli, was charged with operating an overweight vehicle on the highways of this State in violation of the Uniform Traffic Act (Ill. Rev. Stat. 1967, ch. 95½, par. 228.). At a bench trial he was found guilty as charged, fined $1,385 and ordered to pay the costs of the suit. This appeal is taken from that judgment.

' On February 13, 1968, defendant was operating a semi-tractor and trailer on U.S. Highway 45, at a point approximately one block south of St. Charles Road, in Cook County. He was stopped by a police officer who believed defendant’s vehicle to be overweight. The officer instructed defendant to drive the vehicle to a weighing station located at 333 South Center, Hillside, Illinois, where it was determined that the truck was in fact 13,850 pounds in excess of the maximum allowable weight.

Defendant contends that the court erred in refusing to grant his motion to dismiss. That motion alleged that prosecution of the offense was barred by section 229(a) of the Uniform Traffic Act, which provides in pertinent part that “* * * the police officer shall require that such vehicle be driven to the nearest available scale * * *.” Defendant argues that the State is precluded from prosecuting him because he was required to take his vehicle to a weighing station two miles from where he was stopped by the police officer, instead of to another station located about a mile and a half away. We do not agree with this contention. (People v. Lee, (Ill.App.2d), 266 N.E.2d 689 is controlling.) On that occasion we construed section 229(a) of the Uniform Traffic Act, and said: “The simple issues are only the overweight of the vehicle and its use upon the public highway. Section 229(a) merely sets out a standard of conduct or procedure for the arresting officer but these provisions have no bearing upon the guilt of the defendants. See People v. Cannon, 46 Ill.2d 319. In other words, the provisions of Section 229(a), upon which defendants rely, are entirely independent from the remaining provisions of the statute. The fine was not assessed against defendants because of the provisions of Section 229(a) but because of their violation of Section 228.”

In People v. Niven, (Ill.App.2d), 264 N.E.2d 823, we held that “* * * the phrase nearest available scale’ is directive in nature and not mandatory. The fact that defendant was not taken to the nearest scale for weighing does not, of itself, render the statute unenforceable, absent a showing of prejudice.”

It is our conclusion that a police officer’s failure to adhere to the procedure set out in section 229(a), absent a showing of prejudice, is irrelevant to a conviction based on section 228. The judgment is affirmed.

Judgment affirmed.

BURKE, and SCHWARTZ, JJ., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rafael Telio, Defendant-Appellant.
    (No. 54516;
    First District
    September 14, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (Fred Shandling, James N. Gramenos and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Terence J. Mahoney, Assistant State’s Attorneys, of counsel,) for appellant.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

Defendant was charged with possession of heroin. A jury found him guilty and the court imposed a sentence of two to six years. He appeals. For reversal, defendant contends that (1) he was deprived of a fair and impartial jury when an assistant state’s attorney, during cross-examination, asked whether a defense witness used narcotics, without proof that the witness was an addict or a user of drugs; and (2) he was denied equal protection of tire laws and the right to examine the statements of a prosecution witness when the trial judge refused to compel an assistant state’s attorney to give him the transcript of a pretrial motion to suppress evidence.

The record discloses that at about noon on June 18,1968, police officers Richard McKelvey, Bernard Brown and Donald Dura went to execute a warrant which authorized search of the person of one Richard Compos and of the first floor apartment at 1731 West 17th Street, Chicago. As the officers approached the building, they saw defendant climb out of a window of the apartment described in the search warrant. There is testimony by Officers McKelvey and Brown that they saw defendant throw a silver tinfoil package to the ground; that defendant ran a short distance but was apprehended; and that Brown picked up the package in which were three smaller tinfoil packets containing a white powder, later shown to be a narcotic drug, heroin.

Prior to trial, defendant made a motion to suppress evidence. In support of it he testified that on June 18, 1968, just prior to his arrest, he went to 1731 West 17th Street, stayed two or three minutes, bought a $20 cellophane package of heroin and left the apartment through a window. As he walked on West 17th Street near 1731, he heard someone shout. He turned and saw Officer McKelvey. Because of this, he took the cellophane package of heroin and ate it. McKelvey, according to defendant, “[gjrabbed me by the neck * * * tried to make me spit * * *” and then arrested him. After hearing defendant, McKelvey and Brown, the trial judge denied the motion to suppress.

Six days later defendant went to trial before a jury. McKelvey was the prosecution’s first witness. After his testimony on direct, defendant’s counsel (out of the jury’s presence) told the trial judge that he detected an inconsistency in McKelvey’s testimony; that the assistant state’s attorney had a transcript of the trial judge’s hearing of the motion to suppress; and that he needed the transcript to cross-examine McKelvey. The assistant state’s attorney objected, saying that defendant was not entitled to the transcript because he could have purchased a copy. In response, defendant’s counsel told the court that the price of the transcript was $58, an amount defendant could not pay. The request for the transcript was denied.

The trial proceeded. As his witness, defendant called Jessie Urbina who, when cross-examined by the assistant State’s Attorney, was asked whether he used narcotics. Defendant’s counsel made an objection which the court sustained. The assistant State’s Attorney asked to be heard. In the colloquy that followed, it was admitted the State had no basis for the suggestion that Urbina was an addict or a user of drugs. The trial judge ruled that the question was improper. Nonetheless, at the State’s insistence, and over defendant’s objections, the trial judge agreed to instruct the jury that no further inquiry concerning narcotics would be made of Jessie Urbina but the question could be asked once more in the jury’s presence. When this ruling was announced, the assistant State’s Attorney told the trial judge that “I’ll reduce the impact by asking the court reporter to read back the question.” The trial resumed with the court reporter reading again to the jury the question asked Urbina, whether he used narcotics and his negative answer.

Defendant contends that this cross-examination of Urbina infringed on his right to a fair and impartial jury. He argues that the question concerning use of narcotics contained a prejudicial and unsupportable insinuation which necessitates a new trial because of its effect on the jury. (People v. Sanders, 357 Ill. 610, 192 N.E. 697; People v. Nuccio, 43 Ill.2d 375, 253 N.E.2d 353.) To meet this contention the State argues that Urbina could have been cross-examined in order to bring out any unlawful activity or disreputable occupation which affected his credibility. People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615.

It is an elementary rule of trial procedure that for the purpose of impeachment, a witness may be cross-examined concerning his drug addiction in order to disclose a matter affecting his credibility. (People v. Dixon, 22 Ill.2d 513, 517, 177 N.E.2d 224.) However, a foundation must be laid; and, once this is done, it is incumbent on the party who lays the foundation to offer proof of what is insinuated or suggested in the impeaching cross-examination. (People v. Irish, 77 Ill.App.2d 67, 222 N.E.2d 114 and see People v. Brown, 76 Ill.App.2d 362, 222 N.E.2d 227.) Failure to do so can, in a proper case, result in infringement of the right to a fair trial. (People v. Williams, 105 Ill.App.2d 25, 245 N.E.2d 17.) Therefore, it was improper for the assistant State’s Attorney to ask Urbina whether he used narcotics without being able to prove that he was an addict or a user of drugs. The trial judge erred in aHowing the question and its answer to be read to the jury. See People v. Fiorita, 339 Ill. 78, 170 N.E. 690.

Defendant also contends that refusal of the trial judge to compel production of a transcript of McKelvey’s testimony during hearing of the motion to suppress denied him equal protection of the laws and deprived him of the right to examine the statements of a prosecution witness. The theory of this contention is that the contents of the transcript impeached McKelvey’s testimony before the jury.

The transcript in question was in the courtroom when it was requested by defendant’s counsel before the cross-examination of McKelvey. The assistant State’s Attorney who had the transcript objected to its production because defendant had no right to it; and, in any event, “[h]e does have the facilities to go to the court reporter to obtain that same transcript or a copy thereof (sic).” After hearing argument of counsel concerning the transcript and defendant’s indigency, the trial judge refused defendant’s request.

It is now part of our criminal jurisprudence that, for use in impeachment, a defendant is entitled to prior recorded statements of prosecution witnesses, transcripts of grand jury testimony and reports. (People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634.) It has been held that denial to an indigent defendant of a transcript of prior mistrials is a deprival of equal protection of the laws. (People v. Miller, 35 Ill.2d 615, 221 N.E.2d 653.) And without elevating the claim to a constitutional level, the Supreme Court has said that after a proper showing of its existence and pertinency, it is reversible error to deny a defendant use of a grand jury transcript which he needs for the impeachment of a witness. (People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399.) In a long and consistent line of decisions, that court has held it is reversible error to deny a defendant access to statements of prosecution witnesses, properly shown to exist and related to impeachment purposes. People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197; People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691; People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8; and People v. Allen, 47 Ill.2d 57, 264 N.E.2d 184.

The trial of a criminal case is not a poker game with each side holding its best cards close to the vest. It is, as are all trials, a search for the truth. One of the primary objects of this search is determination of the credibility to be given the testimony of a witness. Bearing this objective in mind, it is unseemly for the transcript of a witness’ testimony to be in the courtroom, capable of production without inconvenience or delay, and a good-faith request for its use for cross-examination refused on technical differences, many though they be, between the transcript of a hearing before a grand jury and the transcript of a hearing before a trial judge, or on the more abstract nuances of poverty or affluence. Moreover, the conclusion we deduce from the cited cases is that defendant was entitled to the transcript: it contained the statements of a witness. Therefore, the trial judge erred in refusing defendant’s request so that his lawyer could use the transcript in cross-examining McKelvey.

As to his contentions, we have reached the conclusions defendant has urged upon us. However, we observe that on two occasion (during hearing of the motion to suppress and before the jury when he unsuccessfully tried to prove entrapment) defendant testified that on June 18, 1968, shortly before he was arrested, he went to 1731 West 17th Street, Chicago, purchased and carried away a quantity of heroin. This is the offense with which he was charged. These testimonies were confessions.

A confession is a voluntary acknowledgment of guilt after the perpetration of an offense. Confessions are classified as judicial or extrajudicial. A judicial confession consists of a plea of guilty or some similar action or conduct in court or in a judicial proceeding. (People v. Manske, 399 Ill. 176, 77 N.E.2d 164.) A voluntary judicial confession, by a competent person, is of convincing character and is the highest kind of evidence known to the law. (People v. Green, 17 Ill.2d 35, 160 N.E.2d 814.) The testimony of the defendant on both occasions was a judicial confession. Brumit v. State, Fla. 1969, 220 S.2d 659.

In addition, there was the testimony of the three arresting officers, corroborated by facts and circumstances shown in the record. For these reasons, we conclude that the errors committed during defendant’s trial do not require reversal of the judgment. It is affirmed.

Judgment affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Inniss, Defendant-Appellant.
    (No. 55395;
    First District
    September 14, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, (Robert A. Novelle and Themis N. Karnezis, Assistant State’s Attorneys, of counsel,) for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant appeals from a judgment finding him guilty of theft and criminal trespass to an automobile, whereinafter defendant was sentenced to one (1) to five (5) years in the Illinois State Penitentiary.

Defendant contends that when the trial court precluded defendant from retaining private counsel before tire imposition of sentence and compelled defendant to proceed with court appointed counsel, defendant was deprived of his constitutional right to meaningful assistance of counsel.

The record pertinent to the issue before this court is as follows:

“The Court: All right. We have had hearing in aggravation and mitigation, and the court was going to review the facts in this case briefly together with the pre-sentence investigation. And it is at this time ready to proceed sentencing. And before the court does that, Larry, is there anything that you would like to say?
Defendant: Well, if it’s going to be a sentencing, Judge, I would like to know if I could have a continuance or a bond reduction. I have money to make bond and hire a lawyer.
The Court: Is there anything you have got to say connected with this case before the court? I presume you are talking about an appeal bond.
Defendant: I would like to just make bond, period.
The Court: Is there anything further you have to say?
Defendant: No, there isn’t.”

The right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution, section 9, article II of the Illinois Constitution and section 113-3 of chapter 38, Illinois Revised Statutes (1969) includes the right to be represented by counsel of one’s own choice. People v. Green (1969), 42 Ill.2d 555; People v. Payne (1970), 46 Ill.2d 585; and authorities cited therein. However, in People v. Solomon (1962), 24 Ill.2d 586 at page 590 the court observed that:

“While an accused in a criminal case does indeed have the constitutional right to be represented by counsel of his own choosing, it is likewise true that such right may not be employed as a weapon to indefinitely thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime.”

At arraignment, the public defender was appointed to represent defendant without objection and represented defendant at the trial, the hearing in aggravation and mitigation and at the time of sentencing.

A fair and objective reading of the recited colloquy reflects that defendant initially requested a continuance, then a bond reduction and finally advised the court that he had funds with which to make bond and to retain a lawyer. Upon further questioning by the court, defendant crystalized his intentions by expressing that his only request was to make bond.

The granting of a continuance, bond reduction and substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. Solomon, supra. We fail to perceive, under this record, any abuse of that discretion or an infringement of a constitutional right. It is significant to note that seven (7) days after sentencing, defendant, in seeking a free transcript, filed an affidavit that he was without funds. Therefore, we affirm.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Winters, Defendant-Appellant.
    (Nos. 55418,55419, cons.
    First District
    September 14, 1971.

      Philip Michael Basvic, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, Robert A. Novelle, Arthur Belkind and Thomas Walsh, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant appeals and contends that the sentences imposed were excessive and should be reduced by this court and that the court failed to conduct an adequate hearing in aggravation and mitigation.

Defendant entered pleas of guilty to the crimes of armed robbery and murder. The murder was committed in the pursuance of armed robbery. He was sentenced to a term of 10 years to 20 years on the armed robbery indictment and 40 years to 100 years on the murder indictment, to run concurrently. There is no dispute that defendant was properly admonished as to the consequences of his pleas of guilty and his right to a jury trial on each indictment.

At the time of defendant’s withdrawal of his previous pleas of not guilty, his counsel expressed the following:

“As your Honor knows, we have spent the past hour-and-a-half to two hours in conference with yourself, the State’s Attorney, and I have also spent part of that time in consultation with the defendant, Joseph Winters, with his parents, with his girlfriend, that my client advises me at this time that he wishes to withdraw his plea of not guilty to both indictments.”

In admonishing defendant as to the consequences of his pleas of guilty the court advised defendant that the murder indictment was predicated upon defendant’s taking the life of the victim, Paul Cans, and the armed robbery indictment was predicated upon defendant taking a watch from the victim.

The State’s Attorney read into the record a stipulation between that office and defendant in his proper person and through his attorney that defendant was nineteen years of age and that if police officer Richard Sandberg, who was present in court, was called upon to testify, he would relate that he was assigned to investigate the homicide of Paul Cans that took place near 25 South Seeley, Chicago, Illinois. During the investigation, defendant was apprehended and gave two statements. In these statements defendant related that he shot the victim.

The State’s Attorney then addressed the court as follows: “Your Honor, based upon the facts in this case, a felony murder, and with the only mitigation that we can see in this case being the plea of guilty entered by the defendant in his own proper person and through his attorney ft ft ft »

The State’s Attorney then recommended a sentence of 50 to 100 years as to the murder and a sentence of 10 to 20 years as to the armed robbery.

Defendant’s counsel then said: “If your Honor please, in mitigation, I would like to point out to the court as follows: At the time this incident allegedly occurred, Mr. Winters was 18 years of age. Mr. Winters and the State can verify this. Has no previous criminal record of any kind whatsoever. Mr. Winters is the father of a young baby, and his girlfriend is here in court. Up until and including this particular incident, Mr. Winters was an exemplary citizen [sic] and unfortunately was involved in this incident which, of which he is most sorry. I feel, your Honor, that under the circumstances, the man’s previous record, the willingness of Mr. Winters and his family to cooperate with this State in this incident that your Honor should give ultimate consideration to reducing these charges, number one, and, also, with reference to the time herein involved, your Honor, that Mr. Winters be given no more than 20 to 30 years on these particular charges to run concurrently.”

Defendant contends that the trial court failed to hold a hearing in aggravation and mitigation pursuant to statute. Defendant further contends that there was a mere “pseudo-hearing” and the court was not in possession of the fullest possible information concerning the defendant.

The defendant relies on People v. Smice (1967), 79 Ill.App.2d 348 which holds that such a hearing is mandatory unless understandingly waived by the defendant; and People v. Evrard (1965), 55 Ill.App.2d 270, which holds that a trial judge must be in possession of the fullest possible information concerning the defendant’s life in order to select the appropriate sentence.

In the case at bar the court provided both the prosecutor and defendant’s counsel an opportunity to present matters in aggravation and mitigation pursuant to Ill. Rev. Stat. 1969, ch. 38, par. 1— 7(g).

In People v. Woods, (Ill.App.2d) (54744; 1971) this court confronted with the same contention said:

“Failure of the defense counsel to pursue the matter beyond a single statement constitutes a waiver which is binding on the defendant. He will not be allowed to sit back and later claim he did not waiver certain proceedings when it is clear his counsel did so on his behalf. People v. Novotny (1968), 41 Ill.2d 401; People v. Nelson (1968), 41 Ill.2d 364; People v. Strey (1969), 118 Ill.App.2d 150.”

In the case at bar the record reflects that an extensive conference was conducted in chambers preceding the withdrawal of the pleas of not guilty, the guilty pleas, the aggravation and mitigation proceedings and the sentencing of the defendant.

We find that there was no error with regard to the hearing in aggravation and mitigation.

Defendant’s remaining contention is that the sentence was excessive. Our Supreme Court has held that a reviewing court should not modify a sentence unless it is manifest that it is excessive. The power to reduce a sentence should be exercised with considerable caution and only in those cases where the penalty constitutes a substantial departure from the spirit and purposes of fundamental law. People v. Caldwell (1968), 39 Ill.2d 346.

We note that defendant’s counsel, at the time of sentencing, recommended a sentence of 20 to 30 years for each offense to be served concurrently. At oral argument, defendant’s counsel who represented him in this appeal, suggested that this court reduce the sentences to 14 years to 14 years and one day to be served concurrently.

The record before this court is barren of any facts which could enable this court to determine whether the punishment was excessive. We are aware that defendant was 18 years of age at the time he perpetrated these crimes, that he had no previous criminal record and was a father. However, we are also advised that he took a life in the pursuance of an armed robery. The burden is upon the defendant to provide an adequate record below to preserve his contention in the reviewing court that the penalty was excessive. We observe that the penalty, in view of the record before this court, was not clearly disproportionate to the crime committed.

The judgment is affirmed.

Judgment affirmed.

LEIGHTON, P. J. and SCHWARTZ, J„ concur.

       Mitigation and Aggravation.
      “For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”