author: TRAPP, J. CRAVEN, P. J.,

text:
    Althea Deaver, Executor of the Will of Philip F. Deaver, Deceased, and Althea Deaver, Administrator of the Estate of Lester M. Samples Deceased, and Althea Deaver, Plaintiff-Appellee v. Ronald Hickox, Defendant-Appellant.
    Gen. No. 10,784.
    Fourth District.
    March 16, 1967.

      Ryan & Heller, of Mattoon (Willis P. Ryan and Nolan K. Sims, of counsel), for appellant.
    Lemna & Lee, of Tuscola, and Busch, Harrington & Porter, of Champaign, for appellee.
   TRAPP, J.

This is an appeal from judgments of the Circuit Court against the defendant and in favor of Althea Deaver, Executor of the Will of Philip F. Deaver, deceased, and as Administrator of the estate of Lester M. Samples, deceased. The actions for wrongful death followed a collision of two automobiles at an unmarked country intersection.

There were no competent eyewitnesses to the accident. The Deaver Buick automobile was proceeding south while the Hickox Falcon automobile was proceeding east prior to the collision. There was standing corn in the northwest corner of the intersection which obscured the view of both drivers. The Hickox car left 39 feet of skid marks prior to the collision and apparently proceeded another twenty to twenty-five feet. The Deaver car was struck on its right side, overturned and came to rest on its top against a corner post in the southeast corner of the intersection about 17 feet from the center of the intersection.

The sole basis of the appeal is the action of the trial court in admitting, over objection, the expression of an opinion by a state highway police officer, Joe McCombs, as to the speed of the vehicles prior to the collision.

The witness had been a state police officer for about eight years. He had six weeks recruit training at the State Police Academy in Springfield, a two-weeks course on traffic patrol and accident investigation at Northwestern University, a two-weeks refresher course conducted by Northwestern University, and a one-month course in basic police work at the University of Illinois Police Institute in Champaign, Illinois. In the accident investigation course many aspects were studied, including taking care of the injured, measurement of skid marks, estimating damage to vehicles and accident reports. As expressed in ambiguous language, determination of speed in reference to skid marks and damage to vehicles was studied. The officer has investigated between 450 and 500 automobile accidents.

The officer described the skid marks and the position of the cars above referred to, stated that the primary damage to the Deaver automobile was at the right-hand door of the two-door vehicle, and that the primary damage to the Hickox vehicle was all in the front end including both front fenders, the hood and bumper, all of which were knocked back a foot to eighteen inches. Photographs of the damaged vehicles were exhibited to the witness. He testified that the oiled surfaced roadway was hot and soft.

The witness was asked the following question to which objection was made:

“Q. Officer, based upon your schooling, your training, and your experience, and based upon your personal observation of the length of the skid marks left by the defendant’s car, the type and condition of the oiled surface roadway that you observed there at that time, and the type and extent of damage to the defendant’s car, the damage to the left side of the plaintiff’s — pardon me — of the doctor’s car, the damage to the right side of the doctor’s car, the fact that the doctor’s car had damage to the top, the fact that the doctor’s car had rolled over on its top, the size of each of the automobiles that you observed there, and the general construction of the Buick, and the respective location and distance of each car from the intersection, as you observed them there, now, based upon those observations do you have an opinion as to the speed of the defendant’s Falcon when it struck the doctor’s automobile?”

After objection, the court interrogated the witness out of the presence of the jury as follows:

“The Court: Let me ask you, Officer, do you feel that you have sufficient background to express an opinion on the matter?
“A. Yes, I have an opinion. I can’t say exactly, naturally. I don’t think anyone can where you’ve got an impact involved, say exact speed. I think I could from past experience more than education, can estimate a speed, speculate a speed, rather.
“Mr. Byan: Did you say speculate a speed, Trooper?
“The Court: You mean estimate, based on skid marks and impact there as you saw it ?
“A. Well, Your Honor, more on automobile damage than the skid marks. Skid marks, where you have a terrific amount of automobile damage following it, from my study, leaves a lot to be desired. You can’t go much by the skid marks when you’ve got a terrific lot of automobile damage after it.
“Mr. Ryan: And that’s what we have in this case. I understood the trooper to say here that where there are terrific skid marks and terrific damage to the automobile it is difficult to estimate the speed.
“The Court: From the skid marks.
“A. From the skid marks, yes.”

The jury was then returned to the courtroom. The witness was then asked:

“Q. Now, officer, based on the observations which you have made and which we placed in our question to you do you have an opinion as to the speed of the defendant’s Falcon when it struck the doctor’s Buick? . . .
“A. Ido.
“Q. And what is that opinion ?
“A. My opinion is that the speed at the time of impact would be between sixty and sixty-five miles an hour.”

It is to be noted that in the colloquy with the court, the witness largely abandoned the use of any training and education upon the subject of computing the speed, but expressed reliance upon his investigation of accidents over the eight years of police service. The record is bare upon whether such investigations referred to included any tests or computations or other such determinations of speed of vehicles based upon physical damage. The witness had never previously qualified as an expert upon the subject.

From American Jurisprudence Proof of Facts, Yol 10, we find several statements regarding the qualifications necessary in making computations of this nature. Included are a knowledge of physics and the study of mechanics, i. e., the characteristics of motion and energy and the formulas using the characteristics of momentum, inertia, velocity and friction, (p 673). It is further said that where there is a substantial weight or design difference between the colliding vehicles, the calculations should be made by technical experts with formulas which consider several aspects of force of impact other than damage, (p 749). See Miller v. Pillsbury, 33 Ill2d 514, p 516, 211 NE2d 733.

From the excerpts of testimony from the proceedings several observations may be made. First, no statement was elicited from the witness, or from others, that there exists a science requiring special skills beyond the ken of the average juror from which a judgment of speed with reference to the vehicles involved could be made with any degree of certainty. Second, no statement was elicited from the witness that he was possessed of the skills necessary to make a determination of speed with relative certainty from the facts presented to him. Third, no discussion was elicited with reference to the factors involved in making a determination of speed either from skid marks, or damage to the vehicles, or from a combination of the two. Fourth, assuming that special skills exist from which a determination of speed may be made with relative certainty, no inquiry was made as to whether such special skills beyond the ken of the average juror were in fact employed by the witness, or anyone else in this case. Fifth, if particular factors were employed to make the determination of speed, those factors were not analyzed in any manner sufficient to enable the jury to determine whether all factors used in arriving at the judgment were, in fact, present. Sixth, as to the degree of certainty of the officer’s opinion, an entirely different impression is gained from the testimony presented to the jury, and that presented to the court out of the presence of the jury. Seventh, it appears that if it may be assumed that there is a science involving special skills for determining speeds of vehicles from physical facts which skills are beyond the ken of the average juror, it affirmatively appears that the officer did not use those skills but relied rather upon a generalization of his own experience, which the officer himself described as a speculation.

We have reviewed the numerous Federal, and State cases from other jurisdictions cited by both parties regarding the admissibility of opinion evidence as to speed derived by experts on the basis of physical facts observed following automobile accidents.

In those cases where the expert testimony was admitted it is frequently difficult to ascertain from the reports what testimony was given regarding the expert’s qualifications and what methods were used in the analysis of the situation. In those cases where the testimony was rejected, the court either felt that no showing was made of possession of special skills by the witness, or that the witness’s opinion was speculative by reason of numerous unknown factors.

Numerous decisions regarding the judgment of speed from damage to vehicles are collected in 93 ALR Later Case Service, Vol 6, p 842. Even those courts which would generally be considered liberal in admitting the testimony of police officers as experts have rejected the testimony where there was an insufficient showing of a knowledge of the principles of mechanics or physics to make such a determination. Crooks v. Pirrone, 228 Cal App2d 549, 39 Cal Rptr 622; Baldwin v. Schipper, 155 Colo 197, 393 P2d 363; Austin v. Hoffman (Tex), 379 SW2d 103.

Our Supreme Court in Miller v. Pillsbury, 33 Ill2d 514, p 516, 211 NE2d 733, noted the conflict of authorities as follows:

“While there is a conflict in authority among American courts on this matter, we are of the opinion that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other science beyond the ken of the average juror. Such evidence does not usurp the province of the jury, since the jury does not have to accept the witness’s opinion. Further, such evidence is essential to aid the jury in drawing the proper inferences from the raw physical facts.” (Emphasis supplied).

Our courts have not abandoned the principle that such opinion evidence should be received with caution. Thomas v. Cagwin, 43 Ill App2d 336, 193 NE2d 233, nor do they permit speculation even by experts. Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 530, 34 NE2d 732. We approve, as a minimum, the statement in Wigmore on Evidence, quoted in Huguley v. State of Alabama, 39 Ala App 104, 96 So2d 315, and taken from the 3rd edition sec 1927 as follows:

“(1) Where an expert witness, testifying from personal observations gives his opinion as testimony, it is usually necessary to predicate in express terms hypothetically, the data upon which the opinion is based. The reason is that otherwise the jury would be unable to tell whether his opinion was meant by him to be applied to the facts ultimately found by the jury.”

Our approval of the statement of Professor Wigmore is not intended to indicate that there must be a hypothetical question in all cases, but rather that even with an expert the court and jury are entitled to know the basis of the opinion.

Union Bus Lines v. Moulder, (Tex Civ App), 180 SW 2d 509, presents circumstances comparable to the issues in this case. There a highway police officer had observed numerous automobile wrecks and had attended a school for highway policemen offering instruction with reference to estimating the speed of vehicles from skid marks and apparent force of impact. The trial court considered him qualified as an expert to express an opinion of speed, predicated solely upon the damage to the vehicles and the respective positions on or near the highway. The reviewing court reversed a judgment for the plaintiff, saying:

“The record here fails to show that Probst employed any technical or scientific methods in arriving at his estimate of the speed of the bus in terms of miles per hour. He did not attempt to detail instructions or tests suggested to him at school in Austin which would enable him to estimate the speed of a vehicle by observations of damage caused by impact.”

It is not an answer to say that the matters herein discussed all go to the weight of the evidence. An expert’s opinion not based upon developed expertise is no evidence at all. The court should, at a minimum, determine that the witness possesses special skills necessary to cope with the factors of determination involved, and second, that he actually employed those factors pri- or to permitting the opinion to be given to the jury. Thereafter, even though the matter be beyond the ken of the ordinary juror, the expert’s actual analysis of facts which can be known to the juror must be given to make the testimony a matter which can be weighed. A mere statement by an expert without basis or analysis is simply authority by assertion.

The testimony here involved concerned a most important issue to be considered by the jury. Its admission under the circumstances recited was erroneous.

Reversed and remanded.

SMITH, J., concurs.

CRAVEN, P. J., dissents.

CRAVEN, P. J.,

dissenting:

I would affirm the judgment of the circuit court of Champaign County entered upon the verdict of the jury. The sole basis for this appeal is the alleged error in admitting the testimony of a state highway patrolman as to the speed of the vehicles prior to the collision. The police officer testified and expressed an opinion based on observations of the scene of the accident, the skid marks, the relative position of the vehicles and the damage to them. He arrived at the scene of the accident before either of the vehicles had been moved. He described the oil surface of the roadway. He measured the skid marks. He observed gouge marks, the terrain and the scene. This witness had nine years’ experience as a state patrolman. He had had special training as related in the majority opinion and had investigated some 450 to 500 accident cases. Under these circumstances and absent competent eyewitnesses, the admissibility of this testimony was within the sound discretion of the trial court and its admission was not an abuse of discretion.

In Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733 (1965), the Illinois Supreme Court talks of the admissibility of expert testimony and concluded that such testimony would be admissible since it was essential in aiding the jury to make proper inferences from the raw physical facts. In Miller, there were no objections to the qualifications of the expert.

In Thomas v. Cagwin, 43 Ill App2d 336, 193 NE2d 233 (2d Dist 1963), a police officer witness was permitted to give his opinion as to the location on the roadway of the point of impact. The court there held that although this type of evidence should be admitted with caution, its admissibility rests within the discretion of the trial judge and there found no abuse of discretion.

The qualifications of the police officer in this case are not asserted to equal the qualifications of the expert in Miller, but from all that can be gleaned from the statement in the Thomas case the police officer here possessed more qualifications than in Thomas.

The annotation found in 66 ALR2d 1048, et seq., is referred to in Miller and in Thomas. The latter case quotes, with approval, language to the effect that there is a strong and apparently growing authority recognizing that skilled or expert opinion is admissible upon the question. The question there being referred to is place of collision. An annotation in 93 ALR2d 287, et seq., seems not to establish any logical difference between opinion evidence on speed as distinguished from opinion evidence on point of impact as was admitted in Thomas.

The language of the Supreme Court in Miller and the Appellate Court in Thomas permits of the admissibility of the testimony of the state trooper in this case. The nature and extent of his qualification as an expert goes to the weight that should be given his testimony, and not its admissibility.

As stated in Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 293 (216 NE2d 14, 19 (5th Dist 1966)):

“To render an opinion an expert need only possess special skill or knowledge beyond that of the average layman, and the determination of his qualifications rests within the sound discretion of the trial judge. People v. Jennings, 252 Ill 534, 550, 96 NE 1077. The weight to be attached to such an opinion is a question for the jury in light of the expert’s credentials, the facts upon which he bases his opinion and any limitations placed thereon during cross-examination. . . .”

In my view, there was no abuse of discretion by the trial court in admitting the testimony of the trooper.


source: Caselaw Access Project

author: JUSTICE ALLOY.

license: Public Domain

text:
    Sarah Gill, Plaintiff-Appellee, v. Francis Talmadge and Dorothy Talmadge, Defendants-Appellants.
    Gen. No. 66-51M.
    Third District.
    March 17, 1967.
    John Murchison, of Joliet, for appellants; Saxon & Niznik, of Plainfield, for appellee.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Washington, Defendant-Appellant.
    Gen. No. 50,410.
    First District, Third Division.
    September 8, 1966.

      Howard T. Savage, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon Sandman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant, Frank Washington, was found guilty by a jury of having unlawfully possessed narcotic drugs. He was sentenced to the Illinois State Penitentiary for not less than five nor more than ten years.

On May 14, 1964, police officers entered the premises at 6945 S. Cornell Avenue, with a search warrant naming one Mary Canady. When the officers went to the apartment of Mary Canady, the defendant opened the door and was given a copy of the search warrant. The defendant and Mary Canady were arrested, and in a search of the defendant in the apartment the police seized a tinfoil package of powder and a package of crushed green substance. Another package of white powder was found in the kitchen of the apartment. Defendant stated that everything found in the apartment belonged to him.

The substances seized were taken by the police to the crime laboratory, where they were examined by a police chemist on May 15, 1964. The chemist identified the three packages in open court as those whose contents he had previously examined and found to contain heroin and marijuana.

The defendant raises numerous points on appeal which he contends justify a reversal of his conviction. These are: (1) That he was denied representation by counsel of his own choice and compelled to retain counsel who in fact provided an inadequate representation in which no attempt was made to protect his constitutional right not to be convicted by use of evidence unlawfully obtained which resulted in a failure of constitutionally guaranteed due process; (2) that the evidence does not establish that the substances identified by a chemist as cannabis and heroin were seized from him in the apartment as testified to by police officers, and thus there is no evidence to support the verdict and judgment; (3) that the indictment fails to charge a criminal offense and therefore his motion in arrest of judgment was erroneously overruled; (4) that the evidence does not establish that the drug identified as cannabis (marijuana) was of the kind and quality defined as “narcotic drugs” within the applicable statute; (5) that neither venue nor his age were properly established in the trial court.

The defendant contends that he was denied the right to representation by counsel of his own choice because of the following colloquy between himself and the court upon the call of his case:

“The Defendant: Your Honor?

The Court: Yes.

The Defendant: Could I have time to change counsels, Your Honor ?

The Court: No, it is too late.

The Defendant: I’m not satisfied with counsel.

The Court: Not at this stage of the proceedings. Take your seat.”

The defendant had been arrested on May 14, 1964, indicted on July 31, 1964, and arraigned on August 10, 1964. On this latter date the defendant’s counsel filed his appearance. The trial was set for September 9, 1964. Nothing «appears of record for said date, but on October 6, 1964, an order was entered causing the defendant’s bond to be forfeited with warrant to issue for his arrest. On December 17, 1964, the State and the defense stated that they were ready to proceed to trial. The record fails to reveal any dissatisfaction by defendant with his attorney other than that noted previously on the date set for trial.

The defendant has cited two United States Supreme Court cases, Gideon v. Wainright, 372 US 335, and Escobedo v. Illinois, 378 US 478, to support his contention that he was denied the right to be represented by counsel of his own choice. In our opinion, neither of these cases supports the defendant. Gideon involved a case where the trial court denied a request of an indigent prisoner to appoint counsel for him, while in Escobedo the police denied defendant’s request to see his attorney after he was arrested on a murder charge. The facts and circumstances supporting these cases are clearly distinguishable from those in the instant appeal. Here the defendant had counsel of his own choosing and on the day set for trial sought time in order to change his counsel.

It appears that the defendant was not denied the right to choose his own counsel — in fact he did — but that the court denied him a continuance to obtain new counsel. This request was made on the day set for trial, and it was entirely within the discretion of the trial court to deny a continuance at such a late date in the proceedings. This decision by the trial court will not be questioned by a court of review unless the trial court has abused its discretion. People v. Quevreaux, 407 Ill 176, 95 NE2d 62; People v. Moore, 368 Ill 455, 14 NE2d 494; People v. VanNorman, 364 Ill 28, 2 NE2d 891.

In People v. Solomon, 24 Ill2d 586, 182 NE2d 736, the court stated on page 589: “The granting of a continuance to permit . . . 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.” The court cited People v. Surgeon, 15 Ill2d 236, 154 NE2d 253, and People v. Clark, 9 Ill2d 46, 137 NE2d 54, on this point. On page 590 the court continued: “Nor, under the circumstances reflected in this record, can it be said the trial court was guilty of an abuse of discretion because it failed to grant a continuance in the face of defendant’s efforts to obtain other counsel. 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.”

The defendant argues on appeal that the reason for the dissatisfaction with his attorney was that no effort was made to challenge the use of unlawfully obtained evidence at the trial, and that the attorney was respondent in a proceeding which ultimately resulted in his disbarment. Neither of these points are properly before this court. The record reveals no motion by defendant through his counsel to suppress the evidence, and consequently the search warrant in the instant case is not a part of this record. The defendant asks that this court take judicial note of the fact that the search warrant pursuant to which entry was made into the apartment of Mary Canady, in which apartment he was found, and under color of which he was arrested, was declared to be void by the same trial judge in the case of People v. Canady, and that the evidence seized from him during the search and received at his trial was unlawfully obtained.

The defendant does not ask that this court take judicial note of these matters for the purpose of determining whether or not the evidence against him established his guilt, but for the purpose of determining whether under all of the circumstances the proceedings against him possessed the fundamental fairness required by the United States and Illinois Constitutions.

The record in the case of People v. Canady and the relevant search warrant are not before this court. The defendant admits that he is aware of the precedent that a court will not take judicial notice of the contents of records except in proceedings pending before it. He has also stated in his brief that he realizes that here he is not only asking this court of review to take judicial notice of a record in a case other than that pending before it, but of a record of the lower court.

There is no precedent for this court to consider the proceedings in the lower court in the case of Mary Canady. In People v. Hunt, 357 Ill 39, 190 NE 809, the court stated at page 40: “A Court will not take judicial notice of the contents of its records except in the proceeding pending before it.”

Similarly, there is nothing in this record to indicate whether defendant’s attorney was the respondent in a disbarment proceeding. Even if this fact were a part of this record, we fail to see how defendant was prejudiced thereby in the instant case.

The mere fact that defendant’s counsel failed to move to suppress the evidence is not a sufficient ground upon which to reverse this cause. Defendant employed his own counsel and cannot now complain about the allegedly faulty representation which he received. (People v. Palmer, 27 Ill2d 311, 189 NE2d 265.) It was stated in People v. Morris, 3 Ill2d 437, 121 NE2d 810, at page 444: “Where the defendant selects his own attorney the court has held, almost without exception, that the failure of such counsel to exercise care and skill in the trial of the case does not afford a basis for reversing a judgment of conviction.” (Citing numerous cases.)

The defendant next maintains that the evidence does not establish the fact that he possessed narcotic drugs since the substances introduced into evidence as People’s Exhibits 1, 2 and 3 were not the same substances taken from his person and the apartment. We do not agree with this argument. Upon a careful examination of the record we find that the substances introduced into evidence by the State were the same substances taken from the defendant and from the apartment. The chain of events from the seizure of said substances through their analysis at the crime laboratory to their production at the trial was fully explained and complete. (People v. Harper, 26 Ill2d 85, 185 NE2d 865.) The testimony of the police officers and of the police chemist adequately and fully accounted for the seizure and analysis of the substances.

The defendant raises the point that the indictment fails to charge him with a criminal offense, and therefore his motion in arrest of judgment was erroneously overruled. The indictment charged him with unlawful possession of “a certain narcotic drug, to wit: Cannabis, sometimes called marijuana and heroin.” The defendant asks us to take note of the fact that no substance exists known as “cannabis, sometimes called marijuana and heroin.”

It is common knowledge that cannabis is called marijuana — it is never called heroin. However, under the facts of this case, the failure to place a comma after the word “marijuana,” would not justify a reversal of conviction. The defendant was properly advised of the charges against him prior to trial; unlawful possession of marijuana and heroin. The defendant proceeded to trial being fully aware of the exact nature of the charges against him, and therefore was not prejudiced.

The defendant also contends that the evidence does not establish that the drug identified as cannabis (marijuana) was of the quality and kind defined as “narcotic drugs” in the relevant statute. He argues that the evidence fails to establish that the “cannabis” testified to by the police chemist was not the mature stalks of the plant Cannabis Sativa L., fiber produced from such stalks, oil or cake made from the seeds of such plant, and any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, all of which are by statute excluded from the “cannabis” defined in the statute as a narcotic drug.

The chemist’s testimony was that he found that the substance which he tested was “marijuana, cannabis, commonly referred to as marijuana.” Since he gave no further opinion and did not testify that the substance was within the definition of narcotic drugs as set out in the statute, the defendant contends that he was therefore not charged with a criminal offense.

In support of this argument he cites the cases of People v. Sowrd, 370 Ill 140, 18 NE2d 176, and People v. Williams, 4 Ill App2d 506, 124 NE2d 537, where the courts held that failure to charge possession of marijuana of the specific kind and quality defined as narcotic drugs in the 1935 and 1937 Acts relating to narcotic drugs constituted a failure to charge a criminal offense. However, defendant fails to note that the Sowrd case, supra, upon which Williams, supra, relied, was distinguished in the case of People v. Yeargain, 3 Ill2d 25, 119 NE2d 752, where the court was faced with an indictment similar to that present in the instant case. The defendant cited the Sowrd case in support of his argument that said indictment was insufficient. The court noted that the Narcotic Act was amended in 1949 so that the act was then, and is now, different from the 1935 Act.

Subsection 13 of section 1 of the Uniform Narcotic Drug Act, in effect in 1935, upon which the decision in Sowrd was rendered, read as follows:

“ ‘Cannabis’ includes the following substances under whatever names they may be designated: (a) The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L., from which the resin has not been extracted, (b) the resin extracted from such tops, and (c) every compound, manufacture, salt, derivative, mixture, or preparation of such resin, or of such tops from which the resin has not been extracted.” (Ill Rev Stats 1935, c 91, par 157.)

Subsequent to the Sowrd decision this subsection was amended, and in 1951, at the time of the offense and indictment in Yeargain, the subsection read:

“ ‘Cannabis’ includes all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom) fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” (Ill Rev Stats 1951, c 38, par 192.1.)

The court in Yeargain, supra, commented upon the amendment of subsection 13 of section 1 of the Act and stated at page 27:

“A comparison of the wording of these two subsections readily discloses the inapplicability of People v. Sowrd to the present statute. Under the 1935 statute ‘cannabis’ was defined as including the substances (a), (b) and (c), thereby making them an essential part of the drug regulated by the statute. Under the statute in its present form ‘cannabis’ is defined as including ‘all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin;’ and then provides it shall not include certain specified parts or derivatives thereof. Comparison of these two definitions shows that under the 1935 statute cannabis of a specific quality and kind was subject to the prohibitions of the act while under the statute as amended in 1949 all cannabis was subject to the act, excluding the specific exceptions.”

Under the present Uniform Narcotic Drug Act the definition of cannabis remains the same as that under the 1951 Act. (Ill Rev Stats 1963, c 38, par 22-2.) Therefore, the reliance by the defendant upon the Sowrd case, supra, is without merit.

Section 39 of the Narcotic Act (111 Rev Stats 1963, c 38 par 22-44) provides that “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this Act, it shall not be necessary to negative any exception . . . contained in this Act, and the burden of proof of any such exception . . . shall be upon the defendant.” Under this statute the burden is upon the defendant to prove that he came within the exception to narcotic drugs as defined under the Act. In People v. Austin, 22 Ill2d 587, 177 NE2d 97, the Supreme Court rejected an argument similar to that put forth by the defendant in the instant appeal. There the defendant contended that there was no proof that a certain substance was a derivative of opium within the meaning of the statute. Under the relevant statute not all forms of opium are proscribed. Certain salts are derivatives of opium and are legal commodities. The defendant contended that the State had to prove that the derivative he possessed did not come within the exception. The Supreme Court rejected this contention and cited section 39 of the Narcotic Act which specifically placed the burden of proof of such exception upon the defendant.

Similarly in the Yeargain case, supra, the court discussed this point and stated: “. . . it was not necessary that the indictment negative the exceptions contained in the statute defining the regulated drug.”

The defendant argues that to require him to establish that the cannabis examined by the police chemist did not fall within the exceptions of the statute would release the State from its burden of proving him guilty beyond a reasonable doubt.

The construction cited above does not do violence to the requirement that the State prove the guilt of the defendant beyond a reasonable doubt. In People v. Williams, 23 Ill2d 549, 179 NE2d 639 (1962), the Illinois Supreme Court stated at page 555:

“We believe that the statutory provision which states that the burden of proof of the exemption shall be upon the defendant must be applied to this situation in such a way that it does not conflict with the principle that places upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Thus, if there is in the record evidence sufficient to raise a reasonable possibility that the defendant comes within the exemption thus creating a reasonable doubt of his guilt, the defendant has met the burden of proof imposed upon him by the statute. Where, as was the case in People v. Palumbo, 5 Ill2d 409, there is no suggestion in the record that the substance containing narcotics is a medicinal preparation, the State is not required to prove the concentration.”

In the case at bar there is not the slightest suggestion that the defendant was in possession of anything but proscribed narcotics. The burden having shifted to defendant, and the defendant having failed to meet that burden, he cannot now claim that he was not charged with or proven guilty of a criminal offense under the Uniform Narcotic Drug Act.

The last point raised by the defendant is that neither venue nor his age were properly established in the trial court. At the request of the State’s Attorney the court took judicial notice of the fact that the defendant was above the age of 17 years. The jury did not find his age, nor did defendant make his age an issue of fact. No reversible error results from this failure to establish his age at the trial. Herder v. People, 209 Ill 50, 70 NE 674; People v. Yurkiates, 404 Ill 157, 88 NE2d 458, and People v. Poole, 284 Ill 39, 119 NE 916.

In reference to the failure to establish venue, the defendant argues that the State’s evidence did not affirmatively establish that the alleged offense occurred in the county and state alleged in the indictment. The evidence in this case showed the street name and number (6945 South Cornell Avenue), and that the participating policemen were members of the Chicago Police Department. The ease was tried in the circuit court of Cook County, criminal division. In People v. Pride, 16 Ill2d 82, 156 NE2d 551, it was held that the foregoing was sufficient proof of venue.

For the foregoing reasons the conviction of the defendant is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.

On Rehearing

A rehearing was granted by the court in this case. After a further study and examination of the record and briefs in this case, and the matters set forth on rehearing, we conclude that we can find no reason for departing from our original decision, and we, therefore, adhere to it.


author: PRESIDING JUSTICE STOUDER.

text:
    Diane Schmidgall, Plaintiff-Appellant, v. Fred W. Engelke and Russell Pursley, d/b/a Pursley & Engelke, Defendants-Appellees.
    Gen. No. 66-58M.
    Third District.
    March 17, 1967.

      Clifford E. Sehmidgall, of Peoria, for appellant; Harry C. Heyl, of Peoria, for appellees.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: GOLDENHERSH, J.

text:
    Charles Louis, Plaintiff-Appellant, v. Louis Barenfanger, d/b/a Barenfanger Construction Company, Defendant-Appellee.
    Gen. No. 66-61.
    Fifth District.
    September 14, 1966.
    Modified opinion April 10,1967.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    James B. Wham, Wham & Wham, of Centralia, and Robert D. Albright, Raemer & Albright, of Salem, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Marion County entered upon allowance of a motion to dismiss plaintiff’s third amended complaint.

Plaintiff’s third amended complaint, as further amended by interlineation, alleges that defendant was a general contractor engaged in the erection of a school building, that defendant had charge of the erection of the building and all scaffolds, stays and supports used thereon, that all scaffolds, stays and supports mentioned, except for the scaffold mentioned in paragraph 8D, were to remain in place and become a part of the building, that plaintiff was employed by a subcontractor engaged in part of the construction job.

The complaint further alleges that sections 60 and 69 of chapter 48, 111 Rev Stats 1955, were then in force and effect and it was defendant’s duty to comply with the provisions thereof. Paragraph 8 alleges that defendant wilfully or knowingly failed to comply with the provisions of the Structural Work Act in various respects. A motion to strike paragraphs 8A, 8B, and 8C was allowed prior to the filing of the motions hereinafter discussed. In paragraph 8D plaintiff charges violation of the statute “By knowingly permitting one or more planking-type scaffolds to be used in the construction of said building, the said scaffolds were not so placed as to give proper and adequate protection to the life and limb of the plaintiff and other persons employed or engaged thereon.”

Defendant filed a motion attacking section 8D praying that plaintiff be required to plead additional facts, or in the alternative the cause be dismissed, and also filed a motion for a bill of particulars. Plaintiff’s motion for denial of a bill of particulars was overruled, and a bill of particulars was filed. In the bill of particulars plaintiff states that the planking-type scaffolds referred to in the complaint consisted of boards laid across “I” beams, which boards had been furnished by defendant. Plaintiff further states that he was not standing on a plank-type scaffold at the time that he fell, for the reason that the scaffolds were not properly placed for his use, that he did not know the location of the scaffolds at that time, and that employees of the defendant had “placed or misplaced” the scaffolds.

The trial court allowed defendant’s motion and dismissed the case. This appeal followed.

Although the exact basis for dismissal cannot be determined from the order entered by the circuit court, the parties have briefed and argued the following propositions. Plaintiff contends (a) that the Structural Work Act is designed to include not only scaffolds, but hoists, cranes, stays, ladders, supports, or “other mechanical contrivances”; (b) that a scaffold, by definition, is temporary, but a support, if it is furnished for use, and used, as a support during the course of construction falls within the purview of the Structural Work Act, although it may be a part of the permanent structure, (c) that if defendant knowingly permitted planks to be used in the construction work, and at the time of plaintiff’s injury the planks were not so placed as to give proper and adequate protection to the life and limb of the plaintiff, defendant is in violation of the statutory requirement for proper placement of supports or scaffolds.

Defendant contends (a) that a permanent part of a building is not a scaffold or support within the meaning of the Structural Work Act (b) that the fact that a workman chooses to walk on an integral permanent part of a structure does not make that part of the building a scaffold or support within the meaning of the Structural Work Act, (c) that the Structural Work Act does not require a contractor to furnish a scaffold or support to an employee of a subcontractor, (d) that the Structural Work Act does not confer upon a contractor the power, nor place upon him the duty, to prohibit an employee of a subcontractor from walking on an integral part of a building under construction (e) the fact that a contractor might have used a scaffold at some stage of construction, does not thereafter impose upon him the duty to place a scaffold for every other operation conducted by a subcontractor’s employee.

In determining the sufficiency of a complaint when attacked by a motion to strike or dismiss, the facts well pleaded must be taken as true. Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill2d 93, 187 NE2d 722. The bill of particulars furnished upon the demand of the defendant should be deemed a part of the third amended complaint to which it relates, (McDonald v. The People, 126 Ill 150, 18 NE 817; O’Leary v. The People, 88 Ill App 60; Sterling-Midland Coal Co. v. Ready & Callaghan Coal Co., 236 Ill App 403) and for purposes of the motion, it is therefore admitted that defendant had charge of the erection of the building and of all scaffolds, stays, and supports used in the construction work, that defendant had furnished, and knowingly permitted the use of one or more planking-type scaffolds, and that the proximate cause of plaintiff’s injury was the failure to properly place these scaffolds.

Defendant refers this court to plaintiff’s first amended complaint for the “basic facts as to how plaintiff fell.” That complaint was dismissed, and by leave of court plaintiff has filed his third amended complaint. The third amended complaint makes no reference to any other complaint, and for the purposes of the motion attacking it, is neither aided nor impaired by any prior pleading. Bowman v. County of Lake, 29 Ill2d 268, 193 NE2d 833.

In support of the court’s action in dismissing the third amended complaint, defendant makes repeated reference to plaintiff’s testimony taken by discovery deposition. Defendant has not cited, nor has this court found any authority for the use of a discovery deposition in support of a motion based upon either sections 42 or 45 of the Civil Practice Act, upon which sections defendant’s motion purports to be based. In view of the holdings of the Supreme Court that except as provided in section 48 of the Civil Practice Act, the disposition of a motion to dismiss must be made upon the allegations contained in the complaint, we hold that the deposition is not properly to be considered in determining the sufficiency of the third amended complaint. Mutual Tobacco Co. v. Halpin, 414 Ill 226, 111 NE2d 155; Hansen v. Raleigh, 391 Ill 536, 63 NE2d 851.

As stated in Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400, “There is little authority in Illinois as to what does and what does not constitute a scaffold within the meaning of the statute,” and whether an object or instrumentality is a scaffold or support must be determined on the facts in each case. Thus an overhead crane (Bounougias v. Republic Steel Corp., 277 F2d 726), a shovel extension mounted on a tractor (Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270) and a plank laid across a concrete form (Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552) were held to be scaffolds under the facts presented in those cases. If, as alleged in the complaint, planks, or “planking-type scaffolds” were furnished for use in the construction of the building, as a place for plaintiff to work, they were “scaffolds” or “supports” within the contemplation of the Structural Work Act.

Defendant argues that the Structural Work Act does not apply because “plaintiff was not using a ‘scaffold, hoist, crane, stay, ladder or other mechanical contrivance’ when he fell.” As above stated, the plaintiff, in his bill of particulars, alleges that he was not standing on a scaffold when he fell, for the reason that the planking-type scaffold or supports were not properly placed for his use. The statute upon which plaintiff relies provides that scaffolds and supports “shall be so erected and constructed, placed and operated. . . .” Obviously the failure to properly place a scaffold or support is as much an actionable violation of the Structural Work Act as is the failure to properly construct, erect or operate a scaffold or mechanical contrivance.

The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. (C 110, § 33(3), Ill Rev Stats 1965.) In Miller v. DeWitt, (Docket No. 39428), in reviewing the trial court’s ruling in dismissing a third party complaint, the Supreme Court, speaking through Mr. Justice Underwood, said “The trial court should not have dismissed the third-party complaint unless it appears from the pleadings that in no event would the architects have an action over against the contractor.” We understand this language to hold that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings, which will entitle the plaintiff to recover. Applying this rule to the third amended complaint, as amended, the dismissal of the cause was error. We do not further discuss the many contentions briefed and argued by the parties for the reason that they do not, at this time, present issues for decision. Mahin v. Baltis, 34 Ill2d 413, 216 NE2d 132.

For the reasons stated, the judgment of the Circuit Court of Marion County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

MORAN and EBERSPACHER, JJ., concur.


author: JUSTICE HOFFMAN.

text:
    Roy W. Hughes, et al., Plaintiffs-Appellants, v. City of Peoria, et al., Defendants-Appellees.
    Gen. No. 66-44.
    Third District.
    March 9, 1967.
    Rehearing denied April 19,1967.
    Leiter, Newlin, Fraser, Parkhurst & McCord, and Joseph J. Solis, all of Peoria, and Sheldon J. Plager, of Urbana, for appellants; Max J. Lipkin, Davis, Morgan & Witherell, and Swain, Johnson & Card, all of Peoria, for appellees.
   Opinion by

JUSTICE HOFFMAN.

Not to be published in full.


text:
    People of the State of Illinois, Appellee, v. Chester Price, Appellant.
    Gen. No. 49,730.
    First District, Third Division.
    March 16, 1967.

      James H. DeVries, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals his conviction of the crime of theft of an automobile with a value of more than $150, for which he was sentenced to a term in the penitentiary of not less than four years nor more than eight years.

The defendant waived a jury and was tried by the court.

The defendant contends that his conviction is unlawful because he was convicted of a crime for which he was not indicted, and all elements of the offense were not proved beyond a reasonable doubt.

The evidence showed that on January 6, 1964, Robert Ross parked a 1960 four-door white Chevrolet, which he owned, on Oak Street in the city of Chicago about 10:00 or 10:30 p. m. Upon his return between 5:30 and 6:00 a. m. on January 7, 1964, he found the car gone. He did not give anyone permission to use his automobile.

On January 10, 1964, a police officer went to 1101 East 65th Street, Chicago, Illinois, pursuant to a radio assignment. When he arrived at that address he found other police officers had arrived before him and he saw the defendant, Chester Price, getting out of a parked 1960 Chevrolet. A police officer asked the defendant who owned the automobile, and, according to the officer, the defendant responded that it was his automobile. The defendant was then asked if he had anything to prove that it was his car and he produced a sales contract bearing the name of Robert Ross. The officer also testified that Price stated that the automobile belonged to a friend of his named Robert Ross, who had loaned it to him at approximately 8:00 a. m. on January 10th. The officer then testified that the defendant made several phone calls but then told the officer that he was unable to contact Mr. Ross. The officer examined the automobile and observed that there was a key in the ignition on a key ring and that the key ring contained four keys. The officer testified that the defendant stated that he had been attempting to remove the rear seat from the automobile in order to get at the spare tire because the trunk key was broken off in the trunk. None of the four keys on the key ring would open the trunk lock, and the officer testified that there was no key broken off in the trunk lock.

At the police station the defendant had a conversation with a detective of the Chicago Police Department between 11:00 and 12:00 p. m. on January 10, 1964. According to the detective’s testimony, the defendant stated that he had driven the automobile in question, and that he had obtained the car from Robert Ross two days previously. He further testified that the defendant stated that he had met Mr. Ross at taverns on the north side and that Mr. Ross told him where the automobile was parked on Oak Street, that the ignition was open and that he could turn it on and drive it away. About one hour after the detective’s conversation with the defendant, Ross arrived. Ross told the detective that he had never seen Chester Price before, and that he had not loaned his automobile to anyone.

The defendant testified that on January 10, 1964, he had left his grandmother’s at 910 North Cleveland at 5:30 or 6:00 p. m. and had taken the elevated to his sister’s apartment at 1103 East 65th Street where he arrived at approximately 6:30 or 7:00 p. m. He remained at his sister’s apartment until about 8:30 p. m. when he left at his sister’s request to go to the store for milk for her children. When he came out of the apartment building a police car stopped and policemen got out and asked him whose car was parked by the curb. Defendant testified that he said he did not know; that he had never seen the car in question before and that he had never been in the car. He also stated that he was never in possession of the sales contract but that the police had showed it to him. His testimony further was that the keys were shown to him and that he had told the police officers that they did not belong to him. Defendant stated that he did not own an automobile and did not have a driver’s license but he did know how to drive. No evidence of value of the automobile was introduced.

The first point raised by the defendant is that his conviction is unlawful because he was convicted of a crime for which he was not indicted. The defendant’s theory is that he was indicted for the theft of an automobile having a value of more than $100, and that he was convicted of the theft of an automobile having a value of more than $150. The indictment was in two counts. The first count alleged,

“ . . . that on January 7th, 1964, at and within said County Chester L. Price committed the offense of theft, in that he, knowingly obtained unauthorized control over an automobile, of the value of more than one hundred dollars, the property of Robert Ross, intending to deprive said Robert Ross permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1, of Illinois Revised Statutes 1963, . .

The second count of the indictment charged the defendant with the offense of criminal trespass to vehicles, in violation of chapter 38, section 21-2, of the Illinois Revised Statutes 1963. The court made no finding relative to the second count. The court found the defendant guilty of theft of automobile, property value more than $150, in manner and form as charged in the indictment. Section 16-1 of the Criminal Code, (111 Rev Stats 1963, c 38, par 16-1) reads as follows:

“Sec. 16-1. Theft.) A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
(c) Obtains by threat control over property of the owner; or
(d) Obtains control over stolen property knowing the property to have been stolen by another, and
(1) Intends to deprive the owner permanently of the use or benefit of the property; or
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.
Penalty.
A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.”

The defendant argues that since he was convicted of theft of property having a value of more than $150, and the indictment charged him with theft of an automobile having a value of more than $100, he was not convicted of the crime for which he was indicted.

In People v. Jackson, 66 111 App2d 276, 214 NE2d 316, on page 280 the court, in referring to section 16-1 of chapter 38, said the following:

“The legislature did not, as the defendant argues, attempt to create the crime of theft from the person in the penalty portion of section 16-1 rather than in the descriptive portion. The penalty portion merely makes distinctions between different grades of theft and provides aggravated penalties for aggravated degrees and forms of theft. Thus, one who steals more than $150 or who steals from the person of another may be imprisoned in the penitentiary; a penitentiary sentence is also provided for one convicted of repetitive thieving, while one who is convicted for the first time of theft of less than $150 is subject to imprisonment in a different institution, or to a fine, or both.”

In People v. Kelly, 66 Ill App2d 204, 214 NE2d 290, the court on page 210 said:

“(4) It would appear that the term ‘grand theft’ and the allegations and findings as to property value employed throughout these proceedings have misled the State’s Attorney into the belief that defendant’s conviction may not stand in the absence of proof that the stolen automobile exceeded $150 in value. This is not true, however, as the only crime with which we are here concerned is that of ‘theft.’ Theft is committed by the stealing of ‘anything of value,’ regardless of the amount thereof. Ill Rev Stats, c 38, sec 15-1. The particular value of the property relates only to the nature and extent of the penalty which may properly be imposed.
“(5) When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment a property value in excess of $150 (as in this case), and the proof fails as to value only, it does not follow that the crime of ‘theft’ has not been proved. The court may take judicial notice of the fact that a 1959 Chevrolet driveable in 1964 is a thing of some value even though it may not, without more proof, conclude that the value exceeds $150. People v. Dunsworth, 323 Ill App 470, 474-478, 56 NE2d 52.”

The question which then confronts us is not whether the offense of theft has been proven but whether the court had the right to find the defendant guilty of theft of an automobile exceeding $150 in value when the indictment charged him with theft of an automobile having a value of more than $100, and there was no evidence offered as to the value of the car.

The defendant argues that he cannot be convicted of a crime for which he was not indicted and cites several cases. However, the crime for which the defendant was indicted in this case was theft. The value of the stolen property goes only to the penalty which may be imposed, as was pointed out in People v. Jackson, supra. Since we conclude that the crime of theft had been proven but that the indictment failed to charge that the value exceeded $150, and there was no evidence of the car’s value, the court had no right to impose the sentence of 4 to 8 years, as was done in this case. In the penalty paragraph of section 16-1 a person who has been convicted of theft of property not exceeding $150 in value may be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. However, if a person is convicted of such a theft a second or subsequent time, or after a prior conviction of any type of theft, he shall be imprisoned in the penitentiary from one to 5 years. Where the value of the property stolen exceeds $150 the penalty is imprisonment in the penitentiary from one to 10 years.

Section 15-1 of chapter 38 defines property as meaning anything of value.

This court will take judicial notice of the fact that a 1960 Chevrolet in 1964 had some value, but since the indictment did not charge that it had a value in excess of $150, and there was no evidence of value, the court could not impose the penalty provided by statute for theft of property having a value in excess of $150.

The defendant also argues that the element of intent was not proven beyond a reasonable doubt. From the facts heretofore stated it appears that when the defendant was arrested at 1101 East 65th Street he claimed that he owned the car. He then produced a sales contract with the name of Robert Ross on it and claimed he had borrowed the car from Ross. He told another police officer that he had borrowed the car two days prior from Ross. The defendant, however, testified that he was never in the automobile; that he did not claim ownership nor have possession of the car, and that he never gave the sales contract to the police officer. The defendant argues that if he had intended to permanently deprive Robert Ross of the use or benefit of his automobile he would have taken steps to prevent the car from being recognized. The car was found by the police at 1101 East 65th Street, many miles from Oak Street where the owner had parked it four days previously. How this defendant, who first claimed that he was the owner, then the bailee, and then completely denied any knowledge of the car, can now contend that no intent was proven is difficult to understand.

In People v. Heaton, 415 Ill 43, 112 NE2d 131, the court said that what was within the confines of a man’s mind cannot always be accurately ascertained, but true intention can be arrived at as nearly as possible by an examination of the facts and circumstances and from them draw a parallel measured by the standards of reasonable men. On page 46 the court said:

“We held in People v. Baker, 365 Ill 328, that intention may be proved by deduction from acts committed and from circumstances in evidence. It was, therefore, as laid down in People v. Pastel, 306 Ill 565, a question of fact for the jury whether the automobile was taken with a felonious intent to steal, and whether there was an intention on the part of the plaintiff in error to return the automobile. If it appears that the taker kept the goods as his own until his apprehension, such fact has a material bearing upon that intention. There is no fact or circumstance indicating an intention upon the part of the plaintiff in error to return the auto to its true owner, except the fact that he was promptly apprehended.”

The question of intent in this case was one for the trier of the fact to determine, and from a reading of the record we cannot say that the trial court was in error in concluding that the necessary intent was proven from its examination of the facts and circumstances and the inferences which may properly be drawn therefrom. The trial court was, as before noted, in error in finding the defendant guilty of theft of property exceeding the value of $150. However, the court properly found the defendant guilty of theft.

During the trial evidence was introduced by the People showing a record of the defendant as having previously been convicted of auto larceny in 1957 and sentenced to the Illinois State Penitentiary from two to five years. After the finding of guilty, the trial court heard in aggravation the prior record of the defendant, showing that in 1957 he was also convicted of auto larceny and placed on three years probation. In 1963 he was sentenced to one year in the House of Correction for petty theft. In 1960 the defendant was incarcerated for violating parole, the violation being auto larceny, and in 1962 he received one year in Vandalia for trespassing and receiving stolen property.

The trial court erred only in the sentencing of the defendant and not in the guilty finding for the offense of theft. Because the defendant has been previously convicted of theft, we fix his sentence under section 16-1 of the Criminal Code, (111 Rev Stats 1963, c 38, par 16-1) at one to 5 years in the penitentiary.

The conviction of the defendant for the crime of theft is affirmed and the sentence is fixed at one to five years in the Illinois penitentiary.

Conviction affirmed; sentence fixed by this court.

SCHWARTZ and DEMPSEY, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    Ruth Kritzberg, Plaintiff-Appellee, v. Martin Kritzberg, Defendant-Appellant.
    Gen. No. 51,071.
    First District, Third Division.
    March 16, 1967.
    Rehearing denied April 27,1967.
    Whit-cup & Fiala, of Chicago, for appellant; Joseph H. and Norman Becker and Harry G. Fins, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    Federal Savings & Loan Insurance Corporation, Plaintiff-Appellee, v. Howard B. Quinn, et al., Defendants-Appellants.
    Gen. No. 50,407.
    First District, Fourth Division.
    March 17, 1967.
    Rehearing denied April 14,1967.

      Samuel E. Kirsch and Solomon Sachs, of Chicago, for appellants.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On February 17, 1964, a judgment by confession in the amount of $315,902.10, was entered in favor of plaintiff, Federal Savings & Loan Insurance Corporation (hereinafter called Federal), against Howard B. Quinn and Charlotte J. Quinn (hereinafter called The Quinns). The subject matter of the judgment was a note in the amount of $300,000, executed by defendants, payable to American National Bank and Trust Company of Chicago, dated

April 2,1963. The note was endorsed on June 19, 1963, to the order of Beverly Savings & Loan Association (hereinafter called Beverly). On December 31,1963, Beverly, for a consideration, assigned the note to Federal. The assignment by Beverly stated that the note was endorsed, “specifically including the authority therein granted to confess judgment thereon.” The note provided:

“As security for the payment of this note and of all other existing and future obligations of the Undersigned, or any of them, to the American Nactional Bank and Trust Company of Chicago (hereinafter called the ‘Bank’) of any nature whatsoever and howsoever acquired (this note and all such other obligations being hereinafter called the ‘Obligations’), the Undersigned has pledged, transferred and delivered to the Bank the following property:”

The warrant of attorney in the note provided:

“Each Obligor hereby authorizes irrevocably any attorney of any court of record to appear for such Obligor in such court at any time after this note becomes due, in term time or vacation, and confess a judgment without process in favor of the Bank for the amount then due hereon, together with costs of collection and reasonable attorneys’ fees, and to release and waive all errors that may intervene and consent to immediate execution upon such judgment.” [Emphasis supplied.]

In the first quotation taken from the note it is definitely stated that the term “Bank” refers throughout the note to the American National Bank and Trust Company of Chicago; consequently, where it is provided in the warrant of attorney that the signers of the note authorize any attorney to appear for them and confess a judgment in favor of the “Bank” it means that the right to confess judgment is restricted to a confession of judgment in favor of the American National Bank and Trust Company of Chicago.

In the case before us judgment was confessed in favor of Federal. The name of Federal, the instant plaintiff, appears nowhere in the warrant of attorney granting power to confess judgment. No authority was given in the warrant of attorney to confess judgment in favor of Federal.

In Mutual Realty, Inc. v. Gagidis, 298 Ill App 619, 18 NE2d 248 (Abst.), the court said:

“A power to confess judgment must be strictly pursued, and a departure from the authority conferred will render the judgment void. Keen v. Bump, 286 Ill 11. And in Sharp v. Barr, 234 Ill App 214, it was held that where the warrant specifies a particular person in whose favor the judgment may be taken, it cannot be taken in favor of any other person. This case also holds that where no specific person is designated as beneficiary it becomes a matter of construction to ascertain who is meant. That is not the case here. Here the beneficiary is specifically named, . . .”

In Chase v. Dana, 44 Ill 262, the court said:

“. . . if there was no power to enter the appearance and confess the judgment, it is a nullity, and binds no one, either in a direct or collateral proceeding, but may be attacked at all times, and in all courts; because the court must, in some mode, have jurisdiction of the defendant, or it cannot act.”

In The People v. Coal Belt Elec. Ry. Co., 311 Ill 29, 142 NE 495, the court held that:

“A void judgment may be reviewed by an appellate tribunal by writ of error or appeal. (Goodsell v. Boynton, 1 Scam 555; People v. Evans, 262 Ill 235; 3 Corpus Juris, 467,) The Goodsell case, supra, was an appeal from a void judgment, and this court reversed it because ‘the proceedings were coram non judice.’ ”

We find the judgment in the instant case was void. The judgment of the Circuit Court is reversed and the cause is remanded with directions that the judgment be vacated and held for naught.

Reversed and remanded .with directions.

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


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph F. Rinehart, Defendant-Appellant.
    Gen. Nos. 50,560, 50,561, 50,562 and 50,563.
    First District, First Division.
    March 20, 1967.

      Alfred M. Loeser and Dowdle & Moscato, of Chicago (Richard E. Dowdle, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant appeals from four convictions in which he was charged as follows:

1. Unlawful use of weapons in that he knowingly carried concealed, about his person, a .45 caliber automatic pistol while not on his land or abode, or in his fixed place of business, in violation of Ch 38, Sec 24-1 (a) (4), 111 Rev Stats (1963).
2. Unlawful use of weapons in that he knowingly carried on his person a tear gas gun projector, in violation of Ch 38, Sec 24-1 (a) (3), 111 Rev Stats (1963).
3. Falsely representing himself to be a public officer, knowing such was not the case, in violation of Ch 38, Sec 32-5, 111 Rev Stats (1963).
4. Resisting a police officer, in that he knowing the complainant to be a police officer legally authorized to perform his official duties did knowingly resist arrest, in violation of Ch 38, Sec 31-1, 111 Rev Stats (1963).

The four cases were consolidated on motion of the defendant. He pleaded not guilty to each charge and waived trial by jury. The trial judge found him guilty, sentenced him to 30 days in the County Jail of Cook County and fined him $100 on each charge. All of the sentences were to be concurrent.

Initially, we shall consider defendant’s contentions with respect to the first two charges. He claimed that under the circumstances here he was exempt from prosecution for unlawful use of weapons. Defendant’s motions to dismiss were overruled by the trial court. He relies solely upon the Statute to support his position. Chapter 38, section 24-2 (a) sets forth specific exemptions to section 24-1 (a) (3) and 24-1 (a) (4) and provides as follows:

“a. Subsections 24-1 (a) (3) and 24-1 (a) (4) shall not apply to or affect any of the following: ... (4) . . . watchmen, while actually engaged in the performance of the duties of their employment . . .”

There is evidence in the record that the defendant wore a blue uniform with a shoulder patch; the words on the patch were “M. Susson Police”; and he was employed by Morris Susson, a general contractor. His duties consisted of patrolling, protecting and safeguarding Mr. Susson’s property. His arrest occurred at a construction site of his employer. The arresting officer, John Sbarbaro, testified that “there was no confusion in my mind who he (defendant) was. He was part of the Susson patrol, a watchman over there.”

There is no evidence that the defendant was not a watchman, that he was not an employee of M. Susson and that he was not on Mr. Susson’s property and engaged in the performance of his duties at the time of his arrest.

The State argues that the burden of establishing an affirmative defense is on the defendant. This clearly negates a large body of case law and directly contravenes the provisions of chapter 38, section 3-2 which states:

“ (a) ‘Affirmative defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
“(b) If the issue involved in an affirmative defense of proving the defendant guilty is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.”

The defendant properly raised the issue of exemption and the State failed to sustain its burden. The motions to dismiss the first and second charges should have been sustained.

With regard to the third charge against the defendant for falsely representing himself to be a public officer, we feel the evidence is insufficient to warrant a finding of guilty. Only one state witness related any testimony concerning this charge. This witness observed defendant while driving by the location where the arrest occurred. Defendant was standing near his car, which was equipped with a Mars light, and talking to someone on a motorcycle. The witness observed that defendant was wearing a uniform but he did not see a badge. Defendant was holding a clipboard in his hand. The witness turned to his two companions in the car and stated: “There is a fellow getting a ticket.”

On cross-examination the witness admitted that he did not know who the defendant was talking to, whether that person had stopped there voluntarily or not, or what was said. It was stipulated that the two companions in the car would testify to the same objective observations and would answer the same on cross-examination.

When the first police officer arrived on the scene, he found the defendant standing alongside his car and talking to a fellow employee who had a motorcycle. The arresting officer who signed the complaint testified that he knew defendant was a watchman, “part of the Susson Patrol.”

Thus, the only evidence of false representation of a public officer is the witness’s statement that he thought defendant was issuing a ticket to someone and the fact that defendant was wearing a uniform. There is no testimony that defendant made any oral representation that he was an officer. Defendant’s actions and appearance were consistent with his job as a watchman. That defendant was a watchman is an undisputed fact in the record.

The State in its brief cites the case of Russell v. United States, 271 F 684 (9th Cir 1921), for the proposition that showing of a badge or uniform is sufficient to constitute impersonating an officer. In that case the defendant went to an apartment, showed a badge, told the occupant he was from the Federal Government and understood there was liquor on the premises. Clearly no such overt acts occurred in the instant case. (See People v. Vysther, 49 Ill App2d 223, 199 NE2d 668 (1964) for acts necessary to constitute false impersonation of an officer.) Defendant’s motion to dismiss the third complaint should have been sustained.

Under the fourth complaint, the defendant is charged with resisting a police officer in violation of chapter 38, section 31-1. The evidence here is conflicting. We are mindful of the fact that the trial court’s decision as to the credibility of witnesses should not be overruled except where there is a reasonable doubt of defendant’s guilt. In People v. Green, 72 Ill App2d 63, 219 NE2d 9 (1966), the court said, at page 66:

“. . . We are aware of the rule repeatedly stated by the courts that the finding of the trial court with reference to the question of credibility of the witnesses is a matter for the trial court. However, that is not an immutable rule. In People v. Reese, 34 Ill2d 77, 213 NE2d 526, the Supreme Court reversed a judgment of conviction and said:
“ ‘We attach a great weight to the findings of the trier of fact, including his appraisal of credibility of witnesses, but they are not conclusive and it is our duty to set a conviction aside where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt.’ ”

Officer Sbarbaro testified that when he came on the scene he approached the defendant and said he was taking him to the station for questioning for impersonating a police officer. The defendant said “No, I don’t believe I will come, I don’t think that is the charge.” Officer Sbarbaro was not sure at this time what the charge was and returned to his car to radio his superior to get a definition of what the charge was. The officer returned to the defendant but he still refused to go with the officer. Under such circumstances the defendant was justified in his reluctance to go with the arresting officer. The defendant was attempting to explain that he was a watchman and was not impersonating an officer. The police officer then radioed for assistance.

Officers Olson and Sangirardi arrived on the scene. Officers Sbarbaro and Olson testified that Officer Sangirardi told the defendant he was under arrest. However, Officer Sangirardi in his testimony stated: “. . . I got out of my car and went up to the defendant and advised him that we had received a complaint against him for impersonating a police officer. And I asked him to come with me to the station. ... He refused to come and said according to the law he had every right in the world to be a watchman and he was not impersonating a police officer. ... I asked him a second time to come to the station. He said, ‘No!’ ”

Helen Reid, a disinterested witness, testified that when the officer pulled the defendant out of his car he said “get in here” but there was no mention of arrest, and the defendant in no way resisted.

We note that Officer Sangirardi in recounting the defendant’s arrest, did not testify that he told the defendant he was under arrest. Helen Reid confirmed this. The two other officers on the scene did not tell the defendant he was under arrest, but claim that Sangirardi did.

This conflict in the testimony of the witnesses raises serious doubt as to whether defendant was informed that he was under arrest and compels us to reach the conclusion that the State failed to sustain its burden of proving the defendant guilty of this charge beyond a reasonable doubt.

The judgment of conviction on each of the four charges is reversed.

Judgment reversed.

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


author: MR. JUSTICE ABRAHAMSON

text:
    Aurora National Bank of Aurora, Illinois, as Administrator of the Estate of William P. Knott, Jr., Deceased, and Aurora National Bank of Aurora, Illinois, as Administrator of the Estate of William P. Knott, Jr., for the Use of Margie May Knott, Plaintiffs-Appellees, v. Charles Galauner, as Administrator of the Estate of Willis Otto Hood, Melvin Burt, Individually and d/b/a Babe’s Tavern, Paul Zaccaria, Individualy, and d/b/a Babe’s Tavern, George Skiotes, Individually, and d/b/a 13th Club, Melvin Burt, d/b/a 13th Club, Jo Ann Wisneski, Individually, and d/b/a Jennie’s Tavern, Defendants-Appellants.
    Gen. No. 66-73.
    Second District.
    March 21, 1967.

      Matthews, Jordan, Dean and Suhler, of Aurora, for appellants.
    Tyler and Peskind, and Charles L. Hughes, all of Aurora, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Kane County. The action was for the death of plaintiff’s decedent while a guest in a motor vehicle being operated by defendant’s decedent. The case was submitted to a jury which returned a verdict in favor of the defendant. On a post-trial motion, the trial court set aside the jury’s verdict and the case for retrial.

The accident, which was fatal to both William P. Knott, Jr., plaintiff’s decedent, and to defendant’s decedent, Willis Otto Hood, occurred about 1:30 on the morning of June 25, 1962, on a road known as County Farm Road, west of Illinois Route #47 in Kane County, Illinois. Knott and Hood, who were fellow workers for a pipeline company, attended the drag races at Oswego, Illinois, on a Sunday afternoon. After the races they drove in Hood’s pickup truck to the mobile home of a fellow worker, Saulsberry, which was about a mile east of Coal City. There is evidence that the two had been drinking prior to their arrival at Saulsberry’s home.

At about 6:00 p. m. that evening the three men got into the pickup truck belonging to Hood and drove to a tavern. Saulsberry was the driver. After drinking some beer at the first tavern they then drove to a second tavern where they continued to drink beer. From there they proceeded to a third tavern where they continued drinking beer until closing time. Saulsberry testified that all three of the men drank their beers very fast. Upon leaving the last tavern, Saulsberry drove back to the trailer where he lived, arriving about 1:00 a. m. Saulsberry’s wife testified that when she heard the pickup truck return, she looked out the window and saw Saulsberry get out of the driver’s seat. Hood was sitting in the middle and Knott was on the right-hand side. She said it appeared that Knott was asleep. She further testified that her husband stood by the truck apparently talking to Hood for about 15 to 20 minutes before he came in, and Hood started driving home. Saulsberry himself testified that he had asked Hood and Knott to stay the night with him. He testified they refused and then drove away. He could not recall whether Knott answered him. In fact, he did not recall that he had talked to Hood for 15 to 20 minutes, as his wife testified. Two deputy Sheriffs testified that about 1:30 or 2:00 a. m. they saw the pickup truck approaching them at a high rate of speed, swerving from side to side. They were forced into a ditch to avoid being struck by it. They commenced pursuit of the speeding truck and observed it run a stop sign at Route #47. They lost sight of it momentarily as it went down a slight dip in County Farm Road. Just beyond the dip in County Farm Road is a narrow bridge. The truck apparently struck the abutment and both driver and passenger were killed.

The sole question on this appeal is whether the trial court erred in holding that, as a matter of law, plaintiff’s decedent could not be guilty of any wilful and wanton misconduct and that, therefore, the verdict in favor of the defendant was against the manifest weight of the evidence. The trial judge in granting the motion for a new trial stated, “It seems to me that the plaintiff’s decedent could not be guilty of contributory wilful and wanton misconduct since all the evidence and circumstances in the case indicate that he must have been asleep at the time the drivers switched, and there is nothing to indicate that he ever regained consciousness before he was killed. From the evidence it also seems quite clear that the driver of the truck was wilful and wanton in his conduct.”

Plaintiff argues that proof of his decedent’s drinking, standing alone, is not sufficient to overcome the prima facie proof of habit of plaintiff’s due care, and argues that since his decedent was asleep when there was a switch in drivers, it cannot be said that he subjected himself to the peril of riding with defendant.

We cannot concur in this contention in view of the happenings on the fatal evening. When the three men left the last tavern to return to the Saulsberry home, Saulsberry was at the wheel. However, the plaintiff should have been aware of the fact that when Saulsberry left the truck that he or Hood would have to drive on the return trip to Aurora. We cannot agree with the Court below that the fact that the plaintiff was asleep at the time the drivers switched was sufficient to permit the Court to hold that the plaintiff could not have been guilty of wilful, wanton conduct as a matter of law.

The fact that the plaintiff was asleep at the time of the accident should be considered along with all of the other evidentiary facts by the jury in making a determination. Dursch v. Fair, 61 Ill App2d 273, 285, 209 NE2d 509; Turnbull v. Porter, 55 Ill App2d 374, 374o and 374p, 206 NE2d 97. Nor does the fact that he was asleep mean that as a matter of law his actions preceding the accident could not have constituted wilful and wanton conduct. What constitutes wilful and wanton conduct depends on the facts in each case and cannot be categorically stated. Likewise, whether plaintiff’s decedent was guilty of contributory wilful and wanton misconduct in participating in the drinking, to the extent involved in the case at bar, and in thereafter subjecting himself to the peril of riding with the defendant’s decedent, was a jury question. Under the circumstances, the jury could have found that the plaintiff’s decedent was either asleep or in an intoxicated stupor at the time of the accident. Anderson v. Launer, 13 Ill App2d 530, 536, 537, 142 NE2d 838.

Under the facts herein related it is our opinion that this issue was properly to be determined by the jury and the trial court was in error in granting a new trial on the basis herein set forth. Accordingly, the judgment granting a new trial is reversed.

Judgment reversed.

DAVIS, P. J. and BURT, J., concur.


text:
    Frank E. Suddarth, d/b/a Suddarth Plumbing and Heating, Plaintiff-Appellant, v. Harry Rosen, Ruth D. Rosen, Bimm’s Enterprises, Inc., Rock River Savings and Loan Association, an Illinois Corporation, Maple Homes, Inc., and B. L. Studdard, Defendants-Appellees.
    Gen. No. 66-96.
    Second District.
    March 21, 1967.

      Early and Lundin, of Rockford, for appellant.
    Alan G. Sumberg, of Rockford, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of the 17th Judicial Circuit, Winnebago County, entered on May 27, 1966, that dismissed the plaintiff-appellant’s complaint to Foreclose a Mechanic’s Lien.

The complaint alleged that the plaintiff, Frank E. Suddarth, a plumbing and heating contractor, had entered into a written contract dated May 10, 1963, with Bim’s Enterprises, Inc., whereby he agreed to furnish certain labor and materials for an eight-unit apartment building to be constructed by Bim’s. It further alleged that Bims subsequently contracted with the defendants, Harry and Ruth D. Rosen, to construct the apartment building on certain property owned by the Rosens in Winnebago County. The complaint was later amended to include an allegation that the Rosens obtained a construction mortgage from the Rock River Savings and Loan Association and that the disbursements from that mortgage loan were under the joint control of the Rosens and Rock River.

The plaintiff completed his performance under his contract with Bims on April 27, 1964, and had received all but $1,820 of his agreed consideration at that time. The complaint next alleged as follows:

“19. Plaintiff did not cause to be delivered to and personally served upon the defendants Harry Rosen and Ruth D. Rosen the written notice as required by law of a subcontractor, but states that the defendants Harry Rosen and Ruth D. Rosen had obtained a construction loan and the sums necessary to pay the contractor and subcontractor were dispersed by the said mortgage Rock River Savings and Loan Association, an Illinois corporation, who failed to pay the plaintiff the contract balance as aforesaid.”

The complaint prayed for a lien against the property in the amount still owed him and for other relief.

Only the Rosens and Rock River were served with summons in the matter and their respective Motions to Dismiss were granted.

The plaintiff contends that the proofs would show that both the Rosens and the Association had actual knowledge that he had not been fully paid and that the service of the notice required by section 24 of the Mechanics’ Lien Act would, therefore, have been a redundant and unnecessary act. He further urges that the Mechanics’ Lien Act was designed to protect those that, in good faith, furnish labor and material in the improvement of property and that its purpose should not be defeated by a strict and literal adherance to a highly technical provision, particularly where, as here, the purpose of that provision has already been fulfilled.

Section 24 of the Mechanics’ Lien Act (111 Rev Stats, c 82, § 24, 1965) provides that subcontractors, to perfect their lien, shall within 60 days after the completion of their contract “cause a written notice of his claim and the amount due or to become due thereunder to be personally served on the owner. . . .” or certain designated agents of the owner. The only exceptions to this requirement contained in the statute are for property registered under the Torrens’ system or where the owner has prior notice of the subcontractor’s claim by reason of the contractor’s sworn statement furnished him pursuant to section 5 of the Act. The plaintiff’s complaint in this case does not allege that the Rosens had notice of his claim by reason of a sworn statement from Bims, their general contractor, and the failure of the Rosens to secure such a statement does not relieve their subcontractors from their obligation to serve their notice within the 60 days to retain their rights as provided in section 24. Brennan v. William P. McEvoy & Co., 196 Ill App 336, 344.

It is well known that mechanics’ liens are in derogation of the common law and must, therefore, be strictly construed. Roth v. Lehman, 1 Ill App2d 94, 97, 116 NE2d 413. Mechanic’s lien statutes afford extraordinary remedies to certain classes of contractors and subcontractors and it is not unreasonable to expect them to conform to the requirements of the law that creates those remedies. Obviously, without a mechanic’s lien statute, the plaintiff would have no redress against the owners of the property or their lending institution. The General Assembly has seen fit to grant to a subcontractor, such as the plaintiff, a potent device to secure payment of his improvement of real property by its provision that a lien can be placed against the property so improved. However, the legislature has required that the subcontractor adhere to certain technical procedures to effectuate his lien and his failure to do so means simply that he has not availed himself of the remedy extended and that he has no lien.

The courts of this State have repeatedly ruled that the notice to the owner as required by the statute is the “very substance of the basis on which a mechanic’s lien may be predicated.” Roth v. Lehman, ibid.; Liese v. Hentze, 326 Ill 633, 638, 158 NE 428; Shaffer v. Cullerton Corp., 13 Ill App2d 72, 75, 141 NE2d 77. The service of the notice has been described as a “precedent to the creation of a lien.” Western Plumbing Supply Co. v. Horn, 269 Ill App 612, 619.

The statute makes no exceptions for cases where the owner may have actual notice of the subcontractor’s claim from some source other than those included in section 24.

The cases cited by the plaintiff to support his contention that the Act has been liberally construed in the past in the interests of justice are not applicable. One case provides for a liberal construction to effect a collection after strict compliance with the statutory requirements to establish the lien, (Gunther v. O’Brien Bros. Const. Co., 293 Ill App 28, 34, 35, 12 NE2d 23), and the other deals with an insubstantial variance between the pleadings and proofs at the trial. (United Cork Companies v. Volland, 365 Ill 564, 7 NE2d 301.)

Under the circumstances, the dismissal of the complaint by the trial court was clearly correct and will be affirmed.

Judgment affirmed.

DAVIS, P. J. and BURT, J., concur.