author: MR. PRESIDING JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred Neiman, Defendant-Appellant.
    Gen. No. 67-46.
    Second District.
    December 21, 1967.

      LeFevour & Bailey, of Oak Park, for appellant.
    William Ketcham, of Geneva, and W. Ben Morgan, of Elgin, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a judgment entered in the Circuit Court of the 16th Judicial Circuit on the verdict of a jury which found the defendant guilty of armed robbery, on July 13, 1964, of the Fox Valley Country Club and its proprietors, Dal and Jean Whittle, and the attendant sentence of the defendant to the Illinois State Penitentiary for not less than fifteen nor more than twenty years.

The defendant contends that his conviction must be reversed because of the admission of certain evidence concerning an attempted jailbreak on December 21, 1964. It is his position, first that such evidence is inadmissible in any event, and secondly, that it must be inadmissible in this case in that, at the time he was incarcerated, more than one criminal charge was pending against him, and the evidence reflects no connection between the alleged jailbreak attempt and the charge in the indictment. He also asserts that error was committed in the method by which the State introduced evidence of the attempted jailbreak and by virtue of the prosecutor’s use of evidence of a police lineup in which he was identified by the victims of the robbery.

The State urges that the evidence of the attempted j'ailbreak was properly admitted; that flight or attempted escape shows a consciousness of guilt or raises a presumption of it; and that the court did not err in permitting the two victims of the robbery to testify as to their identification of the defendant in a lineup at the Chicago Police Station, since they also positively identified him at the preliminary hearing and also at the trial.

Both Dal and Jean Whittle testified that the Fox Valley Country Club was robbed on the night of July 13, 1964. The Whittles — the owners and operators of the Club — were alone in the well-lighted Club about closing time when two men, one with a gun in hand, entered and stated that this was a holdup. The defendant, Neiman, who had neither hat nor mask, carried the gun. His accomplice ordered the Whittles to stand against the wall and later they were directed to lie on the floor, face down. Neiman’s accomplice had difficulty opening one cash register and Jean Whittle was permitted to get up to assist in opening the cash drawer of the register. Money was taken from Dal Whittle’s pockets. Both of the Whittles had ample opportunity to observe the defendant throughout the course of the robbery. During its progress, the defendant’s revolver was discharged and he told the Whittles not to worry; that it was an accident; and that if they would lie still and be quiet they wouldn’t get hurt.

On September 13, 1964, the defendant voluntarily surrendered at the Shakespeare Police Station in Chicago for questioning in connection with certain unsolved crimes. The next day he was placed in a lineup at this station at which the victims of several robberies which had occurred in Kane County were present, along with officers from the Kane County Sheriff’s office. At this lineup, Dal and Jean Whittle identified the defendant. Prior to this time no one had pointed him out to them. Jean Whittle identified the defendant by placing her hand on his shoulder. After identifying the defendant, she requested that he speak, and when he spoke she recognized his voice. The record does not indicate that the defendant was represented by counsel at the lineup on September 14,1964.

On December 21, 1964, subsequent to the time when Neiman was indicted, one of the deputy sheriffs of Kane County — while investigating a tip given by Billy Alston, a jail inmate — searched the cell block in which the defendant and others were incarcerated and found hacksaw blades, a rope made from trousers and other evidence indicative of preparation to escape. Such facts were testified to by the deputy sheriff. On cross-examination of the deputy, counsel for the defendant elicited the fact that Billy Alston, the tipster, had told the deputy that the defendant had lowered a string from the jail to pull in the hacksaw blades and had planned the jailbreak; and that Alston also told the deputy that he (Alston) had seen the defendant sawing the bars.

The defendant testified on his own behalf. He stated that he had spent approximately 25 years of his life in Illinois penitentiaries; that a pending conviction had been reversed by the Supreme Court and this case was set for a new trial in Cook County on Monday, January 11, 1965. He denied that he had ever been in the Fox Valley Country Club or that he had anything to do with its robbery on July 13, 1964. He admitted that he appeared with four other men in the lineup in question, and that Mrs. Whittle identified him.

His testimony relative to the attempted jailbreak was as follows:

“Q. Now then in connection with this matter at at the County Jail on or about December 21, 1964, will you tell the Court and Jury what if anything you know about your being involved in this attempted jail break?
“A. 11 or 12 men in the County Jail at the time.
“Q. In your cell block ?
“A. In my cell block, 3 north. Just to say who had anything sent in I would be lying, I don’t know.
“Q. Did you yourself have anything to do with sawing any bars or bringing any blades in or concealing any blades ?
“A. Mr. Lasswell, I know nobody in this territory. I haven’t had a visit in six weeks down here from nobody. I know nobody from here.”

While the defendant urges that his conviction should be reversed because of the admission of evidence tending to show his attempted jailbreak from the Kane County jail, he cites no Illinois cases to sustain his position. Under the law of this State, evidence of flight of an accused or his attempted escape generally raises no legal presumption that he is guilty of the crime charged against him. In People v. Kidd, 410 Ill 271, 102 NE2d 141 (1951) at page 277 the court stated:

“The fact that he attempted to prevent his arrest by flight, when approached by officers some days later, was competent evidence indicative of a guilty mind. (Jamison v. People, 145 Ill 357.) However, the fact that he fled when approached by police officers, raises no legal presumption that he is guilty of the particular crime charged in the indictment. The fact of flight is a circumstance which may be considered by the jury in connection with all the other facts and circumstances in evidence as tending to prove guilt. (People v. Weber, 401 Ill 584; People v. Schaffner, 382 Ill 266; People v. Herbert, 361 Ill 64.)”

Also see: People v. Davis, 14 Ill2d 196, 202, 151 NE2d 308 (1958). Flight or attempted escape is a circumstance which may be considered as tending to cast suspicion on the testimony of an accused if it conflicts with that of other witnesses (People v. White, 311 Ill 356, 363, 143 NE 108 (1924)), and, in connection with all other evidence in the case, as tending to prove his guilt. People v. Herbert, 361 Ill 64, 73, 196 NE 821 (1935).

The circumstance of flight, where proven, raises no legal presumption that the accused is guilty of the offense charged against him. It may be considered in connection with all of the other evidence in the case which tends to prove his guilt. People v. Herbert, supra. In People v. Brothers, 347 Ill 530, 180 NE 442 (1932) at page 540 the court stated:

“By the common law flight was considered so strong a presumption of guilt that in cases of treason and felony it carried the forfeiture of the party’s goods, whether he were found guilty or acquitted. (1 Wharton on American Grim Law, sec 714.) In this country flight does not generally raise a presumption of guilt but may be shown in evidence as a fact to be considered by the jury and from which they may draw an inference of guilt. (Fox v. People, 95 Ill 71; 16 Corpus Juris, 551.)”

However, as a corollary rule, evidence explaining testimony which has been admitted or explaining a fact in evidence, if competent, is generally admissible. In People v. Autman, 393 Ill 262, 65 NE2d 772 (1946), at pages 266 and 267, the court stated:

“Proof of flight by the accused in a criminal case is admissible as a circumstance tending to show consciousness of guilt. It is only a circumstance which may be considered by the jury as tending to prove guilt and must be considered in connection with all the other evidence in the case. (People v. Herbert, 361 Ill 64.) In the case cited, this court said that flight, in criminal law, is defined as ‘the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.’ In all cases the defendant has a right to show, by any competent evidence, facts which tend to prove that he did not leave the scene of the crime from a consciousness of guilt, but that his act in leaving was consistent with his innocence. People v. Bundy, 295 Ill 322.”

Evidence of the escape or attempted escape of an accused after his arrest and while being taken to jail (People v. Gambino, 12 Ill2d 29, 32, 145 NE2d 42 (1957)), or from jail while awaiting trial (People v. Gambino, supra) is admissible. Some cases state that it is competent to prove the escape or attempted escape from custody as a fact tending to raise a presumption of the guilt of the accused of the crime of which he is charged. People v. Gambino, supra; People v. Talbe, 321 Ill 80, 91, 151 NE 529 (1926). However, if such circumstance does create a presumption of guilt, then such presumption is certainly rebuttable and may be explained. In People v. Rappaport, 362 Ill 462, 200 NE 165 (1936), at page 468, the court stated:

“Defendant’s flight was a circumstance tending to prove his guilt and could be shown by the People. On the other hand, if there were circumstances which would tend to explain or excuse the flight, defendant had the right to show them. Flight from the scene of a tragedy may be as consistent with innocence as with guilt. It is not always dictated by impulse or purpose to escape the consequences of acts done or charges that may be made. If the flight is unexplained, it may permit an inference of guilt, but it has no such significance when the conduct of the accused is equally, or more, consistent with some other hypothesis.”

Also see: People v. Bundy, 295 Ill 322, 329, 330, 129 NE 189 (1920).

Perhaps the better statement of the rationale for the admission of such evidence is found in Jamison v. People, 145 Ill 357, 34 NE 486 (1893), at page 376, where the court stated:

“In criminal cases, a portion of the evidence laid before the jury often consists of the conduct of the party, either before or after being charged with the offense, presented not as a part of the res gestae of the criminal act itself, but as indicative of a guilty mind. Roscoe’s Crim Ev, 18.”

Also see: People v. Limeberry, 298 Ill 355, 370, 131 NE 691 (1921).

In view of the foregoing citations, it is beyond dispute that generally the evidence of the attempted escape in the case at bar was admissible. However, the defendant argues that the attempted escape, while he was incarcerated with more than one criminal charge pending against him, reflects no connection between the attempt and the charge under which he was indicted, and that he may have sought to escape because of the other charges or for other distinct reasons.

Under Illinois law, the defendant could offer proof relative to any circumstance which would tend to explain or excuse Ms attempted escape, if any, and such evidence would be considered by the jury with all other circumstances in the case. People v. Rappaport, supra, 468. The defendant did offer testimony relative to the other charges which were also currently pending against him, and such testimony was admitted in evidence. Therefore, we can only conclude that this testimony was considered by the jury, along with all other evidence in arriving at its verdict.

In addition, from a pragmatic viewpoint, we see no reason to alter the existing rules of evidence under the circumstances at bar. It would seem inappropriate to hold evidence of attempted escape inadmissible against an accused who was awaiting trial on various charges, and to admit such evidence against the accused who was charged with only one offense. Such procedure would reward the professional criminal and punish the neophyte. Also, the defendant cannot complain with reference to the testimony which he elicited from the deputy sheriff on cross-examination with reference to the attempted escape. Consequently, we find no error in the admission of the evidence relative to the attempted escape.

The defendant also charges error in that evidence was admitted concerning a police lineup in which the defendant was identified by Dal and Jean Whittle. The record establishes that the Whittles saw the defendant at the time of the robbery for an extended period of time, without a mask and in a well lighted room, and subsequently saw him at the lineup, at the preliminary hearing, and at the trial. On each occasion they identified the defendant.

Five men, including the defendant, were in the lineup and the Whittles identified him without any other person pointing him out to them.

In People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599 (1959), at page 464, the court stated:

“. . . where an accused is not selected from a group, such fact does not render evidence of identification incompetent, but only affects its weight. (People v. De Suno, 354 Ill 387; People v. Barad, 362 Ill 584; People v. Dustin, 385 Ill 68.) Similarly, where claim is made that identification was induced by police suggestion that the guilty party is in custody, we have stated such procedure does not completely destroy the evidence of identification, but affects only its weight and credibility. (People v. Wilson, 1 Ill2d 178; People v. Tomaszewski, 406 Ill 346; People v. Sanders, 357 Ill 610.)”

The defendant has suggested that the lineup in question and its attendant identification of the accused, who then was without counsel, is subject to all the infirmities described in United States v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926, and in Gilbert v. California, 388 US 263, 18 L Ed2d 1178, 87 S Ct 1951. However, both counsel for the defendant and the State recognize that under the decision of Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967, the newly asserted requirement of counsel at a lineup, as a right guaranteed under the Sixth Amendment to the Constitution of the United States, is not applicable to lineup confrontations taking place prior to June 12, 1967, the date of the Wade and Gilbert decisions. Consequently, absent the retroactivity of the Wade and Gilbert doctrine, such decisions have no application to the case at bar. In addition, the totality of the evidence does not indicate that the identifications of the defendant at the preliminary hearing and at the trial were in any way tainted by the procedures employed at the lineup. The defendant has not asserted any due process constitutional issues arising thereby and the evidence does not indicate the presence of such issues.

Consequently, under the law applicable to this case, a positive identification by one witness was sufficient for conviction. People v. Mack, 25 Ill2d 416, 421, 185 NE2d 154 (1962); People v. Crenshaw, supra, 461; People v. Nicholson, 55 Ill App2d 361, 367, 204 NE2d 482 (1965). In the case at bar, both Dal and Jean Whittle positively identified the defendant at the lineup, at the preliminary hearing, and at the trial.

We find no error in the record, and, consequently, the judgment of the trial court should be affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Eleanor Martin, and Eleanor Martin, for the Use of Susan Martin, a Minor, Plaintiffs-Appellants, v. Ernest Masini, Individually and d/b/a Ernie’s Knotty Pine Tavern, Andrew J. Lachowicz, Individually, and d/b/a Dam Inn, and Frank Brelle, Individually, and d/b/a Frank and Stub’s Place, Defendants-Appellees.
    Gen. No. 67-69.
    Second District.
    December 21, 1967.

      Overholser, Flannery & Dunlap, of Libertyville, for appellants.

      Diver, Diver, Ridge & Brydges, of Waukegan, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the plaintiffs, Eleanor Martin, and Eleanor Martin, for the use of Susan Martin, a minor, from an order, or orders, dismissing their dramshop complaint. The suit was filed in December of 1962. On September 14, 1964, the trial court, on the motion of the defendant, Andrew J. Laehowicz, ordered the plaintiff, Eleanor Martin, to produce on October 2, 1964, her income tax returns for the years 1958 through 1963 for inspection and reproduction pursuant to Supreme Court Rule 17 (Ill Rev Stats 1965, c 110, par 101.17).

The plaintiff failed to produce her tax returns as ordered and the defendant then moved to have the case removed from the master trial calendar, and for a rule on the plaintiff to produce the income tax returns as ordered. On October 15, 1964, the trial court entered an order on this motion, removed the case from the trial calendar and ordered the plaintiff to produce the tax returns within thirty days.

The plaintiff again failed to produce the tax returns and the court on February 5, 1965, ordered that “The complaint of plaintiffs be and the same is hereby dismissed, pursuant to the provisions of Supreme Court Rule 19-12.” (Ill Rev Stats 1965, c 110, par 101.19-12.)

On March 29, 1966, more than one year after the entry of the above order, the plaintiff filed a motion to vacate the order dismissing the complaint, and stated among other things, that the sanctions imposed by the court were too severe and that the motion of the defendants for dismissal “was not served in accordance with the rules . ...” A supporting affidavit was filed sometime on or after June 12,1966, in which the plaintiff’s attorney stated that he had not received notice of defendants’ motion to dismiss and had not received notice that the dismissal order of February 5,1965 had been entered.

A counteraffidavit was filed on June 14, 1966, in which the secretary for one of the defendant’s attorneys stated that she had mailed a copy of the notice of the defendant’s motion to dismiss, as recited in the proof of service which was made a part of said notice. The proof of service indicated that service was made by mail in conformity with the provisions of Supreme Court Rule 7 (Ill Rev Stats 1965, c 110, par 101.7). She stated under oath that the notice of the motion was deposited in the United States mails at Waukegan, Illinois, at about 5:00 p. m., on January 22, 1965; that it set forth the address to which it was mailed; that postage was prepaid; and that the letter so mailed was not returned because of nondelivery. It further stated that on February 5, 1965, at about 5:00 p. m., she mailed the following letter to plaintiff’s counsel:

“Martin v. Masini
Circuit Court No. 62-2640
Our File No. 13,645
“Dear Ed:
“Pursuant to notice that we would to (sic) so, on February 5, 1965 motion to dismiss the complaint in the above case was presented before Judge Carey and a copy of the order entered is enclosed.”

On July 7, 1966, the court ordered that the plaintiff’s motion to vacate be denied. Nothing further was done until January 30, 1967, at which time the plaintiff filed a motion to reinstate her complaint. Her motion stated that her failure to produce the tax returns in no way prejudiced defendants in that the returns were available by way of subpoena; that the matters requested in no way affected the merits of the case; that the order of February 5, 1965, merely dismissed the complaint and not the lawsuit; and that to dismiss the lawsuit would be greatly prejudicial. The plaintiff’s affidavit in support thereof stated that all of the tax returns were not available to her and that she had requested copies from the Internal Revenue Service. The affidavit stated, however, that the request was made only three months prior to the date of the affidavit — January 13, 1967. The defendant, Lachowicz, objected to the motion to reinstate and stated that the motion failed to set forth that the plaintiff had been diligent in seeking relief from the orders of February 5,1965 and July 7,1966.

On February 3, 1967, the court entered an order denying the motion of the plaintiff to reinstate and stated: “it is further ordered that said cause of action be and it is hereby dismissed with prejudice, and that all defendants go hence without day.”

The plaintiff contends that the order of February 5, 1965, dismissing the complaint, and the order of July 7, 1966, denying the motion to vacate, were not final and appealable orders, and that the sanctions imposed by the court were not proper. She suggests that since the order of February 5, 1965, dismissed the complaint and not the cause of action, it was not final.

This court recently had occasion to consider the question of what constituted a final order in Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504 (1966). There the defendant originally filed a motion to dismiss the amended complaint on the ground that the statute of limitations had run and that the plaintiff, during the period of limitations, was not incompetent so as to toll the running of the statute. The trial court denied the motion, stated that the amended complaint contained sufficient allegations relative to incompetency, and ordered that the issue of the mental incompetency be severed and tried separately so as to determine whether or not the statute of limitations had run. After hearing the evidence, the court held that the plaintiff was not sufficiently incompetent to toll the running of the statute, and entered an order which provided: “. . . the Court overrules itself with reference to the former motions to dismiss. It now grants the motions to dismiss.”

In Peach, defendants contended that the order dismissing the complaint was not a final order. We held that it was a final and appealable order. The observations made by this court in Peach are apropos here. We there held that no particular form or technicality determines the finality of the judgment; rather, it is the substance of the order. “(T)he only attribute indispensable to the finality of a judgment or order is that it terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit.” Peach v. Peach, supra, 78. Also see: Village of Niles v. Szczesny, 13 Ill2d 45, 48, 147 NE2d 371 (1958); Johnson v. Gillett, 52 Ill 358, 360 (1869); 6 Nichols Ill Civ Prac, §§ 5901, 5907, 5917 and 5925.

In Peach, we treated the dismissal of the complaint the same as the dismissal of a cause of action, or the dismissal of a suit. In an appropriate case, a complaint may be dismissed with leave granted to plead-over, or the plaintiff may seek to plead-over within thirty days after dismissal of a complaint where the dismissal is based on a technicality or other matter that may be cured by the filing of an amended complaint. A general dismissal, with no right given to plead-over or followed by an election to stand on the complaint, however, is a final, appealable order. Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill 106, 109, 45 NE2d 20 (1942). In Pratt v. Baker, 79 Ill App2d 479, 223 NE2d 865 (1967), and in the same case on a prior appeal (65 Ill App2d 389, 212 NE2d 503 (1965), we recognized an order dismissing the complaint, as a final appealable order. In Pratt, we held that whether a dismissal of a complaint bars a subsequent suit for the same cause of action, depends upon whether or not the dismissal was based on a technical deficiency in the pleading. (79 Ill App2d 479, 482, 223 NE2d 865.)

The failure to assess costs in the order of dismissal does not affect its finality. Peach v. Peach, supra, 79; 6 Nichols Ill Civ Prac, supra, § 5917. Again, we recognize that there are cases which appear to us to exalt form over substance in determining the finality of a judgment. However, we do not think them to be the better reasoned cases. The finality of a judgment does not depend on whether the order in question provides that the “suit,” “cause of action,” or “complaint” be “dismissed.” The law is more than a game of semantics. If an order is entered that a complaint or a portion thereof be stricken, we recognize that then something further must always be done in the action; and that such order is not a final judgment. When, however, there is a dismissal, the finality of the judgment or order depends on the basis and substance of the dismissal and the effect of the adjudication. Peach v. Peach, supra, 78; Chavez v. Elgin, J. & E. Ry. Co., 32 Ill App2d 68, 73, 176 NE2d 664 (1961).

In the present case the dismissal order of February 5, 1965, was not based upon any technical defect in the complaint. It did not rest on a matter that could be cured by an amended pleading. It was a general dismissal which clearly operated and was intended to finally determine, fix and dispose of the issues raised by the complaint. It was a final appealable order.

More than thirteen months later plaintiffs filed a motion to vacate the dismissal order. Since more than thirty days had elapsed from the date of the final order, the remedy available to the plaintiffs in the trial court was a petition under section 72 of the Civil Practice Act. However, even such a petition would be subject to a showing of diligence on the part of the plaintiffs. Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294 (1960); Gundersen v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 272, 222 NE2d 41 (1966). The motion was not acted upon until July 7,1966 and then it was denied. Plaintiffs did not appeal from this denial. They did nothing until the following January at which time they filed a motion to reinstate the case. This was denied on February 3, 1967 and a notice of appeal was then filed on March 2,1967.

We do not believe that the filing of a second motion or petition attacking the original order may be utilized to extend the time on appeal. Weaver v. Bolton, 61 Ill App2d 98, 103, 209 NE2d 5 (1965). The last motion or petition contained nothing that was not in the first motion or could not have been included therein. Neither motion purported to be under Section 72, nor did they contain the required allegations for relief under this section. They were merely attempts to have the trial court review its own orders after thirty days, which it cannot do. Such motions or petitions may not be utilized to toll the time for appeal. In re Estate of Schwarz, 63 Ill App2d 456, 460, 212 NE2d 329 (1965).

No timely appeal was taken from the original order. (Ill Rev Stats 1965, c 110, par 76.) And, since it is our determination that the original dismissal order was a final order and that a timely appeal was not taken therefrom, we are without jurisdiction to now consider the propriety of the original order or the subsequent orders upholding the original determination; and we agree with the defendants that the appeal must be dismissed. Exchange Nat. Bank v. Village of Skokie, 71 Ill App2d 215, 217, 218, 217 NE2d 336 (1966); Werbeck v. Werbeck, 70 Ill App2d 279, 280, 217 NE2d 502 (1966); In re Estate of Schwarz, supra, 463.

Appeal dismissed.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Government Employees Insurance Company, Plaintiff-Appellee, v. Saweren J. Dennis, et al., Defendants-Appellants.
    Gen. No. 67-122.
    Second District.
    December 21, 1967.

      Reese, Schlueter & Ecklund, of Rockford, for appellants.
    Early and Lundin, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Plaintiff, Government Employees Insurance Company (herein called GEICO) brought this suit seeking a declaratory judgment that an automobile insurance policy issued by it was null and void from its inception. Saweren J. Dennis, the insured, Patricia Gilbertson, the driver of the insured car, and Marjorie Maffei and Joni Lynn Short, two persons injured while riding with Patricia Gilbertson, all were joined as defendants in the action. A jury returned a verdict finding the issues for the defendants, the trial court entered judgment for the plaintiff notwithstanding such verdict and the defendants have appealed.

This case was previously before this court and our opinion was reported in 65 Ill App2d 365, 212 NE2d 759 (1965). The first trial was before the court, without a jury. On appeal, we reversed and remanded the judgment of the trial court against the plaintiff, GEICO, with directions for a new trial in accordance with the views therein expressed. We will summarize the factual background reported in our earlier decision and the additional matters brought out or occurring subsequent to our first decision. The basis of GEICO’s complaint — to have its insurance policy declared void — is, in part, the misrepresentation and concealment of material facts.

Dennis made an application to GEICO for insurance on two cars, the title thereto being in his name. In his application, he stated that his fiancee, Mrs. Patricia Gilbertson, (herein called Gilbertson), would drive one of the cars — a 1956 Pontiac — ninety-five per cent of the time. The policy was issued on August 27, 1962, and the declaration stating that Dennis was the owner of the 1956 Pontiac, was made a part of the policy.

Within a few days after issuing the policy, GEICO sent a questionnaire to Dennis to be completed by Gilbertson. In this questionnaire she stated that no insurance company had “refused, cancelled or refused to renew any automobile insurance” for her. However, the evidence conclusively established that in 1960 Gilbertson owned a Ford which was involved in an accident when, ironically, her 1957 Ford was being driven by the same Marjorie Maffei who is one of the defendants in this action. At that time, no liability insurance was carried on the Ford car. Thereafter, Gilbertson sought such insurance coverage. She was refused insurance by one company, and was told by another that a policy would issue, but only through an assigned risk plan, which she did not accept. Subsequently, she bought the Pontiac in question, which she admittedly owned, although the title thereto was in Dennis. As to her answer on the questionnaire that she had not been refused any insurance, she stated that she had forgotten all about the other insurance company refusals.

Within a month after the issuance of the policy, Gilbertson was driving the Pontiac and was involved in an accident in which her passengers, the defendants, Maffei and Short, were injured. Marjorie Maffei is the defendant who is prosecuting this appeal. She raises three issues for review:

(1) Was she denied a vested property right in the insurance policy without due process of law in violation of her constitutional rights ?

(2) Were the provisions of section 154 of Article IX of the Insurance Code (Ill Rev Stats 1965, c 73, par 766) interpreted by this court so as to deny her of her constitutional rights ?

(3) Did the trial court err in depriving her of the findings of a jury and in making certain rulings on the evidence and law ?

The major portion of defendants’ brief is devoted to the contention that the plaintiff should not be permitted to rescind or have its policy declared null and void after the date of the accident because to do so would deprive Maffei of vested property rights without due process of law. She attempts to draw a number of analogies to justify this position, admitting that she has found no case directly supporting her contention, but arguing that we should depart from the law as it presently is to protect her constitutional rights.

We do not believe this argument merits extended discussion. The defendants first appealed to the Supreme Court alleging these constitutional issues as grounds for the appeal to that Court. In transferring the case to this court, the Supreme Court said:

“This case is here on direct appeal from the trial court from a declaratory judgment order holding that the plaintiff insurance company was not obligated under an automobile liability insurance policy. The person who was injured in the automobile accident was a party to the suit and participated therein. She contends that upon her being injured she acquired a vested interest under the policy and that the company could not escape liability because of any policy defense which it might have against the policy holder. She argues that the ruling of the trial court deprived her of due process of law. There was no lack of procedural due process for she had an opportunity to participate in the suit. The question of whether the trial court’s judgment was correct presents only a question of error and not a substantial constitutional question. On the Court’s own motion the cause is transferred to the Appellate Court for the Second District.”

We agree that automobile public liability insurance assumes an importance to the general public beyond that normally found in private contracts. Because the general public could be subjected to possible injury through the operation of the car in question, its members may be treated as third-party beneficiaries. They possess a sufficient interest in the procurement and coverage under such policies to be classified as a real party in interest in an insurance contract. Simmon v. Iowa Mut. Cas. Co., 3 Ill2d 318, 322, 324, 121 NE2d 509 (1954); Gothberg v. Nemerovski, 58 Ill App2d 372, 385-387 incl, 208 NE2d 12 (1965). This, however, does not afford an injured person any rights greater than those actually resulting from the policy itself. As a third-party beneficiary, such a third person’s rights must stand or fall on the contract itself. The GEICO policy recognized this right. It, like the policy in the Gothberg case, provided that any person who had secured a judgment against the insured could recover under the policy “to the extent of the insurance afforded by the policy.”

Defendant Maffei can only recover against GEICO to the extent that insurance was afforded under the policy in question. If, in fact, that policy was null and void because of material misrepresentations, then she could make no recovery against GEICO. As the Supreme Court pointed out, she has had an opportunity to participate in the trial and, in fact, did so. She was not denied any procedural due process. She was a third-party beneficiary of this insurance contract, but only insofar as it provided insurance coverage.

As to the defendants’ contentions regarding the interpretation to be given to chapter 73, par 766, 111 Rev Stats 1965, that issue was raised and determined in the former appeal of this case, and we are not at liberty in this appeal in the same case, to reexamine and redetermine such issue. Government Employees Ins. Co. v. Dennis, supra, 370-372 incl. Also see: People v. Winston, 399 Ill 311, 318, 319, 77 NE2d 664 (1948); Lundstrom v. Winnebago Newspapers, Inc., 42 Ill App2d 306, 312, 313, 192 NE2d 307 (1963).

The defendants, without the citation of authority, contend that a certain letter and certain admissions introduced into evidence were erroneous. They urge that the introduction of the evidence was erroneous in that it would permit Maffei’s “vested interests” to be defeated. In reply to this contention, we reiterate that her interests in the contract, if any, could be no greater than the insurance coverage actually afforded by the contract; and that any person who had secured a judgment against the insured could recover under the policy only to the extent of the insurance afforded by the policy. Maffei could not by reason of her injury, unfortunate though it may be, extend the coverage afforded by the contract or the liability assumed by GEICO. Consequently, the evidence relating to whether the insurance contract was valid and in force, or null and void, was relevant and was properly admitted.

The insurance policy contained a provision reserving the right in the insurer to rescind for fraud or material misrepresentation. On retrial, the underwriting manager for GEICO testified that the insurance policy would not have been issued or maintained if Gilbertson had affirmatively answered that insurance previously had been refused or denied to her. It appears that such an answer would have caused GEICO to make an investigation of the facts, which procedure was not followed when such question was answered in the negative.

The defendants called two witnesses in the insurance business and questioned them regarding the underwriting business and the materiality of certain information in determining whether or not a given risk would be accepted. Neither had any familiarity with the plaintiff company, GEICO, or its procedures and policies in regard to underwriting.

Objections to hypothetical questions presented to these witnesses were sustained upon the grounds that all of the necessary facts were not contained in the questions. However, in the offer of proof, one witness stated that he would take into consideration in determining whether to underwrite a risk, the fact that another insurer had refused insurance to the applicant. He also stated that some insurance companies use this fact as a basis for refusing an application for automobile insurance; and that the effect of a prior refusal is governed by the policy of the company involved and the circumstances which caused the other company to refuse the insurance coverage. The other witness testified that the fact that a party had been refused insurance coverage on two prior occasions, and had answered a questionnaire falsely that no insurance had been refused or denied to her, would “not necessarily” have an effect on the issuance of the policy “because we would order an inspection report.”

Finally, the defendants contend that the trial court erred in overturning the verdict of the jury, and that in doing so, the defendants were deprived of their right to trial by jury on those matters which were jury questions. When this case was originally tried, it was tried before the court without a jury. The defendants did not file a jury demand until after the case was remanded. The plaintiff objected to the filing of a jury demand, contending that it came too late, but the court permitted the filing of the demand and the case was tried by the jury.

The trial court set aside the verdict on two grounds: (1) that it erred in permitting the filing of the jury demand in that the defendants were net entitled to a jury determination based upon the jury demand filed after remandment; and (2) that the evidence could not support the verdict in that the representation that Dennis was the owner of the car was false, and the representation that Gilbertson had not previously been denied insurance was false, and both such representations were material to the risk.

As to the failure to file the jury demand until the case was remanded, the Supreme Court in Reese v. Laymon, 2 Ill2d 614, 621, 119 NE2d 271 (1954) held that when the cause was remanded, its status was not as though the case had not yet been commenced, but rather, only as though no trial had been held, with a complaint and answer on file, but no jury demand made by either party. Thus, the time requirements of section 64 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 64(1)) were held to be constitutional, even though construed to deny the right to a jury trial when demanded for the first time after a judgment on a trial without a jury is reversed and the cause remanded for a new trial. If there is no right to demand a jury under given circumstances at the original trial, there is no reason to grant greater rights on the retrial after a case has been remanded. Wherever possible, however, the right to a trial by jury is afforded even though the litigant seeking such right has not strictly complied with the statute. Hudson v. Leverenz, 10 Ill2d 87, 93, 139 NE2d 255 (1956); Department of Public Works and Buildings v. Melling, 78 Ill App2d 37, 41-43 incl., 222 NE2d 515 (1966). Under section 59 of the Civil Practice Act and present Supreme Court Rule 183, the court, “for good cause shown on motion after notice” may extend the time for the doing of any particular act. It does not appear, however, that the defendants here filed any such motion after notice, or showed any good cause for extending the time within which to file a jury demand. They merely filed their demand, to which the plaintiff, GEICO, objected. The defendants only contention is that a disputed fact issue did not arise until after the first opinion by this court. From our examination of the pleadings and the issues presented to us on the first appeal, we do not believe this to be so.

However, the question of whether the jury demand was properly filed does not assume great significance in our determination. We believe that the trial court properly entered the judgment notwithstanding the verdict based upon the evidence before it. Whether the plaintiff had the right to declare the insurance policy null and void depends on whether certain representations were made, were false, and were material to the risk.

Viewing the evidence most favorably to the defendants, we must answer these questions in the affirmative as to two representations. They are: the representation by Dennis that he was the owner of the car and the representation by Gilbertson that she was never refused or denied insurance coverage.

As heretofore stated in our earlier opinion, the failure of Dennis to disclose the true ownership was material to the risk. This is particularly true under the factual situation before us: Gilbertson was admittedly the owner of the car, but the title thereto was placed in Dennis for the obvious reasons that Gilbertson could not then register a car in Illinois, and would have had difficulty in obtaining insurance coverage thereon. She had actual control over the car, but she was not, as represented, the “fiancee” of Dennis.

An insurer is interested in ascertaining the true owner of a car particularly where the policy covers any person who may be driving the car with the owner’s consent. The character and judgment of the owner, as well as his or her true status, have a definite bearing upon the risk involved. The status, number and character of the persons who are likely to be driving the car with the owner’s permission are also material to the risk. The representation as to ownership was false and materially affected the risk or hazard assumed. Government Employees Ins. Co. v. Dennis, supra, 65 Ill App2d 371, 372, 212 NE2d 759; Western States Mut. Automobile Ins. Co. v. May, 18 Ill App2d 442, 452, 453, 152 NE2d 608 (1958).

We also stated in our earlier opinion that the representation that she had not previously been denied insurance was material to the risk. (Government Employees Ins. Co. v. Dennis, supra, 65 Ill App2d 371, 212 NE2d 759, and cases cited therein.) It is clear from the evidence that the statement was made and that it was false. It is also obvious from the testimony of the employee of GEICO, as well as the testimony of the defendants’ witnesses, that the fact of prior refusal or denial of insurance was material. It, to use their description, “waves a red flag,” and is a cause for further investigation, if not an outright refusal to insure.

The defendants also contend that the plaintiff is barred by laches from asserting that the policy is null and void. The accident happened on September 27, 1962. On or about October 25, 1962, the plaintiff first became aware of the misrepresentations to which we have referred. The defendant, Maffei, had counsel by that time. The plaintiff brought this suit in April of 1963. We fail to see how there was either a sufficient lapse of time or other circumstances to cause undue prejudice such as to constitute laches. Freymark v. Handke, 415 Ill 360, 366, 367, 114 NE2d 349 (1953); Monroe v. Civil Service Commission of Waukegan, 55 Ill App2d 354, 357, 204 NE2d 486 (1965).

We believe that this was a case in which all of the evidence, when viewed in its aspect most favorable to defendants, so overwhelmingly favored the GEICO that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967). Consequently, the judgment of the trial court is thus affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: MR. PRESIDING JUSTICE LYONS BURKE, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Curtis Hahn (Impleaded), Defendant-Appellant.
    Gen. No. 50,144.
    First District, Second Division.
    December 22, 1967.

      BURKE, J., dissenting.
    Walter H. Moses, Jr., and Ronald Charles Smith, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James S. Veldman, and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the defendant, Curtis Hahn, from his conviction in a jury trial for the offense of burglary, for which he was sentenced to a term of not less than four (4) nor more than eight (8) years in the State Penitentiary. Subsequent to the return of the jury verdict, defendant made alternative motions for either judgment notwithstanding the verdict or a new trial, both of which were denied, and from which he brings this appeal.

Summarized, this case concerns itself with the commission of a burglary during the daylight hours of January 16, 1964, at the residence of the complainant, one Alexander D. Moser. The victimized premise was a first-floor apartment in a building located at 6420 North Newgard Avenue in the City of Chicago, access to which had been gained by tampering with the rear door in Moser’s absence. An immediate inventory of personal belongings conducted by Moser and his wife upon their discovery of the crime revealed numerous pieces of men’s and ladies’ jewelry, some assorted men’s sportswear, a brown duffel bag, as well as several credit cards, to be missing. Subsequent police investigation led to the arrest and joint indictment of defendant and one Charles Randolph Fiala, the latter entering a plea of guilty to the charge.

Preliminary to trial, a hearing was conducted on defendant’s motion to suppress certain evidence alleged to have been seized as a consequence of an unlawful search of defendant’s apartment. At that hearing, Detective Joseph Nolan testified that on January 24, 1964, he and Detective Madden approached defendant’s apartment at 505 West Belmont Avenue, where they knocked and announced their office. After some pause, defendant opened the door and consented to their entrance. Once inside the one-room apartment, Nolan stated that he observed in open view several credit cards atop a dresser, four of which visibly bore the name Alexander Moser. Questioned concerning his possession of the cards, defendant denied having any knowledge of them, and was then placed under arrest. A search of the room, over defendant’s protests, produced a total of 18 such cards, some jewelry, assorted clothing, a BB gun and BBs, an ice pick as well as numerous unopened packages bearing shipping labels addressed to persons other than defendant, most of which were in various secluded locations. These items were all seized by the officer. In the interim, Detectives Casey and Spatz, who had accompanied Nolan but remained downstairs, discovered that suspect, Fiala, had also resided in the same building. A search of his vacant apartment suggested a hurried departure by him.

Testifying in his own behalf at the hearing, defendant asserted that four officers gained entrance to his apartment at gunpoint and under false pretense. He said the police handcuffed him, struck him when he denied knowing the whereabouts of Fiala, and ransacked the room. Defendant, however, admitted to his possession of the chattels seized and that he lied when telling the officers he knew nothing of Fiala. Thereupon, the court denied defendant’s motion to suppress.

Moser, at the trial, testified that two days after the burglary, an Officer Muller arrived at the scene to investigate. Borrowing an ice pick from him, the witness stated that the officer demonstrated how the rear door may have been unlocked by insertion of the pick through a y<¿' or in diameter hole in the window immediately adjacent to the door. Moser stated that despite his long tenure in the apartment he had never noticed the hole, nor could he offer an explanation as to how it was caused. He had noticed, however, small splinters of glass on the window ledge just below the hole.

Thereafter, on January 26, 1964, Moser testified that he recognized a red and black shirt worn by defendant in a police lineup as his own, though conceding there were others identical to it in the store when it had been originally purchased. Moser admitted to his inability to personally identify defendant as he had observed no one in his apartment. The complainant informed the court that he had subsequently that day recovered some of his belongings (jewelry, clothing, duffel bag and credit cards) from among items in the possession of police authorities. Thereafter, over objection of counsel for defendant, Moser was asked:

“Q. . . . After your burglary, . . . did you receive bills for any items purchased with your stolen credit cards ?
“A. Yes, sir.
“Q. Now, as specific as you possibly can be, would you tell us, please, the total amount in dollars of purchases made with your credit cards from the time they were taken from you until the time that you got them back ?
“A. It was around 27 — somewhere around 25 to $2700.”

No effort was made, at any juncture, to introduce such bills into evidence.

The testimony of Officers Nolan and Madden that followed was essentially the same as that given by Nolan at the pretrial hearing and was, in all but one minor respect, corroborative. Both witnesses positively identified People’s Exhibits Nos. 1 and 2 (ice pick and BB gun with BBs respectively) as those confiscated from defendant’s apartment on January 24,1964.

Coindictee Fiala, called as a State’s witness, denied any participation in the actual burglary of the Moser residence, claiming to have misunderstood the indictment when entering his plea of guilty. He professed to have only been guilty of receiving a radio and two credit cards from defendant, with knowledge that they were stolen in the Moser burglary, and of using the credit cards to make some purchases.

On cross-examination, Fiala admitted that he had previously made a written statement (Defendant’s Exhibit No. 1 for identification), while in a police lockup with defendant, wherein he stated that he had never participated in any burglaries with defendant, nor did he possess any knowledge of a burglary committed by defendant alone. The witness than proffered that some of the property, without describing its identity, found by the police in defendant’s possession was stolen merchandise, given to him for storage during a three to four-day period preceding the eventual search and seizure as he (Fiala) prepared to take flight from the authorities for certain burglaries he had committed. Continuing, Fiala denied that he had ever told a Frank Chakot, a fellow inmate at County Jail, that he had been promised leniency if he would testify against defendant and that defendant had nothing to do with the burglary. The witness further denied having ever apologized to defendant, in Chakot’s presence, for his course of conduct in this regard.

On redirect examination, Fiala asserted that his prior statement was true with omissions only, reiterating that he had received some of the fruits of the Moser burglary from defendant. The witness explained that when he had signed the prior statement he was not in the same frame of mind that he was now. Fiala being excused, the court thereupon, over objection of counsel for defendant, admitted into evidence People’s Exhibits Nos. 1 and 2.

Frank Chakot was the only witness testifying in behalf of defendant. He claimed to have heard Fiala apologize to defendant for implicating him in the burglary which he knew defendant had nothing to do with, explaining that he was going to "cop out” anyhow to get himself less time as per an agreement with the State’s Attorney’s Office. Thereinafter, defendant offered into evidence Fiala’s written prior inconsistent statement, which after argument by opposing counsels on the subject, was denied by the court. None of the proceeds of the burglary were ever introduced into the record. This was the extent of the testimony adduced at the trial.

Defendant’s theory of the case assigns as prejudicial error the introduction into evidence of People’s Exhibit Nos. 1 and 2 (the ice pick, BE gun and BBs), Moser’s testimony relating to the subsequent unlawful use of his credit cards, and the court’s refusal to admit Fiala’s prior inconsistent statement into the record. He further contends that the evidence failed to establish his guilt beyond a reasonable doubt. In response, the State’s theory asserts the absence of prejudicial error in the trial as well as the sufficiency of the evidence to sustain defendant’s conviction.

Defendant’s first contention relative to error in the admission of the ice pick, BB gun and BBs is without merit. Recent possession by an accused of instruments suitable for the commission of the offense, even though no claim is made that, in fact, those were the instruments used, has long been recognized as a relevant evidentiary consideration. People v. Stanton, 16 Ill2d 459, 158 NE2d 47 (1958); People v. Magby, 37 Ill2d 197, 226 NE2d 33 (1967). Here Moser, on the stand, related he had personally observed a demonstration (by Officer Muller), whereby access to his home was gained by insertion of an ice pick through a theretofore unnoticed hole in the window adjacent the door latch. While it has not been theorized exactly by what means the window fracture was occasioned, its size, character and recent origin evidenced by the glass splinters on the ledge were strongly suggestive of the use of a gun similar to that which was found in defendant’s apartment. Inasmuch as defendant has not pursued his claim as to the unlawfulness of the seizure of these instruments, we feel People’s Exhibit Nos. 1 and 2 were sufficiently connected to the offense in question to warrant their admission into evidence.

The essence of the offense of burglary is the breaking and entering with the intent to commit a felony or theft. People v. Waller, 85 Ill App2d 55, 229 NE2d 298 (1967). As is typically the result of the clandestine nature of the crime, in the instant case there existed no direct evidence as to the act of unlawful entry. Accordingly, on the record before us, defendant’s conviction could only have been predicated upon the rule which imposes an inference of guilt upon an accused found to be in recent, unexplained, and exclusive possession of the fruits of the burglary. People v. Taylor, 25 Ill2d 79, 182 NE2d 654 (1962). Caution should be taken, as no doubt did the court in Taylor, to not employ these terms loosely nor tread lightly on their respective meanings.

Examined as it pertains to the testimony and physical evidence offered below, we find that the imposition of that inference involves a much closer question than a reading of the narrative might first indicate. The principle is founded in recent possession of the bounty of the offense. None of the alleged proceeds of the burglary were ever introduced into evidence here, nor were they found in defendant’s possession until eight days after the fact. As again noted in the Taylor case, the nature of the goods themselves were, for the most part, of a character conducive to ease of disposition and movement, thereby militating against the raising of an inference of guilt. Notwithstanding the conflicting testimony as to whether defendant consented to the entry of the officers into his abode, he did not, during the considerable pause preceding their entry, seize upon the opportunity to conceal the credit cards from open view.

Fiala, on the other hand, did in fact testify to having received some of the Moser property from defendant. Similarly, defendant did acknowledge his familiarity with Fiala and admitted to his possession of the goods seized from his apartment. Particularly significant in this regard were the prior inconsistent statements and actions of Fiala who claimed to have entered his plea, by counsel, only upon his alleged misapprehension of the nature of the charge in the indictment. Just to what extent the jury accepted his impeaching concession to the prior inconsistent statement was susceptible of varying connotations, as the witness vacillated considerably.

Fiala admitted to his prior writing only to the extent that he had stated that he did not commit a burglary with defendant, nor did he, as such, have any knowledge of a burglary committed by defendant alone, conceding that certain unspecified items found in defendant’s possession had, in fact, been given to him by Fiala. Defendant, conversely, proposed that Fíala had unequivocally asserted his innocence of the charge, offering the Chakot testimony in support and explanation of Fiala’s change of position. Accordingly, much more than peripheral considerations hung in the balance. The issue bore directly upon the credibility attached by the jury to Fiala’s account of possession of the goods, more specifically to defendant’s “unexplained and exclusive possession” thereof so as to either raise or destroy an inference of his guilt.

The court below, and the State now on appeal, are of the position that once the declarant admits to the truth of his prior inconsistent statement, that statement is offered solely for its cumulative or repetitious effect upon the jury and hence is properly denied. Aside from the fact that the rule is a creature of the civil law, the State fails to recognize that Fiala denied the veracity of his prior statement in certain inarticulated respects. The exact nature, extent and import of the admissions inherent in the writing were, we feel, of particular relevance to defendant’s cause, the introduction of which should not have been foreclosed. See 3 Wigmore on Evidence, 3rd ed, § 1037, p 723, as adopted in People v. Williams, 22 Ill2d 498, 177 NE2d 100 (1961). Cf. Esderts v. Chicago, R. I. & P. R. Co., 76 Ill App2d 210, 222 NE2d 117 (1966); People v. Jarrett, 57 Ill App2d 169, 206 NE2d 835 (1965). We feel defendant was prejudiced by being compelled to limit his impeachment to its piecemeal and thus unemphatic effect.

Moreover, any misgivings which may have existed relative to the absence of gravity in that error, were eradicated by the compounding prejudicial remarks deliberately elicited from Moser in regard to the subsequent use of his credit cards to make purchases. We do not quarrel with, nor choose to ignore, the rule which has long permitted incidental evidence of another offense to be admitted, if it tends to prove the crime charged. Stated in various ways, that rule approves of the admission into evidence of otherwise inadmissible testimony regarding the commission of another and unrelated crime, if its tendency is to establish a design, motive, the defendant’s identity, or his proximity in time or place to the principal offense. People v. Tranowski, 20 Ill2d 11, 169 NE2d 347 (1960).

Moser’s testimony patently amounted to evidence of the totally unrelated offense of theft by deception, a violation of section 16-1 (b) of our Criminal Code. (Our statute on Deceptive Practices, section 17-1 of the Criminal Code, has since the date of trial been twice amended (SB 742, effective June 18, 1965 and HB 2282, effective September 5, 1967) so as to treat specifically the subject of credit card abuse and make it a violation of the Act.) Yet the State argues the absence of error, citing among other cases, People v. Ostrand, 35 Ill2d 520, 221 NE2d 499 (1966) and People v. Shockey, 66 Ill App2d 245, 213 NE2d 107 (1966), which, when taken in this conjunction, would appear to be persuasive of a contrary conclusion. Both cases (an armed robbery and burglary respectively), dealt with similar assignments of error to testimony which related to the writing of bad checks, likewise a deceptive practice (although in Shockey the offense amounted to a forgery as well). Particularly significant however, and unlike the case at bar, in both Ostrand and Shockey the testimony of the unrelated crime was sufficiently definitive so as to identify and positively link the accused with the act of deceptive practice. Clearly then, in those instances, the evidence fell within the aforementioned realm of application of the rule.

Here, there having been submitted nothing which would have placed defendant in proximity to the burglary, Moser’s testimony could have, at best, been offered in support of a motive for the burglary. The distinguishing factor, however, is that by a compilation of the record narrative, and in absence of the production of any signed bills alleged to have been received by Moser on the credit cards, there was a total failure to link defendant to the crime. Accordingly, the offer tended to prove nothing, but rather, when coupled with defendant’s admitted possession of the cards and varied chattels, created the prejudicial inference that he had made the unlawful purchases. People v. Friedman, 383 Ill 193, 48 NE2d 950 (1943); People v. Brooks, 340 Ill 74, 172 NE 29 (1930); Schultz v. People, 210 Ill 196, 71 NE 405 (1904).

There having been no admonition, nor cautionary instruction on the subject, we cannot at all be certain, again in absence of some link, that the relative brevity of the remarks on the amounts charged to the credit cards, and Fiala’s admission to having used two cards to make purchases, operated, in any way, to mitigate the adverse influence such comments had upon the jury.

For the above reasons, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and remanded for new trial.

McNAMARA, J., concurs.

BURKE, J.,

dissenting:

There is no dispute that the Moser apartment was burglarized and that various items of personal property and credit cards were taken. A few days after the burglary the defendant was arrested in his apartment on Belmont Avenue, Chicago. At this time two Chicago Police Officers took 18 credit cards in the name of Moser and an assortment of other items. The defendant offered no explanation for the presence of the Moser credit cards, which were in plain view in his one-room apartment. A codefendant, Charles Fiala, testified for the People that he was arrested with two of the Moser credit cards in his possession which he had received from defendant and that he, Fiala, had used these cards to make purchases. This testimony was admitted without objection. The fact that Fiala had some of the stolen credit cards in his possession did not mitigate against the guilt of defendant. See People v. Moore, 76 Ill App2d 326, 222 NE2d 95. The evidence of defendant’s recent possession of goods stolen from the Moser apartment, the testimony that defendant had given some of these items to another and his failure to offer any explanation as to how it came to pass that this loot was in his room, strongly supports the verdict. He was proven guilty beyond a reasonable doubt.

In my opinion the admission into evidence of testimony about the use of credit cards subsequent to the burglary was not prejudicial error. The effect of the testimony on this subject was to prove that after the burglary the credit cards were outside the possession and control of Mr. Moser and in fact had neither been lost nor mislaid. The brief allusion to another crime, that of obtaining property by false pretenses, was incidental to this proof. No part of this testimony linked the defendant specifically to any crime other than that for which he was indicted. Incidental evidence of another offense is admissible if it tends to prove the crime charged. People v. Ostrand, 35 Ill2d 520, 221 NE2d 499; People v. Speice, 23 Ill2d 40, 177 NE2d 233. Charles Fiala testified that defendant had given him two credit cards bearing the name Alexander Moser which he, Fiala, had used to make purchases. This testimony was admitted without objection. While the admission of Mr. Moser’s testimony was proper, the admission without objection of the corresponding testimony of Fiala precludes the defendant from raising this issue on appeal. People v. Frenchwood, 28 Ill2d 139, 190 NE2d 767; People v. Allen, 17 Ill2d 55,160 NE2d 818.

The refusal of the trial judge to admit the prior contradictory written statement of Fiala did not constitute prejudicial error. Fiala was cross-examined extensively by defense counsel concerning his oral and written state-prior to the trial in which he disclaimed that defendant had any connection with the burglary. During cross-examination Fiala testified that he had written the statement in the County Jail; on redirect examination he testified he made the writing in the bullpen or lockup as opposed to a cell in the County Jail. Defendant contends that the refusal to admit the writing into evidence was error so prejudicial as to require reversal. The People concede that under the doctrine of People v. Williams, 22 Ill2d 498, 504, 177 NE2d 100, a prior contradictory writing by a witness is admissible into evidence for the purpose of emphasizing its impeaching character even where the witness admits having made such a statement. As the previous written statement of Fiala was fully explored in the examination and cross-examination the defendant Hahn was not prejudiced in the instant case.

Two lines of cases exist on the question of whether a party has a right to have a witness’ prior inconsistent statement introduced into evidence for impeachment purposes where the witness admits having made the statement. One line finds support in the 1893 case of Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill 202, 36 NE 1036, and the other in the case of Plotkin v. Winkler, 323 Ill App 181, 55 NE2d 545. In Feehan the court said, at page 215: “In this case, the witness having admitted making the previous contradictory statement, no further proof of that fact was necessary, and the defendant was in no degree prejudiced by the exclusion of the witness’ testimony. . . .” The Feehan rule was followed in Swift & Co. v. Madden, 165 Ill 41, 45 NE 979; Illinois Cent. R. Co. v. Wade, 206 Ill 523, 69 NE 565; Chicago & E. I. Ry. Co. v. Crose, 214 Ill 602, 73 NE 865; Kooyumjian v. Stevens, 10 Ill App2d 378, 135 NE2d 146 and Rogers v. Gehrke, 77 Ill App2d 343, 222 NE2d 351. Plotkin v. Winkler, 323 Ill App 181, 55 NE2d 545, holds that it was error not to allow a prior inconsistent statement into evidence. The Williams case has been followed in People v. Dixon, 28 Ill2d 122, 190 NE2d 793, and People v. Jarrett, 57 Ill App2d 169, 206 NE2d 835, without comment in either case. The most recent case contrary to the Fee-ban line appears to be Esderts v. Chicago, R. I. & P. R. Co., 76 Ill App2d 210, 222 NE2d 117, which holds that the trial court properly allowed three inconsistent statements into evidence. The witness admitted his signatures on all three statements, but denied the contents of two of them. As to the third statement, it does not appear that the witness admitted, denied or had no knowledge of the matters therein. The Feehan rule should be applied to the case at bar as Fiala testified that he previously stated defendant had nothing to do with the burglary and that the statement was reduced to writing. He changed his story on the stand in an apparent attempt to explain what he meant by his earlier statement, by saying that he did not participate in the burglary and consequently could not say whether defendant committed the burglary or not, and that he had “no knowledge of any burglaries defendant committed as such.” The jury was fully informed of the previous statement made by Fiala. The contradictions between the testimony and the written statement were emphasized in the examination and cross-examination of Fiala. The defendant was not prejudiced by the ruling of the trial judge that it was not necessary to a fair trial for the defendant, that any contradictions be further emphasized by the introduction of the written statement. There is no complaint by the defendant of the refusal to give any tendered instruction or of the giving of an erroneous instruction.

The People presented a strong case showing the guilt of the defendant beyond a reasonable doubt and the judgment should be affirmed.


text:
    Aldona Beinarauskas, Plaintiff-Appellant, v. Anthony Beinarauskas, Defendant-Appellee.
    Gen. No. 51,539. (Abstract of Decision.)
    First District, Second Division.
    December 22, 1967.
    Garretson and Thomquist, of Chicago (James L. Garretson and Ruth Thornquist, of counsel), for appellant; no brief filed for appellee.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


text:
    American National Bank & Trust Co. Under Trust #13303, by Herbert S. Kamin, Jr., Agent, Plaintiff-Appellee, v. Lowell Charles Bergstedt, Defendant-Appellant.
    Gen. No. 52,514. (Abstract of Decision.)
    First District, Second Division.
    December 22, 1967.

      Lowell Charles Bergstedt, pro se, of Chicago, appellant; no brief filed for appellee.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    Willie B. Tate and Edna Tate, Appellants, v. Sears Bank & Trust Company, Appellee.
    Gen. No. 50,938.
    First District, Fourth Division.
    December 22, 1967.
    Joseph E. Davis and David M. Zimberoff, of Chicago, for appellants.
    Kahn, Adsit, Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (John F. McClure, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs brought this action at law to recover $465 allegedly owing to them from defendant by virtue of a savings account. At the close of plaintiffs’ case, defendant’s motion for a finding was granted and judgment was entered in its favor. The sole issue on review is whether plaintiffs’ evidence had established a prima facie case.

Plaintiff Willie B. Tate was the only witness, and his testimony is set forth in an agreed statement of facts. He testified that on February 27, 1956, he and his wife, Edna, opened a time savings account with defendant bank by making a deposit and receiving from defendant a deposit book for the account. He identified this deposit book, examined all the various entries therein, and stated that “plaintiffs made each deposit and withdrawal as was reflected by the entries in said book, and that there was a balance due of $465, as was indicated in the balance column of the last entry in said book.” He further testified that on April 23,1964, he presented the deposit book at defendant bank, demanded payment of that amount, and payment was refused. Defendant did not cross-examine the witness. The deposit book, which indicated a balance of $465 in the account, was admitted into evidence without objection.

On this appeal plaintiffs contend that the testimony outlined above, together with the evidence of the deposit book itself, constituted a prima facie case. Defendant says that it did not. Defendant must concede that Mr. Tate testified as to the deposits and withdrawals listed in the deposit book, but argues that he did not testify that his wife, who was a joint owner of the account, had not made other withdrawals therefrom; that there was no evidence that all withdrawals made by Mr. Tate had been entered in the deposit book, and that there “was no showing that the account had not been charged by the bank because of other transactions.”

We note that the testimony of Mr. Tate concerned deposits and withdrawals of both plaintiffs, and we consider that defendant therefore fails to recognize the breadth of this testimony. We note also that the deposit book in evidence recites rules governing savings deposits, including the following: “No withdrawal of deposits or interest shall be made unless the depositor’s pass book be produced and the withdrawal entered therein. Provided, however, that if the depositor shall satisfactorily prove that his pass book has been lost, stolen or destroyed, and shall, if required by the Bank, furnish to the Bank indemnity satisfactory to it against any claim which may at any time be made against the Bank on account thereof, the Bank may make payment to the depositor without the production of such book.” This would seem to support plaintiffs’ position and to declare pretty clearly the character of the passbook as having at least some evidentiary value as to the status of the account. It also appears obvious that the passbook was not “lost, stolen or destroyed,” nor considered such by defendant, because it was presented for withdrawal of the indicated balance on the same day that the final entry was made which shows the balance that is now being, contested.

We believe that plaintiffs did establish a prima facie case. See Webster v. Wachovia Bank & Trust Co., 182 SE 333, 208 NC 759, 761. The entries in the deposit book are in the nature of admissions by defendant, and constitute evidence of all the necessary facts giving rise to liability, even though they may not be conclusive on either party. Cf. Bugdoian v. Union Trust Co. of East St. Louis, 337 Ill App 405, 412-413, 86 NE2d 253. Plaintiffs should not be required to proceed further and to negative any number of potential defenses. Since the defense in this case is based on the proposition that the deposit book balance does not represent the true state of the account, defendant should be required to come forward with some evidence to that effect. See Rimkus v. John Tananevicz, Trading as Tananevicz Sav. Bank, 207 Ill App 96.

We thus conclude that the judgment of the Circuit Court was in error. It is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and McCORMICK, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Vernon Schumacher, Defendant-Appellant.
    Gen. No. M-52,051.
    First District, Fourth Division.
    December 22, 1967.
    Arthur J. O’Donnell, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel Weil, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Theft.

Judgment

Schumacher and his codefendant, James Ryan, were tried together in a bench trial and both were found guilty. Defendant was sentenced to thirty days in jail.

Point Raised on Appeal

The evidence did not establish defendant’s guilt beyond a reasonable doubt.

Evidence

Ronald C. Colosimo, witness for the State

On the evening of August 5, 1966, a 1959 Chevrolet (identified by serial number) with a “For Sale” sign on the windshield, was parked on the used car lot which he owns. The next time he saw this car was at the Police Station the following afternoon. He had not authorized anyone to drive it on the evening of August 5, 1966, or at any time thereafter.

Raymond Nolan, a police officer, witness for the State

At about 3:10 a. m. on the morning of August 6, 1966, he saw a black Pontiac convertible pushing a Chevrolet which had a sale sign on the windshield. Ryan was in the Chevrolet which had dim headlights. Defendant was driving the Pontiac. The engine of the Chevrolet started as the two cars approached Nolan’s vantage point. As defendant attempted to drive away in the Pontiac, Nolan arrested him, after first calling for assistance on his radio. He had first observed the vehicles at a distance of approximately 50 feet. The area was dark except for the illumination from spotlights and other lights on the front of a restaurant near which Nolan’s car was standing. Another officer, who had responded to Nolan’s call, located Ryan behind the restaurant and arrested him. The ignition wires on the Chevrolet had been crossed.

Michael Schumacher, defendant

Early on the morning of August 6,1966, while at home, he received a phone call from Ryan who asked to be picked up. While defendant was driving to meet Ryan, he saw a 1959 Chevrolet in front of him. He couldn’t see the driver. He followed the Chevrolet up to a stop sign, at which point the cars turned in different directions. After making the turn, defendant was stopped and arrested. He had been within 10 or 15 feet of the Chevrolet but had not pushed it.

James Patrick Ryan, codefendant

On August 6, 1966, he phoned defendant to ask for a ride home. He was never inside the Chevrolet, though he saw it with the motor running near the restaurant where he was arrested.

Opinion

There was sufficient evidence which, if believed, adequately met the State’s burden of proof, the credibility of the witnesses being a matter for the trial judge. While it was Ryan who drove the Chevrolet, defendant was seen pushing it with the Pontiac. People v. Lardner, 296 Ill 190, 129 NE 697; Watts v. People, 204 Ill 233, 68 NE 563; People v. Davis, 69 Ill App2d 120, 216 NE2d 490. Defendant was, thus, responsible for Ryan’s conduct as aiding and abetting in the commission of the crime. Ill Rev Stats (1965), c 38, §5-2. The requisite intent may be inferred from the surrounding facts and circumstances. People v. Richardson, 32 Ill2d 472, 207 NE2d 478; People v. Cole, 30 Ill2d 375, 196 NE2d 691; People v. Grilec, 2 Ill2d 538, 119 NE2d 232. The facts that defendant knew Ryan and was meeting him by prearrangement were also factors to be considered.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats (1965), c 88, § 16-1.
      A person commits theft when he knowingly: (a) Obtains or exerts unauthorized control over property of the owner; . . . and (1) Intends to deprive the owner permanently of the use or the 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.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gene Smith, Defendant-Appellant.
    Gen. No. 52,302.
    First District, Fourth Division.
    December 22, 1967.

      Lee J. Snitoff, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Theft.

Judgment

After a bench trial, defendant was found guilty and sentenced to one year in the House of Correction.

Points Raised on Appeal

(1) Venue was not properly alleged in the complaint.

(2) The complaint is otherwise fatally defective.

(3) Defendant was not proved guilty beyond a reasonable doubt.

Complaint Commencing Prosecution

JOSEPH J. MCDONOUGH, CLERK OF THE CIRCUIT COURT OF COOK COUNTY

MISDEMEANOR

STATE OF ILLINOIS COUNTY OF COOK SS THE CIRCUIT COURT OF COOK COUNTY

The People of the State of Illinois Plaintiff v. Gene Smith Defendant COMPLAINT No. -

GLADYS ROWLAND, complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that GENE SMITH has, on or about 31 January 1967 at 6012 So. Parkway committed the offense of theft in that he knowingly obtained or exerted unauthorized control over property, to wit: (Sheets & Draperies) of the value of $150.00 or less, the property of Gladys Rowland, with the intent to deprive said victim permanently of the use and benefit of said property, in violation of Chapter 38 Section 16-1 (A) 1 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.

x Gladys Rowland

(Complainant’s Signature)

Gladys Rowland

(Complainant’s Address) (Telephone No.) 6812 So. Parkway — BU. 8-5000

STATE OF ILLINOIS ] I gg COUNTY OF COOK J

GLADYS ROWLAND

(Complainant’s Name)

being first duly sworn, on his oath, deposes and says that he has read the foregoing complaint by him subscribed and that the same is true.

Gladys Rowland

(Complainant’s Signature)

Subscribed and sworn to before me 31 Jan., 1967.

Sgt. X. Jackson

(Judge or Clerk)

JOSEPH J. MCDONOUGH

I have examined the above complaint and the person presenting the same and have heard evidence thereon, and am satisfied that there is probably cause for filing same. Leave is given to file said complaint. Warrant issued.

Bail Fixed at $500.00

JUDGE EDWIN C. HATFIELD

Evidence

David James, for the State

He was employed by the Southway Hotel. At about 7:30 p. m. on January 31, 1967, he found defendant alone in one of the hotel rooms. The door was ajar. Defendant attempted to leave the room when James entered, but James detained him. James observed a bundle on the bed and a bundle on the floor of the room. Both bundles were six or seven feet from defendant. The bundles contained sheets and draperies belonging to the hotel. James did not see defendant tie, carry or handle these bundles. Defendant was never a registered guest of the hotel and had been told repeatedly to stay out of the hotel. Defendant told James he entered the room to use the washroom. The incident occurred in Chicago, Illinois, in the County of Cook.

Gladys Rowland, for the State

She was the resident manager of the hotel at the time of the incident. The sheets and draperies, which had a value of less than $150, belonged to the hotel and were under her control. They were on the bed and windows when she had been in the room a short time before defendant was apprehended there. She returned to the room and heard defendant say he went into the room to use the washroom. She never saw defendant carry or exercise control over the bundles. She called the police and went to the police station to sign a complaint.

Officer Liggett, for the State

He was the police officer who responded to the call and arrested defendant at the hotel.

Opinion

(1) Defendant contends that jurisdiction of the court was not established because the complaint failed to allege the county in which the offense was committed. In support of this point defendant relies on section 9 of article II of the Illinois Constitution which guarantees an accused the right to be tried in “the county or district in which the offense is alleged to have been committed.” Defendant does not contend, however, that venue was improperly fixed or that he was in any way prejudiced by failure to include in the body of the complaint an allegation as to the county in which the offense was committed. Uncontroverted evidence established that the offense was committed in Chicago, Cook County, Illinois. It is also beyond dispute that while the body of the complaint alleges merely that the theft occurred at 6012 So. Parkway, there are numerous references to Cook County and its Circuit Court in the caption and in the verification of the complaint.

This situation comes squarely within the holding in the recent case of People v. Williams, 37 Ill2d 521, 524-525, 229 NE2d 495, where, in affirming a conviction on a similar complaint, the Supreme Court ruled:

[W]here as in this case, there is no conflict between the caption and the body of the charge, no suggestion that the venue was improper or improperly proved, and no showing of prejudice to the defendant, we see no reason to refuse to read the caption as part of the complaint. So read, the complaint sufficiently designates the county in which the offense was alleged to have been committed.

The Williams opinion discussed the authorities cited by defendant in support of this point, distinguishing some and rejecting the one on which defendant principally relies, People v. Hill, 68 Ill App2d 369, 216 NE2d 212.

(2) Next, defendant contends that the complaint is fatally defective for four other reasons: (1) no notary seal is affixed to the affidavit; (2) the full name of the person taking the acknowledgment of the complainant’s signature is not shown; (3) the masculine gender is used in the oath, while the complainant is a female; (4) the person certifying as having examined the complaint and giving leave to file the complaint affixed his signature as a judge when he was not a judge but a magistrate. In making these points, defendant relies on the provisions of the State and Federal constitutions requiring a sworn complaint for the issuance of an arrest warrant. However, it must be noted that Officer Liggett had placed defendant under arrest prior to the signing of the complaint.

In People v. Harding, 34 Ill2d 475, 481-482, 216 NE2d 147, the Supreme Court held:

that the constitutional provisions upon which the defendant relies should not be extended to require a sworn complaint as a jurisdictional prerequisite to the prosecution of a criminal offense.

Recognizing that the Illinois Code of Criminal Procedure requires that a complaint shall be verified and signed by the complainant, the court in Harding stated:

. . . and we hold that a defendant who does not waive by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged. [Emphasis supplied.] 34 Ill2d at 483.

The implication that defective verification of the complaint may be waived, however, is inescapable. There is also dicta to the same effect in Village of Willowbrook v. Miller, 72 Ill App2d 30, 34, 217 NE2d 809. The Willow-brook opinion went on to note that the statute is concerned only with the fact of verification and not with the officer before whom the verification was effected. The Code of Criminal Procedure specifies no qualifications for the person before whom the complaint is to be sworn. Ill Rev Stats (1965), c 38, § 111-3 (b).

In the case on appeal the complaint purported to be verified. Defendant did not move to quash the corn-plaint until after the State had rested its case. Parenthetically, the record does not disclose the basis for this motion. At the time of the motion the complainant had already sworn in open court to all the facts alleged in the complaint. We are constrained to hold that, no objection having been made in apt time, if any defects did in fact exist in the verification of the complaint, defendant is deemed to have waived them.

(3) Finally, defendant contends that insufficient evidence was adduced by the State to prove the charge of theft. A person commits this crime when he knowingly obtains or exerts unauthorized control over property of the owner and intends to deprive the owner permanently of the use or benefit of the property. (See footnote above.) If defendant took the linen off the bed and the drapes off the windows of the room where James found him, then he exerted unauthorized control over that property and the necessary intent may be inferred from the nature of the overt conduct and the surrounding circumstances. People v. Hill, 58 Ill App2d 191, 194, 206 NE2d 269.

Defendant finds himself ensnared in an exceedingly strong web of circumstantial evidence. Miss Rowland had been in the room a “short time” before defendant was discovered there, and the sheets and draperies had been in their proper places. When James entered, defendant was alone in the room and the bed linens and drapes were wrapped in bundles only a few feet away from him. The trial judge obviously gave no credit to defendant’s testimony that he had innocently entered the room to use the washroom, and this conclusion does not appear unreasonable in the light of the uncontradicted testimony that defendant had been repeatedly ordered from the premises by the hotel management. On the basis of all these circumstances, the trial court did not err in deciding that defendant had knowingly exerted unauthorized control over the property with the requisite criminal intent.

Defendant has also argued that Gladys Rowland was not the owner of the property, as alleged in the complaint, since her own testimony showed it to have been the property of the hotel. We find no merit in this point. As used in the theft statute, “ ‘owner’ means a person other than the offender who has possession of or any other interest in the property involved, . . . and without whose consent the offender has no authority to exert control over the property.” Ill Rev Stats (1965), c 38, § 15-2. Miss Rowland was the resident manager of the hotel and as such had the authorized control over all its property. In that capacity she was an owner within the definition of the statute. People v. Dell, 77 Ill App2d 318, 323, 222 NE2d 357.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats (1965), c 38, § 16-1 (a) (1).
      A person commits theft when he knowingly: (a) Obtains or exerts unauthorized control over property of the owner; . . . and (1) Intends to deprive the owner permanently of the use or benefit of the property; ....