text:
    Olive Wolters Kuh, Plaintiff-Appellee, v. Henry F. Williams et al., Defendants-Appellants.
    (No. 56942;
    First District (5th Division) —
    July 27, 1973.

      Gary H. Palm, of Legal Aid Bureau, of Chicago, (Robert H. Smith, Senior Law Student, of counsel,) for appellants.
    Carl L. Klein, of Oak Lawn, for appellee.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

This is an action on a note brought by plaintiff, the payee, against defendants, the co-makers, wherein judgment was entered by confession. The default in payment was alleged to have occurred on September 15, 1964. Defendants’ motion asking that the judgment be opened, that the proceedings be stayed, and that leave be given to file their answer was denied. Defendants appeal from that order.

Judgment was entered by confession on January 26, 1971. On April 27, 1971, defendants filed a motion to open the judgment alleging that the first notice they had of its entry was on or about February 24, 1971, when they received from their bank a copy of a garnishment summons which had been served upon it. Defendants’ motion further alleged that they had good and meritorious defenses to plaintiffs claim, in that: (1) there was no consideration given for the note in question; (2) defendants had been induced to sign the note when plaintiff represented to them that the note was a mere formality creating no obligation to pay; and (3) defendants were entitled to a counterclaim against plaintiff by way of a set-off for the reasonable value of services performed by defendant Henry Williams as an employee of plaintiff in her tavern. The motion to open the judgment was supported by an affidavit of each defendant asserting his or her personal knowledge of the facts alleged and was accompanied by a verified answer which defendants asked leave to file.

On April 27, 1971, plaintiff filed an answer to defendants’ motion asserting that: (1) defendants had not been diligent as required by statute, as more than 60 days, had elapsed since defendants first consulted with their attorney; (2) defendants had no defense on the merits and their counterclaim was barred by the Statute of Limitations; and (3) defendants had made three payments on the note after its execution.

Defendants’ motion was placed on the contested motion calendar and set for argument on May 19, 1971, at which time, and again on October 18, 1971, counsel presented legal arguments in support of their respective positions. On the latter date, the trial court denied defendants’ motion.

Under Supreme Court Rule 276 (Ill. Rev. Stat. 1969, ch. 110A, par. 276), a motion to open a judgment by confession must be supported by an affidavit and accompanied by a verified answer which defendant proposes to file. This was done in the instant case. The rule further states that if the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of plaintiffs demand, the court shall set the: motion for a hearing. This also was done in the present case.

The rule goes on to provide:

“If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of plaintiffs demand and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial * 6 (Emphasis added.)

Rule 276 treats meritorious defenses and counterclaims differently, in that the ,rule further provides:

“If a defendant files a motion supported by affidavit which does not disclose a defense to the merits but discloses a counterclaim against the plaintiff, and defendant has been diligent in presenting his motion, the trial court may permit the filing of the counterclaim and to the extent justice requires may stay proceedings on the judgment by confession until the counterclaim is disposed of.” (Emphasis added.)

Since, to succeed, defendants must have shown diligence in presenting their motion as regards either meritorious defenses or counterclaims, we shall first examine the issue of defendants’ diligence.

Judgment was confessed on January 26, 1971. Defendants first had notice thereof on February 24, 1971, when they received a copy of a garnishment summons which had been served upon their bank. The motion to open the judgment was filed on April 27, 1971. Although the time between the entry of the judgment and the filing of the motion to open was three months, there was a lapse of only two months from the time of actual notice of the judgment until the motion to open was filed. We find that such a two-month period does not show defendants so lacking in diligence as to justify barring them from asserting their alleged meritorious defenses and counterclaim. And this we believe to be especially true when, as in the instant case, a postponement of two months, as it were, could not have been prejudicial to plaintiff, since she, herself, had not brought suit on the note until six years after defendants’ alleged default. See Alter & Associates, Inc. v. Zylvitis, 36 Ill.App.2d 195, 183 N.E.2d 750, where the court found no lack of diligence in the filing of a motion to open a judgment four and a half months after its entry. The reason stated, which we consider sound in both law and public policy, was that the question of a meritorious defense is of more importance than the question of defendant’s diligence or lack thereof in moving to open the confessed judgment.

Since we find that defendants’ action was not lacking in diligence, it remains only to be determined whether allegations of a meritorious defense or a valid counterclaim were presented.

In determining whether allegations of a meritorious defense have been presented, the court must accept as true those facts asserted by defendants in their affidavits. (National Blvd. Bank v. Corydon Travel Bureau, 95 Ill.App.2d 281, 238 N.E.2d 81.) This being the case, we find that defendants’ motion, as supported by their affidavits, raised two meritorious defenses. They denied not only that they had received consideration for the note, but also asserted that they had been induced by plaintiff to sign the note as a mere formality. Want of consideration and fraud in obtaining the execution of an instrument are both valid statutory defenses to an action upon a note. See Ill. Rev. Stat. 1969, ch. 98, pars. 10 and 11.

Plaintiff filed a verified answer to defendants’ motion to open, but the allegations in such an answer cannot properly be considered in ruling upon defendants’ motion, since a court is to determine only whether the motion and supportive affidavits disclose a prima facie defense. The trial court may not try the merits of the case on the affidavits or counter-affidavits as such a procedure would encroach upon the right to trial by jury. Gleneke v. Lesny, 130 Ill.App.2d 116, 264 N.E.2d 803; Larsh v. Green Gold Farms, Inc., 68 Ill.App.2d 113, 214 N.E.2d 924.

As to the counterclaim, defendants alleged that they were entitled to set off against plaintiff’s claim the reasonable value of sendees rendered by defendant Henry WiUiams to plaintiff from about 1955 to about 1960. Plaintiff argues that this counterclaim is barred by the Statute of Limitations.

It is true that if defendants had brought a separate suit for the reasonable value of such services, the action would be barred by IH. Rev. Stat. 1969, ch. 83, par. 16, which aHows for the commencement of a civff cause of action on an unwritten contract only within five years of the time it accrued. However, section 18 specifically provides a different limitation if such a claim is asserted by way of a counterclaim. That section reads:

“Set-off or counter claim.
A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, * *

That section was applied by the court in Carnahan v. McKinley, 80 Ill. App.2d 318, 224 N.E.2d 297, in holding that a set-off or counterclaim can be pleaded as long as it was not barred by the appropriate statute of fimitations at the time the principal cause of action first accrued to plaintiff. Here, plaintiffs cause of action is aHeged to have accrued as of September 15, 1964. With that date as the measuring point, defendants’ counterclaim for services prior to September 15, 1959, would be barred, but the amount claimed for services rendered thereafter could still form a basis for set-off.

If a proper counterclaim is asserted and defendant had been diligent in so doing, the court has the statutory discretion to open a judgment by confession to permit its filing. In the instant case, we have found that a proper counterclaim was diligently presented, and conclude that the trial court abused its discretion in refusing to permit it to be filed. However, even if there had been no abuse of discretion in regard to the filing of the counterclaim, defendants dffigently raised two meritorious defenses, and, once raised, the court had no discretionary authority, but was required to aUow the motion to open judgment and proceed to trial. (Ill. Rev. Stat. 1969, ch. 110A, par. 276 (quoted above); Scheinfeld v. Muntz TV, Inc., 67 Ill.App.2d 8, 214 N.E.2d 506.) We therefore find that the trial court erred in denying defendants’ motion to open the judgment by confession.

Defendants’ motion to strike plaintiff”s brief, which was taken with the case, is denied.

The judgment of the Circuit Court is reversed and the cause is remanded with directions to open the judgment and proceed to trial.

Reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elzie Jones, Defendant-Appellant.
    (No. 72-231;
    Second District —
    July 18, 1973.

      Rehearing denied September 6,1973.

    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva, (Clarence Wittenstrom, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE CREBS

text:
      In re Estate of Artie E. Wood, Deceased.
    (No. 73-111;
    Fifth District —
    August 2, 1973.
    James F. Thebeau, Jr., of Granite City, for appellants.
    Gary R. Coffey, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

AppeUant filed a petition to construe the wiU of Artie E. Wood, deceased. The Circuit Court of Madison County entered a judgment finding against the petitioners. The case is here on direct appeal.

The sole issue is whether the trial court ruled correctly in holding that the anti-lapse statute (Ill. Rev. Stat. 1971, ch. 3, sec. 49) applied to the wiU of Artie E. Wood.

In her will executed July 15, 1937, Artie E. Wood provided: “Second, —I give, devise and bequeath unto Pearl A. Knecht and Nora E. Wetzel, two of my sisters, aU of my property, real, personal and mixed that I may own at the time of my death.”

Nora E. Wetzel died on April 3, 1955 leaving two children, Inez Schumacher and Frank Wetzel, the petitioners herein. Pearl A. Knecht survived Artie E. Wood who died November 5, 1971.

The so called anti-lapse statute by its terms applies to this will and we find nothing in the will to indicate an intention of the testatrix that it should not apply. O’Connell v. Gaffney, 23 Ill.2d 611, 179 N.E.2d 647. Ingalsbe v. Gouch, 109 Ill.App.2d 232, 248 N.E.2d 522.

Judgment affirmed.

G. MORAN, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Clyde Williams, Plaintiff-Appellant, v. Chicago & Eastern Illinois Railroad Company, Defendant-Appellee.
    (No. 70-193;
    Fifth District —
    August 3, 1973.

      Rehearing denied September 4,1973.

      Hillebrand, Cook & Stiehl, of East St. Louis, (Robert J. Hillebrand, of counsel,) for appellant.
    Burroughs, Simpson & Wilson, of Edwardsville, (Larry E. Hepler, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Madison County, following the granting of defendant-appellee’s motion for summary judgment in an action brought under the Federal Employees Liability Act to recover injuries resulting from the defendant’s alleged negligence.

The plaintiff alleged that while working for the defendant he was injured because of the defendant’s negligence. The defendant answered denying that the plaintiff was employed by the defendant, denying that the plaintiff was injured, and denying that the defendant was negligent. Subsequently, the defendant filed its motion for summary judgment urging that the plaintiff was not employed by the defendant at the time of alleged injury and was thus not entitled to bring suit pursuant to F.E.L.A. This motion was granted and judgment for the defendant was entéred on the motion for summary judgment.

The facts of this case, as gleaned from the affidavit, depositions, and pleadings, indicate that the plaintiff at the time of the injury had been employed by the Missouri Pacific Truck Lines. He was employed as a truck driver doing work on the defendants ramp at Mitchell, Illinois. He operated a “ramp tractor” used to load and unload “piggy-back” trailers on and off railroad cars. On the date of the injury, as he was preparing to get into the tractor on the driver’s side, he stepped up onto the running board with his right foot, which slipped out from under him. As he fell, his kneecap struck the running board which was wet with gas that had spilled from the gas tank, which was located above and in close proximity to the running board.

The plaintiff was hired by the Missouri Pacific Truck Lines. He received his wages from the truck line. He worked under the provisions of a contract between the truck line and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 600, of which the plaintiff was a member. He was covered by the Social Security Act and the Fair Labor Standards Act and was not covered by the Railroad Retirement System. The “ramp tractor” was owned by the truck line. Pursuant to contract, the service work on the tractors was done at a local service station and billed to the defendant.

The plaintiff received his orders from the truck line’s dispatcher. None of the defendant’s employees ever told the plaintiff what to do or how to do it. The plaintiff did testify in his deposition “I suppose, if the yardmaster or someone did tell me something on how to do it; probably better to do, let’s put it that way, but there’s never been anyone.”

Mr. Lloyd Ledesky, the assistant dispatcher for the truck line, substantiated that the defendant’s yardmaster never directed any truck line personnel and that the yardmaster never told Mr. Ledesky which trailers must go on and off. The only time that defendant’s employees were in the truck line ramping area is when there is trouble with the stanchions, which hold the trailers on the railroad car, and the railroad employees would have to take a torch and cut the stanchion. No employee of the defendant had any responsibility for unloading the trailers nor did any employee directly supervise the work on any basis. The authority to hire and fire employees rested with the truck line.

Upon occasion officials from the truck line and the defendant would visit the ramp site and discuss the operations with the dispatcher. Mr. Ledesky testified that he felt that these officials could indicate to him something could be done differently and then the officials of the truck line would discuss the matter considering the suggestions and then do it to their own satisfaction.

The work at the Mitchell ramp was performed pursuant to a contract between the defendant and the truck line dated January 2, 1968. The contract provided, among other things, that the defendant would pay based on an hourly rate for the workers at the ramp site, that the workers were to be the sole employees of the truck line which was to remain an independent contractor. It also provided that the truck line would operate in the area as an “agent” for the defendant.

The truck line was to collect and pay over to the defendant all charges on freight and furnish the defendant with receipts. The freight not paid for was to be returned to the defendant. Any violations of the collection provisions subjected the truck line to liability to the defendant for the freight charges which the defendant could deduct from the amount due to the truck line.

The contract also provided that the truck line could not assign or sublet any interest in the contract without the defendant’s written approval. No such limitation existed for the defendant, who could terminate the contract at any time it felt the truck line’s service was unsatisfactory. The truck line could terminate the contract on 30 days notice.

The truck line also agreed in the contract to indemnify the defendant for any type of claims and obtain insurance to cover all liabilities for claims arising from employer’s liabilities or workmen’s compensation laws.

The basic equipment used at the ramping operation was the ramp tractor, an electric “gun” or wrench, a breaking bar and a small crank. The ramp tractor was owned by the truck line and maintained by the defendant. The ownership of the “guns” or wrenches is uncertain, the breaking bar and small cranks were devised on the job. The breaking bars were fabricated at a shop of the truck line in Dupo, Illinois.

The defendant supported its motion for summary judgment with the affidavit of Mr. A.M. Petrillo, general manager of safety and employee relations for the truck line, the plaintiffs deposition, Mr. Ledesky’s deposition, and a copy of the contract between the defendant and the truck line. The plaintiff did not file counter-affidavits or offer evidence in opposition to defendant’s motion.

Illinois law is quite clear that the purpose of summary judgment proceedings is not to try facts, but to determine whether a genuine issue exists as to any material fact which would require a trial. (Commercial Products Corp. v. Briegel (1968), 101 Ill.App.2d 156, 242 N.E.2d 317; Jones v. Lukas (1970), 122 Ill.App.2d 162, 258 N.E.2d 147.) If pleadings, discovery depositions and exhibits present a genuine issue as to any material fact, summary judgment- should not be granted. (Watkins v. Lewis (1968), 96 Ill.App.2d 182, 237 N.E.2d 830; Morris v. Anderson (1970), 121 Ill.App.2d 169, 259 N.E.2d 601.) If, on the other hand, the record shows there is no triable issue of fact or only legal issues need to be resolved, summary judgment wiE be granted. Galiher v. Spates (1970), 129 Ill.App.2d 204, 262 N.E.2d 626.

The determinative issue which faced the trial court and is presented here for review is whether there was a genuine issue as to the plaintiff’s employment status under F.E.L.A. Whether one is an employee of the railroad under this chapter is normally a question of fact to be determined by the facts of each case, but if reasonable men could not reach differing conclusions on that issue, the question should not be submitted to the jury. (Valentine v. South Coast Corp., 218 F.Supp. 148 (E.D. La. 1963) affd, 334 F.2d 244.) In Eght of recent decisions presenting the same issue and nearly identical factual situations, and the interpretation given the term “employee” within the meaning of the F.E.L.A., we believe reasonable men could not reach differing conclusions on this issue of employment.

The case which most clearly supports our conclusion and presents a nearly identical fact situation is Fawcett v. Missouri Pacific R.R. Co. (W.D. La. 1963), 242 F.Supp. 675, affd (5th Cir. 1965), 347 F.2d 233, cert, denied, 382 U.S. 907. It involved a suit by the plaintiff under F.E.L.A. against the Missouri Pacific Railroad for the death of her husband.

Defendant moved for summary judgment on the basis that the deceased was not its employee at the time he was killed. Thus, the sole question presented for review was whether a genuine issue of fact existed with respect to this contention. A hearing was held to afford petitioners an opportunity to prove the existence of a factual dispute. The record revealed that at the time of his death, the deceased was not, nor was he ever, in the employ of the defendant. His regular employment was with the Missouri Pacific Truck Lines, which had a contract with defendant under which it transported freight over the highways rather than by raff. The court found, at 677, that:

“At the time of his death (1) Fawcett was not hired by the railroad; (2) he was not on the rafiroad payroll; (3) he was not, in fact, paid by the railroad; (4) he was not subject to discharge by the railroad; (5) he was upon the railroad premises, but these premises were the subject of a lease agreement between the railroad and Fawcett’s employer; (6) he was not using the railroad’s tools; (7) the railroad furnished no material; (8) he was not doing work the rafiroad was required to do. His work consisted of loading and unloading which the consignor would otherwise do, in assisting in the transport of freight by highway transport for which the railroad was not licensed to do; (9) none of the railroad’s employees were present at the time Fawcett met his death; and (10) none of the railroad employees had any supervision of Fawcett or his supervisors.”

“Considering the pleadings, the affidavits, the exhibits and the testimony most favorable to the plaintiff”, the court stated at 678, “we conclude that the deceased was not an employee of the defendant at the time he met his death. To my fallible judgment, this is so clear that no reasonable man could differ with this conclusion. Therefore, summary judgment should be granted.”

The record in the case at bar reveals that Williams was not, nor was he ever in the employ of the defendant. His regular employment was also with the Missouri Pacific Truck Lines which had a contract with defendant under which it loaded and unloaded “piggyback” trailers from defendant’s railroad cars. At the time of his injury Williams was not hired by the railroad; he was not on the railroad payroll; he was not, in fact paid by the railroad; he was not subject to discharge by the railroad; the only tools used were the tractor supplied by the truck lines, breaking bar and crank devised by the men on the job, and electric “guns” and speed wrenches of uncertain origin; the railroad furnished no other material except a trailer used by the truck lines as an office; he was not doing work the railroad was required to do, but work the truck lines was required to do pursuant to its contract with the defendant. His work consisted of loading and unloading “piggyback” trailers from defendant’s railroad cars pursuant to the contract; none of the railroad’s employees were present at the time Williams injured his knee; and none of the railroad employees had any supervision of Williams or his supervisors. In light of this evidence and the court’s holding in Fawcett, it is clear that no reasonable man could differ with the conclusion that Williams was not an employee of the railroad. See also Turpin v. Chicago, Burlington & Quincy R.R. Co. (Mo. 1966), 403 S.W.2d 233 and Phelps v. Missouri-Kansas-Texas R.R. Co. (Mo. 1968), 438 S.W.2d 181.

Of equal importance in supporting our conclusion are those cases which have indicated how the terms “employee” and “employed” are used in § 51 of the F.E.L.A. The United States Supreme Court has held that this section does not use these terms in any special sense, but does use them to describe the conventional relation of employer and employee, so that the familiar general legal problems as to whose employee or servant a worker is at a given time present themselves as matter of Federal law under said Act. (Baker v. Texas & Pacific Ry. Co., 359 U.S.

227; Hull v. Philadelphia & Reading Ry. Co., 252 U.S. 475.) And where a question arises as to what the real relationship between parties is, the employer will, in the final analysis, be the one whose work is being performed and who has the power of control over the work and the employee. (Downs v. Baltimore ir Ohio R. Co., 345 IILApp. 118, 102 N.E.2d 537.) Within the purview of the F.E.L.A., workmen employed primarily by someone else, an independent contractor, can only be considered employees of the railroad if they were under the direction, supervision, and/or control of the railroad or its employees; and, where the railroad retains no control over the details of the work, they do not become employees of the railroad. (Fawcett, supra; Chicago, Rock Island ir Pacific Ry. Co. v. Bond, 240 U.S. 449; see also Steinman v. Pennsylvania R.R. Co. (3d Cir. 1932), 54 F.2d 1052.) As we have already indicated, the pleadings, depositions, affidavit and exhibits clearly show that at the time of his injury, Williams was doing work required of the truck lines pursuant to its contract with the defendant. And furthermore the evidence shows that Williams was under the direct control and supervision of the dispatcher Ledesky, also an employee of the truck lines.

The authorities cited by the appellant do not support his argument against summary judgment. In each of the cases cited by the appellant there was evidence of direct control and supervision of the petitioners and their work by the railroad. Contrary evidence was presented by petitioners such that material issues of fact were presented. The only indication of railroad supervision in the cases at bar was testimony by deposition of Williams and Ledesky to the effect that, if someone from the railroad told them to do something, they would do it. Ledesky’s testimony showed that normally any directions from the railroad took the form of discussions as to how to do the work better. However, this has been shown to have no effect on an existing independent contractor relationship. In Orange v. Pitcairn, 280 Ill.App. 566, the court stated at 572 that:

"[Where the railroad does] not retain the right to direct the method of work, or the manner in which it should be done, but only the authority to supervise, to the extent of assuring its performance in accord with the covenants of the contract 000 the relation thus created is that of independent contractor and not master and servant.”

And according to the court in Okolinsky v. Philadelphia Bethlehem & New England R.R. Co. (E.D. Pa. 1959), 179 F.Supp. 801, appeal dismissed 282 F.2d 70, at 805:

“The mere fact that the injured person may have received directions from the railroad with respect to some aspects of his work will not constitute him a railroad employee.”

We have concluded that the defendant contracted with the truck lines to load and unload “piggyback” trailers as an independent contractor, that nothing was done to impair that relationship, and that plaintiff remained solely the employee of the truck lines. We further hold that on this evidence reasonable minds could not differ and that the trial court properly sustained defendant’s motion for summary judgment.

The judgment of the trial court is affirmed.

CREES and JONES, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Leo Clutter, Defendant-Appellant.
    (No. 72-265;
    Fifth District —
    August 3, 1973.
    Kenneth L. Jones, District Defender, of Mt. Vernon, for appellant.
    No brief filed for the People.
   PER CURIAM.


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andrew Redmond, Defendant-Appellant.
    (No. 57107;
    First District (5th Division) —
    July 13, 1973.

      James J. Doherty, Public Defender, of Chicago, (Ian Levin, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Ronald Neville, Russell Hartigan, and Doug Cannon, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED

Aggravated battery. Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b—1) (two counts).

Armed robbery. Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2.

Indecent liberties with a child. Ill. Rev. Stat. 1969, ch. 38, par. 11 — 4 (a — 2).

Deviate sexual assault. IH. Rev. Stat. 1969, ch. 38, par. 11 — 3.

Attempt. Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4.

JUDGMENT

At a bench trial, defendant was found guilty of one count of aggravated battery, armed robbery, indecent liberties, and deviate sexual assault. He was sentenced to concurrent terms of 4 to 8 years for aggravated-battery, 10 to 15 years for armed robbery, 12 to 20 years- for indecent liberties with a child, and 6 to 12 years for deviate sexual assault. Defendant was found not quilty of attempt and one count of aggravated battery,

CONTENTIONS RAISED ON APPEAL

1. The evidence presented by the State and defense raised a reasonable doubt of defendant’s sanity, and the State failed to overcome the doubt by proof of sanity beyond a reasonable doubt.

2. Defendant was deprived of due process of law and a fair trial when the judge applied an erroneous legal standard to determine that defendant was proven sane beyond a reasonable doubt at the time the acts were committed.

3. It was error to convict and sentence defendant for three separate crimes arising from the same conduct and involving the same victim. EVIDENCE

Douglas Westcott, for the State:

He was 12 years old at the time of the trial and at the time of the offense. He knew the difference between right and wrong, that difference being to tell the truth is right and to teU a lie is wrong.

At 11:45 A.M. on April 7, 1971, he and his friend, Paul Rumsfield, boarded a southbound elevated train in the downtown area on their way to the Museum of Science and Industry. About ten minutes after boarding the train, defendant, whom he identified in court, approached him and asked if he had any money. He said he had a little and defendant told him to give him some. The witness gave him a dollar and defendant then asked Paul if he had any money. Paul said no, so defendant came back to the witness and asked if he had any more. The witness said yes, but he needed it to get back home. Defendant then took out a knife and the witness gave him the last dollar he had. Defendant then, while standing in front of the witness, unzipped his pants and, with the knife at the back of the witness’ neck, twice forced him to commit a deviate sexual act. At about that time, two police officers came into the moving car, took defendant by the shoulder, and pushed him down on the opposite seat. They took out guns and identified themselves as police before defendant dropped the knife. The train was stopped, and defendant, the officers, the witness and his friend got off and went downstairs where defendant was handcuffed and put up against a fence, then taken to a police car and to the station. There were about 15 people in the car at the time of the incident.

Paul Rumsfield, for the State:

He was 13 years old at the time of the occurrence. He knew the difference between telling the truth and telling a lie. A lie was other than what was right, and the truth was what really happened. He corroborated the testimony of Douglas Westcott and identified defendant in court. At the time of the incident, defendant did not appear to be drunk or inebriated nor under the influence of drugs.

Police Officer Ernest Robinson, for the State:

He was with the special operations, mass transit unit. On April 7, 1971, at about noon, he and his partner were riding a southbound elevated train in the third car of a four-car train. At about 43rd Street, he looked into the last car and observed defendant standing in front of Douglas Westcott who was seated facing defendant. Defendant had his right hand behind Westcott’s head and his left hand on his own penis. When he saw what was happening, he entered the fourth car behind defendant, caught him by the right shoulder, and spun him away from the victim. At that time he noticed the knife in his hand, and disarmed him after he disobeyed orders to drop the knife. Defendant was placed in custody, taken to the police station, and searched, but no money was found in his possession. The witness did not notice any odor of alcohol on defendant’s breath, but defendant didn’t act quite normal. He moved slowly, and if he said anything at all, it was erratic. After he was handcuffed, there was no struggle, he seemed cooperative and coherent, and seemed lucid and aware of what was going on around him.

Police Officer James Dvorak, for the State:

He was assigned to area 1, homicide-sex. On April 7, 1971, he met defendant while conducting an investigation of an occurrence at noon that day on an elevated train. After advising him of his rights, he asked defendant if he wished to state anything regarding the incident, and defendant replied, “I just lost my mind.”

Andrew Redmond, defendant, on his own behalf:

On April 7, 1971, he was arrested by the police. On that day the spirits and the voices told him to play with little boys. He didn’t remember which spirits and voices, they were just voices and spirits that he heard which told him to play with little boys. He had never heard from them before and couldn’t remember if he obeyed their request. The first thing he remembered after the spirits talked to him was being arrested. He could have been under the influence of “emphatamin.”

Defendant was able to identify people in the courtroom and understood their role in the case. He knew and understood the nature of the charges against him.

OPINION

Defendant argues that the evidence presented by the State and the defense raised a reasonable doubt of defendant’s sanity at the time of the offense and that the State failed to prove defendant sane beyond a reasonable doubt. We agree.

Ill. Rev. Stat. 1969, ch. 38, par. 6 — 2(a) defines insanity as follows:

“A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.”

Insanity is an affirmative defense (Ill. Rev. Stat. 1969, ch. 38, par. 6 — 4), which “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.” (Ill. Rev. Stat. 1969, ch. 38, par. 3 — 2(a).) From the facts of the case, it is clear that both the State and defense have presented “some evidence” which raises the issue of defendant’s possible insanity at the time of the offense. Not only did Officer Robinson testify that defendant didn’t act quite normal and used erratic speech patterns, but another State witness, Officer Dvorak, said that defendant told him he’d just “lost his mind” at the time of the incident. Defendant’s testimony alone concerning voices and spirits would be sufficient in itself to raise “some evidence” of insanity.

It is axiomatic that the law presumes all men to be sane. (People v. Groves, 100 Ill.App.2d 171, 241 N.E.2d 622). However, the presumption of sanity may be overcome and the affirmative defense of insanity raised if the evidence itself portrays serious mental defects or a substantial history of mental illness. People v. Lono, 11 Ill.App.3d 443, (N.E.2d). Once the defense has been raised, the presumption of sanity ceases and the State must prove beyond a reasonable doubt that at the time of the crime, defendant was legally sane. (Ill. Rev. Stat. 1969, ch. 38, par. 3 — 2 (b) and People v. Gold, 38 Ill.2d 510, 514, 232 N.E.2d 702, cert, denied 392 U.S. 940.) This, the State has failed to do. The record is totally devoid of any medical conclusions concerning defendant’s mental state at the time of the offense. Although the arresting officer testified that defendant cooperated and appeared lucid after he was handcuffed, he also testified that defendant spoke erratically and didn’t seem normal. Thirteen-year-old Paul Rumsfield said defendant didn’t appear drunk or under the influence of drugs. Their testimony alone, however, is insufficient to show sanity beyond a reasonable doubt. Thus, in the absence of professional or lay opinions sufficient to rebut defendant’s affirmative defense of insanity, the State failed to meet its burden of proving beyond a reasonable doubt that defendant was sane at the time of the offense. See People v. Taylor, 1 Ill.App.3d 1053, 275 N.E.2d 717.

Not only did the State fail to meet its burden of proof in this regard, but the judge erred when he based his decision on the standard for competency to stand trial rather than on the standard for sanity as a defense to the crime charged.

The record discloses that following defense counsel’s closing argument, the trial judge made the foHowing remarks:

“The Court: Mr. Redmond, step up.
The Court finds, as a matter of law, that the defendant, Andrew Redmond, is today and was on April 7, legally competent.
The Court wfll point out to both counsel here and place in the record that on motion of the Court, on July 7, 1971, this defendant was ordered examined by the Psychiatric Institute of the Circuit Court of Cook County, for the purpose of making a determination as to the mental competency of this defendant, and that in a report which has been filed and was filed on July 16, 1971, the Psychiatric Institute, Mr. Robert E. Reifman, the assistant director, reported to the court and in the response stated that his examination revealed that the defendant was competent to stand trial and that he understands the nature and purpose of the proceedings and is able to assist in his own defense, which are the legal re quirement [sic] which must he met in order for a defendant to stand trial in this State. (Emphasis added.)
The Court feels that the People of the State of Illinois have proven their case beyond a reasonable doubt.”

There is nothing in the record to cast doubt on defendant’s competency to stand trial. The standards therefor are set forth in the statute (Ill. Rev. Stat. 1969, ch. 38, par. 104 — 1) defining a person who is incompetent to stand trial as “a person charged with an offense who is unable because of a mental condition:

(a) To understand the nature and purpose of the proceedings against him; or

(b) To assist in his defense; * ® ®”

(See also Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1.) Further, there is no doubt that the Psychiatric Institute was reporting only on that phase of the case. But a hearing is not intended to be a determination of defendant’s sanity at any time other than at the time defendant is being tested, nor does it relate in any substantial way to insanity as a defense to the crime charged.

When a defendant raises the defense of insanity, an entirely different set of standards must be applied to determine if at the time of the act “as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1969, ch. 38, par. 6 — 2(a).

Thus, when the judge stated that defendant was “competent” on April 7, 1971, the day of the offense, and, in so stating, relied on the psychiatric report which determined only defendant’s competence to stand trial in July, 1971, and not his capacity to appreciate the criminality of his conduct at the time of the crime, he was applying an erroneous standard which had no bearing on the defense raised.

Finally, defendant maintains that it was error to convict and sentence him for indecent liberties with a child, deviate sexual assault, and aggravated battery because all three arose out of the same conduct.

Defendant was charged under Ill. Rev. Stat. 1969, ch. 38, par. 11 — 4 (a — 2) which states:

“(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
# # #
(2) Any act of deviate sexual conduct.” (Emphasis added.)

He was also charged with deviate sexual assault. III. Rev. Stat. 1989, ch. 38, par. 11 — 3 provides:

“(a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct, commits deviate sexual assault.” (Emphasis added.)

Since deviate sexual conduct is an element of both indecent Mberties with a child and deviate sexual assault, in this case arising from the same course of conduct, and since, at the time of the offenses in question, the penalty for deviate sexual assault was the lesser of the two, we would consider it as having been merged into the indecent Hberties charge for purposes of sentencing. See People v. Baker, 114 Ill.App.2d 450, 456, 252 N.E.2d 693.

Furthermore, the use of force, which in this case constituted an element of aggravated battery, occurred when defendant placed the knife to the victim’s neck. Since the knife was used both to force the commission of indecent liberties (which does not require but may be committed with force), and was at the same time the deadly weapon being used to commit the offense of aggravated battery, this element of defendant’s criminal conduct was identical in both instances, and sentences for both would not stand. People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293; People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Baker, 114 Ill.App. 2d 450, 456, 252 N.E.2d 693.

In conclusion, therefore, aH four convictions are reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER, P. J., and LORENZ, J., concur.

         There is, however, a strong letter of opinion by Dr. C. David Jones, Staff Psychiatrist for the Cook County Department of Corrections, read into the record by the judge during the hearing in aggravation and mitigation. Although the examination by the doctor was not ordered until after the trial and does not refer to defendant’s mental condition at the time he committed the crime, it would serve as a basis for future investigations of defendant’s psychological background.

       In reply to defendant’s argument, the State ignores the affirmative defense and maintains that “defendant failed to raise a reasonable doubt as tc defendant’s sanity to rebut the presumption that he was sane at the time of the robbery.” We believe this assertion misconstrues the law. As we mentioned above, to raise an affirmative defense of insanity, it is only “some evidence” of defendant’s insanity which must be presented to shift the burden of proof to the State to prove defendant’s sanity beyond a reasonable doubt. Ill, Rev, Stat. 1969, ch. 38, par. 3 — 2(a).


author: Mr. JUSTICE DOWNING

text:
    Greenlee Foundries, Inc., Plaintiff-Appellee, v. Richard J. Kussel et al., Defendants-Appellants.
    (No. 58273;
    First District (2nd Division) —
    July 17, 1973.

      David K. Anderson, of Skokie, for appellants.
    Finn, Van Mell & Penney, of Chicago, (Norton L. Penney, of counsel,) for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff brought actions against defendants in the circuit court of Cook County to recover damages occasioned by defendants’ alleged violations of lease provisions, for whose performance plaintiff was responsible as a guarantor of defendants’ obligations under the lease. Defendants filed answers and an affirmative defense of impossibility of performance by reason of commercial frustration. The court below, sitting without a jury, entered a judgment for plaintiff in the amount of $8,048.82, and costs. Defendants appeal.

On March 8, 1962, defendant Casting Masters, Incorporated (hereinafter New Casting Masters) entered into a ten year1 lease, as lessee, for the use of premises located at 2640 West Wilcox Avenue on Chicago’s west side; the owner of the building at that time was Casting Masters, Inc. (hereinafter Old Casting Masters), whose corporate stock was controlled by Richard and Maurice Dunne. Simultaneously with the execution of the lease, plaintiff Greenlee Foundries, Inc. (hereinafter plaintiff) purchased all the stock in New Casting Masters, the lessee, and also executed a written guarantee for the payment of rent and the performance of all the lessee’s obligations under the March 8, 1962 lease.

Prior to March 8, 1962, Richard and Maurice Dunne controlled not only the Old Casting Masters stock, but the stock of New Casting Masters as well. The Dunne brothers sold all the stock in the last-mentioned company to plaintiff on March 8, 1962, and stayed on as employees at New Casting Masters beyond the date of sale to plaintiff; they later dissolved Old Casting Masters, distributing its asserts to the company’s shareholders.

On January 22, 1965, defendant Kussel (then an employee of plaintiff) purchased from plaintiff all New Casting Masters stock, and, in addition, by written agreement, Kussel personally guaranteed all New Casting Masters’ obligations under the March 8, 1962 lease. Simultaneously with the transactions between plaintiff and Kussel, defendant Stephani, by written agreement on January 22, 1965, personally guaranteed the performance of all Kussel’s and New Casting Masters’ obligations under the subject lease.

New Casting Masters was in the business of casting and molding metals for industrial use and operated its business on the premises at the West Wilcox Avenue address, an area characterized at the time of the execution of the lease by light-industrial businesses. A riot erupted in the area of the subject property in mid-year, 1966, bringing with it a high degree of tension and the destruction of property. When the rioting began, and immediately thereafter, the company had difficulty with absenteeism in the ranks of its employees, who, at that time, numbered about 16; some night-crew employees refused to work their shifts, and some day-crew workers stayed away as well. By October, 1967, eight or nine of the company’s employees had quit work altogether, dropping the number of steady employees to about eight, and the company’s production schedule fell off.

In June, 1967, New Casting Masters claimed roughly 25 customers; in October of that year, 19 or so; and in January, 1968, the number had dropped to about 15. The gross sales figures for the company in 1966 were $143,200.26; in 1967, $124,751.55; and in 1968, $66,527.67.

Prior to June, 1967, defendant Kussel commenced construction of a new building on Oakton Street in Elk Grove Township in the suburban area of northwest Cook County. In January, 1968, the company began moving its business from the subject premises to the new location on Oakton Street. The move was completed in mid-year, 1968. Prior to the completion of the move, in April, 1968, intensive rioting occurred in the area of the company’s leased premises at the Wilcox Avenue address, brought on in great measure by the assassination of Dr. Martin Luther King, Jr. on April 4 of that year. During the period of rioting in April, 1968, New Casting Masters shut down its operations for four or five days.

The March 8, 1962 lease contained a provision permitting either party to terminate the lease upon 30 days written notice should the premises become wholly -untenantable. Without giving notice of termination of the lease under that provision, New Casting Masters abandoned the building, which abandonment was fully accomplished in mid-year, 1968, when the company was operating at full volume in its new premises on Qakton Street in Elk Grove Township. From May, 1968 forward, plaintiff— recognizing its responsibility as guarantor of the defendants’ performance under the March, 1962 lease — began making rental payments for the subject premises; New Casting Masters and the individual defendants herein, Kussel and Stephani, failed to make rental payments or provide insurance after April, 1968, and failed to pay the 1967 real estate taxes.

The issues presented for review are these: first, whether the doctrine of commercial frustration is the law of Illinois and applicable to the case at bar; second, whether the judgment of the court below is against the manifest weight of the evidence presented there; and third, whether the conduct of the trial by defendants’ trial counsel was so grossly inadequate as to deny defendants due process of law.

I.

It is defendants’ contention that by reason of the radical changes in the conditions in the area of the subject premises, occasioned by the sudden, unforeseen urban rioting referred to above, defendants were relieved of their obligations under the March 8, 1962 lease by virtue of the doctrine of “commercial frustration,” a variant of the contract doctrine of impossibility of performance. Defendants urge that the devastating effects the rioting had upon the general state of affairs and property values on Chicago’s west side near the building on Wilcox Avenue were not contemplated when the lease was entered into March 8, 1962. Thus, it became impossible, New Casting Masters claims, to maintain its production schedule, to retain its employees, to meet its customers’ delivery requirements, and to draw its customers into the area to do business.

Plaintiff’s response to these arguments is threefold: first, that the doctrine of commercial frustration is not applicable to leases of real estate, and further, that the application of the doctrine in cases involving leases is against the public policy of Illinois; second, that regardless whether the doctrine is not applicable to leasehold agreements in Illinois, the facts adduced below in the instant case preclude the doctrine’s application here, since there was no showing in the trial court of total or near total destruction of the purposes of the lease agreement, which is required to successfully invoice the doctrine; and, finally, third, that no American cases can be found wherein the doctrine of commercial frustration was invoked successfully on grounds such as those relied upon in the case before this court, to wit: interference with the enjoyment of the demised premises by reason of race riots and racial disturbances.

Relatively few cases in Illinois have discussed the doctrine of commercial frustration, or “frustration of contract,” which, historically, grew out of circumstances which had given rise to die contract defense of impossibility of performance. Those circumstances presented themselves traditionally where the subject matter of a contract had been destroyed, or where contract performance had been rendered impossible by reason of the non-existence of one who was to perform, or where the performance envisioned by the parties to the contract had been rendered illegal by a change in law subsequent to the making of the contract.

In Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 64 N.E.2d 477, the question was whether the defendant therein was liable under a lease to pay rent during the time that exclusive possession and temporary use of the demised premises had been taken by the government, under the power of eminent domain, and appropriated to military and war purposes. This State’s Supreme Court in Leonard made it clear that, with regard to the construction and enforcement of contracts, it is the well established and general rule that where parties, by their own contract and positive undertaking, create a duty or charge upon themselves, they must abide by the contract and make the promise good, and subsequent contingencies, not provided against in the contract, which render performance impossible, do not bring the contract to an end. Leonard, at page 187; citing Deibler v. Bernard Bros., Inc. (1944), 385 Ill. 610, 53 N.E.2d 450; and other cases.

After discussing several exceptions to the enunciated general rule, the Leonard court undertook, at pages 187-188, to analyze the commercial frustration doctrine:

“The doctrine of frustration is an extension of this exception [that the destruction of the person or thing shall excuse the contract performance] to cases where the cessation or nonexistence of some particular condition or state of things has rendered performance impossible and the object of the contract frustrated. It rests on the view that where from the nature of the contract and the surrounding circumstances the parties when entering into the contract must have known that it could not be performed unless some particular condition or state of things would continue to exist, the parties must be deemed, when entering into the contract, to have made their bargain on the footing that such particular condition or state of things would continue to exist, and the contract therefore must be construed as subject to an implied condition that the parties shall be excused in case performance becomes impossible from such condition or state of things ceasing to exist. [Citations.]”

The defense of commercial frustration was rejected by the Leonard court on two grounds: first, that the contract involved was a contract of lease; and second, that the possession by the government did not extend throughout the remainder of the lease period, precluding, therefore, a total frustration of the lessee’s possible enjoyment of the premises. Leonard, at pages 191-195.

Deibler v. Bernard Bros., Inc., a 1944 Illinois Supreme Court case cited by the Leonard court, involved the lease of an automobile sales building by an automobile dealer in 1940. Subsequent to the making of the lease, the Federal Director of Priorities limited, and, in some respects, prohibited, the manufacture and sale of automobiles generally throughout the country. The defendant in Deibler contended that the only purpose for which the premises could be used, under the lease, was the sale of new automobiles, and that because of the Federal Directors action, the lease had been rendered impossible of performance, which terminated the contract as a matter of law. The court rejected those contentions, stating that defendant could have made lawful use of the premises in any way it saw fit, but chose, instead, to abandon the premises, attempting to make no use thereof. Before holding defendant to the payment of rent under the lease, the court commented at pages 616-617:

“The general doctrine is well settled that when a party contracts to do a thing without qualification, performance is not excused when, because of inevitable accident or other contingency not foreseen, it becomes impossible for him to do that which he agreed to do.
Here there is no claim that it was impossible for [defendant] to continue the business, or that any business for which it had the right to use the demised premises had become unlawful. The only claim is that [defendant’s] business had been rendered more difficult and, perhaps, less profitable by the restrictions imposed upon that particular business.
It would certainly be an innovation to establish a rule that all lessees, affected in the same way, were relieved from the obligations of their leases.”

In 1956, this court decided Warshawsky v. American Automotive Products Co. (1st Dist. 1956), 12 Ill.App.2d 178, 138 N.E.2d 816, and there, again, a commercial frustration defense was interposed and rejected. The theory in Warshawsky was based upon a situation complained of by a lessee, viz.; that it was iUegal for the lessee to occupy the leased premises for the purposes intended, owing to prohibitions in a zoning ordinance, whose existence was unknown to the lessee prior to entry into the lease. In explaining its reluctance to apply the doctrine of frustration of contract, the court said, at page 188:

“The general rule is that performance of a contract is not excused because subsequent and unanticipated events have deprived it of its value, even though the subsequent event is an act of legislation. [citing Deibler and Leonard.] The doctrine of commercial frustration is an exception to that rule. That doctrine is not applicable here because the zoning ordinance in question was in existence at the time of the making of the lease.
In our opinion the question under consideration is more nearly analagous (sic) to those cases in which a lease is restricted to a use legal in itself but with respect to which the law requires a license or permit.”

Finally, in Olson v. Carbonata (1st Dist. 1959), 21 Ill.App.2d 69, 157 N.E.2d 273, heavily relied upon by defendants in the case at bar, this court saw fit to apply the doctrine under discussion. The situation in. Olson was this: an International labor union, affiliated with the AFL-CIO, granted a charter membership to a local labor group in Chicago. Subsequent to the issuance of the local’s charter, the AFL-CIO expelled the International which had issued that charter, prompting the local to disaffiliate itself from the expelled International. A suit was filed based upon a clause in the International’s constitution which provided that a member local’s assets would revert to the ownership of the International upon a local’s disaffiliation. The Olson court, in holding that the contract involved had been frustrated by the International’s expulsion from the AFL-CIO, found that both the International labor union and the affiliated local must have known, when the contract (charter) between them had been executed, that the contract could not be performed as intended unless the International continued in affiliation with the AFL-CIO.

After a careful reading of the cases mentioned, as well as a reading of numerous other cases and sources to which we referred in our analysis, we find that the doctrine of commercial frustration, while clearly a viable doctrine in this State, is inapposite to the cáse before us.

In Lloyd v. Murphy (Cal. 1944), 153 P.2d 47, California’s Supreme Court dealt with the doctrine under scrutiny here in a case involving a lease which had as its sole purpose displaying and selling new automobiles on the leased premises. Subsequent to the execution of the lease in Lloyd, the federal government ordered the sale of new automobiles discontinued, and defendant therein contended that the purpose for which the premises were leased had been frustrated by the restrictions promulgated by the government. The Lloyd court, in affirming the trial court’s decision that war conditions had not terminated defendant’s obligations under the lease and requiring defendant to pay the unpaid rent for the premises, said, at page 50:

“The doctrine of frustration has been limited to cases of extreme hardship so that businessmen, who must make their arrangements in advance, can rely with certainty on their contracts. [Citations.] The courts have required a promisor seeking to excuse himself from performance of his obligations to prove that the risk of the frustrating event was not reasonably foreseeable and that the value of counterperformance is totally or nearly totally destroyed, for frustration is no defense if it was foreseeable or controllable by the promisor, or if counterperformance remains valuable. [Citations.]”

We find defendants in the case at bar have not met either of the tests set forth in Lloyd needed to give rise to the successful interposition of the affirmative defense of commercial frustration. First of all, the purposes for which the lease in question was entered into by defendants were not totally, or nearly totally, frustrated, so as to render performance under the lease terms impossible. On the contrary, it is evident from a reading of the record that defendants continued their business operation, producing the same products, after the onset of what they feel to have been conditions which rendered their performance wholly impossible. The evidence presented to the court below showed, and we do not doubt, that some loss of business was occasioned by the conditions stemming from rioting in the area of the leased premises. But the change in the area was not so severe, so frustrating to defendants in legal terms, as to prompt defendants to retreat from their leasehold responsibilities and obligations and leave plaintiff to account therefor.

Defendants’ performance under the lease contract here involved was surely rendered more difficult and less profitable, but certainly not impossible or, for that matter, illegal.

Secondly, defendants here charged themselves with duties as guarantors of the lessee’s obligations pursuant to the March 8, 1962 lease, and they were, as reasonable men, in a position at that juncture to foresee the risks attendant to the operation of a business enterprise in an area with which they had gained familiarity over the years. In simple terms, at the moment defendants assumed their duties as guarantors, they knew what they were about, and cannot now be heard to complain.

II.

With respect to the second issue presented for review — whether the judgment of the court below is against the manifest weight of the evidence presented there — a court of review ordinarily will not disturb a decision rendered by a lower court, which is in a superior position to determine the credibility of witnesses and accord their testimony its proper weight. Manifest weight has been defined as “that weight which is; clearly evident, clear, plain and indisputable.” (Allen v. Yancy (1st Dist. 1965), 57 Ill.App.2d 50, 55, 206 N.E.2d 452, 454; citing Hocker v. O’Klock (2nd Dist. 1960), 24 Ill.App.2d 259, 164 N.E.2d 225.) We find, after a thorough review of the record, that the trial courts decision in the case at hand is supported by the evidence, rather than being against its manifest weight.

III.

Finally, defendants contend that the conduct of the trial below by defendants’ trial counsel was so grossly inadequate as to deny defendants due process of law. After a review of the record presented to us, we find that defendants’ contention has no factual basis in the record.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

STAMOS, P. J., and LEIGHTON, J., concur.

         It' is to be noted the record refers to riots which occurred in Chicago in 1964; that. on. January 22, 1965, defendant Kussel purchased the stock of New Casting Masters and on the same date, with defendant Stephani, personaly guaranteed all obligations under the lease of March 8, 1962.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Scott, Defendant-Appellant.
    (No. 55782;
    First District (3rd Division) —
    July 19, 1973.

      Rehearing denied August-15,1973.

      Gerald W. Getty, Public Defender, of Chicago, (Robert M. Gray and James N. Gramenos, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert C. Samko, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Shortly after midnight on February 7, 1970, a robbery took place in an office building located at 130 North Wells Street, Chicago. As John Tatum, a janitor, was vacuuming the carpet of the lobby, Leon Walker, another janitor, left the building by walking through a revolving door near where Tatum was working. After Walker’s departure the door continued to turn and Tatum looked up into a gun barrel. The gun was held by a man whom Tatum later identified as the defendant, Harry Scott. The intruder had a handkerchief over his mouth and was wearing a leather jacket and yellow slacks. An accomplice followed him into the lobby. A “holdup” was announced and Tatum was pushed into an elevator. Tape was placed over his mouth and eyes and his hands were secured behind his back. His money, watch and keys were taken.

At the same time Fred Yates, another janitor, was working in the basement of the building. Someone called for the elevator which was located there and Yates brought it up to the first floor. When he opened the door he saw a gun an inch from his face. He was shoved to the back of the elevator and turned around. His hands were tied and he was blindfolded and robbed. He was then transferred to the elevator in which Tatum had been placed and they were taken to the top floor of the building.

William Murray, a computer operator who was working in the building, was also robbed by two armed men. He and Roger Hoffman, also a computer operator, were led to the top floor and placed with Tatum and Yates. Later, the four freed themselves from their bonds and summoned the police.

Police officers responded to the call, spoke with Tatum, Yates, Murray and Hoffman and received a description of at least one of the robbers from Tatum. The investigation of the robbery was assigned to Detective Bernard Stahl. He discovered that Leon Walker had previously been arrested with Harry Scott (See People v. Scott & Walker (1968), 100 Ill.App.2d 473, 241 N.E.2d 579), and when he showed Tatum some photographs including one of Scott, Tatum identified Scott as one of the robbers.

Early on the morning of February 10th Stahl arrested Walker. He told Walker that Scott had been identified and that the police believed Walker was his confederate. Walker then stated that two or three days before the robbery he had discussed with Scott how simple it would be to “pull a stickup” at the building where he worked, and that on his way out of the building on February 7th he noticed Scott and another man near the door. He gave the police Scott’s address.

Immediately several detectives, including Stahl, went to that location, obtained a key from the desk clerk and entered Scott’s apartment unannounced. The officers awakened Scott, arrested him for the robbery and seized a quantity of checks from the top of the dresser opposite his bed. Several police officers were present when he was questioned at the police station. According to Stahl he made an oral statement confessing his participation in the crime.

Scott was indicted in separate counts for the armed robbery of Tatum and Yates. Prior to his trial, he moved to suppress the evidence taken from his apartment and the statement made after his arrest. The court denied both motions. The case was tried without a jury. At the conclusion of the trial the court acquitted Scott of the robbery of Yates but found him guilty of robbing Tatum. He was sentenced to serve from five to ten years in the penitentiary.

Scott advances many contentions in this appeal but we need not consider all of them as his conviction must be reversed because of trial errors. The principal error was the State’s failure to comply with the repeated mandate of Illinois reviewing courts that all material witnesses must be called to testify if a defendant claims his confession was coerced. At the hearing on the motion to suppress the statement he made after his arrest, Scott testified that when he was questioned at the police station Detective Stahl and three other officers were in the room with him. These officers were identified in subsequent testimony as Sergeant Kelly and Detectives Olsen and Utter. Scott asserted that when Stahl went out of the room a plastic bag was placed over his head to induce his confession; he was beaten in the stomach and lost consciousness. When he revived he was asked to sign a confession but he refused and was beaten again and again with fists and a stick and was knocked unconscious two more times.

The only prosecution witness to rebut this testimony was Stahl who denied Scott’s charges. Kelly, Olsen and Utter, the officers accused of the brutality (and who were named in the State’s fist of witnesses as witnesses to the oral statement), were not caUed to testify and their absence was not explained. In People v. Armstrong (1972), 51 Ill.2d 471, 282 N.E.2d 712, the defendant’s conviction was reversed because the prosecution failed to produce or explain the absence of aU the material witnesses to the making of his aUeged involuntary statements. The court, in holding that the statements were improperly admitted into evidence, cited an unbroken line of cases enforcing the rule that:

“* * * when the voluntary nature of a confession is brought into question by a motion to suppress, the State must produce all material witnesses connected with the taking of the statements or explain their absence. As was stated in People v. Wright (1962), 24 Ill.2d 88, 92, ‘The burden of proving a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden.’”

A second error of reversible magnitude pertains to the checks taken from Scott’s room. The checks were received in evidence over his objections that they were seized in violation of his constitutional rights and that no proper foundation had been laid for their admission into evidence. Scott’s arrest was based on probable cause and was valid. (Ker v. State of California, 374 U.S. 23, 10 L.Ed. 726. People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57.) The checks were in plain view close to his bed, their seizure was reasonable and the motion to suppress, and the objection on this ground renewed at the trial, were correctly denied. (Abel v. United States, 362 U.S. 217, 4 L.Ed.2d 668; People v. Barbee (1966), 35 Ill.2d 407, 220 N.E.2d 401.) Whether it was proper to admit the checks into evidence is another matter. The checks were imprinted with the names of the Amalgamated Meat Cutters’ Credit Union and Stanford D. Scott. There was testimony that some offices in the building at 130 N. Wells Street had been forcibly entered the night of the robbery but there was no testimony that checks were either stolen or missing from these offices. If the checks were stolen from the Wells Street building at the time the robbery was committed, their possession by Scott would have been evidence of his presence in that building. Evidence of a defendant’s commission of other crimes is admissible to estabish a material fact such as his intent, motive or identity. (People v. Dewey (1969), 42 Ill.2d 148; 246 N.E.2d 232; People v. Scott (1968), 100 Ill.App.2d 473, 241 N.E.2d 579.) However, before such evidence can be received it must first be shown that a crime actually took place and that the defendant committed it or participated in its commission. The checks tended to establish Scott’s commission of a separate crime, and the trial court, in its summation of the evidence at the conclusion of the trial, stressed Scott’s possession of the checks as proof of his guilt. In view of the lack of testimony that the checks were the property of the credit union and Stanford Scott or that they were stolen the night of the robbery from offices occupied by them, an inadequate foundation was laid for their admission and their reception into evidence and consideration by the court was prejudicial to the defendant.

There is no merit to Scott’s contentions that his conviction for robbing Tatum was inconsistent with his acquittal of the charge of robbing Yates, or that his in-court identification was induced by impermissibly suggestive pretrial identification procedures. As this case will be remanded for a new trial, other aUeged errors need not be considered since the subsequent proceedings are not likely to unfold in a manner identical with the first trial.

Scott argues, however, that his conviction should be reversed without remandment because the trial court erred in not discharging him under the “four term act” (Ill. Rev. Stat 1969, ch. 38, par. 103 — 5(a)) which provides that every person in custody shall be brought to trial within 120 days unless the delay is occasioned by the defendant himself. Scott was arrested on February 10, 1970. On March 16th the case was continued on his motion to April 2nd, which tolled the running of the statute and began a new period of 120 days. (People v. Stuckey (1967), 83 Ill.App.2d 137, 227 N.E.2d 135.) On August 26, 1970, he filed a petition for discharge which alleged that he was not responsible for any of the continuances granted after April 2nd. The case had been continued for six times between April 2nd and August 26th; three of these continuances were charged to Scott and three to the State. The three charged to Scott were those of June 8th, 16th and 17th; the three charged to the State were in July and August. Scott represented that he should have been tried on or before July 31, 1970, because the continuances in June were improperly charged to him. We will examine the proceedings on the three June dates to determine if the postponements were correctly attributed to Scott.

On June 8th Scott was indicted and was brought to court for arraignment. The judge informed him that his lawyer had not been heard from (the lawyer represented him at the preliminary hearing but had not been retained for the trial) and Scott remarked that he had not heard from him either. The judge inquired when he would have his lawyer in court and Scott responded: “I’ll try to have him in here next week.” The arraignment judge then continued the case until June 15th, “motion defendant.” It is impermissible to ascribe to a defendant, when he appears for arraignment without counsel, a motion for a continuance he did not make. (People v. House (1957), 10 Ill.2d 556, 141 N.E.2d 12; People v. Wyatt (1962), 24 Ill.2d 151, 180 N.E.2d 478.) In both House and Wyatt the continuances were suggested by the court so that the defendants’ lawyers could be present. The continuances were attributed to the defendants and this was held to be error. Scott did not request the continuance. He was not asked whether he wished to waive his right to counsel at arraignment or wished the services of the public defender so that he could be arraigned. In accordance with the decisions in People v. House and People v. Wyatt, the continuance of June 8th should not have been charged to Scott.

On June 15th Scott was arraigned, the public defender was appointed to defend him and the case was held on call by order of court until the following day. When the case was called on June 16th the trial judge to whom it had been assigned announced that it would be held until the next morning. There was a bit of confusion as to the attorney who represented Scott. When this was cleared up the assistant public defender, who was in the courtroom, asked that the case be held on call until the following morning so that “proper motions” could be filed. The assistant State’s attorney said “Fine,” and the court held the case until the 17th but, over the strenuous objection of his counsel, ascribed the postponement to Scott. In determining whether the postponement was properly ascribed to Scott, the criterion we must use is whether his request caused or contributed to a delay in the trial of the case. The facts in each case must be carefully examined to prevent a mockery of justice by either the technical evasion of a defendant’s right to a speedy trial or by his discharge when in fact a delay was caused by him. (People v. Fosdick (1967), 36 Ill.2d 524, 224 N.E.2d 242.) The public defenders suggestion that the case be held on call for a few more hours to enable him to file motions for discovery was a moderate request. To find that this request impeded the progress of the case would defeat the purpose of the statute by technical evasion. The court itself had held the case on call from June 15th to 16th and was going to hold it to the 17th. When the defense attorney made the same suggestion the prosecutor readily agreed. Holding the case to the 17th instead of continuing it to a later date expedited rather than retarded the trial. The discovery motion was filed and some objections to it were disposed of on the 17th — just two days after arraignment. Under these circumstances keeping the case on call overnight was not the type of delay for which the defendant should forfeit his right to be tried within the original 120-day period.

On June 17th, as we indicated above, the assistant State’s attorney objected to several of the items of information demanded in the discovery motion. The court sustained objections to 7 items, gave the State until July 1st to answer 14 others and charged the continuance to Scott. The following colloquy then took place:

The Court: “How much time do you need to answer?
Defense Counsel: I’ll be ready to file further motions when I hear the answer.
Prosecutor: Whatever the usual time to answer.
The Court: Two weeks. July 1st, without subpoenas. Motion State?
Prosecutor: Motion defendant.
The Court: Motion defendant, without subpoenas.
Defense Counsel: Mr. Scott, you understand your right to a speedy trial. Do you understand that each time you delay the proceeding the prosecutor has another four months to try you in? Do you understand?
Defendant: I understand the Fourth Term.
Defense Counsel: Do you wish to delay the proceedings today?
The Defendant: No, I do not wish to delay.
Defense Counsel: He does not wish to delay the date.
The Court: You’re the one that’s asking for certain items to be answered.
Defense Counsel: What constitutes a delay is up to you, Judge.
The Court: You’re asking that the State give you certain answers so you can prepare.
Defense Counsel: That’s right, Judge.
The Court: Therefore, it’s motion defendant. Without subpoenas, motion defendant, July 1st.”

Scott protests that he should not have been charged with a delay occasioned by the assertion of his right to discovery; that to so charge him would create an unjust conflict between his right to discovery and his right to be tried within 120 days.

The right to the information sought by the defendant and the right to a speedy trial were created for his own protection. In People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, the court dealt with the contention that the defendant was put in the dilemma of having to choose between his right to a speedy trial and his right to be represented by counsel of his own choice. It concluded that one right could not be balanced against the other in order to provide an avenue for the defendant to escape prosecution; a delay because his counsel was unable to appear at the time appointed for trial was properly charged to the defendant. This rationale is controlling in the present case, and we do not interpret the decision in People v. Nunnery (1973), 54 Ill.2d 372, 297 N.E.2d —, as dictating a different result.

In Nunnery, the defendant was arraigned on June 4, 1969, the 115th day of the 120-day statutory period. The public defender who was appointed to represent him filed a written motion for discovery. The State answered some of the matters in the motion and, after the assistant State’s attorney mistakenly informed the court that the statutory period would not expire for six more weeks, was given 15 days to answer others. The case itself was continued to June 12th. On June 12th the defendant moved for discharge for want of prosecution. He alleged that he had been in custody without a trial for more than 120 days and that he had not caused or contributed to the delay. His motion was granted.

The State appealed to the Appellate Court. It contended that the defendant’s motion for discovery necessitated the continuance allowed on June 4th and that it was properly charged to him. The defendant argued that he was not responsible for the delay, that the information he sought could have been supplied quickly and that the State itself was at fault because it incorrectly informed the court the end of the 120-day period was six weeks away. He further contended that if the delay were charged to him it would create an improper conflict between his statutory right to discovery and his constitutional right to a speedy trial. This court rejected the defendant’s arguments and held that the trial court erred in discharging him. People v. Nunnery (1972), 4 Ill.App.3d 217, 280 N.E.2d 537.

The Supreme Court allowed a petition for leave to appeal and concluded that the delay was not occasioned by the defendant. The court pointed out that he was not arraigned until 115 days after he had been taken into custody; that if the State had been ready for trial within the 120-day period as it asserted it was the information requested by the defendant could have been given him promptly; that it was the State’s attorney who erroneously advised the court as to the remaining time in which the defendant could be tried, and that there was nothing in the record to indicate that the defendant’s counsel (who had been appointed the day of the continuance) knew when the defendant was arrested or how long he had been in custody. Beyond stating that the defendant was clearly entitled to discovery, the court did not answer his contention that charging the delay to him would have improperly forced him to elect between his right to pretrial discovery and his right to a speedy trial. The court decided the case on the precise facts before it, but implicit in its decision is the holding that not every motion for discovery causes a delay which can be attributed to the defendant.

Discovery in criminal cases is a recent development of the laws and accommodation must be made for the problems which accompany it. All discovery motions are not intrinsically dilatory, therefore not every such motion automatically extends the period in which the defendant must be tried. Thus, in Nunnery, although the defendant filed a discovery motion the court held that he was not responsible for the continuance which followed. Motions for discovery may or may not require time to comply with them. A motion may be simple and easily answered or it may be detailed and difficult to answer. The information requested may be presently known or it may only be obtained after search and inquiry. The requested information may be reasonable and supplied without objection or it may call forth objections which must be heard and resolved. A discovery motion which the State can answer quickly would cause little or no delay; the State should not be permitted to use such a motion as an excuse to toll the statute implementing the constitutional right to a speedy trial. On the other hand, a discovery motion that calls for answers which are not quickly available or requests answers replete in detail would cause a legitimate delay; such a motion is properly attributable to a defendant and tolls the running of the statutory period. Whether a motion falls into the former or the latter category would depend on the facts of each case. This calls for the trial court’s appraisal of the motion, its need, timeliness and complexity; it calls for the court’s appraisal of the State’s ability to answer the motion immediately or the merit of the State’s reasons for not doing so. The interpretation of the motion and of the availability of the required information, the reasonable time needed to answer 'and whether proposed objections are genuine or dilatory, should rest in the judgment of the trial court and its decision as to the accountability for the ensuing delay, if there is one, should be sustained unless it is clearly shown that the court’s discretion was abused.

Although Scott did not want the proceedings delayed, neither he nor his attorney withdrew the motion for discovery. The attorney had filed the motion and he wanted it answered. Scott, apparently, wanted the information but no delay. He did not object to the appointment of the attorney and had accepted and used his services. His attorney did not object to either the two-week continuance or to its being charged to Scott. A delay occasioned by a defendant’s attorney is attributable to him. (People v. Rankins (1960), 18 Ill.2d 260, 163 N.E.2d 814, cert. denied, 363 U.S. 822.) If a defendant agrees to a continuance during the 120-day statutory period, the period is suspended. (People v. Williams (1963), 27 Ill.2d 327, 189 N.E.2d 314.) The State acted diligently; it objected to some of the discovery demands as soon as they were presented and there is nothing in the record to suggest that the remaining demands could have been answered immediately. The court determined that the State needed time to comply and did not abuse its discretion in ascribing the necessary delay to the defendant for whose benefit it was ordered. The court correctly denied the defendant’s petition for discharge presented first on August 26th, and a second time, just prior to the start of his trial, on October 15,1970.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Brown, Defendant-Appellant.
    (No. 57650;
    First District (3rd Division) —
    July 19, 1973.
   PER CURIAM.

SCHWARTZ, J., took no part.

Willie Brown, pro se.

Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Assistant State’s Attorney, of counsel,) for the People.


author: Mr. JUSTICE McNAMARA

text:
    Joe Edward Wilson et al., Plaintiffs-Appellees, v. Simon Moore et al., Defendants-Appellants.
    (No. 57889;
    First District (3rd Division) —
    July 19, 1973.
    McKenna, Storer, Rowe, White & Haskell, of Chicago, (Royce Glenn Rowe and Patrick E. Maloney, of counsel,) for appellants.
    No appearance for appellees.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs filed suit in the circuit court of Cook County to recover damages caused by the negligence of defendants in the operation of an automobile. Defendants filed an answer and affirmative defense. Defendants’ motion for judgment on the pleadings was allowed, and the suit was dismissed. Thereafter, the trial court entered an ex parte order awarding fees to plaintiffs’ attorney, Lee J. Snitoff. The court denied defendants’ motion to vacate the order awarding attorney’s fees, and defendants appeal.

Although appellees have failed to file an appearance or answering brief in this court, we will consider the merits of the appeal. Daley v. Richardson (1968), 103 Ill.App.2d 383, 243 N.E.2d 685.

On March 23, 1969, the four plaintiffs were injured as the result of a collision with an automobile owned by defendant Spears and operated by defendant Moore. Claims were made on behalf of the plaintiffs by Lee Snitoff. On April 5, 1969, the Inter Insurance Exchange of the Chicago Motor Club, defendants’ insurance carrier, settled the claims directly with the four plaintiffs for a total sum of $3,050.00. At the same time, the insurance carrier obtained a statement from the plaintiffs that their attorney had solicited their business to obtain his contract of employment.

On March 23, 1971, Lee Snitoff filed the instant lawsuit on behalf of the plaintiffs for injuries sustained in the 1969 accident. Defendants filed an answer and affirmative defense seeking a dismissal of the suit on the basis of the prior settlement. On July 20, 1971, the trial court aUowed defendants’ motion for judgment on the pleadings and dismissed the suit.

On March 22, 1972 plaintiffs’ attorney, without notice to defendants or to their counsel, obtained an order of court awarding him attorney’s fees. Defendants learned of the fees order in May, 1972. On May 26, 1972 defendants moved the court to vacate the order awarding fees or in the alternative for a hearing on the merits. This appeal foUows a denial of that motion.

By statute, rule and case law, defendants were entitled to notice of plaintiffs’ motion for attorney’s fees. Section 49 of the Civil Practice Act provides that notices and hearings on motions shaU be according to rules. (Ill. Rev. Stat. 1969, ch. 110, par. 49.) And Supreme Court Rule 104(b) provides that written motions shall be filed with the clerk with a certificate or other proof that copies have been served on aU parties who have appeared. Further in Vlahakis v. Parker (1971), 3 Ill.App.3d 126, 278 N.E.2d 523 (abstract decision), this court found that, although notice of motion may be waived by an adverse party, an order entered on a motion without notice is void.

We find that the instant order is void and that the trial court erred in refusing to vacate it. Accordingly, the order of the circuit court of Cook County awarding fees to plaintiffs’ attorney is reversed.

Order reversed.

SCHWARTZ and McGLOON, JJ., concur.


author: Mr. JUSTICE McGLOON.

text:
    Stanley A. Nelson & Company, Inc., Plaintiff-Appellee, v. Modular Interiors et al., Defendants-Appellants.
    (No. 58350;
    First District (3rd Division) —
    July 19, 1973.
    Ronald Butler, Robert G. Foster, and Paul H. Hensel, of Winston & Strawn, of Chicago, for appellants.
    Theodore S. Pabst, of Pabst and Coakley, of Evergreen Park, for appellee.
   Opinion by

Mr. JUSTICE McGLOON.


text:
    The People of the State of Illinois, Petitioner-Appellee, v. Larry Alexander, a Minor, Respondent-Appellant.
    (No. 57863;
    First District (5th Division) —
    July 20, 1973.
    Kenneth L. Gillis, District Defender, of Chicago, (James R. Streicker, Assistant Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman and Douglas Cannon, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SULLIVAN, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanford W. Jones, Defendant-Appellant.
    (No. 58032;
    First District (1st Division) —
    July 23, 1973.
    James J. Doherty, Public Defender, of Chicago, (H. A. Cowen, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James Veldman, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

BURKE, J., took no part.