author: Mr. JUSTICE STOUDER

text:
    Esther Keller, Plaintiff-Appellant, v. George W. Schobert, Individually and as Exr. of the Will of Louise Schobert, Deceased, et al., Defendants-Appellees.
    (No. 73-43;
    Third District —
    August 2, 1973.

      Rehearing denied September 10,1973.

    Lawrence Baxter, of Ottawa, for appellant.
    John Wolslegel, Peter Ferracuti, Andrew O’Connor, William E. Twohey, and Robert E. White, all of Ottawa, (H. Robert Langer, of counsel,) for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-Appellant, Esther Keller, commenced this action in the Circuit Court of La Salle County to partition real estate derived from the estate of her mother, Louise Schobert. The Defendants are the plaintiff’s brothers and sisters, and her brother, George Schobert, is also named defendant in his capacity as executor of the estate of Louise Schobert. Defendants moved to dismiss the complaint for partition which motion was allowed. Plaintiff has appealed from the order dismissing her complaint.

Since this action was decided on the pleadings, the facts are substantially undisputed. Louise Schobert died February 12, 1970, leaving her surviving six children, one of whom is the plaintiff in this action and the others, defendants. On March 5, 1970, the will of Louise Schobert was admitted to probate and George Schobert (a son) was appointed executor.

Clause 2 of the will provides, “My Executor, hereinafter named, is hereby authorized and directed to reduce all of my estate into cash as soon after my death as may be conveniently done and distribute the net proceeds of such sale or sales as is hereinafter set forth.” Clause 3 provides in part, “Although I have authorized and directed my executor to reduce my estate to cash he is hereby advised and directed to abide by the option which I do hereby grant unto my son, George W. Schobert, and my daughter, Helen Schobert, which options are as follows: * * *” (the options do not relate to the property which is the subject of this proceeding). Clause 5 provides in part, “When my estate has been reduced to cash, my executor is hereby authorized and directed to make distribution of the net proceeds then remaining, after the payment of all my debts and costs and expenses of administration, in the manner following: * ° ”. The proceeds were to be divided equally among her six named children, the share of one being bequeathed in trust for that child. Clause 7 of the will, dealing with the powers of the executor, provides in subsection (c), “To distribute the residue of my estate in cash or in kind or partly in cash, and for this purpose the determination of the executor as to the value of any property distributed in kind shall be conclusive.”

Plaintiff filed her complaint for partition on September 15, 1972, alleging that by virtue of the foregoing provisions of her mother’s will, she was entitled to a one-sixth interest in 180 acres of farm land owned by her mother. Defendant moved to dismiss the complaint for partition alleging the provisions of the will constituted an equitable conversion of the real estate into personal property and because of the executor’s right and duty to sell the real estate, partition would not lie. The motion also alleged that contracts had been entered into for the sale of the real estate by the executor on or before September 25, 1972. After arguments and briefs, the trial court allowed defendants’ motion to dismiss the complaint.

On this appeal plaintiff argues the trial court erred in either of two respects; first, the provisions of the will did not indicate testator’s intention that real estate be constructively considered personal property and second, even if the principle of equitable conversion required that the real property be considered personal property, the property was reconverted to real property due to the lapse of time.

In determining the intention of a testator, a gift of the proceeds of sale of the real estate is regarded as a gift of personal property and is referred to as the doctrine of equitable conversion in accord with the equitable maxim that equity regards as done that which ought to be done. The application of this rule may affect the determination of the persons entitled to receive the gift (Smith v. Christopher, 268 Ill.App. 23), or it may affect the rights of third persons as the same may relate to whether the property is real property or personal property (McCormick v. McCormick, 292 Ill. 301, 127 N.E. 79). However, whether the doctrine of equitable conversion is applicable is most frequently raised in controversies between executors and heirs where the issue is who has the right to exercise exclusive authority over the sale of real estate. Consonant with the general rule of determining and applying the testator’s intention, the rule has evolved that where the executor’s powers and authority are imperative, the real estate will be deemed to be converted to personal property. (Grove v. Willard, 280 Ill. 247, 117 N.E. 489.) If, on the other hand, the will confers upon the executor merely discretionary power of sale, the character of the real estate as such is not changed. Vierieg v. Krehmke, 293 Ill. 265, 127 N.E. 735.

It should be observed that particularly when the controversy to be resolved relates to who may sell the real estate, the initial authority of the executor is the same in either case and there is no question but that initially the executor has power, where so directed by the will, to convey real estate in accord with the terms of the will, whether the real estate be considered as such or whether it be considered personal property. Even if the real estate retains its character as such and the powers of sale be regarded as discretionary, the executor has a reasonable time in which to exercise his powers and duties before the property, subject to ■the power, may be dealt with in collateral proceedings. (Vierieg v. Krehmke, 293 Ill. 265, 127 N.E. 735.) If the real estate has constructively become personal property under the application of the doctrine of equitable conversion, even the imperative power of the executor may be forfeited or terminated if not exercised within a reasonable time (Brandt v. Phipps, 398 Ill. 296, 75 N.E.2d 757), or within a specified time described in the will. Pope v. Kitchell, 354 Ill. 248, 188 N.E. 451.

Brandt v. Phipps, 398 Ill. 296, 75 N.E.2d 757, refers to and acknowledges there are two lines of cases dealing with the power of an executor to sell real estate and divide the proceeds in accord with testamentary provisions. It is our conclusion after reviewing the lines of authority, cases cited earlier in this opinion and the provisions of the will, the trial court acted properly in holding the real property should be considered personal property subject to the executor’s authority.

Considering the real estate to have been converted to personal property by the provisions of the will, it is our further conclusion, reconversion to real property did not occur. Undoubtedly the affect of the doctrine of equitable conversion may be reversed and the property resume its original character as real property by the concurrence or agreement of all of the beneficial owners of the interest therein, if all of such persons are legally competent. (Bergman v. Rhodes, 334 Ill. 142, 165 N.E. 598.) It also appears, as in Brandt v. Phipps, 398 Ill. 296, 75 N.E.2d 757, that reconversion may occur automatically or at least the rights of an executor will be forfeited, if such a period of time has elapsed that it is patent the executor has abdicated his duties or abandoned his interest in the real estate. In Brandt, the rule was applied where nine years had elapsed. In the case at bar-, approximately two and a half years elapsed between the appointment of the executor and September, 1972, when this action was filed and when the sales were made by the executor. We do not believe such a period of time is sufficient in and of itself to justify or require an automatic reconversion of property. Plaintiff’s own argument supports the view the executor was active during this period of time as executor, even though she was not satisfied with the nature of his activity.

The Brandt case also indicates that even where the executor has imperative duties justifying the application of the doctrine of equitable conversion, the failure of the executor to exercise such duties within a reasonable period of time may be the basis of terminating the executor’s interest and decreeing a reconversion of the property to its former character. This observation of the court is dicta in the Brandt case and assumes the period of time in which the executor has failed to act is less than a period which ought to result in automatic reconversion and obviously depends on factors other than mere lapse of time. Since this case was decided on the pleadings, namely, the complaint for partition and the motion to dismiss the complaint, the only issue raised in such pleadings is the mere lapse of time itself which, as we have held, is insufficient to constitute an automatic forfeiture of the executor’s interest and duties.

For the foregoing reasons, the judgment of the Circuit Court of La Salle County is affirmed.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE BURMAN.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William A. Marshall, Defendant-Appellant.
    (No. 57168;
    First District (4th Division) —
    July 25, 1973.
    James J. Doherty, Public Defender, of Chicago, (Robert Motta and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and John C. O’Rourke, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Hunter, Defendant-Appellant.
    (No. 57368;
    First District (4th Division) —
    July 25, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks and Jean Essary, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant Statens Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas L. Stephens et al., Defendants-Appellants.
    (No. 56756;
    First District (4th Division) —
    July 25, 1973.

      Kenneth L. Gillis and Jack P. Rimland, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Robin K. Auld, and Robert Beranek, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The three defendants, Herbert Stephens, Douglas Stephens, and Namor Smith, Jr., were convicted of murder by a jury in the Circuit Court of Cook County. Herbert Stephens was sentenced to a term of 100 to 200 years; Namor Smith was sentenced to a term of 50 to 100 years; and Douglas Stephens was sentenced to a term of 20 to 30 years. All defendants appeal.

The issues presented for review are (1) whether the court erred in making Elaine Goins a court’s witness; (2) whether the State proved the defendants guilty beyond a reasonable doubt; (3) whether the State proved the legal accountability of Douglas Stephens and Namor Smith for the murder; (4) whether a police statement was properly allowed to impeach the credibility of a court’s witness; (5) whether failing to notify the defendants before closing arguments that the State would seek the .death penalty denied them a fair trial; (6) whether the prosecutor’s closing remarks to the jury were prejudicially improper; and (7) whether the court erred in granting a discretionary extension of the Fourth Term.

In the early morning hours of September 13, 1969, Sterling Burnett, also known as “Little Man,” was found shot to death in the alley behind 4617 South Langley Avenue in Chicago. One of the principal witnesses, Elaine Goins, testified on direct examination she saw Douglas Stephens, Namor Smith and several others carry Sterling Burnett through her house at 4611 South Langley in the City of Chicago in response to an order by Herbert Stephens, who followed a few feet behind. She heard Burnett say, “My mouth is bleeding, my mouth is kicked, my mouth is bleeding.” After they carried him through the house she heard four shots. Herbert and Douglas Stephens and Namor Smith returned to the porch without Burnett, and Herbert, who had a gun in his hand, told her, “I don’t want to hear no more about this.” The three then ran off the porch toward 48th Street.

At approximately midnight, Elaine Goins went to 47th Street, where, she saw Trammell Hunter, talked to him for five or ten minutes, and then returned to her house. At approximately 1:00 A.M., Trammell Hunter came back to the house with the police, and upon going back in the alley she observed Sterling Burnett lying on his back, dead.

On cross-examination she repudiated her testimony on direct and stated that on the night of September 12, 1968, she had sniffed cocaine and drunk alcohol. She stated she was drowsy and dizzy and testified to things someone had told her rather than what she had seen. Following completion of cross-examination, the State moved that the witness be declared hostile under Illinois Supreme Court Rule 238. The court denied the motion but stated it would allow the prosecutor some leeway on redirect. On redirect she eventually declared the facts she testified to on cross-examination were not true. She said she was afraid if she told a story different from that given to the grand jury she would be charged with perjury. The court granted her immunity for any past perjury, and declared her a court’s witness. She then denied any knowledge of the statement she made to the police on the night of the murder, asserted she was high on drugs both on the night of the murder and when she went before the grand jury and denied seeing the deceased between 9:00 P.M. and midnight on the day in question.

She said the police put words in her mouth and threatened to take her three children away if she did not sign the statement. Miss Goins was the mother of three illegitimate children at the time of the murder and gave birth to a fourth child the following June, fathered by Herbert Stephens.

The second principal witness, Calvin White, testified that on the night in question he was at 4611 Langley with his cousin, Greg Armstrong. He stated he heard a conversation between Burnett and the defendants. Herbert Stephens asked him if he were a “Stone” (Blackstone Ranger gang member), and Burnett replied he was not. White then saw Herbert hit him and heard Herbert tell Greg Armstrong, Douglas Stephens, Namor Smith and another to pick him up and carry him out back. As they were going through the house, he saw someone hand Herbert Stephens a weapon. After they placed Burnett on the ground they told Calvin White to go home. He went back into the house and heard four shots. He ran to the fence between 4611 and 4613 Langley and heard another volley of shots, after which he walked to Greg Armstrong’s house.

White said he made a statement to the police and testified before the grand jury to these same facts, but gave a contradictory version to defense counsel sometime in 1969, when he was picked up by some boys, taken downtown at gunpoint, and told to deny seeing Herbert Stephens and Namor Smith on the night of the murder, or he would be killed.

Mrs. Mary Armstrong, Calvin White’s aunt, testified that Calvin and her son, Gregory Armstrong, were sleeping inside her house when she heard the shots. She stated the boys came into the house at 9:00 P.M. arid went to bed at 10 o’clock.

Trammell Hunter testified he left work at midnight and arrived at 47th Street at 12:30 or 12:45. He saw Elaine Goins, “who seemed disturbed.” After talking to her he went to get a couple of friends and then went to the alley where he found the body of Sterling Burnett.

At the close of all the evidence, the prosecution tendered an instruction to the judge allowing the jury to return a death verdict. The instruction was tendered to the jury, and a verdict of guilty with the recommendation of death was returned as to Herbert Stephens. The judge disregarded the recommendation and sentenced all three to the penitentiary.

The defendants first contend the court erred when it made Elaine Goins a court’s witness because she was not an eyewitness to any criminal act, citing the cases of People v. Hundley (1954), 4 Ill.2d 244; People v. Banks (1955), 7 Ill.2d 119; People v. Boulahanis (1946), 394 Ill. 255; and People v. McKee (1968), 39 Ill.2d 265. This argument necessitates a narrow construction of the term “eyewitness.” Miss Goins saw Sterling Burnett being carried through her house by two of the defendants shortly before she heard shots ring out, after which the three defendants emerged from the house with a weapon and ran off. In the words of the trial court, she was “an obvious eyewitness, certainly to very material facts” with regard to the murder. We think the calling of a court’s witness is not to be so strictly limited where there might otherwise be a miscarriage of justice.

Second, the defendants argue they were not proved guilty beyond a reasonable doubt because the evidence against them was improbable and unsatisfactory, and they cite the case of People v. Coulson (1958), 13 Ill.2d 290, in support of their claim. In that case the court reversed an armed robbery conviction where the victim, who was the only witness to the alleged robbery, testified that five men took his wallet at gunpoint, accompanied him to his home on the promise of more money, and permitted him to go inside alone while they waited outside, trusting that he would not call the police. The court found this story to be unworthy of belief.

In the instant case the two principal witnesses gave contradictory accounts of the facts at different times rather than giving facts which were - unbelievable. It then became the province of the jury to. determine which accounts were true, and this court will not disturb their determination-unless there was no rational basis for it. People v. Stewart (1970), 46 125.

The record shows Elaine Goins was questioned for the first time a few hours after the murder of Sterling Burnett and gave a statement similar to that which she gave on direct examination. Ten days later she testified before the grand jury and apparently told the same story. On April 29, 1969, seven months later, she gave an account to a defense attorney that contradicted her earlier statements, aHeging the pohce had threatened her and put words in her mouth.

The jury was, nevertheless, given ample evidence to cause them to believe her initial testimony. Detective Hogan, a man who was weH acquainted with people under the influence of drugs, testified that in his opinion Elaine Goins was not under the influence of narcotics, either on the night of the murder or during her grand jury appearance.

Trammell Hunter testified he discovered the body of the deceased only after talking with Elaine Goins sometime after midnight on the night of the murder. The jury could infer she told him the same things she related on direct examination. FinaUy, she testified her fourth fllegitimate child was bom in June of 1969, approximately nine months after the murder, and the father is Herbert Stephens, It is unlikely she knew of her pregnancy, either on the night of the murder or at the time of her grand jury appearance. The jury could also have found it was unlikely she wanted to put the father of her child in jail and changed her testimony to protect him.

Calvin White gave testimony which substantiaHy corroborated the story Elaine Goins told on direct examination. The defendants suggest this testimony is not to be believed because his aunt, Mrs. Armstrong, testified both Calvin and her son, Greg Armstrong, were sleeping, at the time the shots were fired. Defendants also suggest the State could not have believed Calvin White because they failed to indict Greg Armstrong, who White described as one who carried Sterling Burnett through the house; he was impeached by his testimony to the grand jury; and he told an unbelievable tale of being taken downtown at gunpoint and told to disavow knowledge of the murder or be kiUed.

In Mrs. Armstrong the jury was again presented with the testimony of one who had a strong motive not to teH the truth. Her son had not been indicted, and she could have been trying to insure that he would not be, by stating both he and Calvin White were in bed rather than at the scene of the crime.

Why the State did not indict Greg Armstrong is completely a matter of speculation and does not bear upon Calvin White’s credibility. Neither is the alleged impeachment significant. He said at trial he did relate to the grand jury the conversation between the deceased and the defendants in which the deceased stated he was not a “Stone.” Defense counsel pointed out he had not included this reference in his grand jury testimony. That difference in testimony does not appear significant and does not make his story inherently unbelievable; The defendants also suggest White’s testimony about being taken downtown at gunpoint is unbelievable and contrary to human experience. The fact that intimidation of witnesses sometimes exists is not contrary to human experience, and in this case the witness was flown in from the South, where he now lives, by two officers. He stayed at the Audy home at night and was promised he would be sent back after the trial. There is also testimony in the record that Elaine Goins asked for and received protective custody prior to trial, although she denied asking for it.

Third, the defendants suggest Douglas Stephens and Namor Smith were not legally accountable for the murder of Sterling Burnett because the State failed to prove beyond a reasonable doubt they possessed the specific intent to promote or facilitate the murder of Sterling Burnett. Section 5 — 2(e) of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, §5 — 2(c)) provides in part:

“A person is legally accountable for the conduct of another when:
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

It is argued the mere presence of Douglas Stephens and Namor Smith at the scene of the crime is not sufficient to prove they knew a crime was about to be committed. However, their concert of action indicates a common purpose which made them responsible for whatever crime was committed under the statute. (People v. Armstrong (1968), 41 Ill.2d 390.) After the victim had been hit by Herbert Stephens they responded to an order to take him to the back. They did so even though they knew Herbert Stephens had a gun. After the shots were fired, they waited for Herbert Stephens to rejoin them and stood by while he told Elaine Goins that “he didn’t want to hear no more about it,” and then ran off with him.

Fourth, the defendants contend the court erred in permitting the State to impeach the court’s witness, Elaine Goins, by reading to the jury an unsworn statement she made to the police on the night of the murder. They cite the cases People v. McKee (1968), 39 Ill.2d 265, and People v. Dandridge (1970), 120 Ill.App.2d 209, in support of the proposition. However, in the instant case the facts contained in the unsworn statement were the same as those testified to on direct examination and did not come before the jury for the first time. In addition, the court gave an instruction that the jury should consider the statement for impeachment purposes only. Where matters contained in a statement have already been established by competent evidence, the hearsay statement is merely cumulative and, therefore, harmless. (People v. DeBerry (1965), 62 Ill.App.2d 323; People v. Smith (1969), 105 Ill.App.2d 8.) The statement was not used to prove the truth of the matter asserted, or to get such matters in evidence, as proscribed by McKee, but rather to impeach the credibility of a reticent court’s witness.

Fifth, the defendants complain they were denied a fair trial because the State failed to notify them it would seek the death penalty prior to closing argument. They argue that when the issue of the death penalty is raised on voir dire, the jurors have time to consider it throughout the entire trial, and to postpone it until closing arguments is prejudicial because it has a coercive effect on the jury and affects defense counsel’s selection of a jury. In this case we find no prejudice inasmuch as defense counsel in his closing argument invited the jury to “give them their liberty or sign the death verdict,” and the court rejected tire jury’s recommendation of the death penalty.

Sixth, the defendants urge they were prejudiced by several statements contained in the prosecutor’s closing argument. The first one complained of occurred when the prosecutor stated the attorney for Namor Smith had “sold [Herbert Stephens] down the river” when he argued in behalf of his client, and inferred that only Herbert Stephens was responsible for the murder. The defendants now contend it was proper for an attorney to represent only his client in a multi-defendant trial and the effect of the prosecutor’s statement was to arouse the antagonism of the jury against all the defendants and their attorneys. They cite cases to support their claim of prejudice, but those cases all involve allegations by the prosecutor that defense counsel was trying to trick and confuse the jury. Here, the prosecutor inferred that defense counsel made attempts to exculpate two of the defendants while omitting any reference to Herbert Stephens. The reference was objected to and sustained, and there is no reason to believe the jury was unduly prejudiced by it.

The defendants allege it was prejudicial error for the prosecutor to state that Calvin White was in physical danger for having testified against the defendants. They argue the inference has no basis in the evidence and constitutes reversible error, citing People v. Glickman (1960), 27 Ill.App.2d 379. However, that case states such remarks are prejudicial if they are without foundation. In this case there is testimony in the record that Galvin White was in protective custody' during his stay in Chicago at the time of the trial. The fact that Calvin White feared for his safety bears 'favorably on his credibility as a witness, and it was not improper to comment on such evidence in closing argument.

The defendants suggest it was error for the prosecutor to comment on the fact that Trammell Hunter found the body of Sterling Burnett after having talked to Elaine Goins. They argue that because any conversation between .Miss Goins and Hunter is hearsay, it is also inappropriate for the State to draw an inference as to what the conversation was about from Trammell Hunters conduct.

It is well settled that a prosecutor may make reasonable inferences predicated on the evidence. (People v. Fort (1970), 119 Ill.App.2d 350.) We believe the prosecutor did not exceed the bounds of legitimate argument when he suggested to the jury what they may infer from the meeting of Miss Goins and Trammell Hunter and his subsequent discovery of the body. It is also significant to note no objection to the comment was made at trial, and it is the law that a party not argue a point for the first time on appeal. People v. Long (1968), 39 Ill.2d 40.

The last comment of the prosecutor on closing argument objected to by the defendants is his reference to the similarity between the murder of the deceased and the revelations of th Nuremburg trials. That was not a reference to the “ghastly horrors of World War II Nazi Germany,” as the defendants contend, but merely a comparison to the summary nature of the execution of people having the wrong status. In this instance, Sterling Burnett was apparently murdered because he was not a member of the Blackstone Ranger street gang.

Finally, the defendants complain it was error for the court to grant the .State a 60-day extension of the Fourth Term because it failed to demonstrate due diligence required by statute to obtain the material witnesses. Section 103 — 5(c) of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, § 103 — 5) provides:

“(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause of application of the State for not more than an additional 60 days.”

The power to grant such an extension is discretionary and the judgment of the court will not be disturbed unless there has been a clear abuse of discretion. People v. Poland (1961), 22 Ill.2d 175; People v. Irish (1966), 77 Ill.App.2d 67.

It appears in the instant case there was no abuse of discretion because the motion was granted based on a petition and hearing, in which it was determined two police officers made repeated efforts to locate the two principal witnesses without success, but there was a reasonable ground to believe they could be found at a later date. Under the circumstances, we believe granting an extension of the Fourth Term was proper.

I

For these reasons, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

BURMAN, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Szudy, Defendant-Appellant.
    (No. 58433;
    First District (4th Division) —
    July 25, 1973.
    John J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Patrick Delphino, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURMAN.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Morrison, Defendant-Appellant.
    (No. 11871;
    Fourth District —
    August 13, 1973.
    Carlon and Carlon, of Normal, (Patricia A. Carlon, of counsel,) for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington, (Steven M. Helm, Senior Law Student, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by defendant from a conviction for a violation of Illinois Revised Statutes (1971), ch. 38, par. 24 — 1(a)(8), in that he possessed a shotgun with a barrel less than eighteen inches in length. Defendant contends the weapon in question was seized as the result of search that violated his fourth amendment rights and those rights found in article II, section 6, of the Illinois Constitution of 1870 and the trial court improperly limited his attack on the warrant.

The events that gave rise to this appeal began on December 14, 1970, when officer Wayne W. Emmett was called to defendant’s residence on official police business. While there, Emmett noticed a shotgun hanging on the kitchen wall with a barrel which appeared to be less than eighteen inches. On May 10, 1971, defendant and his wife were arrested on unrelated charges, as was one Lena Christine McDonald. At that time, McDonald gave a statement to the police that she had resided with' defendant and that she had seen a sawed-off shotgun therein on several occasions, the last being on April 1, 1971 — forty days prior to her statement.

With this information, officer Emmett then secured a search warrant. At approximately 11:45 P.M. on May 10, officers Emmett and Spiecker went to defendant’s residence. They gained entrance through the back door, and found a sawed-off shotgun in the bedroom of the home.

The complaint for the search warrant in question specifically described the places to be searched and the item that was to be seized. Paragraph one stated that the affiant Wayne W. Emmett was a police officer for the City of Bloomington, Illinois. Paragraph two mentioned the events of December 14, 1970. Paragraph three stated that on December 14, 1970 defendant’s wife told affiant that defendant possessed a sawed-off shotgun which he kept in his home. Paragraphs four and five recount the statement of Lena McDonald. Paragraph six relates that affiant had knowledge of the defendant’s rap sheet.

Prior to trial, defendant’s counsel presented a motion to suppress the evidence acquired as a result of the search and seizure. The grounds were that the search warrant did not comply with Illinois Revised Statutes (1971), ch. 38, par. 108 — 3, in that it was issued without probable cause. Defendant submitted there was an inadequate recitation of facts to establish probable cause and affiant failed to vouch for the credibility of the informant (Lena McDonald); and that the date (May 10, 1971) affiant acquired the information from the informant was too remote from the date (April 1, 1971) the informant last acquired said information. The court denied the motion. At defendant’s bench trial, the motion to suppress was timely renewed and again denied. The defendant was convicted of the charge.

On appeal, defendant renews his contentions and submits the trial court improperly limited the attack on the search warrant to proof of only fraud and perjury by the affiant.

Probable cause cannot be established by an affidavit containing conclusory statements establishing only that an affiant believes probable, cause exists without stating some of the underlying circumstances upon which that belief is found. The United States Supreme Court has held that a recitation of these underlying circumstances is absolutely essential. (United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.) The amount of information necessary concerning underlying circumstances depends a great deal upon the particular offense in question. We find that officer Emmett’s affidavit contains enough facts to enable the magistrate to make his independent determination that probable cause existed for the issuance of tifie warrant.

The rules of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, state that when probable cause is based solely or partially upon an informant’s information, there must be a detailing of the underlying circumstances showing why the informant’s conclusions are believable, and why the informant is credible or reliable.

Defendant submits that the complaint for the search warrant here was faulty because the affiant did not vouch for the credibility of the informant; therefore, the magistrate who issued the warrant should not have relied on the information elicited from the informant in making his determination that probable cause existed. Officer Emmett did not include in the affidavit the standard phrases attributing reliability and/or credibility to his informant, but he did establish a factual basis that would permit the magistrate to reasonably believe that the informant was credible as required by Spinelli.

Officer Emmett stated that he observed the sawed-off shotgun in December of 1970. His informant corroborated that observation by stating she had resided in defendant’s residence up to April 1, 1971; she had seen the weapon in question several times; and that defendant had told her the shotgun was eight inches under the legal length. She detailed with preciseness the various places where the shotgun was kept. The informant’s credibility is bolstered by the interrelationship of the two separate but identical observations of the sawed-off shotgun. Moreover, the informant in this case, unlike those in Aguilar and Spinelli, was not anonymous.

Defendant contends that the information found in the affidavit supporting the search warrant was stale, thus vitiating any semblance of probable cause found therein. The affiant’s initial observation took place several months prior to the acquiring of the warrant. The informant’s last observation took place on April 1, 1971 — forty days prior to the seizing of the shotgun under the warrant. The critical question is: was the securing of the warrant so remote in time from the informant’s last observation of the shotgun as to render the warrant void? We find that it was not.

An.affidavit used to support a search warrant “must speak as of the time of the issue of the warrant”. (Sgro v. United States, 287 U.S. 206, 211, 53 S.Ct. 138, 77 L.Ed. 260.) Notwithstanding the just cited rule, there is no formulized time limit set on how old the information contained in an affidavit may be. In People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389, the court approved the delay of forty-nine days and held that there was no hard and fast rule concerning the time within which the complaint should be made except that it should not be too remote. “Whether or not it is too remote depends upon all the facts and circumstances of the particular case.” 415 Ill. 434 at 442.

Just how long a period may pass before probable cause evaporates is contingent upon the nature of the criminal activity. In this case the offense was a continuing one. Affiant’s affidavit establishes this fact. Under the circumstances and facts of this case, we find that the information was not stale but quite probative.

Lastly, defendant contends that the trial court erroneously limited his attack on the search warrant to proof of only fraud and perjury by affiant. In People v. Kak, 45 Ill.2d 140, 258 N.E.2d 341, the supreme court held that a defendant could not challenge a search warrant valid on its face. It is the duty of the issuing magistrate and not the defendant to determine and evaluate the credibility of the affiant. The court noted that the necessity of stating underlying facts in the warrant served two functions: it provided probable cause for the issuance of the warrant, and, secondly, it acts as a basis for a perjury charge if the affiant was lying. We hold that the trial court was not in error when it limited defendant’s attack on the warrant.

The defendant was granted probation for a period of three years conditioned upon his serving six months in the State Penal Farm. Such condition is not now permissible under the Unified Code of Corrections (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1005 — 6—3). This case pending upon direct appeal has not reached a “final adjudication” for purposes of sentencing and the new Code is applicable. (People v. Lobb, 9 Ill. App.3d 650, 292 N.E.2d 750.) Accordingly, the conviction is affirmed, the sentence is vacated, and this cause is remanded for the imposition of the sentence of probation in conformance with the provisions of the Code of Corrections.

Affirmed and remanded with directions.

TRAPP and SMITH, JJ., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Margaret Hall, Admr., Plaintiff and Counterdefendant-Appellee, v. Barbara J. Kirk, Admr., Defendant and Counterdefendant-Appellant—(M. K. Stegall, Defendant)—(Milton R. Tidwell, Defendant and Counterplaintiff-Appellee.)
    (No. 71-210;
    Fifth District —
    August 7, 1973.
    Robert S. Hill, of Benton, and Mitchell and Armstrong, of Marion, for appellant.
    James B. Wham, of Wham & Wham, of Centralia, and Harris and Lambert, of Marion, for appellees,
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Barbara J. Kirk (hereinafter referred to as defendant), administrator of the estate of Keith Kirk, appeals from a judgment of the Circuit Court of Franklin County denying her post-trial motion for judgment notwithstanding the verdict or alternatively for a new trial.

Keith Kirk and John Hall were occupants of a car which collided head-on with a tractor-trailer driven by Milton Tidwell and owned by M. K. Stegall. Kirk and Hall were killed in the accident. Kirk and Hall and their families resided in the Benton, Illinois area. The two men had obtained employment in Joliet, Illinois. On the date of the accident they were returning to their homes for the weekend in a car borrowed approximately ten days earlier by Keith Kirk from his brother, Kern Kirk. The accident occurred on Illinois Route 37, a two-lane highway. Doris Stewart testified that she and members of her family were driving south on Route 37 at a speed of 65 to 70 miles per hour and the car occupied by Kirk and Hall passed the Stewart car at a speed she estimated at 80 to 90 miles per hour. The passing occurred just before both cars entered a curve. Mrs. Stewart testified that she saw the lights of a northbound vehicle, which she later discovered to be the northbound truck driven by Tidwell, approaching through the curve just before the Kirk and Hall vehicle passed her vehicle, and that the collision occurred “about a second and a half or two seconds” and “not over three seconds” after the car passed them. The collision occurred in the northbound lane, and was followed by an explosion and fire. Neither the Stewarts nor Tidwell observed whether Kirk or Hall was driving the automobile at the time of the accident. The automobile was tom in half, and the bodies of Kirk and Hall were found outside the automobile under the overturned truck.

The plaintiff, administratrix of the estate of Hall, filed suit against the administrator of Kirk’s estate and against Tidwell and Stegall. Tidwell counterclaimed against the estates of the two deceased. For simplicity’s sake, the parties hereafter will be referred to as Kirk and Hall.

The trial court directed a verdict in favor of Tidwell and Stegall on Hall’s complaint and there is no appeal from this verdict. The jury returned a verdict of $15,000 in favor of Hall and against Kirk and a verdict of $5,000 in favor of Tidwell against Kirk. The jury also found in response to a special interrogatory that Keith Kirk, as driver, operated the vehicle in a willful and wanton manner and that this willful and wanton misconduct proximately caused the death of the plaintiff.

The defendant contends that there was no evidence to show that Kirk was the driver of the vehicle at the time of the accident. In McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708, the issue to be resolved was which occupant of the car was the driver at the time of the accident. The plaintiff was precluded from testifying by the provisions' of the Evidence Act (Ill. Rev. Stat., ch. 51, par. 2) and there were no eyewitnesses. The Illinois Supreme Court held that when tibe owner of a vehicle is an occupant at the time of collision, it is prima facie evidence that the owner is the driver, and the burden of rebutting this presumption passes to the owner. In the absence of rebuttal evidence, the presumption will support a finding. (See also Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804.) We do not believe the fact that Kirk was the bailee rather than the owner of the vehicle destroys the presumption since the same reasons for which an owner is likely to be driving extend to the case of a bailee. In fact, human experience suggests that a bailee is less likely than an owner to surrender driving duties to his passenger. An owner feels that it is his car and he may entrust it to anyone whom he chooses, but a bailee is more likely to feel that the car was entrusted to him alone, and that he should not let anyone else drive it without the express permission of the owner.

Although we have found no Illinois cases dealing with this issue, several cases from other jurisdictions have dealt with this question. In Lukehart v. Gleason, 207 F.2d 529 (8th Cir. 1953), the issue was who was driving the defendant’s automobile. Plaintiff sought to hold the defendant owner liable under an Iowa statute providing that the owner of a car was liable for damages caused by negligence of a driver driving with the consent of the owner. The defendant’s boyfriend Woodsmall had borrowed the car, and he and four friends were the only occupants at the time of the accident. All five were thrown from the car and instantly killed, so no one knew who was driving at the time of the accident. The defendant, on appeal, contended that the jury’s conclusion that the bailee Woodsmall was driving was based on conjecture alone. The court disagreed, stating at 532:

“But the only fact shown of any consequence indicating that Woodsmall was not driving is the statement of a witness that one ' of the men killed said before the trip that he was going to drive. Absent that statement, there is no evidence reasonably indicative of any theory other than that Woodsmall was driving. That statement was insufficient to destroy the value of the other facts and circumstances as a matter of law. It was not shown to have been made in Woodsmall’s presence or with his knowledge and could not be said as a matter of law to have such probative force, against the established facts that Woodsmall had been given possession of the keys by defendant, was the last person identified as having driven the car, was not shown to have turned the keys over to anyone else and was in the car at the time of the collision, as to make the situation one of naked legal conjecture as to who was driving the car. It would appear to be unreasonable to assume that Woodsmall was not driving the car.”

In the case at bar, Keith Kirk had been given possession of the keys by the owner, was the last person identified as having driven the car, was not shown to have turned over the keys to the other occupant of the car, and was in the car at the time of the collision. We feel that the presumption of McElroy v. Force should be applicable to a situation involving a bailee as in Lukehart v. Gleason, and that, the facts in this case call for the application of such presumption.

The defendant contends that even if a presumption existed, it was overcome by the testimony of an expert who testified that in his examination of the scene of the accident and pictures taken thereof, it was his opinion that Kirk was a passenger in the car, rather than the driver. This court stated in McElroy v. Force that the presumption of the owner driving can only be overcome by clear and convincing evidence to the contrary. The defendant’s expert reached his conclusion primarily by an examination of the photographs admitted into evidence. On cross-examination he admitted that he did not know the weight of the tractor-trailer unit driven by Tidwell, but rather assumed its weight. Also, there was no evidence of the speed of that vehicle, but again he assumed a certain speed.

In 31 Am.Jur.2d, Expert and Opinion Evidence, par. 183, it is stated at 748-749:

“There is, generally speaking, no rule of law which requires controlling effect or influence to be given to, and the court and jury are not required to accept in the place of their own judgments, the opinion testimony of experts witnesses, merely because of the special knowledge of the witnesses concerning the matters upon which they give their testimony. Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the jury may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. The weight given to expert testimony is for the trier of the facts, who is not required to give it controlling influence.”

See also Card, Illinois Evidence Manual, Rule 239; and Callaghan’s Illinois Evidence, par. 18.20.

The defendant also contends that the trial court erred in allowing testimony on the habits of the plaintiff since there was an eyewitness to the occurrence. The Illinois Supreme Court has held that the use of secondary evidence of careful habits is admissible only if direct evidence of the fact was shown to be unavailable. (Plank v. Holman, 46 Ill.2d 465, 264 N.E.2d 12.) The trial court allowed the testimony for the purpose of showing that the plaintiff was not the driver of the vehicle. We believe that this was correct since there was no direct evidence as to who was driving the vehicle. For the same reason the trial court properly allowed the defendant’s expert to testify as to who, in his opinion, was driving. Had there been direct evidence of this, then neither the habit evidence nor the reconstruction testimony would have been admissible.

A judgment notwithstanding the verdict should not be entered unless all of the evidence when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Accordingly, the trial court did not err in submitting the case to the jury.

The defendant also contends that the verdict was against the manifest weight of the evidence and that the argument of counsel was improper. In considering the issue of the insufficiency of evidence to sustain a verdict, an appellate court must consider all of the evidence in its aspects most favorable to the verdict winner and then must determine that the evidence is so overwhelmingly in favor of the moving party that the verdict should not be permitted to stand. (Ladd v. Ruck, 108 Ill.App.2d 379, 248 N.E.2d 147.) A review of the evidence indicates that it was sufficient to sustain the verdict. Also, we have reviewed counsel’s argument and note that the court sustained the defendant’s objections and in our opinion the jury was not mislead. Accordingly, the verdict of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Howard E. Waters, Plaintiff-Appellee, v. Chicago & Eastern Illinois Railroad Company, Defendant-Appellant.
    (No. 70-70;
    Fifth District —
    August 9, 1973.

      Walker & Williams, of Belleville, (Edward G. Maag, of counsel,) for appellant.
    Carr & Raffaelle, of East St. Louis, (Rex Carr, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment in the amount of $185,000 entered on a jury’s verdict in favor of the plaintiff, Howard E. Waters, in the Circuit Court of St. Clair County in a common law negligence action to recover damages for personal injury that plaintiff allegedly sustained on the premises of the defendant, Chicago & Eastern Illinois Railroad Company’s piggyback ramp at Mitchell, Illinois.

In the complaint plaintiff charged that defendant had negligently and carelessly pushed railroad cars up and against the loading ramp, causing a bridge plate to become wedged between a car and the ramp when defendant knew or in the exercise of reasonable care should have known and should have foreseen the risk of bodily injury and harm to the plaintiff by reason thereof. Defendant, by its answer denied the allegations of negligence, and due care on the part of plaintiff, and alleged that plaintiff was not employed by defendant and alleged contributory negligence on the part of plaintiff as an affirmative defense.

Plaintiff has contended that this appeal should be dismissed on the theory that the appeal was not timely because the post trial motion was not filed within the extended time from the court’s docket entry on June 12, 1969, the date of the jury verdict,

“June 12, 1969. The Jury returned the following verdict:
“We, the jury, find in favor of the plaintiff, Howard E. Waters, and against the defendant, Chicago & Eastern Illinois Railroad Corporation.
We assess the damages in the sum of $185,000.00.”
Said verdict signed by the foreman and each and every member of the jury.
Judgment is entered on the jury’s verdict.
(Signed) Wm. P. Fleming
William P. Fleming
Presiding Judge”

and the clerk’s photocopying that sheet of the docket minutes and inserting that photocopy in the Book of Judgments on June 16, 1969. Subsequent to extensions of time for the filing of a post trial motion on December 4, 1969, defendant filed a “Motion for Stay of Execution and for Entry of Final Judgment, Post Trial Motion, etc.” Preceding the motions were the words “Upon entry of a final judgment, the defendant files this its post trial motion”. On the same day the court entered an order staying execution and set a date for a hearing on the merits. On December 29, 1969, the court allowed “that portion of the motion which seeks the entry by the court of a final appealable judgment”, entered a conventional form of judgment, and reserved ruling on the post trial motion until further argument. On March 5, 1970, the court denied defendant’s post trial motion, and on March 17, 1970, notice of appeal was filed from the judgment entered on December 29, 1970.

While the record does not disclose plaintiff’s arguments to any part of the defendant’s motion of December 4, neither does it disclose that plaintiff made any motion to strike any part of it on grounds that it was not timely filed as against the purported judgment of June 12, 1969, and both parties and the court below treated it as adequate to challenge the properly entered judgment of December 29, 1969.

An order which reads “Judgment upon the verdict” without reciting in whose favor and against whom, is not a valid or final judgment order. (Kaley v. Carr, 348 Ill.App. 151, 108 N.E,2d 512.) See also Public Works and Buildings v. Greseking, 108 Ill.App.2d 105, 246 N.E.2d 707 wherein this Court stated:

“The general rule is that a judgment must designate the parties for and against whom it is rendered or it will not be a valid final judgment. Kaley v. Carr, 348 Ill.App. 151, 103 N.E.2d 512, and cases cited therein. We do not condone entry of a purported judgment which does not meet that requirement; the parties are entitled to know precisely the status of the matter and where they stand, without searching the record, once the issues have been determined.” (Emphasis here supplied.)

As in that case the parties were inconvenienced by the procedure followed, but the matter was corrected, and the parties were not prejudiced.

Waters was employed by the Simpson Express and Transfer Company of St. Louis, Missouri. He alleged that he suffered back injury while attempting to lift a bridge plate. The bridge plate was an integral part of the system which allowed the trailers carried “piggyback” to be loaded and unloaded from the railroad cars. In order to load or unload the trailers from the railroad cars at the defendant’s premises, there was a ramp which consisted of an inclined plane leading up to a platform which was the same height of the railroad flat cars. Thus, the tractor trailers were permitted to be driven from ground level to the height of the railroad cars and onto the railroad cars or vice versa, as required.

The “bridge plate” was used to bridge the gap or space between the end of the last railroad car against the ramp and the edge of the ramp, the bridge plate is a flat piece of metal, sometimes aluminum, sometimes steel, attached and hinged at one end so as to permit it to be raised or lowered. One such bridge plate is affixed to each end of a piggyback flat car. The ramp has a bridge plate of corresponding construction affixed to the end of the ramp by a hinged pin so as to permit that bridge plate to be lowered from the ramp onto the flat car and when the bridge plate is lowered a tractor trailer can be driven from the ramp onto the car. The bridge plates each weigh approximately 200 pounds and require two men to lift them.

Waters’ job was to help load and unload the tractor trailers to and from the railroad cars. On the evening before the day of the injury, Waters and his fellow worker, William Travis, completed their work by leaving at the ramp a single empty flat car. Waters had left the bridge plates in a down position as the ramp men had been instructed to do at the end of each working day.

From time to time bridge plates would become joined or wedged to the side rail of a car and would have to be pried loose with an iron pry-bar. The iron pry-bar was carried in the cab of the trailer and was used for many purposes by the ramp men, including the main use of taking off side rails of low bed trailers, lifting block, as well as the prying loose of the bridge plates when that was necessary.

Upon returning to work on July 25, 1962, Waters and Travis found a number of railroad cars had been placed onto the ramp track containing trailers which had been shipped in and were to be unloaded that day. Waters and Travis set about their work of driving onto the cars and unloading the trailers. At the conclusion of the day and after all of the cars had been loaded, Waters and Travis, as their last act of the working day, were to raise the bridge plates between the cars and between the last car and the ramp thus indicating that the trail could be taken out during the night. In attempting to lift the bridge plate on the last car Waters sustained the injury to his back.

Although there is some dispute as to how the injury occurred, both agreed that they squatted down together and attempted to lift the bridge plate together after saying “OK, let’s go, give it all we’ve got.” It was while attempting to lift the bridge plate with all of their strength under those circumstances that Waters and Travis testified that they discovered the bridge plate was jammed and/or stuck against the side rail of the railroad car so that they couldn’t lift it. Waters testified that he got a catch in his back when the plate did not move as he lifted on it.

There was testimony that Waters did not look at the position of the plate before lifting although he was squatted with his eyes only 30 inches from the plate. There was also testimony that the only way to determine whether or not there was a jammed or stuck plate was to lift on the plate. A defense witness testified that “This plate is so heavy that there is no way you have of checking that in the ordinary course of your business to see whether it is stuck or not, without giving it everything you’ve got.” He further stated “You don’t expect it to happen. You’re not looking for it. When you reach down to lift up on the bridge plate, you don’t expect it to be stuck. There is no way you can tell if it is stuck until you do lift it.”

There was other evidence that the jamming or sticking could have been caused by either the defendant’s train being wedged against the end of the ramp by being driven too far into the ramp or by a failure of the train crew to set the brakes.

Waters has been unable to continue working heavy industrial jobs and there was testimony by Waters that although he has applied for various jobs, he has been unable to secure employment since 1963.

The railroad urges as a basis of this appeal that the plaintiff failed to prove any negligence on the part of the defendant and thus the defendant should have been granted its motion for a directed verdict at the close of the plaintiff’s case. The defendant also asserts that the verdict is against the manifest weight of the evidence in that the plaintiff failed to sustain his burden of proof that he was free from contributory negligence.

We accept the defendant’s assertion that in Illinois the mere occurrence of an accident raises no presumption of negligence. (Rotche v. Buick Motor Co., 358 Ill. 507, 193 N.E. 529; Huff v. Illinois Central R.R. Co., 362 Ill. 95, 199 N.E. 116.) Here no one saw the cars being backed in. The plaintiff in this case showed: A. That the defendant had sole control and responsibility over the railroad cars, and the movements of the cars, the ramp and the track; B. That the jamming or wedging of the bridge plates is caused by the improper placement of the cars by the railroad switchmen or by the railroad men failing to set the brakes on the cars in order to insure no movement which would cause the jamming and; C. That the bridge plate in question was, in fact, jammed or wedged. The defendant did not refute A and C above but claims that jamming can be the result of other causes such as improperly installed plates, the type of car used, improper alignment of cars, and different type of side rails on the cars. However, each of these causes are equally inferential as plaintiff’s evidence and is within the proper realm of the jury. There was, therefore, evidence from which the jury could reasonably have found for the plaintiff. We cannot say that in this case “all of the evidence, when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) All of the evidence in this case which was concerned with the cause of the jamming indicated that jamming could be caused by moving trains or improperly set brakes. The evidence thus is in favor of the plaintiff.

The railroad also contends that the verdict was based solely on conjecture citing Tiffen v. Great Atlantic & Pacific Tea Co., 18 Ill.2d 48, 162 N.E.2d 406, “Liability may not be based on imagination, speculation or mere conjecture and the question of existence should be submitted to jury determination only where there is some direct evidence supporting each material allegation of complaint or some circumstantial evidence from which inferences of such facts clearly preponderate.” The facts as contained in the record and as stated in this opinion provide a basis of “some circumstantial evidence from which inferences of such facts clearly preponderate”, particularly in view of the showing made that defendant had sole control and responsibility for the movement of the cars to the ramp.

Therefore, it cannot be said that there was lack of sufficiency of the evidence from which the jury could find in favor of the plaintiff.

With regard to the defendant’s contention that a verdict should have been directed for defendant since the plaintiff failed to sustain his burden of proof that he was free from contributory negligence, the evidence is taken in a light most favorable to the plaintiff. (Pedrick v. Peoria and Eastern Railroad Co., supra.) All of the evidence as given by direct testimony, indicated that a determination of whether or not a bridge plate was jammed could be made only by lifting the plate. The plaintiff did testify that he had not looked to see the position of the plate before lifting. However, the evidence indicated also that jamming was an infrequent occurrence. The railroad urges a duty upon the plaintiff to look and cites for its authority Clark v. Quincy Housing Authority, 86 Ill.App.2d 458, 229 N.E.2d 780, which contains “It is well settled that the existence of a duty on the part of the defendant does not excuse the plaintiff from looking when he should look and from seeing that which is within the range of his vision.” In this case the evidence indicated that it was impossible to detect a jam upon visual inspection. This coupled with the fact that for two hundred pounds there could be no light lift of the plate. Also, there does not seem to be a duty upon the plaintiff to use a crowbar based upon the testimony that the jamming was a rare occurrence. The appellant also urges that the plaintiff attempted to lift the plate by himself, and thus should have been aware that the plate was jammed and not have attempted the heavy lift. This evidence was in dispute and denied by the plaintiff and may have not been believed by the jury.

Thus, the judgment of the jury is not against the weight of the evidence and the plaintiff presented evidence that he was free from contributory negligence.

The defendant next urges that the court erred in admitting into evidence certain testimony on the custom and practice, of operating on other railroads as a substitute for evidence of negligence in the case at Bar. Defendant cites 28 Illinois Law and Practice Section 222:

“Evidence with respect to custom and usage is admissible in a negligence case where relevant to the issues and where the custom is general in character * * # while negligent acts do not cease to be negligent because of repetition, proof of a customary method of doing an act by those frequently and habitually required to do it is admissible as affording some evidence as - to whether the method is negligent.”

The defendant contends that although the plaintiff proved practice and custom in the industry, he did not show that the defendant deviated from that custom to give an inference of negligence. This, asserting that both custom and deviation must be shown in order to have custom admissible into evidence. The two are separate and apart from each other. The issue of deviation from custom goes to the issue of negligence and not to the issue of admissability of custom and practice. (Rouse v. New York, Chicago and East St. Louis R.R. Co., 349 Ill.App. 139, 110 N.E.2d 266.) See also Campbell v. Chicago, Rock Island and Pacific Ry. Co., 243 Ill. 620, 90 N.E. 1106 as cited in Fowler v. Chicago Railways Co., 285 Ill. 196, 129 N.E. 635:

“It is true that negligence acts do not cease to be negligent because they are frequent, but proof of a customary method of doing an act by those who are frequently and habitually required to perform it is some evidence as to whether the method is or is not negligent.”

There is not a question here of the admissibility of this evidence to show negligence but only to show custom. The question of whether or not there was sufficient other evidence of defendant’s negligence has been discussed in preceding paragraphs. Therefore, as stated in Turner v. Chicago Housing Authority, 11 Ill.App.2d 160, 136 N.E.2d 543, although evidence of deviation may be admissible, it alone will not .support a verdict as this alone is not proof of negligence. The other cases cited by the defendant are not on point.

Evidence of custom has also been inadmissible in thfe absence of proof that such practice was concurred in by the opponent thereto. Here plaintiff submitted testimony of such concurrence as was the custom and practice of other railroads. South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456, 65 N.E. 1075.

Finally, .the defendant asserts that the plaintiff, by repetitive use of leading and suggestive questions, innuendo, conclusion and remarks of counsel and the questioning by the trial court, prejudiced defendant, thereby requiring a new trial. The question we must decide is whether the conduct of the plaintiff resulted in injury to the defeated party; was the defendant prejudiced, or stated yet another way, did the conduct of the trial work an injustice to one of the parties? (Chicago Union Traction Co. v. Lauth, 216 Ill. 176, 74 N.E. 738; Bishop v. Chicago Junction Ry. Co., 289 Ill. 63, 124 N.E. 312; Franko v. Crosby, 278 Ill.App. 416.) The defendant has reported in its brief a box score of the number of objections and the rulings thereon. On inspection of the number of objections and rulings on both sides of this dispute, there is not a great difference.

The defendant also objects that certain statements and questions made by the trial court constituted prejudicial error. A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure. (People v. Palmer, 27 Ill.2d 311, 189 N.E.2d 265; People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500.) The defendant contends that the following colloquy was prejudicial:

“Q. All right. Would you repeat your answer to the question Mr. Waters.
A. I could not see that the bridge plate was jammed.
Q. Why not?
A. Because it is steel against steel and you can’t tell if it’s jammed or not. It looked like it was just laying there normally.
Q. Had you had connection with or had you observed jammed or wedged bridge plates on other occasions?
A. Rare occasions, yes.
Q. Hów rare, Mr. Waters?
A. Well, maybe once every two months or three months. It just wasn’t too often.
Q. Did you on this occasion expect this? Did you and Travis expect this bridge plate to be jammed or wedged?
Mr. Maag: Objection your Honor.
The Court: Sustained as to whether he suspected it or not.
Mr. Carr: No, expected, your Honor, not suspected.
The Court: Ex or. sus — either way. The objection will be sustained.
Mr. Carr: I don’t understand your Honor.
The Court: How would the Court or you know whether the door was locked by looking at it? Can you expect it to be locked or suspect it to be locked?
(multiple voices * * * unintelligible.)
Mr. Carr: I can’t tell by looking, your Honor. Can you?
The Court: Can you expect it to be locked or suspect it to be locked?
Mr. Carr: Not when I’m supposed to be able to lift up, I don’t expect it to be locked.
Mr. Maag: Objection to this.
Mr. Carr: That’s the whole point.
Mr. Maag: I object to these statements of Mr. Carr and move that the jury be instructed to disregard it.
The Court: Sustained.
Mr. Carr: I want to make it clear that the Court is ruling that the answer is obvious that you cannot tell something is wedged just by looking at it. That’s the basis, of course, looking at the ruling, and that’s the reason I don’t have to go into this. If I don’t have to go into the burden of proving this, as far as his case is concerned, if it is obvious, and I think it’s obvious, and apparently the Court does too, and that is the only reason I am getting into this point.
The Court: Do you have any opinion about whether this is jammed or whether it isn’t?
A. You cannot tell if it is jammed by looking at it.
The Court: And you cannot tell if a door is locked just by looking at it, can you?
A. No, sir, you cannot.
Mr. Maag: May I approach the bench, your Honor?
The Court: Yes.
Mr. Maag: At this time, I move for a mistrial and the withdrawal of a juror because of the prejudicial remarks of Mr. Carr in connection with his colloquy with the Court concerning the Court’s interpretation of the evidence and the Court’s interpretation of the law and testimony. It is highly prejudicial. Mr. Carr stated his opinion and he stated he agrees with the Court and the Court’s opinion as to what the evidence shows and it has prejudiced the defendant and invites prejudice of the jury and I move for the withdrawal of a juror and the declaration of a mis-trial.
The Court: Denied.”

Prejudice must be shown. (Johnson v. Cunningham, 104 Ill. App.2d 406, 244 N.E.2d 205.) A truism is not reversible error. (Rost v. F. H. Noble and Co., 232 Ill.App. 430, reversed on other grounds, 316 Ill. 357, 147 N.E. 258.) The Court merely asked a question of the witness to clear up a point of dispute and such question was not the basis of defendant’s objection. We are not persuaded that defendant was prejudiced by the conduct of counsel, nor the court’s inquiries and remarks, nor by a combination of the two. Neither do we believe that the manner in which the trial was conducted resulted in the jury awarding an excessive amount of damages to plaintiff.

We have reviewed the record as a whole and do not find reversible error.

The judgment of the trial court is affirmed.

Judgment affirmed.

G. MORAN and JONES, JJ., concur.

       For disposition of the claim of this plaintiff against this defendant for the same injury in an action brought under the Federal Employees Liability Act. (45 U.S. Code Anno § 51 to 59.) (see Waters v. Chicago & E. I. R.R. Co., 86 Ill.App.2d 48, 229 N.E.2d 51.) That the defendant railroad’s negligence was not necessarily determined in that action was held in Peo. ex rel. Chicago & Eastern Ill. R.R. v. Fleming, 42 Ill.2d 231, 246 N.E.2d 275.


author: Mr. PRESIDING JUSTICE EBERSPACHER.

text:
    Mid-Ill Truck Equipment Company, Plaintiff-Appellant, v. Lyle Tatum, Defendant-Appellee.
    (72-317;
    Fifth District —
    August 10, 1973.
    James E. Buchmiller, of Greenville, for appellant.
    No brief filed for appellee.
   Opinion by

Mr. PRESIDING JUSTICE EBERSPACHER.


text:
    Dwayne Voss, Plaintiff-Appellant, v. Elza Brantley, Warden, Menard Branch, Illinois State Penitentiary et al., Defendants-Appellees.
    (No. 72-57;
    Fifth District —
    August 15, 1973.
    Dwayne Voss, pro se.

    William J. Scott, Attorney General, of Chicago, (James B. Zagel, Assistant Attorney General, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a final order entered by the Circuit Court of Randolph County dismissing the complaint of the plaintiff, Dwayne Voss.

The complaint was filed by the plaintiff while confined as an inmate in the Illinois State Penitentiary, Menard Branch, at Chester, Illinois. The defendants named in the complaint are Elza Brantley, Warden, Menard Branch, Illinois State Penitentiary, and Herbert Gentsch, Record Clerk, Menard Branch, Illinois State Penitentiary.

The cause of action was based upon Ill. Rev. Stat. 1971, ch. 63, sec. 4, which provides:

“Any sheriff or other officer or person having custody of any prisoner committed on any civil or criminal process of any court who shall neglect to give such prisoner a copy of the process or order of commitment by which he is imprisoned within six hours after demand made by the prisoner, or anyone on his behalf, shall forfeit to the prisoner or party aggrieved not exceeding $500.00.”

From the pleadings it appears that on September 29, 1971, the plaintiff submitted a typewritten request to the prison Record Clerk’s Office asking for a complete copy of the mittimus which was issued in his case.

On Friday, October 1, 1971, not having received the requested mittimus, the plaintiff made a second request. On October 1, 1971, the plaintiff was informed by Mr. Gentsch that he was unable to obtain the requested mittimus. Then, on Monday, October 4, 1971, the plaintiff received a copy of the Record of Conviction which had the words “penitentiary mittimus” incorporated in its heading and an incomplete copy of the Indictment.

The plaintiff alleges that he desired the mittimus for the puipose of preparing a post-conviction petition.

On October 14, 1971, the plaintiff filed his complaint in this cause. The defendants answered on November 17, 1971, stating that the request for mittimus was made on October 1, 1971, and not on September 28, 1971; and further, that the plaintiff agreed to wait until October 4, 1971, for the mittimus and indictment. Further, the defendants stated that they mistakenly believed that the “Official Statement of Facts” was not to be given the plaintiff, but have clarified from the attorney for the Department of Corrections that this should have been included and thus a “true and correct copy” was given to the plaintiff on November 11, 1971.

The plaintiff filed on November 19, 1971, a “Traverse to Defendant’s Answer” in which he exhibited a copy of the written request for the mittimus dated September 28, 1971, containing signatures of two security officers as witnesses. The traverse further alleged that he had not received a complete copy of the mittimus.

The Circuit Court of Randolph County on November 24, 1971, dismissed the complaint ordering that:

“Now on this 24th day of November, 1971, being one of the regular judicial days of the Circuit Court of Randolph County, the Court having examined the Complaint of the Plaintiff and the Answer of tire Defendants together with the other pleadings in said case finds that the matters requested by the Plaintiff have now been furnished to him by the Defendants herein and the Court therefore finds that there is no further issues to be resolved in this matter and this case should be dismissed.
It is THEREFORE ORDERED, ADJUDGED AND DECREED that this cause is hereby dismissed.”

The plaintiff has brought this appeal and urges that the court erred in several particulars.

First, did the plaintiff receive a full and complete copy of his mittimus: The plaintiff incorrectly asserts that the statute in question. (Ill. Rev. Stat., ch. 65, sec. 4,) requires a “full and complete copy”. A reading of the statute requires that a “copy of the process or order of committment by which he is imprisoned be furnished." The finding by the trial court that the plaintiff received what are the requested materials will not be disturbed by this court.

Next, the plaintiff asserts that a mandatory injunction should be issued upon the prison to compel statutorily defined duties. Inasmuch as the finding of the trial court is correct that the defendants have complied with their statutory duties, although belatedly, the assertion is without merit.

The plaintiff’s next two contentions shall be considered as one. The plaintiff asserts that the court erred in its order wherein it stated that “all issues have been resolved”, and also that the court erred in failure, as provided by the statute in question, to award the statutory forfeiture to the plaintiff. A “brush off” is hardly a resolution of facts or the applicable law.

The court failed to make any findings as to whether there was any neglect on the part of the defendants as provided in the statute. If neglect is found, then the court must include in its order any findings on whether or not an award should have been made to the plaintiff. Nor has the court made any findings of fact with regard to the timeliness of delivery of the mittimus. We note a considerable difference in six hours, the time required by the statute, and the more than 30 days when the “true and correct copy” was furnished, and then only after plaintiff was forced to resort to the court for the relief to which he was entitled.

Without fixing the amount to which the plaintiff may be entitled, we note that the plain reading of the words of the statute gives to the court below some discretion as to the amount, if any, that the defendants shall forfeit, i.e., “shall forfeit to the prisoner or party aggrieved not exceeding $500.00”.

The court below may well find it within its discretion not to award the plaintiff a $500 forfeiture; however, the court should incorporate findings in its order to justify its action.

We therefore reverse the order of dismissal and remand to the court below for fmther proceedings not inconsistent with this opinion.

Reversed and remanded.

G. MORAN and JONES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Eugene Wilson, Defendant-Appellant.
    (No. 72-260;
    Fifth District —
    August 17, 1973.

      W. K. Kidwell, of Mattoon, for appellant.
    Robert W. Whitmer, States Attorney, of Robinson, (Mark Weber, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Clarence Eugene Wilson, hereinafter referred to as the defendant, was found guilty by a jury of murder and attempt to commit burglary in the Circuit Court of Wayne County. He was sentenced to serve consecutive terms of 50 to 75 years and 10 to 12 years. The defendant appealed this conviction directly to the Illinois Supreme Court and the conviction was affirmed. People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626.

The defendant has sought post-conviction relief by petition filed in the Wayne County Circuit Court. The defendant aUeges that his constitutional rights had been violated in that the State had knowingly used perjured testimony at his trial. A hearing was held on June 12, 1972, in the circuit court on that single issue. At the conclusion of the evidence, counsel for the petitioner argued in behalf of the petitioner and cited numerous cases. The State responded to the argument and at the; conclusion of the arguments the State asked leave to court to submit a brief in response to the cases cited by the petitioner’s counsel. Without objection by the defendant the court granted the State’s request.

On June 20, 1972, the State filed the brief and also on June 20, 1972, the petitioner’s retained counsel withdrew. The retained counsel did, however, file a “reply” brief on July 28, 1972.

The defendant, on July 11, 1972, filed pro se what he called “First Amended Post-Conviction Petition”, which raised three new issues for review. The State filed a motion to dismiss this “First Amended Post-Conviction Petition” which was granted subsequent to July 14, 1972.

On July 14, 1972, the court entered its order denying the relief sought in the original petition. It is from this denial of relief that the defendant has .brought this appeal. The Illinois Public Defender has been appointed to assist the defendant.

The defendant now presents to this court five issues for review. They shall be discussed in the reverse order presented.

Did the court err in not ruling on defendant’s “First Amended Post-Conviction Petition” filed July 11, 1972, before denying defendant’s original petition on. the 14th of July, 1972? The defendant states in his brief that he retained counsel to present six issues on post-conviction but counsel only presented one issue, that of the perjured testimony, at the post-conviction hearing. Thus the amended petition contained issues that could have been presented in the original petition. The defendant has not cited any authority for his contention of error other than to. direct our attention to the Post-Conviction Hearing Act. The denial of the defendant’s “First Amended Post-Conviction Petition” does not go beyond the sound discretion of the trial court.

The defendant states that the court erred at the post-conviction hearing in accepting argument by the State involving a count in the defendant’s indictment that had been nolle-prossed at the trial. The argument was made without objection by the defendant. The failure to object can and is considered to be a waiver of the objection. People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389, cert. denied, 369 U.S. 808, 7 L.Ed.2d 555, 82 S.Ct. 651.

“In post-conviction proceedings the burden is upon the petitioner to demonstrate that he has been denied his constitutional rights. (People v. Smith, 45 Ill.2d 399.) To facilitate such a showing section 122 — 6 (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 6) permits- the court wide latitude in hearing evidence either by affidavits, depositions or oral testimony. Where witnesses are presented, we have held that the credibility and weight to be given the testimony is a matter to be determined by the trial judge and that determination is not to be questioned unless it appears to be manifestly erroneous. People v. Logue, 45 Ill.2d 170, 174; People v. Dowmen, 45 Ill.2d 197, 201.” People v. Watson, 50 Ill.2d 234, 278 N.E.2d 79.

The next contention of the defendant is that the court erred in permitting the State to file a brief eight days after the hearing.

The allowing of the filing of the brief by the State was within the discretion of the trial court and was allowed without objection of the defendant. People v. Burage, supra. People v. Watson, supra.

Next, the defendant asserts that the court erred in admitting evidence, not relevant to the post-conviction petition, over objection of defendant. The defendant contends that the evidence was a retrial of the defendant’s guilt or innocence.

The record indicates that the evidence admitted went to the credibility of the witnesses and was not a retrial of the defendant’s guilt or innocence. Evidence that goes to the credibility of the witnesses, the evidence received, is within the sound discretion of the trial court. People v. Wakat, 415 Ill. 610, 114 N.E.2d 706.

The post-conviction hearing was held in the circuit court to determine if the defendant’s constitutional rights had been violated by the State knowingly using perjured testimony. The defendant was originally convicted in part because of the testimony of two accomplices. The two testified at the trial that they had not been offered any deal or given any promises for leniency to testify. They also stated that their stories had not been rehearsed before the trial and had not conversed with each other prior to trial. The evidence presented at the post-conviction hearing by the testimony of the same two accomplices was that they had prevaricated about being offered a deal and they had lied about not rehearsing their stories prior to the trial. One of the accomplices went further and testified that he had lied throughout the trial. This accomplice essentially repudiated his entire testimony at the original trial.

The former sheriff of Crawford County testified that he had been instructed to keep the two accomplices separated and that he had done this. There was discovered a small hole in the floor, apparently where a heating pipe had been located. The ex-Sheriff admitted that it may have been possible for the two to have conversed before the hole was discovered and patched.

The State’s Attorney also testified and denied that he knew that the accomplices had conversed. He also testified that there was no promise of leniency given to the accomplices in exchange for their testimony at the defendant’s trial. He testified that any promise of leniency made to the accomplices was solely dependant upon the establishment at the trial that the facts surrounding the murder were as the accomplices stated in their previous statements given to the State’s Attorney prior to the trial.

The defendant asserts that the disposition of the present case is controlled by the case of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.

The Napue case involved circumstances where the State’s Attorney had knowingly allowed an accomplice to testify that he had not been promised consideration when the State’s Attorney had so promised. The accomplice in the Napue case at the time of the trial was, after having plead guilty, already in prison under a 199-year-sentence for the crime. The State’s Attorney having promised to recommend a reduction be made in the accomplice’s sentence and if possible effectuated.

The Court then stated at page 269:

“The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because that false testimony goes only to the credibility of the witness.”

While we are keenly cognizant of these principles, we do not find that they apply to the facts of the instant case. In the instant case, there is no showing that the State’s Attorney knowingly used any false testimony. There is only testimony of the accomplices that they were instructed by the Státe to rehearse their stories and to deny their rehearsal upon the stand. This testimony is more than adequately rebutted by .the testimony of the then sheriff and the State’s Attorney.

A more difficult problem is presented with regard to the promise of leniency. The accomplices contend that they were promised a “deal” to testify at thé trial of the defendant. And the accomplices also testified at the trial of the defendant. And the accomplices also testified at the post-conviction hearing that they were told prior to the original trial that no “deal” had been made.

The State’s Attorney at the post-conviction hearing testified that he conditioned any bargain for leniency on the truthfulness of the given statements which could only be established at the defendant’s trial. He contends that if these statements were not supported by the facts produced at trial there would have been no agreement with the two accomplices to receive leniency. The State contends that leniency was not in exchange for the testimony but was based upon the facts as to their participation in the crime and their past or lack of past criminal records.

The testimony of the accomplices at the original trial was as follows:

# 1 — Co-Defendant:
“Q. Was that (the charge of murder) dropped before or after j you offered to testify for the State? [
A. I offered to testify for the State as soon as I was taken into custody and brought over here in Illinois.
Q. You were offered no deal.
A. No.
Q. To testify?
A. None whatsoever.
Q. Have I or any person made any promises to you for leniency or otherwise to get you to testify here today?
A. No, sir.
Q. Have I or anyone else instructed you what to say here today?
A. No, sir.
Q. Have we stressed anything you should do in your conduct?
A. No, sir.”
# 2 — Co-Defetndant:
“Q. You have come to testify here today in this Court, have you been made any promises to testify?
A. No, sir, I haven’t.”

The State contends that this testimony was not perjury.

We must agree based upon the holding of the supreme court of this State in People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461. Somerville involved a post-conviction hearing also wherein the defendant contended that the State knowingly permitted the use of perjured testimony. The court stated:

“A post-conviction hearing was held on this issue to determine whether the witness ■ Arnold perjured himself when he testified at defendants’ trial that no promises were made to him that he would not be prosecuted for his crime. Although defendants had . the burden of showing by clear and convincing evidence that Arnold lied, and that such perjured testimony was willfully given, and was so material to the issues as to have probably controlled the result (People v. Ostrand, 35 Ill.2d 520, 532, 221 N.E.2d 499; People v. Alden, 15 Ill.2d 498, 502, 155 N.E.2d 617) defendants called no witnesses, but offered only statements made by Arnold in subsequent trials for the same robbery.” The court then concluded that inconsistencies in Arnold’s testimony at the various trials at p. 12, 468 “fall short of establishing a knowing use of. perjury, People v. Tyner, 40 Ill.2d 1, 3, 238 N.E.2d 377, 378.” 42 Ill.2d I, 11, 245 N.E.2d 461, 467.

We feel compelled to review the statement of facts in the Illinois Supreme Court’s opinion as reported in People v.Wilson, supra, to indicate that the testimony of the accomplices, although certainly bearing on the result, did not probably control the result. People v. Somerville, supra; People v. Ostrand, supra.

The judgment of the trial court is affirmed.

JONES and G. MORAN, JJ, concur.


author: Mr. JUSTICE SULLIVAN

text:
      In re Estate of Leonard Stahl, Deceased—(Ursula Stahl, Petitioner-Appellant, v. Thomas S. Chuhak, Admr. of the Estate of Leonard Stahl, Deceased, Defendant-Appellee.)
    (No. 58162;
    First District (5th Division) —
    July 27, 1973.

      Mass, Miller & Josephson, of Chicago, (Russell G. Miller, of counsel,) for appellant.
    King, Robin, Gale & Pillinger, of Chicago, (George W. Gale, of counsel,) for appellee.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

Petitioner Ursula Stahl filed a petition in the Estate of Leonard Stahl, deceased, requesting:

1. the revocation of Letters of Administration issued to the Public Administrator and the issuance of Letters of Administration De Bonis Non to her as common-law widow and sole surviving heir of decedent, and

2. a declaration that the contents of a certain safety deposit box pass to her outside the estate.

Following a hearing, held without a jury the court found, inter alia:

1. that petitioner was not the wife and is not the widow of the decedent, Leonard Stahl, and

2. that she had no interest in the contents of the safe deposit box.

Petitioner appeals from those findings.

The first issue presented is whether petitioner was the wife and is the widow of Leonard Stahl by virtue of the laws of Texas, thus entitling her to an intestate share of his estate. Ill. Rev. Stat. 1969, ch. 3, par. 11(3).

The necessary facts surrounding this question may be summarized briefly. Petitioner left her husband, Benjamin Mills, and five children on November 1, 1969, and went to live with Leonard Stahl. No divorce was obtained. Mills died on May 20, 1970, thereby removing any legal impediment to the consummation of a marriage with Leonard Stahl. (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 12.) In July of 1970 the decedent traveled to Texas for a period of three days for the purpose of a vacation and the consideration of that state as a future retirement site.' Petitioner accompanied him and evidence was introduced which suggested they held themselves out as husband and wife during this brief stay. Further, petitioner testified, without objection, that marital vows were privately exchanged in their hotel room. Upon return to Chicago they continued their relationship until decedent’s death on February 1, 1971.

Petitioner contends that the court erred in not determining that she was the common-law widow of decedent since Texas recognizes common-law marriages. She claims that she and decedent were domiciled in Texas and that since the marriage was legal there, such marriage was valid in Illinois upon their return to Illinois. (Citing Peirce v. Peirce, 378 Ill. 185, 39 N.E.2d 990.) In that case the court stated the general rule that marital status is governed by the law of the state of domicile but expressly found that the parties were not domiciled in Illinois and that they were in Nevada “for the purposes and with the intent of making their home there.”

Thus, we need only focus on the single issue of the domicile of the parties. We think the evidence patently establishes that the parties were at all times domiciled in Illinois. The court in Owego Community School Dist. v. Goodrich, 28 Ill.App.2d 407, 171 N.E.2d 816, 820, gave this test for the determination of domicile.

“A person can have only one domicile and once he establishes a domicile or permanent residence he retains it until a new one is established. To establish a domicile, two things are required. First, a person must physically go to the new home and live there. Secondly, he must do so with the intention of making it his permanent home.”

The proof offered here falls far short of establishing a Texas domicile. In the most favorable light, the evidence only suggests a future intent to permanently reside in Texas. This is clearly insufficient. Restatement (Second), Conflict of Laws, ch. 2, sec. 18 (1971).

Defendant further points out that there was no valid common-law marriage in Texas. The applicable statute providing the necessary requirements for the validity of such marriage states:

“(a) In any judicial, administrative or other proceeding the marriage of a man and woman may be proved by evidence that:
# # #
(Sec. 2) They agreed to be married, and after the agreement, they lived together in this state as husband and wife, and there represented to others that they were married.” Tex. Family Code, Subchapter E, Sec. 1.91. (Emphasis added.)

Assuming that the agreement between the parties and the representations made to others while in Texas sufficiently meets two requirements of the statute, it is questionable whether the brief visit satisfies the third requirement of cohabitation within that state. Such provision could easily be construed as a self-imposed jurisdictional limitation to prevent mere transients from declaring themselves legally married under Texas law. A similar view was taken by this court in Estate of Enoch, 52 Ill.App.2d 39, 201 N.E.2d 682, where a two week sojourn to Colorado failed to establish the requisite cohabitation for a common-law marriage.

We find no error in the court’s determination that petitioner was not the common-law widow of decedent.

The second question presented is whether an inter vivos gift was made by the decedent to petitioner of the contents of a certain safe deposit box. On November 25, 1969, the decedent and petitioner executed a leasing agreement with the Uptown Safe Deposit Company. The terms of the agreement gave corenter status to the parties and thereby entitled access to either. Previously, the box was solely in the name of the decedent. Decedent also gave petitioner one of two keys, retaining the other for himself. Petitioner testified, without objection, that decedent had expressed a desire that she have the contents therein. It is urged that this court find these acts as having constituted a valid inter vivos gift.

The necessary prerequisites for a valid inter vivos gift are present donative intent of the donor, delivery of the gift to the donee and acceptance of the gift by the donee. (Richardson v. Richardson, 148 Ill. 563, 36 N.E. 608.) It is clear that constructive delivery is permissible, as by a key (Oliver v. Crook, 321 Ill.App. 55, 52 N.E.2d 453), and a gift will be sustained if the delivery divests the donor of possession and dominion over it and invests the donee with the only means by which possession may be obtained. See Oliver, also Suchy v. Hajicak, 364 Ill. 502, 4 N.E.2d 836.

The undisputed facts hére demonstrate that the delivery was not completed until Leonard Stahl’s death. At any time prior to his death he had the ability to withdraw the contents of the safe deposit box by virtue of the duplicate key and therefore a sufficient delivery' was negated. (Estate of Wilson, 404 Ill. 207, 88 N.E.2d 662.) We note also from the record certain facts which cast doubt on decedent’s donative intent. He did not have the government boiids in the box reissued in the name of. petitioner and she did not enter the box until after his' death, 15 months after she became a corenter, nor did she otherwise attempt to exercise any control over the contents of the' box prior tó 'his death. Estate of Kloss, 57 Ill.App.2d 118, 207 N.E.2d 92.

Petitioner having failed to establish by clear and convincing evidence the aUeged gift (Schramm v. Schramm, 13 Ill.2d 281, 148 N.E.2d 799)., leaves the conclusion that the decedent did not effectuate a valid inter vivos gift.

For the reasons stated, we affirm the order of the' circuit court.

Affirmed.

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