author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold Binion, Defendant-Appellant.
    Gen. No. 50,315.
    First District, First Division.
    February 20, 1967.
    Rehearing denied March 22, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Cornelius E. Toole and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was found guilty of armed robbery in a bench trial and sentenced to the State Penitentiary for a term of not less than two nor more than ten years. He appeals to this court contending that the State failed to prove him guilty of armed robbery beyond a reasonable doubt.

On August 16, 1964, DeAlvin Scruggs, the complainant and his wife were present at a restaurant with a group of friends. The defendant, wearing khaki pants and a straw hat, was at this restaurant at the same time. Mr. Scruggs, after changing a five-dollar bill, walked out of the restaurant, ten minutes after his arrival, to purchase a sausage from a stand just outside the side door. There were three men outside, one of whom was the defendant who stood in front of Scruggs. The other two were standing two or three feet away. A voice “Hey you” came from in front of Scruggs and he was then beaten unconscious. When he woke up his pants were torn, wallet with $15 gone, and a white cap he wore was missing.

On September 5, 1964, Montgomery Jackson, a City of Chicago policeman assigned as detective, arrested defendant who was wearing a white cap at the same restaurant at around 10:30 p. m. At a showup, Mr. and Mrs. Scruggs identified the defendant who at the time wore a red shirt and Mr. Scruggs’ white cap. The defendant was indicted on September 16, 1964. He was charged with committing the offense of robbery “in that he, by the use 'of force and while armed with a dangerous weapon, took fifteen dollars in United States currency and a cap from the person and presence of DeAlvin Scruggs, in violation of chapter 38, section 18-2 of Illinois Revised Statutes 1963, contrary to the Statute, and against the peace and dignity of the people of the State of Illinois.”

Chapter 38, section 18-2 provides:

“(a) A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.”

Section 18-1 provides:

“(a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.”

Cl] A careful examination of the record of this case fails to disclose any evidence of armed robbery. DeAlvin Scruggs was beaten. The defendant was identified at the showup. Nowhere in the testimony of Scruggs, his wife, or the arresting officer, is there any indication that defendant was in possession of any dangerous weapon at the time. No weapon was ever introduced into evidence to support the charge in the indictment. “The burden is on the prosecution in a criminal case to establish beyond a reasonable doubt not only a defendant’s guilt, but also the essential elements of the crime.” People v. Sanford, 24 Ill2d 365,181 NE2d 118 (1962).

It is reversible error for the trial court to find the defendant guilty of a crime the State failed to prove.

For the reasons stated, the judgment of the Circuit Court of Cook County, Criminal Division, is reversed.

Judgment reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Maximino Alicea, Defendant-Appellant.
    Gen. Nos. 50,366 and 50,868.
    First District, First Division.
    February 20, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and John Divane, Assistant State’s Attorneys, of counsel), for ap-pellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was charged with unlawful possession of narcotics. He was found guilty in a bench trial and sentenced to the State Penitentiary for a period of from five to eight years. The length of the sentence was based on the fact that he had previously been convicted of possession of narcotics.

It is unnecessary to review the facts of the case because defendant does not seek review of the finding of guilty. Only the propriety of the sentence is raised on this appeal. The section of the Criminal Code dealing with the penalties for possession of narcotics is section 22^40 which states, in relevant part, as follows:

“Whoever violates this Act by possessing, having under his control, manufacturing, or compounding any narcotic drug shall be fined for the first offense not more than $5,000 and be imprisoned in the peni-tentiaiy for a period of not less than 2 years or more than 10 years. For any subsequent offense the violator shall be imprisoned in the penitentiary for any term from 5 years to life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs . . .”

In order to subject a defendant to the aggravated penalty as a subsequent offender it was necessary, prior to 1959, to state such prior conviction in the indictment or information, and for the jury to make a finding of such prior conviction under the narcotic laws. In 1959, the legislature changed the law by adding the following section which presently appears as c 38, § 22-43, Ill Rev Stats (1965):

“A former conviction of a subsequent offense shall not be alleged in the information or indictment, as the case may be, and no evidence or other disclosure of such conviction shall be presented to the court or the jury during the trial of the principal offense unless otherwise permitted by the issues properly raised in such trial. After a plea or verdict or finding of guilty and before sentence is imposed, or after sentence is imposed and before the defendant has received his final and unconditional release and discharge from such sentence, the prosecutor may file with the court a written statement concerning any former conviction of a subsequent offense rendered against the defendant. . . .”

Defendant contends that one cannot be subjected to the aggravated penalties unless the State complies with section 22-43. The State, in its brief, accepts the defendant’s statement of law. In view of the prior procedure for imposing aggravated penalties, we agree that if such penalties are to be imposed under the present law, the State must in accordance with the Statute, file with the court a written statement, concerning any former conviction.

The State argues in its brief that it complied with section 22-43 when, after the trial and denial of defendant’s motions for a new trial and in arrest of judgment, the prosecutor presented to the court a Federal Bureau of Investigation Sheet showing defendant’s 1959 conviction of possession of narcotics. Defendant had admitted to his attorney that he had served in the penitentiary for possession of narcotics and this fact was relayed to the court.

Defendant points to the case of People v. Williams, 75 Ill App2d 50, 221 NE2d 48 (1966) where a Federal Bureau of Investigation Sheet was offered to prove prior narcotics convictions. Defendant in Williams objected because none of the names on the sheet were exactly identical with her name. The State confessed error with regard to the proposition stated above that the aggravated penalties cannot be imposed without compliance with section 22-43.

In the instant case the prosecutor filed with the court a written Federal Bureau of Investigation Sheet showing defendant’s prior conviction and defendant admitted that he had served in the penitentiary for possession of narcotics. Thus, the court did not act improperly in imposing sentence on defendant as a second offender under the narcotic laws.

For the above reasons the judgment and sentence of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE BURMAN

text:
    Cenco Instruments Corporation, Plaintiff-Appellant, v. Edward J. Thomas, Defendant-Appellee.
    Gen. No. 50,862.
    First District, First Division.
    February 20, 1967.

      Norville, Walsh & Case, of Chicago (Richard J. Walsh, Robert O. Case and Bernard Wiczer, of counsel), for appellant.
    Landesman & Schwartz, of Chicago (Emil Shafran, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal arises from an action in equity brought by the Cenco Instruments Corporation, plaintiff, to enjoin the defendant, Edward J. Thomas, from continuing employment with a competing company in violation of an alleged restrictive covenant contained in a sales agreement. A temporary injunction was issued restraining the defendant from manufacturing slides as an employee of Robert Waymouth or from otherwise competing with the plaintiff. Supporting evidence was presented at a prompt hearing held before a Master in Chancery who recommended that the restrictive covenant as it applies to this defendant be held void and unenforceable and that the temporary injunction be dissolved. The Chancellor overruled plaintiff’s exceptions to the report and ordered the temporary injunction dissolved and plaintiff appeals from this order.

The record on appeal does not include the transcript of the evidence taken by the Master and we were informed by plaintiff’s counsel during oral argument that the dispute concerns the law and not the findings of fact.

The Master found that the defendant owned 18 to 20% of the outstanding stock of the Clinton Misco Corp.; that his father and brother owned the remaining stock; and that on May 4, 1963, they entered into a written agreement selling all of the stock to the plaintiff. The following covenants were incorporated in the agreement:

(9) Covenants Not To Compete. Each of the stockholders agrees that, from and after the Closing, he will not (unless acting as an officer or employee of the Purchaser or any of its subsidiaries, or with the Purchaser’s prior written consent) from and after the Closing directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected in any manner with, any business under any name similar to the Company’s name, and that, for a period of five (5) years after the Closing, none of the stockholders will in any such manner directly or indirectly compete with, or become interested in, any com-' petitor of the Company, provided that John C. Thomas may engage in the preparation of certain kits, which are toys of a scientific nature for children, and which said kits shall contain various scientific apparatus, chemicals, seeds and biological specimens. Such kits shall not be sold to educational institutions in competition with Purchaser. The stockholders agree that the remedy at law for any breach by any of them of the foregoing will be inadequate, and that the Purchaser shall be entitled to injunctive relief.
(22) Governing Law. This contract shall be governed by the law of Illinois where it has been executed.

The Clinton Misco Corp., located in the State of Michigan, produces materials for the biological sciences including the manufacture of slides which are sold to schools throughout the United States and Canada by catalogues distributed by field salesmen. When Misco was purchased by the plaintiff sales of slides amounted to $75,000 of its total sales of $969,000 and were approximately the same for the current year. The defendant was employed by Misco from May 4, 1963, the date of sale, until April 17, 1964, when he was discharged.

He was subsequently employed by Robert D. Way-mouth, doing business as Ann Arbor Biological and also located in Michigan, as a highly specialized technician in the manufacture of slides and is paid $2.50 per hour when he is employed. The Master pointed out that no evidence was offered to show he had an interest in Waymouth or that he “manages, operates, controls or participates in such management, operation or control of said business” or that he does any sales work for Waymouth. Misco occasionally purchased slides from Waymouth during the period the defendant was employed by Misco and also after he was employed by Waymouth. In his supplemental report the Master found that Waymouth sold slides to some companies to which Misco also sells slides.

The Master concluded that the restricted activities in the sales agreement did not prohibit mere employment by a competitor where no violation of the specific limitations occurs and that the restrictive covenant was void and unenforceable for failure to contain a reasonable restriction as to area.

The plaintiff contends that defendant's promise to refrain from competing with Misco was intended to protect the good will of that company, and as of necessity precluded the defendant from engaging in direct or indirect competition, whether as an owner or an employee of a competing business, in that area in which the business sold by defendant had customers and suppliers and in which the good will of that business existed.

In construing a contract and determining the intention of the parties, the instrument should be read and considered as a whole.

The intention of the parties is not to be gathered from detached portions of a contract or from any clause or provision standing by itself, but each part of the instrument should be viewed in the light of the other parts. [Citations Omitted.] The primary object of the construction of a contract is to give effect to the intention of the parties, greater regard being given to such intent, when clearly revealed, than to any particular words used in expression thereof. Martindell v. Lake Shore Nat. Bank, 15 Ill2d 272, 283, 154 NE2d 683; 12 ILP, Contracts, §§212, 215.

The plaintiff insists that, “[t]he intention of the parties to prevent competition by means of employment as distinguished from a proprietary interest is expressly set forth in paragraph 9 which begins as follows:

Each of the stockholders agrees that, from and after the closing, he will not unless acting as an officer or employee of the Purchaser or any of its subsidiaries. »

From this portion of the covenant he argues that, “[t]he phrase ‘unless acting as an . . . employee ... of Purchaser . . . ,’ means that the selling stockholders could not utilize their particular skills as an employee of any competitive business, except the business of Cenco, the ‘Purchaser.’ ” We are not in accord.

Following the above quoted part of the covenant is the following:

. . . from and after the Closing directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of, or to- be connected in any manner with, any business under any name similar to the Company’s name, and that for a period of five (5) years after the Closing, none of the stockholders will in any manner directly or indirectly compete with, or become interested in, any competition of the Company. . . . (Emphasis ours.)

There is no question that the defendant is an employee on a modest salary and does not directly or indirectly own, manage, operate, control or participate in ownership or management of Waymouth nor is he directly or indirectly interested in that firm except as an employee. Moreover there is no evidence the defendant contacts the customers of Cenco. We interpret the contract as restricting the defendant in having an investment directly or indirectly in a competitive business. If it was the intention of the plaintiff to limit his employment it could have been plainly stated which it is not. Had it limited his employment we would then have to consider whether the restrictive clause for a five year period throughout the United States and Canada was too sweeping and general and much greater than necessary to protect plaintiff’s business. See Frisch Corp. v. Ezzell, 25 Ill App2d 134, 166 NE2d 107.

In Alcock v. Alcock, 267 Ill 422, 108 NE 671, cited by the plaintiff, the sales agreement prepared by the seller of a plumbing business provided that the seller would not go into the plumbing business in Chicago for five years.

There the plaintiff went to work for a plumbing business in Chicago where he exercised a general superintendence over the plumbing jobs, made estimates, consulted customers and solicited business from a former customer. The court held that the words “associate with anyone” written in the contract by the buyer before it was signed by the parties, clearly limited the seller from engaging with anyone in the plumbing business in Chicago for five years. In the case at bar the defendant is a mere employee at a modest salary with no interest in the business. He did not directly or indirectly participate in the management of Waymouth’s or solicit business for him. We interpret the words “indirectly compete with” in his contract to mean that the defendant could not set up a dummy ownership or interest in a competitive business which he clearly did not do.

For the reasons given the decree of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William McAfee, et al., Defendants-Appellants.
    Gen. No. 50,969.
    First District, Fourth Division.
    February 24, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Saul A. Perdomo, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial defendants were found guilty of attempted robbery and each was sentenced to the penitentiary for a term of not less than three nor more than five years.

Contention on Appeal

Defendants’ sole contention is that they were not proven guilty beyond a reasonable doubt.

Evidence

According to the testimony of the complaining witness, Joseph Gbur, on October 3, 1964, at 2:00 a. m. he went to visit friends at 6758 South St. Lawrence Avenue; as he ascended the steps to the porch of the aforesaid residence he was grabbed by defendants, who pulled him off the stairs, hit and kicked him, and went through his front pockets; he (Gbur) was lying on his back and therefore defendants did not search his rear pockets; his wallet was in one of those rear pockets and therefore was not taken. He admitted drinking earlier in the evening.

Two police officers, Thomas Barrett and James Will-ford, arrived on the scene in their patrol car. Barrett stated that the defendants were kicking and beating Gbur. Willford testified that one of the defendants was kicking Gbur and the other seemed to be going through his pockets: Both officers testified that Gbur had a slight smell of alcohol on his breath but he was not staggering.

Detective James Houtsma testified that he subsequently conversed with defendants at the police station and that upon questioning they admitted beating and kicking Gbur because he called them a name. He further testified that Gbur appeared to have had a few drinks but was not staggering.

Both defendants testified that, in the company of each other, they had been drinking earlier in the evening. McAfee also stated that as he and Martin were walking down the street after they finished drinking, Gbur staggered and fell in front of them. Martin, however, did not testify that Gbur fell in front of them. Martin stated that as he and McAfee reached the comer of 68th and St. Lawrence they saw Gbur stagger and fall to the ground; that they were going in that direction and therefore walked up to Gbur and asked what was wrong. Both defendants denied admitting to Detective Houtsma that they kicked and beat Gbur or that he called them a name.

Opinion

The evidence adduced by the prosecution, if believed, is sufficient to sustain a conviction of attempted robbery. Joseph Gbur testified that the defendants attacked him, pulled him to the ground and were going through his pockets. Officer Willford testified that one of the defendants seemed to be going through Gbur’s pockets and the other was kicking the victim.

In a bench trial it is the function of the trial judge to determine the credibility of the witnesses and the weight to be afforded their testimony. People v. Clark, 30 Ill2d 216, 195 NE2d 631. The slight discrepancy in the testimony of the police officers, as to whether one of the defendants was going through Gbur’s pockets when they arrived, is understandable since in their rush to aid the victim each officer could not be expected to notice each act of the assailants. Slight discrepancies in the testimony of the witnesses do not render that testimony unworthy of belief. People v. Carpenter, 71 Ill App2d 137, 217 NE2d 337. A reviewing court will not substitute its opinion for that of the trier of fact unless the proof is so unsatisfactory as to justify a reasonable doubt of guilt. The trial judge believed the evidence adduced by the prosecution and rejected the somewhat contradictory evidence offered by the defense.

Holding on Appeal

The evidence is sufficient to prove the defendants guilty beyond a reasonable doubt of attempted robbery. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       Robbery is defined in Ill Rev Stats, 1963, ch 38, § 18 — 1:
      (a) A person committs robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

        Attempt is defined in Ill Rev Stats, 1963, eh 38, § 8-4:
      (a) Elements of the Offense
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.


text:
    People of the State of Illinois, Appellee, v. Garland Turner, Appellant.
    Gen. No. 51,133.
    First District, Fourth Division.
    February 24, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (C. Paul Bradley, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Morton Friedman and Robert Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial the defendant, Garland Turner, was convicted of attempted robbery and was sentenced to the penitentiary for a term of not less than one nor more than eight years.

Contentions on Appeal

1. Defendant was denied his constitutional right to a trial by jury in that his purported waiver of a jury trial was ineffective;

2. Defendant was not proven guilty beyond a reasonable doubt.

Facts Relating to the Jury Waiver

According to the transcript of proceedings, when the case was called for trial defendant appeared before the court and defense counsel stated: “Your Honor, the defendant is ready for trial and this will be a bench trial.” The judge asked the defendant if he knew what a jury trial was, to which defendant replied: “No, I do not know what a jury trial is because I can’t read or write or nothing.” The trial judge then instructed defense counsel to inform the defendant “as to the nature of a jury trial.” According to the record a conference took place between defense counsel and defendant, but the record does not reveal the nature or subject matter of that conference. After the conference defense counsel informed the court that defendant could not write his name and requested the court to witness the defendant making an “X” to signify his assent to the jury waiver. At no time did the trial judge advise the defendant of his right to a trial by jury, nor did he ascertain whether defendant actually was instructed by defense counsel as to his right to a jury trial.

Evidence at Trial

According to the evidence adduced by the prosecution, on September 24, 1965, at 1:15 a. m., Ernest Woike was attacked from the rear on the south side of the 3100 block of East 92nd Street. The assailant knocked Woike unconscious and cut both of his pockets. Officers James O’Brien and John Miller observed the assault in progress as they were driving westbound on 92nd Street in their squad car. There was no eastbound traffic on the street and the officers’ view was undisturbed. The lighting at the scene of the attack was “very good,” a street light being directly overhead. When the officers arrived the assailant was bent over Woike. He (assailant) then straightened up, looked directly at the officers for a short period of time, dropped a knife and started running along the I. C. tracks adjacent to the scene of the incident. Officer O’Brien gave pursuit and fired a warning shot into the air which the assailant failed to heed. The officer then fired two shots at the assailant who fell to the ground, crawled beneath a parked train and escaped. Approximately fifteen minutes later the defendant was found by Officer Aloysius Bayer in an apartment less than one block from the scene of the assault in the direction that the assailant fled. Defendant was bleeding from a bullet wound in the abdomen, the bullet having entered through his back. Officer Bayer testified that the defendant told him that he was shot by a railroad policeman on 92nd Street. Officer James Houtsma testified that he first saw the defendant in the emergency room of South Chicago Hospital where the latter was being treated for his wound; that defendant was conscious; that defendant was then placed in the rear of the patrol wagon on a stretcher to be transported to Cook County Hospital; and defendant told him that: “I’m sorry I tried to rob this man, if I had known I was going to be shot by the police I wouldn’t have tried.” Officers Miller and O’Brien both testified that they identified defendant as the assailant while he (defendant) was being treated in South Chicago Hospital.

Defendant testified that he worked until 2:00 a. m. on the day in question and then had breakfast with his employer at a nearby grill; that some time after 3:00 a. m., while walking home alone down 92nd Street, he was shot; that he went to his girl friend’s house (apparently the same house in which defendant was found), told her he had been shot and requested that she call the police; that he then became unconscious and regained consciousness at Cook County Hospital. After he regained consciousness defendant denied any knowledge of the assault on Earnest Woike. At trial defendant denied telling Officer Bayer that he was shot by a railroad policeman and also denied admitting to Officer Houtsma that he was the assailant. Neither defendant’s employer with whom he allegedly ate breakfast, anyone else in the grill, nor defendant’s girl friend testified on his behalf.

Opinion

1. The constitutional right to a trial by jury in criminal cases has been incorporated into the Illinois Criminal Code (Ill Rev Stats 1965, c 38, § 115-1). This right may be waived only in accordance with Illinois Revised Statutes, 1965, chapter 38, section 103-6, which provides:

Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.

The record in the instant case does not reveal that defendant at any time was instructed as to his right to a jury trial. It is uncontradicted that the defendant was an illiterate. While the trial judge ordered that defense counsel instruct the defendant as to the nature of a jury trial (and in fact a conference was then held) there is no stipulation in the record as to the subject matter of that conference and we cannot presume that the defendant was properly informed of his rights. After the conference the trial judge did not ask defendant whether he then knew of his right to a jury trial. Under all of the circumstances of this case we find that the right to a jury trial was not understandingly waived by defendant in open court. We do not agree with appellate counsel for defendant that since defendant was illiterate under no circumstances could he have understandingly waived his right to a jury trial. Under the circumstances of this case, after the conference between defendant and his counsel the trial judge should again have inquired of defendant whether he knew what a jury trial was and whether he wished to be tried by a jury. If defendant again answered in the negative and could not be made to understand his right to a jury trial, then he must be granted a trial by jury.

2. We find that the evidence was sufficient to sustain the conviction of attempted robbery. Police Officers O’Brien and Miller had a clear view of the defendant who was beneath a street light; the police fired shots at the fleeing assailant, and defendant was found with a bullet wound which entered through his back; and defendant admitted the crime to Officer Houtsma. Moreover, the explanation given by defendant at trial with regard to his wound contradicted that given to Officer Bayer at the time of his arrest; and none of the witnesses who could corroborate defendant’s testimony appeared in court nor was any explanation given as to the reason they did not appear. The credibility of the witnesses is for the trier of fact to determine and we will not substitute our judgment therefor.

Holding on Appeal

We find that the defendant was proven guilty beyond a reasonable doubt of attempted robbery. However, we also find that defendant did not understandingly waive in open court his right to a jury trial. Therefore the judgment of the trial court is reversed and the cause remanded for a new trial in a manner not inconsistent with this opinion.

Reversed and remanded.

ENGLISH, P. J. and McCORMICK, J., concur.


author: JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elijah H. Johnson, et al., Defendants-Appellants.
    Gen. Nos. 51,086 and 51,087.
    First District, Second Division.
    February 27, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge R. Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Vernon Rinks, Defendant-Appellee.
    Gen. No. 66-98.
    Second District.
    February 27, 1967.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellant.
    No brief filed by appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal by the State from orders of the Circuit Court of the 18th Judicial Circuit, DuPage County, that dismissed a three-count indictment against the defendant, Vernon Rinks. Although no reply brief has been filed with this court by Rinks we will consider the appeal on its merits as is within our discretion. People v. Sanders, 75 Ill App2d 422, 424, 220 NE2d 487.

On January 1, 1966, three complaints were brought against the defendant, all alleging wrongful conduct by him at approximately 11:50 p. m. on New Year’s Eve, December 31, 1965. The first complaint charged Rinks with Obstructing a Peace Officer in violation of section 31-1 of the Criminal Code (Ill Rev Stats 1965, c 38, § 31-1) a misdemeanor, in that he obstructed a Village of Lombard police officer, Eldred Denny, in his authorized attempt to effect an arrest. The second and third complaints charged Rinks with the felonies of Aggravated Batteries in that he pushed and struck Denny and a fellow police officer, Neal Clacher, knowing them to be peace officers engaged in their official duties, contrary to section 12-4 (b)(5) of the Code (Ill Rev Stats 1965, c 38, § 12-4 (b) (5)).

The defendant was released on bond on the same day that the complaints were filed and he was ordered to appear before the Magistrate’s Division of the Circuit Court of DuPage County on January 20, 1966, for preliminary hearings and arraignment. Rinks appeared at that date, with counsel, but all three matters were continued to January 26 on the motion of the court. On January 26, it was represented to the court that officer Denny was in the hospital as a result of injuries received in the occurrence that gave rise to the charges, and, on the State’s motion, all three cases were continued to February 23. On that date the State moved for a further continuance and submitted an affidavit that recited that Denny had undergone surgery on February 18 and would be unavailable for at least six weeks. The court granted the motion and continued the three cases to April 20, 1966, when they were dismissed for want of prosecution when the State’s witnesses again failed to appear. Rinks, or his counsel, or both, were present on all of the foregoing dates.

On May 9, 1966, the Grand Jury of DuPage County returned a three-count indictment against Rinks. Count I charged him with the crime of Aggravated Battery in violation of section 12-4 (a) of the Code in that he intentionally committed a battery on Denny which caused great bodily harm. Count II was identical to one of the original complaints in that it charged Rinks with a further Aggravated Battery in that he struck Denny, knowing him to be a peace officer in violation of section 12-4 (b) (5) of the Code. Count III charged him with the Obstruction of a Peace Officer for his interference with an attempted arrest by an officer Kundrot.

After pleading not guilty at the arraignment, the defendant filed a motion to dismiss the indictment pursuant to section 114-1 of the Code of Criminal Procedure. That motion stated, in part, as follows:

“On April 20, 1966, a complaint charging an offense arising out of the same conduct of the defendant was dismissed for want of prosecution. This offense was obstructing a peace officer. The Peace officer allegedly obstructed from performing his duty was Sgt. Eldred Denny, working in conjunction with Officer Charles Kundrot, of the Lombard Police Department. The State in bringing up a subsequent indictment violates Section 3-3 of the Criminal Code and also Section 3-4 (a) 2 and 3-4 (b) 1, 2, and 3.”

On June 13 the court dismissed Count III of the indictment and, on June 20, Counts I and II.

Section 3-3 of the Criminal Code (Ill Rev Stats 1965, c 38, § 3-3) is entitled “Multiple Prosecutions for Same Act” and concerns itself with the compulsory joinder of certain offenses if they are based on the same act. Nothing in that section prevents the State from charging a defendant with the commission of as many separate offenses as may arise from the same act. It only requires that they be prosecuted, in certain instances, in a single prosecution. It is possible in this case that the State would be compelled, by the provisions of this section, to proceed as a single prosecution to prevent what has been described as the “fundamental unfairness” of multiple prosecutions. The People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744, 447-449, inch; The People v. Colson, 32 Ill2d 398, 207 NE2d 68, 410-412, inch

Although multiple charges were filed against Rinks, there is nothing in the record to indicate that the State was not in the process of a single prosecution.

The other sections of the Criminal Code cited in the defendant’s Motion to Dismiss provide as follows:

“3-4 § 3-4 Effect of Former Prosecution.
“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
U
“(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or . . .
“Section 3-4 § 3-4
“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
“(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began; or
“(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or
“(3) Was terminated improperly under the circumstances stated in Subsection (a), and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.”

These sections were designed, generally, to protect an accused person against situations that might involve so-called “double jeopardy” by its prohibition of a subsequent prosecution for the same offense or a subsequent prosecution for a different offense based on the same act or acts.

As we have seen, the defendant was originally charged with the commission of two felonies and one misdemeanor and the felonies were referred to the magistrate for the purpose of a preliminary hearing to determine whether probable cause existed to hold him over to the Grand Jury. The magistrate had no jurisdiction over the felony charges; could not accept a plea to them, and, could enter no final orders or judgments. (Ill Rev Stats 1965, c 37, § 621 et seq.; Supreme Court Rule 295).

Clearly, no jeopardy had attached at that state of the prosecution before its aborted termination by the action of the magistrate. Preliminary hearings are not required and a discharge at that stage of a proceeding has "no effect upon and does not bar a subsequent indictment nor bind the Grand Jury.” The People v. Jones, 9 Ill2d 481, 482, 138 NE2d 522; People v. Campbell, 49 Ill App2d 269, 271, 272, 200 NE2d 72.

The magistrate did have jurisdiction over the original misdemeanor charge and we would conclude that it is the defendant’s position that the dismissal order of April 20 was “final” and that therefore the State was barred from either a subsequent prosecution for the same offense or a different offense based on the same conduct. It is obvious that the dismissal for want of prosecution did not involve “a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution” so that neither sections 3-4 (a) (2) or 3-4 (b)(2) were applicable. Section 3-4 (b) (3) applies only to those situations where the trial has begun and is terminated improperly after jeopardy has attached to the defendant, and is therefore, not relevant to our case.

Section 3-4 (b)(2) has been considered by the Supreme Court in two recent cases (The People v. Miller, 35 Ill2d 62, 66, 219 NE2d 475; and The People v. Piatt, 35 Ill2d 72, 73, 74, 219 NE2d 481) which hold that the paragraph is applicable only where the prior prosecution has resulted in either a conviction or an acquittal as defined by sections 2-1 and 2-5 of the Criminal Code. Therefore, the dismissal order of April 20, as it related to the misdemeanor charge, although entered by a court of competent jurisdiction, did not act as a bar either to a subsequent prosecution for the same offense or a subsequent prosecution for any other offense that might arise from the same act.

Since the defendant has not been incarcerated nor is there any evidence that he has made a formal demand for trial, his prosecution is also not barred by the so-called “four term” rule.

We find no reason for the dismissal of the indictments and, therefore, we reverse the orders of the trial court and remand the cause for further action.

Reversed and remanded.

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


author: SMITH, J.

text:
    Richard Hamilton, Plaintiff-Appellee, v. Milo Faulkner, Defendant-Appellant.
    Gen. No. 10,809.
    Fourth District.
    February 28, 1967.
    Rehearing denied March 27, 1967.

      Sebat, Swanson, Banks, Jones and Dukes, of Danville, for appellant.
    John W. Unger, of Danville, for appellee.
   SMITH, J.

Plaintiff-tenant sued his landlord-defendant to recover damages for personal injuries suffered when he fell from the roof of the demised premises while trying to fix a defective television antenna. The jury returned a plaintiff’s verdict for $35,000, post-trial motion for judgment n.o.v., or, in the alternative, for new trial was denied. This appeal is from the judgment entered on the verdict.

In his memorandum opinion, the trial judge succinctly and accurately sets forth the facts as follows:

“The plaintiff, aged 36 years, married, was the tenant of the defendant. The defendant owned a duplex apartment. Each apartment consisted of a ground and upstairs floor. The defendant occupied one apartment and leased the other to the plaintiff. It was an oral lease, without any special provisions or limitations.
“At the rear there was a one story extension. The roof on this extension was hip-shape, but the slope was not great. A window in the upper story opened out upon and over this roof. In fact there were like windows in each apartment.
“A television aerial extended upward from this back room and alongside this window, and was fastened to the window casement by a clamp fastened to the casing by wood screws. This aerial served the plaintiff’s apartment only, and was there when the plaintiff rented the apartment. The plaintiff hooked his television to this aerial. For some reason, the television reception was poor, the picture being clouded with ‘snow.’
“The plaintiff complained to the defendant-landlord who stated he had asked some television repairmen to fix it. But no one responded. Finally the plaintiff again complained, and defendant told of his inability to get anyone to come repair it. This occasion was in the backyard in the presence of the defendant, plaintiff, plaintiff’s wife and her som According to the plaintiff either he or defendant observed that there appeared to be some looseness or ‘play’ at the point where the television pole was fastened to the window casing. They both expressed the opinion that possibly this looseness might be the cause of the trouble. Again the defendant stated he had been unable to get any repairman out to fix it, and that he, the defendant, didn’t have the time and was too old to fix it himself. The plaintiff then suggested, in substance, that while he had very little experience with television, that possibly he might be able to fix or tighten this fixture, whereupon the defendant said, in substance, ‘if you think you can fix it go ahead and fix it, it is all right with me.’ The defendant denies he made the latter statement, but plaintiff is corroborated by his wife and her son. This language is most important to the issue. Just what did it import or imply? That was a question for the jury to determine. Apparently they construed it as an implied invitation to the plaintiff to make the repair. We cannot say such an interpretation was not a reasonable one.”

It thus appears that the plaintiff was not injured through the normal use, occupation and enjoyment of the demised premises, but in undertaking the repair of the antenna at the request of the defendant. He was not on the roof repairing the antenna as a result of the landlord-tenant relationship or because of any obligation arising out of his lease. The antenna was in place at the time of the leasing, was apparently owned by the landlord and this record establishes that the obligation to repair was accepted and treated by the landlord as his. By his requests to the landlord to repair, the tenant too recognized the duty of the landlord to repair. The tenant was on the roof not because of any obligation or duty or right under the lease, but because of his acceptance of the landlord’s invitation to attempt the repairs himself. His status was that of a business invitee and not that of a tenant. His status on the roof was no different than had he been a neighbor, an independent contractor or an employee of the defendant. The duty of the defendant to the plaintiff was incubated in the invitation to repair and not in the landlord-tenant relationship. The repair of the antenna was to the advantage of the landlord and perhaps to the mutual advantage of both the landlord and the tenant. Under such circumstances the status of the plaintiff was that of invitee and the duty of the defendant was to not negligently injure him. The applicable rule is stated in 38 Am Jur Negligence, § 96, page 754, as follows:

“. . . The rule is that an owner or occupant of lands or buildings, who directly or impliedly invites others to enter for some purpose of interest or advantage to him, owes to such persons a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of invitation, or at least not to lead them into a dangerous trap or to expose them to an unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils which are known to him but not to them. . . .”

What hazardous condition, either of the antenna or the roof, was known to the defendant and not known to the plaintiff which would give rise to a duty on the part of the defendant to warn the plaintiff? This record is silent. Plaintiff did not remember whether the antenna pole was secured at its base or elsewhere. The record is silent as to defendant’s knowledge. A cursory examination by plaintiff would have revealed its true condition. The plaintiff testified: “The pole was a little wobbly. I observed this as I started to use the pliers and that is the last I remember — flying through the air.” The antenna, the flashlight and the plaintiff fell from the roof together. Plaintiff further testified: “. . . I was familiar with the roof having seen it from the ground, but had never been on the roof prior to the accident. I had looked out on the roof many times from the window upstairs and could see the roof clearly from the window and from the backyard. The roof was sloping, but I considered it safe. . . .”

It is thus clear that any condition either of the roof or of the antenna was as readily apparent or known to the plaintiff as it was to the defendant. As was stated in Placher v. Streepy, 19 Ill App2d 183, 193, 153 NE2d 369, 374:

“. . . There was no proof of a defect, but if a defect had existed, it should have been as apparent to the plaintiff as to the defendant. ... If a patent defect existed plaintiff must have been able .to discover the defect by a reasonable inspection. . . .”

This record fails to show either directly or by any reasonable inference that a latent defect known to the defendant contributed to the plaintiff’s injuries or that any latent defect existed upon which to erect a duty of the defendant to warn. In the absence of such a duty, the record does not establish negligence on the part of the defendant as a matter of law. If, under the evidence in this case, plaintiff is regarded as a licensee the duty of the defendant toward him is even less than that of an invitee and no breach of such duty is shown. 38 Am Jur Negligence, § 104. The trial court erred in failing to direct a verdict upon the failure of the plaintiff to establish a duty on the part of the defendant and a necessary element of a cause of action is missing. It follows that the judgment of the trial court must be reversed and it is so ordered.

Reversed.

CRAVEN, P. J. and TRAPP, J., concur.


author: CRAVEN, P. J.

text:
    James R. Covington and Tom E. Grace, Plaintiffs-Appellants, v. Jack N. Shaffer and R. Leonard Bartz, Co-Partners, d/b/a Hercules Investment Company, Defendants-Appellees.
    Gen. No. 10,844.
    Fourth District.
    February 28, 1967.

      Glenn and Logue, of Mattoon, and Robert N. Corley, of Champaign, for appellants.
    Winkelman & Winkelman, of Urbana, and Burt Greaves, of Champaign, for appellees.
   CRAVEN, P. J.

Plaintiffs appeal from a decision of the trial court, sitting without a jury, denying them recovery in any amount in a suit on a written contract. Plaintiffs contend that the trial court erred as a matter of law. In their view, the evidence adduced at the hearing and the law which applies thereto require a judgment in their favor.

Plaintiffs’ complaint charged that the defendants, Jack N. Shaffer and R. Leonard Bartz, a partnership, doing business as Hercules Investment Company, were assigned oil leases by the plaintiffs, James R. Covington and Tom E. Grace, and that the defendants breached the terms of the contract of assignment. The particular provisions of the contract allegedly breached required the defendants to drill five discovery (test) wells on the assigned leases, at their own expense, to a depth sufficient to test the Maquoketa shale, and to complete such drilling prior to November 1, 1960. The contract further provides:

“In the event purchasers [defendants] fail to drill the five test wells or any of them prior to November 1, 1960, purchasers shall forfeit unto the sellers [plaintiffs] THREE THOUSAND DOLLARS ($3,000.00) for each test well which purchasers have failed to drill.”

There is no dispute that subsequent to the execution of this agreement on March 21, 1960, only one well was drilled on the leased premises within the time specified. During this period, defendants drilled another well several miles from the leased premises.

The defendants raised two defenses in bar of the plaintiffs’ claim. They claim that the agreement is void under the Illinois Securities Law of 1953 (Ill Rev Stats 1959, c 121½, par 137.1 et seq.) and that the provision plaintiffs seek to enforce in this action is a penalty clause void because of public policy. Defendants acquiesce in plaintiffs’ theory that the evidence establishes that unless the contract can be avoided on one of the above-stated grounds, the defendants owe the plaintiffs $12,000 and interest for the four wells which were never drilled on the property. They admit the discovery well drilled several miles away during the life of the contract was not one of the five wells contemplated by the contract.

The evidence discloses that the assignments from the plaintiffs to the defendants were made from a large area of 20,000 acres of contiguous property in which the plaintiffs had secured oil and gas rights. The assignments were of the entire interest of plaintiffs in certain 80-acre tracts selected in checkerboard fashion throughout the larger area. The purpose of requiring the five wells was to test the whole 20,000 acres. The November 1 date for completion of these discovery wells was chosen because the plaintiffs desired to make a decision concerning whether to renew certain of the leases retained by them in the 20,000-acre area which would expire shortly thereafter.

The contract in question is not a security within the meaning of the statute relied upon by defendants because plaintiffs are not issuers under the Act. An “issuer” under the Act is defined in section 2B (4) as:

“With respect to fractional interests in oil, gas or other mineral lease, right, or royalty, . . . ‘issuer* means the owner of the right or interest therein (whether whole or fractional), in which fractional interests are created by such owner for the purpose of sale.”

Obviously, no fractional interests were created in any of plaintiffs’ original leasehold interests by assignment of their entire lease rights and obligations to particular acreage to the defendants. The defendants thereby received all the plaintiffs’ interest in the particular leaseholds assigned to them, not a fractional interest created by the contract in question.

Defendants cite many cases in support of their position that the language in the contract relied upon to support plaintiffs’ claim for $3,000 for each discovery well not completed by November 1 is unenforceable as a penalty. Those cases relied upon are not applicable to the facts in evidence here. In most of them, there was no proof of any damages and the party seeking to enforce the provision labeled a “penalty” erroneously relied upon the language therein to create a presumption of damages. In these cases the courts held either that no reasonable relationship was shown between the amount set forth in the contract as damages and the amount of actual damages sustained because of the breach, or that no actual damages could be inferred despite the presence of the clause. Typical of these cases are VanKannel v. Higley, 172 Ill App 88 and Pinta v. Kral, 285 Ill App 232, 1 NE2d 876 (1st Dist 1936).

In this case there was proof tending to show defendants suffered damages and that there was a relationship to the amount to be forfeited. The evidence indicated that both sides to the contract were aware that the November 1 requirement was inserted because certain of the leases were due to expire and additional rent would have to be .paid to retain unproven leases if the wells had not been drilled by then. The actual cost of such wells was estimated to be $1,800 by defendant Shaffer and $2,500 by plaintiff Grace. There was also testimony that the plaintiffs’ asking price for the leases in question was less than it would have been had the defendants not agreed to drill the wells required by the time specified, thereby forcing the plaintiffs to make other arrangements. The contract did not provide for the particular place that the wells would be drilled, but all parties to the contract agreed that the purpose of the five wells was to test the oil and gas potential of the 20,000 acres in the plaintiffs’ original tract. Even though the contract was somewhat ambiguous on this point, the parties were not in disagreement as to what was required. The spacing was to be dictated for that purpose within the defendants’ discretion.

The use of the word “forfeit” by the parties to describe the payment of $3,000 per undrilled well is not conclusive. Where actual damages would be of imprecise calculation, although real and within the contemplation of the parties at the time of the agreement, it would be an unreasonable conclusion to say that, as a matter of law, defendants were entitled to judgment on the theory that the contract was void because the provisions specifying damages labeled the payment of a liquidated amount a “forfeit.” On the contrary, a conclusion other than the conclusion that the $3,000-per-well figure was a reasonable provision under the circumstances is unsupported by evidence. When parties have agreed to have damages fixed on a particúlar basis, courts will not, unless there is good ground for it, declare such a provision to be void as a penalty. Lu-Mi-Nus Signs, Inc. v. Jefferson Shoe Stores, 257 Ill App 150.

For the reasons stated, the trial court was in error in finding the issues in favor of the defendants and against the plaintiffs. The judgment of the circuit court of Champaign County is reversed and this cause is remanded to that court with directions to enter judgment for the plaintiffs in the principal amount of $12,000 plus statutory interest thereon calculated from November 1, 1960.

Judgment reversed and cause remanded.

SMITH and TRAPP, JJ., concur.


author: MORAN, P. J.

text:
    Louis G. Ritter, Plaintiff and Counter-Defendant-Appellant, v. Milton Janson and Helen Janson, Defendants and Counter-Plaintiffs-Appellees.
    Gen. No. 66-104.
    Fifth District.
    February 24, 1967.

      Floyd E. Crowder, of Columbia, and Walker & Williams, of East St. Louis, for appellant.
    Weihl & Weihl, of Waterloo, and Kassly, Weihl, Carr & Bone, of East St. Louis, for appellees.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Monroe County (1) granting the defendants’ counterclaim to quiet their title to a space between plaintiff’s and defendants’ buildings, which space will hereinafter be referred to as a passageway, and to enjoin the plaintiff and the public from setting up any right or title to the property, and (2) dismissing the plaintiff’s complaint which sought to compel the defendants to remove an alleged obstruction from the passageway, and to restrain defendants from interfering with the use of the passageway, or, in the alternative, to quiet the plaintiff’s title to a prescriptive easement for the use of the passageway.

The defendants, Milton and Helen Janson, own tax lot 57 in the City of Columbia; the plaintiff, Louis Ritter, owns the adjoining tax lot 58. The original brick buildings constructed on these lots prior to 1905 face Main Street and occupy only the front part of the said lots. ■Between the buildings there is a space approximately twelve feet in width which extends from Main Street to a twenty-foot alley at the rear of the lots. The side of the Ritter building abuts on this passageway and is set back eight inches from the property line dividing lots 57 and 58, so that the width of the passageway between the buildings includes eight inches of the Ritter lot and eleven feet, seven inches of the Janson lot.

Plaintiff Ritter derives his title through his father, who, prior to 1905, owned the front part of lot 58 which abutted on Main Street. In 1905, the Columbia Star Milling Company owned the rear parts of both lots 57 and 58 and conveyed the rear part of lot 58 to the plaintiff’s father. There is no grant of any rights in the passageway in either of the deeds in plaintiff’s chain of title.

The defendants Janson trace their title from Frederick Meyer. In 1905 the Columbia Star Milling Company owned the rear part of lot 57 and conveyed it to Frederick Meyer, who at that time owned the front part of lot 57. At the same time as the conveyances to Ritter and Meyer, the Milling Company dedicated a' twenty-foot alley at the rear of both lots 57 and 58. After Frederick Meyer’s death in 1925, his widow owned the property until 1932. In 1937, her heirs conveyed it to John Mueller, who owned it until his conveyance to the defendants Janson in 1949. There is no reservation or grant of any rights in the passageway in any of the deeds in Janson’s chain of title.

None of the witnesses who testified knew the exact origin of the passageway. The plaintiff Ritter testified that it came into existence in 1905 when the parties acquired the rear parts of Lots 57 and 58 from the Milling Company.

The particular controversy was precipitated in 1965, when the defendants began construction of a garage at the rear of lot 57. Upon completion, the garage extended sixteen inches into the passageway and a rock slope extended an additional two feet, three inches into the passageway. At the edge of the garage, the rock slope is about one foot in height and, at the far edge, there is not much elevation. Shortly after construction was begun, the plaintiff demanded that Janson cease construction and remove the obstruction. The defendants continued to build and this case ensued.

The trial court’s decree contained the finding that:

(T)he use of said passageway for ingress and egress has been with permission and consent of defendants and their prior grantors in the chain of title, and at no time did plaintiff or any person or persons assert any adverse claim to an easement for ingress and egress as against defendants and their prior grantors until on or about July 8, 1965, when defendants constructed an extension to their existing garage and banked rocks around the base of said extension. . . .

The trial court then decreed that “any pretended claims in and to any portion of defendants’ premises described in paragraph 2 of this decree be removed as a cloud upon the title of defendants to said above described premises.”

The mere permissive use of land cannot ripen into a prescriptive right. Rush v. Collins, 366 Ill 307, 8 NE2d 659; Mueller v. Keller, 18 Ill2d 334, 164 NE2d 28. However, with regard to land, which is not vacant, open, or unenclosed, where a way has been used openly, uninterruptedly, continuously, and exclusively for more than a period of twenty years, and where the origin of the way is not shown, there is a rebuttable presumption that a grant or an adverse right is present. Leesch v. Krause, 393 Ill 124, 65 NE2d 370; Poulos v. Hill Co., 401 Ill 204, 81 NE2d 854; Petersen v. Corrubia, 21 Ill2d 525, 173 NE2d 499. But the facts which give rise to this presumption must be established by the greater weight of the evidence. Bontz v. Stear, 285 Ill 599, 121 NE 176; Parker v. Rosenberg, 317 Ill 511, 148 NE 269; Petersen v. Corrubia, supra.

The evidence in this case indicates that the passageway was not vacant, open or unenclosed and that its use was open, continuous, and uninterrupted for more than twenty years. There was testimony that there were short periods of time when the Jansons left their car parked in the passageway and a short period of time in which the Jansons had erected a scaffolding for use in the repair of their building. This evidence is not conclusive, however, in determining whether the use was uninterrupted and was properly considered by the trial court. Furthermore, a review of the testimony indicates that the origin of the passageway has not been sufficiently shown. It is known only that the passageway was created at the time when the Milling Company conveyed the rear parts of Lots 57 and 58 and dedicated the public alley at the rear of the lots. The origin is not shown, for instance, as it is in Piper v. Warren, 61 Ill App2d 460, 210 NE2d 71.

The requirement that the passageway’s use be exclusive does not mean that no one may or does use the passageway, except the claimant of the easement. Rather, it means that his right to do so does not depend upon a like right in others. Schmidt v. Brown, 226 Ill 590, 80 NE 1071; Rush v. Collins, supra; Petersen v. Corrubia, supra.

The plaintiff argues that an exclusive use was clearly shown by (1) his use of the passageway showing a claim of right, (2) his understanding with Frederick Meyer that he had the right to use the passageway and that the use could not be stopped, and (3) his father’s construction of a coal shed in 1905 with windows opening onto the passageway. However, there was contrary testimony. The plaintiff testified that he never told anyone that he had a right to use the passageway. Then, too, the plaintiff’s use of the passageway is consistent with existence of a permissive use. Alois Meyer testified that his recognition of the plaintiff’s use was as a matter of right. However, he further testified:

My granddad and my dad and my uncle told me there was an understanding they had among themselves. How — if our family gave it to them, I do not know but that is my understanding of right as neighbors. . . . This was an understanding among neighbors. If you don’t have that kind of understanding the whole neighbors don’t mean anything.

Furthermore, he stated that the understanding applied to others. “Yes, it wasn’t just Ritter alone. There was a lot of people using that alley, walking or riding.” The understanding applied generally to whoever wanted to use it. This testimony explains the witness’s use of the word “right” and creates a question as to the existence of a right to use the passageway. Finally, concerning the coal shed, there was testimony that, in addition to the windows opening onto the passageway, there were doors opening onto the public alleyway at the rear of the lot.

All of the evidence indicates that there was a substantial fact question concerning the exclusive use of the passageway, a question which the trial court determined in favor of the defendants. Contrary to the contentions of the plaintiff, the presumption of a lost grant does not arise; for, according to the fact finder, all of the facts which give rise to the presumption were not established by the preponderance of the evidence. The findings of a trial court will not be disturbed unless they are manifestly against the weight of the evidence. Brown v. Zimmerman, 18 Ill2d 94,163 NE2d 518. Furthermore, the determination whether there was an adverse or a permissive use of an alleyway is almost wholly a question of fact. Bush v. Collins, supra.

Since the findings of the trial court are not against the manifest weight of the evidence, the decree of the trial court must be affirmed.

For the foregoing reasons, the judgment of the trial .court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: GOLDENHERSH, J.

text:
    Emil Meyer and Anna Mae Meyer, Plaintiffs and Cross-Appellants, v. Leonard Ranson, Defendant and Cross-Appellee.
    Gen. No. 66-86.
    Fifth District.
    February 24, 1967.

      Byron L. Connell, of Mounds, for appellants.
    Berbling & Spomer, of Cairo, for appellees.
   GOLDENHERSH, J.

Defendant appeals, and plaintiffs cross appeal, from the decree of the Circuit Court of Pulaski County, denying relief to plaintiffs on their complaint, and to defendant on his cross complaint.

In their complaint plaintiffs allege that prior to August 21, 1962, they owned a parcel of land, during 1961 and 1962 plaintiffs had employed defendant to sell the land, defendant, in the course of his employment as plaintiffs’ agent received bona fide offers for the parcel in excess of $130 per acre, which offers he failed to communicate to plaintiffs, plaintiffs were led to believe the premises were not reasonably worth more than $130 per acre, and were induced to sell and convey the land to defendant for $57,850, subsequently defendant boasted he would sell the real estate at a profit of $50,000, plaintiffs would not have agreed to sell at the price paid had defendant disclosed to plaintiffs the value of the land and the offers received therefor, that on December 19, 1962, defendant sold the land for $251.75 per acre, being in the aggregate $112,000, subsequently the contract of sale was amended to provide a price of $97,500. Plaintiffs pray that the court order an accounting, hold that defendant held the real estate in trust at the time of his sale thereof, and that defendant be required to assign to plaintiffs the contract for sale providing for payment, in instalments, of the sale price.

Defendant answered, denying the material allegations of the complaint, and filed a cross complaint alleging that plaintiffs sold him a farm comprised of 444.84 acres at $130 per acre, totalling $57,850, all of which has been paid, that defendant cleared many acres of trees and brush, improved access roads and ditches, expending therefor more than $15,000; in December, 1962, he sold the land for $112,000, payable in instalments over a period of 10 years, his purchasers caused the land to be surveyed and the survey showed that the farm contained 387.246 acres, 57.594 less than conveyed and warranted by plaintiffs, as a result of the survey defendant was required to reduce the sale price to $97,500, and was further required to expend $700, being one-half of the cost of the survey, plaintiffs were advised of the shortage, but refused to pay their portion of the loss; defendant prays judgment in the amount of $25,000. In their answer, plaintiffs denied the material allegations of the cross complaint.

Plaintiffs, in order to prevail in their action against defendant, must prove that the relationship of principal and agent existed between the parties. The relationship of principal' and agent is a fiduciary one, Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill 106, 45 NE2d 20; Belleson v. Ganas, 394 Ill 557, 69 NE2d 321. In Bennett v. Hodge, 374 Ill 326, 29 NE2d 524, the Supreme Court said, at page 330: “Where it is sought to establish a fiduciary relation by parol evidence, the proof must be clear, convincing and so strong, unequivocal and unmistakable as to lead to but one conclusion.” On review, the findings of the trial court will not be disturbed unless they are manifestly against the weight of the evidence, Schnepper v. Ashlock, 404 Ill 417, 88 NE2d 853.

It is not essential to this opinion to include herein a review of the testimony adduced in the trial of plaintiffs’ cause of action, and since to do so would be of no prece-dential value, we deem it sufficient to say- that we have carefully examined the testimony and cannot say that the trial court’s findings are against the manifest weight of the evidence.

The evidence shows that on August 21, 1962, plaintiffs and defendant entered into a contract for the sale of plaintiffs’ farm to defendant for the sum of $57,850. On August 29, 1962, by warranty deed, plaintiffs conveyed the real estate to defendant and his wife. The parties testified that $10,000 was paid plaintiffs when the contract was signed, and the balance of the purchase price was paid when the deed was delivered.

On December 19, 1962, defendant and his wife entered into a contract with Kermit and Frances Shelby for the sale of the same farm for the sum of $112,000, payable $12,000 when the contract was signed, nine payments of $10,000 each, payable January 1, 1964, and annually thereafter, these payments to include interest at the rate of 5% per annum on the balance remaining unpaid, and a final payment of all principal and interest due on January 1,1973.

The contract entered into on August 21, 1962, the . warranty deed executed on August 29, 1962, and the contract of December 19, 1962, contain identical descriptions of the real estate.

A second contract also dated December 19, 1962, entered into between defendant and his wife, and Kermit and Frances Shelby, is also in evidence. This contract provides for a purchase price of $97,500, contains a different description, and provides for annual payments of $8550. In all other respects the two contracts are identical.

Defendant testified that after he purchased the farm from plaintiffs, he made a number of improvements, and thereafter entered into the first agreement with the Shelbys. He stated that in arriving at the price at the time of the purchase from plaintiffs, the price was $130 peí acre, totalling $57,850. After the sale to the Shelbys, the Shelbys insisted on a survey, as the result of which the shortage in excess of 57 acres was discovered, and the price to the Shelbys was adjusted, resulting in the execution of the second contract. On April 22, 1963, defendant’s attorney wrote a letter to plaintiffs in which he informed them the survey had been made, and the results thereof, stated that defendant had been required to adjust the sale price with the Shelbys and requesting that plaintiffs communicate with him. Instead of communicating with defendant’s attorney, plain-, tiffs filed this suit.

Although the deed by means of which plaintiffs acquired title to the premises is not in evidence, plaintiff, Emil Meyer, testified that it contained the same description as is found in the contracts between plaintiffs and defendant, the deed from plaintiffs to defendant and his wife, and the first contract entered into between defendant and his wife, and the Shelbys. The description is lengthy but in essence purports to describe “All of the lands southwesterly of the C. & E. I. Railroad” in designated quarters of a specific section, and “all the lands that are situated southwesterly of the C. & E. I. Railroad” in the north half of another section, except a strip of land 50 feet in width adjacent to the railroad right-of-way. The parcels, and the strip excepted, are described as containing a certain number of acres “more or less,” but the description, after reciting the exception concludes “leaving 444.84 acres hereby conveyed.” The description in the second contract with the Shelbys is stated in metes and bounds, set forth in great detail, and concluding with the statement that the parcel contains 387.246 acres.

Defendant contends that the price at which he bought the land from the plaintiffs was $130 per acre, and he is entitled to a judgment in the amount of $7487.22, being the price per acre multiplied by the number of acres found to be short as the result of the survey. Plaintiffs contend that the sale was on a gross or lump-sum basis, and the number of acres stated in the deed is immaterial.

It is clear from the testimony of the plaintiff, Emil Meyer, and of the defendant, that at the time of arriving at the price at which the farm was sold, all parties computed it on the basis of $130 per acre. The questions presented are whether in view of the mutual mistake, in the absence of proof of fraud, defendant is entitled to relief, and if so, since he does not seek rescission, what is the measure of damages.

In Tope v. Tope, 370 Ill 187, 18 NE2d 229, the Supreme Court said, at page 194: “The established rule of construction in Illinois is that where a tract of land is conveyed by proper description the boundaries, thus included will control as to the quantity of acres, and in case of deficiency the grantee will have no remedy, and in case of excess the grantor will have no remedy. The mention of the number of acres, in such case, has no legal effect. (Citing cases.)”

In Binder v. Hejhal, 347 Ill 11, 178 NE 901, at page 20, the court said: “The rule in regard to the sale of a tract of land in gross by its proper governmental description, or by any other specific description by which its exact boundaries may be determined, is, that these boundaries will control the description in case of a discrepancy as to the quantity or number of acres, and neither the purchaser nor the seller will have any remedy against the other for any excess or deficiency in the quantity stated unless the excess or deficiency is so great as to raise a presumption of fraud; and where a sale of an entire tract of land by metes and bounds for a gross sum has been made and the parties have acted in good faith and no fraudulent representation has been made, neither party will be bound by a statement as to the quantity or number of acres contained in the tract except where such statement is expressly or by necessary implication made the essence of the contract. Wadhams v. Swan, 109 Ill 46.”

It appears from the evidence that all parties knew the parcel involved, and plaintiffs agreed to sell the land owned by them in the enumerated sections. The survey is not in evidence, and there is no proof that the description used in the conveyance to defendant is not the proper governmental description, nor that the exact boundaries of the land could not be determined therefrom. There is no. evidence either of lack of good faith or of fraudulent representation. Under the circumstances the rule enunciated in the opinions quoted from applies, and the mention of the number of acres is of no effect.

Defendant argues that because the description in the contract and deed does not contain the phrase “more or less” after stating the number of acres to be conveyed to be 444.84, plaintiffs warranted this to be the exact number of acres in the farm. In view of the qualification that each component parcel, and the strip excepted, contained a stated number of acres “more or less,” we are unable to see how the final figure could fail to be likewise so qualified.

Because we conclude that the judgment of the trial court denying defendant relief on his cross complaint must be affirmed, we do not discuss the question of what measure of damages is applicable.

For the reasons herein set forth, the decree of the Circuit Court of Pulaski County is affirmed.

Decree affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Sylvester Samples, Defendant-Appellee.
    Gen. No. 66-113.
    Fifth District.
    February 25, 1967.

      T. H. Hubler, State’s Attorney of Williamson County, of Marion, for appellant.
    No brief filed for appellee.
   EBERSPACHER, J.

Defendant was arrested on a warrant issued on a criminal complaint charging the defendant committed the offense of deceptive practice. The complaint alleged:

“Sylvester Samples, committed the offense of Deceptive Practice in that, on said 16th day of June, 1966, at and within the City of Marion, County of Williamson in the State of Illinois, said defendant, Sylvester Samples, made, executed and delivered unto Bracy Food Stores, Inc., a corporation, a check in the amount of $40.80, drawn on the Bank of Egypt, a banking corporation, then and there knowing at the time of the making, drawing and delivering said check that it would not be paid by said depository with the intent then and there to thereby obtain unauthorized control over the property of the said Bracy Food Stores, Inc., a corporation, in violation of Paragraph 17-1 (d), Chapter 38 Illinois Revised Statutes, 1965.”

By the Public Defender, defendant filed his motion to dismiss the complaint, quash the warrant and discharge the defendant, contending that the complaint failed to set forth all the elements of the offense charged in that there was a failure to allege “an intent to defraud.” The court upon hearing the arguments, entered its order dismissing the complaint, quashing the warrant, and discharging defendant, from which the People have perfected this appeal.

Section 17-1 (d) of the Criminal Code (c 38, § 17-1(d), Ill Rev Stats 1965) provides that a person commits a deceptive practice when:

“With intent to obtain control over property, labor or services of another, he issue's or delivers- a check or other order upon a real or fictitious depository for the payment of money knowing that it . will not be paid by the depository . . . .”

As was pointed out in People v. Billingsley (Feb 1966), 67 Ill App2d 292, 213 NE2d 765 at p 768:

“The statute quoted above makes no reference to an ‘intent to defraud.’ It requires only that a person, with an intent to obtain control over property* issue or deliver a check for the payment of money knowing that it will not be paid by the depository. If taken literally, this could be read to mean that a person has committed a criminal offense, who, when •issuing his check in return for funds advanced to him, knows that his depository cannot then honor it, and so advises the person to whom the check is issued, and asks him to take and hold it until a specified future date, at which time the check will be good. The statute, so construed, would thus convert the use of a check as a ‘note,’ or the creation of a debtor-creditor relationship in such manner, into a criminal offense. Interpreted thusly, the statute would impose absolute liability.”

We agree as is pointed out in subsequent portions of the Billingsley opinion that section 17-1 (d) does not create absolute liability, and agree with the language of that opinion, concerning the sufficiency of the language of the statute in framing a deceptive practice charge, in view of the history of section 17-1 (d), and the requirements of section 111-3 (a) of the Criminal Code (c 38, § 111-3 (a), Ill Rev Stats 1965).

The opinion in Billingsley does not set out the exact language of the charge; but here the People contend, that the holding therein is incorrect, and that under the reasoning of the Appellate Court (4th District) in People v. Haynes (July 1966), 73 Ill App2d 85, 218 NE2d 489, the necessity of the use of the words “with intent to defraud” is dispensed with, and that a bill of particulars could supply any additional details from a factual standpoint that might be necessary for the proper preparation of the defense. In Haynes the court had before it the question of the sufficiency of an indictment for forgery, being prosecuted under section 17-3 of the Criminal Code; there it was urged that the indictment was insufficient since it failed to allege that the person whose name was forged was a living person. The court rejected this contention, pointing out that an indictment for forgery was historically sufficient when couched in the language of the statute, and distinguished the cases which had indicated otherwise. The Haynes case cannot be interpreted to say that an essential element of a crime can be omitted in the charge, because it can be reached by a bill of particulars. As is pointed out in Billingsley, former section 255, which was codified by section 17-1 (d), included the words “with intent to cheat or defraud” and the Supreme Court, in People v. Baldas, 334 Ill 444, 166 NE 47, described the essential elements of the crime, and held that all essential elements must be alleged, and held that the missing essential element (knowledge that the bank would not honor) could not be inferred from the allegation of intent to defraud.

The committee comments following sections 16-1 and 17-1 (SHA c 38, §§ 16-1 and 17-1) point out that most of the bad check activities will fall under section 16-1, and particularly point out that when the instrument is issued or delivered “to pay for property,” the defendant could not be prosecuted for theft under section 16-1. Here the people have included the theft element in the charge which recites it is a deceptive practice charge under section 17-1(3), by not using the language of section 17-1 (d) “intent to obtain control over property” and substituting therefore “intent to obtain unauthorized control.” Under section 16-1 (a) theft is committed when one knowingly obtains unauthorized control, so that it cannot be said that the charge in this case is couched in the language of section 17-1 (d), the violation of which the People contend it alleges. To us it is not logical that an essential element of the crime of theft, “unauthorized control over property” of another, could be substituted for the essential element of deceptive practice— “intent to defraud.” Neither do we consider that it would be proper for a defendant to be required to demand a bill of particulars to determine whether he was charged with theft by a complaint which states that the violation is of section 17-1 (d).

Neither can we say that the Legislature when they codified the former “bad check” section (§ 255, c 38, Ill Rev Stats 1961) by the adoption of section 17-1 (d) intended to eliminate the previously essential element of “intent to defraud” even though they did not include those specific words in the codification. Had they intended to alter the essential element of the crime, the resulting section 17-1 (d) would not have been a codification of the former section 255, as it is stated to be in the Committee Comments, but would describe a different crime with different essential elements.

We contemplate no hardship or undue burden placed upon the People, by the requirement that intent to defraud be alleged in charging violation of section 17-1 (d). The judgment, of the Circuit Court of Williamson County is affirmed.

Affirmed.

MORAN and GOLDENHERSH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Wells, Defendant-Appellant.
    Gen. No. 66-48.
    Fifth District.
    February 28, 1967.

      George Ginos, of Hillsboro, for appellant.
    Otto E. Funk, State’s Attorney, of Hillsboro, for ap-pellee.
   GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Montgomery County entered on a jury verdict finding him guilty of the offense of Disorderly Conduct, (c 38, § 26-1, Ill Rev Stats 1965). The court fined defendant $250 and ordered him to pay the costs of court.

The complaint charges that on June 10, 1965, at approximately 1:00 a. m., defendant committed the offense of Disorderly Conduct in that he knowingly, with intent to annoy William F. Whitnel, made a telephone call to his home, but had no conversation with him, in that he hung up the telephone immediately upon hearing Whit-nel’s voice.

Defendant argues as grounds for reversal (a) the trial court erred in admitting evidence of prior occurrences similar to that charged in the complaint (b) the court erroneously permitted a supervisor for the telephone company to testify as to certain matters, and (c) erred further in not permitting defendant’s counsel to interrogate his character witnesses as to defendant’s reputation for “peacefulness and quietude.” Finally, defendant contends that the evidence fails to establish defendant’s guilt beyond a reasonable doubt, and there is a variance between the charge set forth in the complaint, and the evidence.

William F. Whitnel testified that he lived in Litch-field and for four years had been Superintendent of Unit 12 Schools. He had known defendant for approximately 7 years. Defendant is employed by Unit 12 as a Junior High School teacher, and also operates a cafe in Litchfield. He had discussed with defendant his absence from his teaching duties, during part of which defendant was on sick leave, but was not ill, and was working in his cafe. They had also discussed an extension course which defendant planned to take to meet the requirements of the Board of Education for “professional growth.” A day’s pay was deducted from defendant’s salary because of his failure to attend a Teacher’s Institute. Whitnel stated that he had received a report that defendant had discussed the deduction with the County Superintendent of Schools but he did not know the result of that conversation. On one occasion he had written defendant regarding his failure to comply with a School Board rule that he be at school at 8:00 a. m.

Over objection, the witness testified that in the preceding 6 months approximately 15 telephone calls had been made to his home, usually between 11:30 p. m. and 2:00 a. m., and when the telephone was answered, there was no one on the other end of the line. He kept no record of the calls except three which were made on June 8, 9, and 10, 1965. The usual pattern was that he or his wife would be awakened by the ring of the telephone, would answer, and hear a click. There was no conversation at any time.

On June 8, 1965, at 1:40 a. m. the telephone rang, Mrs. Whitnel answered, no conversation ensued, and on that afternoon, after Whitnel talked with the Chief of Police of Litchfield, a monitoring device was placed on the telephone in the Whitnel home.

The next morning at 1:15 a. m., the phone rang, Whitnel answered, and heard the click at the other end of the line. In accordance with instructions received from Mr. Gary Clifton, manager of the telephone company, he left the phone off the hook. Later that morning he saw Mr. Clifton and the Chief of Police, and then put the phone back on the hook.

The next morning, June 10, 1965, at about 1:00 a. m., there was a similar occurrence. Whitnel went to the police station, and a patrolman and he drove past defendant’s cafe. He saw defendant stooping down in front of a stool. They drove past the place, turned around and passed it a second time, and he again saw defendant in the place. It was then 1:07 and defendant’s place of business was closed. Later, about 1:45 a. m. the phone in Whitnel’s home buzzed again, “as if it were trying to ring.” He saw the State’s Attorney and signed a complaint.

Gary Clifton, commercial manager of the telephone company at Litchfield, testified that he authorized the attachment of a monitoring device to Whitnel’s line. He explained that while this device is attached it makes the called number the controlling party, and so long as the phone to which the call was made is off the hook, the phone from which the call is made is tied up. He supervised the technician who traced the calls of June 9 and 10, 1965, to George’s Cafe, where the phone is listed in defendant’s name.

Defendant objected to the testimony with respect to the tracing of the calls on the grounds that the witness had no personal knowledge of the result of the tracing operation, the testimony was hearsay, and no reason was shown why the technician who did the actual tracing was not present in court.

Mrs. Whitnel testified that the calls were received, and a patrolman testified that on the morning of June 10 he and Whitnel drove past defendant’s place of business and the lights were on.

Defendant testified that he called Whitnel’s home late on the night of June 9, 1965, to discuss with him approval of a correspondence course he intended to take. He was unable to fix the time, except that it was later than 10:00 p. m., the closing time of his business. He heard 5 or 6 rings, and when there was no answer, he hung up.

Defendant argues as a ground for reversal that the court erred in admitting, over objection, the testimony of Mr. and Mrs. Whitnel, that calls had been received over a period of time commencing about January 1, 1965. Defendant concedes that evidence of unrelated offenses may be admissible to prove design, motive or knowledge (People v. Brown, 26 Ill2d 308, 186 NE2d 321), but that in the cases which so hold, it was proved that the defendant was the perpetrator of the other offenses, whereas here no effort was made to connect the defendant with any call except those of June 9 and 10,1965.

In Volume 2 of Wigmore on Evidence (Third Edition) at page 201 is found a discussion of what the author calls “anonymous intent.” He points out that evidence of previous occurrence of the same or similar things may be admitted to negative innocent intent, accident or inadvertence. Thus in State v. Huffman, 69 W Va 770, 73 SE 292, in a trial on a charge of arson, evidence was admitted to show other fires suffered by the owner of the property burned, though not traced to the defendant, as bearing on the issue of whether the fire upon which the charge was based was accidental, or the work of an incendiary.

An example more similar to the occurrence in this case is found in United States v. Roche, 11 Porto Rico Federal 440. The defendant was a postal clerk and letters had disappeared from the post office where he was employed. A “decoy” letter containing marked bills was sent through that office, and later was found in a drawer in furniture owned by the defendant. In considering the contention that the court erred in permitting a postal inspector to testify that there had been previous losses, the court at page 442 said: “It is urged that the court erred in permitting the postoffice inspector to testify that there had been previous losses of letters at the Fortuna postoffice, inasmuch as this might tend to prejudice the jury against the defendant. There was no intimation that the previous losses had been due to this defendant, and it is difficult to see how the sending of a decoy letter could be justified by the authorities unless there was evidence of previous losses of mail. Evidence of this kind is frequently looked upon with disfavor by juries, and since it had to be shown that a decoy letter was sent, all the circumstances connected with the sending should be set out in order that the jury might understand the whole situation. Otherwise it would seem that a trap was being laid without any justification, and the government’s case impaired accordingly. The reason for sending the decoy letter was part of the res gestae of sending the letter itself. There was no error in admitting the evidence.”

We have considered the cases of State v. Nevius, 77 Ohio App 161, 66 NE2d 243 and State of Florida v. Norris (Fla), 168 So2d 541 (1964) cited by defendant and find them clearly distinguishable on the facts.

In this case the testimony with respect of the calls made prior to June 9, 1965, was properly admitted to show the reason for the installation of the monitoring device.

As his second ground for reversal defendant argues that the court erred in permitting Gary Clifton, manager of the telephone company at Litchfield, to testify over defendant’s objection, as to the results of the tracing of the calls made to Whitnel’s home. Defendant contends that the witness is not shown to be an expert in the use of the equipment, and because there was no showing as to the reason why the technician who installed the equipment and traced the call was not in court, defendant was denied his constitutional right to confront the witnesses against him, and the testimony is hearsay.

Mr. Clifton testified that he had worked on the type of equipment used in tracing the calls, that he went with the technician as he checked through each stage of the tracing operation and when it was checked back to the telephone at defendant’s cafe. He (Clifton) verified the records showing the location of the number to which the technician traced the call.

On cross-examination he stated that after the tests were made, the technician was the one who determined the number from which the call was made, that he was taking the technician’s word that it was that particular number.

Although in the purely technical sense, the testimony of a supervisor under these circumstances, is hearsay, it is of a type that falls within a well recognized exception to the general rule applicable to hearsay testimony. We have seen the development of the rules of evidence governing the admissibility of business records, commencing with the rule in England that shop-books of “ ‘divers men of trades and handicraftsmen’ ” were ad-xnissible in evidence of “ ‘the particulars and certainty of the wares delivered’ ” (5 Wigmore on Evidence 347, 3rd Edition), and as presently set forth in Supreme Court Rule 236. The basis for the admissibility of the records is that the circumstantial probability of their trustworthiness is a practical substitute for cross-examination of the individual making the entries. The same reasoning has been applied to make admissible entries made by one individual on the basis of statements or memoranda made by another person, O. S. Richardson Fueling Co. v. Seymour, 235 Ill 319, 323, 85 NE 496.

In our opinion the testimony describing the manner of tracing the calls was sufficient to show the “circumstantial probability of trustworthiness” to make it admissible without calling the technician as a witness. The witness was ably cross-examined and the jury given ample opportunity to determine whether the results of the test were accurate. Under the circumstances here presented, the trial court did not err in admitting the testimony.

Finally defendant contends that the court erred in refusing to admit the testimony of witnesses concerning defendant’s general reputation for “peacefulness and quietude,” on the ground that the trait was not involved in this litigation.

It is clearly established that a defendant in a criminal case can make proof of such previous good character as is inconsistent with the commission of the crime with which he is charged. The People v. Lewis, 25 Ill2d 442, 185 NE2d 254. The offense charged is Disorderly Conduct, and in our opinion the traits of peacefulness and quietude are such as would be inconsistent with any form of disorderly conduct. The refusal to permit defendant’s character witnesses to testify was error.

The People contend that the evidence of guilt is overwhelming, and assuming arguendo, some erroneous rulings on evidentiary matters, the judgment should not be reversed because clearly the error, if any, did not affect the result. This Court is unable to measure the extent to which the exclusion of testimony that defendant’s reputation was good influenced the verdict, and the error committed is so prejudicial as to require reversal.

For the reasons herein set forth the judgment of the Circuit Court of Montgomery County is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

MORAN and EBERSPACHER, JJ., concur.