source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James T. Higgs, Defendant-Appellant.
    (No. 55130;
    First District (2nd Division)
    May 15, 1973.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant, James Higgs, was tried before a jury for the offense of murder. He was found guilty and sentenced to 15 to 30 years in the penitentiary. He appeals and contends:

1. That the prosecution knowingly used false evidence to obtain his conviction; and
2. That defendant was denied a fair trial in that:
a. The cross-examination of defendant was improper and prejudicial;
b. Prejudicial hearsay evidence was improperly admitted into evidence;
c. The trial court intimated to the jury that defendant was present when the shooting occurred; and
d. The prosecutor’s closing argument was prejudicial.

The deceaséd, Joseph King, was shot shortly after midnight on August 16, 1969. His body was found lying on the sidewalk on the west side of Carpenter Street just south of 63rd Street. King was a junior member of the Six-Tray Disciple Gang; defendant was its vice-president and a senior member. Three key prosecution witnesses were also members of the gang.

Roscoe Roberts testified that he and Joe King were walking down Carpenter Street at approximately midnight. They were going to find the person or persons who had “knocked out” their friend “T.T.” When they reached 63rd and Carpenter, they encountered defendant who was drinking wine under elevated train tracks in an alley behind a liquor store. Roberts asked defendant if he knew who had knocked out “T.T.,” and defendant responded “No, forget it.” Roberts and King then proceeded to walk across to the east side of Carpenter Street. Defendant shouted at them to come back, and, when they said no, defendant exclaimed “You ain’t coming back, huh, punks?” Roberts testified that he then heard shots fired, turned and saw defendant, with a gun in his hand, standing near the aHey on the west side of the street. King staggered and commenced running. Roberts then ran up to defendant and swung at him, but was thrown to the ground by police officers who had immediately arrived on the scene. Roberts got up and ran around the block in an effort to find King.

On cross-examination, defense counsel asked Roberts at what time he met King on August 15 prior to the shooting. The prosecutor objected and requested a conference outside the presence of the jury. He argued that defense counsel was endeavoring to bring forth evidence that King had a gun in his possession at 3 P.M. on the afternoon of August 15. The prosecutor informed the court that he, defense counsel and a public defender investigator were present the day before trial when Roberts was being interviewed, and that Roberts told defense counsel that King had a gun. The prosecutor argued that this testimony would be irrelevant to the issues. The court, however, ruled that the jury should hear all the testimony. In the presence of the jury, Roberts answered that King did not have a gun, and denied making the statement in the presence of the prosecutor and investigator. Defense counsel subsequently called the investigator, who testified that, at tire meeting with the prosecutor and defense attorney, Roberts had stated that King had a .22 caliber gun on August 15.

James Walsh, another Six-Tray Disciple member, testified that he was standing alone in front of the liquor store when he heard the shots. He ran around the comer and saw friends on the street who were shouting that defendant had shot King. He also saw defendant with a gun in his hand. On cross-examination Walsh stated that there were approximately 10 policemen on the scene when he saw defendant with the gun. He also stated that he neither saw Roberts swing at defendant, nor saw the police throw Roberts to the ground.

Larry McCaskill, also a member of the gang, testified that he heard shots, ran around the corner from the liquor store and saw defendant pointing a gun at Roberts and King. On cross-examination this witness testified that King had a gun in the evening prior to the shooting, but that it was only a cap gun which they had unsuccessfully tried to convert into a zip gun.

Chicago police officers testified that no weapons were found on King’s body. One officer testified that, when he arrived at the alley on the west side of the street, 20 to 30 persons were standing around. As he got out of his squad car, someone in the crowd shouted, “He is the one that did the shooting,” indicating a group of four men standing near the squad car. These four men, one of whom was defendant, were searched, but no gun was found on defendant. Four persons from the crowd then attacked defendant, shouting that he had shot King. The court sustained an objection to the testimony as to the oral accusations of the attackers, but allowed the officer to testify to the attack on defendant.

Stephen Hart, the acting president of the gang, testified for defendant that he was with defendant in front of the liquor store at the time of the shooting. He had gone inside while defendant had remained outside. As he was walking from the store, he heard the shots. Defendant was still standing outside the store and had no gun in his hand. He and defendant ignored the shots, walked around the corner and the police arrived.

Defendant testified that he was standing in front of the liquor store when he heard the shots. He stated that Roberts, as leader of the junior members of the gang, wanted to take control of the whole gang. On cross-examination, the prosecutor asked defendant what his duties as acting Vice-president were, and inquired into the structure and hierarchy of the gang. Defendant testified that he would protect members of his gang by using pistols if necessary, and would allow members to protect themselves with pistols.

Initially, defendant contends that the State knowingly used false evidence to obtain his conviction. Defendant maintains that the prosecution’s chief witness, Roscoe Roberts, lied before the jury. The prosecutor knew that Roberts had previously stated that King was armed on the afternoon prior to the shooting. The prosecutor informed the judge that he was present when Roberts made that statement. However, he did nothing to correct Roberts’ testimony. The State maintains that there was no false testimony, that the testimony of the public defender investigator contradicted Roberts’ testimony, and that the only issue is one of credibility of the witnesses.

A defendant is denied a fair trial when a conviction is obtained through the use of false evidence. This is also true when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. (Napue v. Illinois, 360 U.S. 264.) Fundamental fairness proscribes the knowing use of false evidence, even though the falsehood bears upon a witness’s credibility rather than directly upon defendant’s guilt. The Supreme Court in Napue v. Illinois, supra, stated:

“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guüt or innocence, and it is üpon such subtle factors * * * that a defendant’s life or liberty may depend.” 360 U.S. 264, 269.

The duty of a prosecutor is not only to represent the State, but also to represent the people by seeing that defendants receive fair trials. When a prosecutor learns that his witness has made an untrue statement it is his obligation to inform the jury of that fact. (People v. McKinney, 31 Ill.2d 246, 201 N.E,2d 431.) In the instant case, the prosecutor knew that Roberts was lying in his testimony before the jury. At that time, it became incumbent upon him to disclose to the jury that he was present at the prior meeting with Roberts and defense counsel. The false testimony was not cured by the subsequent testimony of the public defender investigator, because the jury was left to weigh the credibility of both witnesses. If the prosecutor had informed the jury of the prior statement, the jury would not have been in the position of believing either Roberts or the investigator.

In addition, we believe that the prosecutor compounded his error by stating in his closing argument that the investigator’s testimony was “worthless.” He told the jury that he was at the meeting with Roberts and defense counsel, and that Roberts had stated that King had a gun, but that it was a toy gun. This did not merely help to impeach Robert’s testimony, as the State contends, but was an attempt to mislead the jury by inter-posing a barrier to the full disclosure of the facts. In the conference with the trial judge, the prosecutor stated only that Roberts had said that King had a gun, not that it was a toy gun. But even if that were true, the prosecutor should have clarified this point when he heard Roberts deny making his prior statement.

We cannot speculate as to whether the jury would have accepted Roberts’ full testimony if his credibility had been impaired by proper revelation of his false testimony. See People v. Faulkner, 7 Ill.App.3d 221, 287 N.E.2d 243. This witness was the key prosecution witness, and the jury’s determination of guilt may well have been based on his testimony alone. Two other witnesses testified to seeing defendant with a gun after the shooting and after the police arrived. However, no gun was found on defendant, and the police on the scene immediately after the shooting testified that they did not see defendant with a gun. In view of this close and conflicting evidence, the jury should have been informed as to all matters within the knowledge of the prosecution bearing upon the credibility of this witness, and failure to do so requires reversal of defendant’s conviction and remandment of this cause for a new trial.

While ordinarily we might see no need to consider defendant’s other contentions relating to the conduct of the trial, we do so here in order to insure that what we regard as error is not repeated in the new trial.

Defendant was cross-examined as to the structure, hierarchy and membership requirements of his gang. The scope of cross-examination is within the discretion of the trial judge. (People v. Winstead, 90 Ill.App.2d 167, 234 N.E.2d 175.) The matter of the gang structure was initially put in evidence by defendant on direct examination. He stated that the prosecution’s witness Roberts was testifying against him because Roberts wanted to take control of the gang. Therefore, cross-examination as to the operation of the gang was proper, and there was no abuse of discretion. (People v. Hairston, 10 Ill.App.3d 678, 294 N.E.2d 748.)

As to the matter of prejudicial hearsay, a police officer testified without objection that when he arrived on the scene, a person in the crowd of 20 to 30 people shouted that King’s killer was one of 4 men standing on the scene. The officer also stated that, after defendant was searched, 4 persons attacked defendant shouting that he had shot deceased. Objection to the introduction of the statements by the attackers was sustained, but the officer was allowed to testify to the attack. We believe that this testimony was inadmissible hearsay.

Courts in Illinois have recognized that assertive conduct, as well as verbal statements, may be inadmissible hearsay. (People v. Reeves, 360 Ill. 55, 195 N.E. 443; People v. Hazen, 104 Ill.App.2d 398, 244 N.E.2d 424.) In the instant case, the testimony that defendant was attacked only could have been relevant to prove that defendant had killed deceased. (See People v. Willy, 301 Ill. 307, 133 N.E. 859.) Therefore, this testimony was prejudicial hearsay which should have been excluded. We note that no objection was made to this testimony at trial. However, in view of the remandment of this case for a new trial, we believe that mention of this error is necessary.

Finally, after redirect examination of Roscoe Roberts, the trial judge extensively questioned this witness. This questioning, which covers approximately 6 pages of the abstract of record, precisely clarified every detail of Roberts’ testimony.

The extent to which a judge may examine witnesses is largely in his discretion and depends on the circumstances of each case. (People v. Giacomino, 347 Ill. 523, 180 N.E. 437.) A judge has a right to question witnesses, but he must do so in a fair and impartial manner without showing prejudice or bias against either party. (People v. Gilbert, 12 Ill.2d 410, 147 N.E.2d 44.) In the instant case, the trial judge presumably felt that further clarification of Roberts’ testimony was necessary. During cross-examination, a juror had shouted that Roberts had not said that the man he saw at the scene had a gun. At that time the judge told the jurors that they were restricted to the questions and answers from the witness stand. In addition, the prosecutor and the defense counsel failed on direct examination and cross-examination to present the facts on Roberts’ testimony to the jury in a comprehensible manner. In light of the confusion surrounding this testimony, the trial judge admirably performed his duty to enlighten the jury as to the relevant facts.

For the above reasons, the judgment of the circuit court is reversed. The cause is remanded for a new trial.

Reversed and remanded for a new trial.

LEIGHTON and HAYES, JJ., concur.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Oscar L. Williams, Defendant-Appellant.
    (No. 57228;
    First District (3rd Division)
    May 17, 1973.

      James J. Doherty, Public Defender, of Chicago, (Elliot Samuels and Thaddeus L. Kowalski, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Bernard S. Armel, and Fred Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE McGLOON.


author: Mr. JUSTICE GOLDBERG

text:
    Kenroy, Inc., Plaintiff-Appellee, v. Alfred Berthold, Defendant-Appellant.
    (No. 56097;
    First District (1st Division)
    May 21, 1973.

      McCarthy, Schemich, Duffy & McCarthy, of Chicago, (Daniel J. McCarthy and Frank K. Neidhart, of counsel,) for appellant.
    Marks, Marks and Kaplan, of Chicago, (Alan P. Sobel, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Kenroy, Inc. (plaintiff) sued for recovery of a real estate brokerage commission from Alfred Berthold (defendant). After trial without a jury, the court entered judgment for plaintiff in the amount of $5,394.10. Defendant appeals.

Defendant contends that plaintiff’s action is barred because it failed to obtain a broker’s license pursuant to the ordinance of Elk Grove Village where the property is located. Defendant also contends that the judgment is against the manifest weight of the evidence. Plaintiff responds that the village ordinances did not require it to obtain a license and such failure did not render the agreement for payment of commission unenforceable. Plaintiff urges that the penalties expressed in the ordinances do not affect enforcement of the brokerage contract. Plaintiff also contends that the findings of the trial judge are amply supported by the evidence.

The property in question here is located within the Village of Elk Grove. Plaintiff is duly licensed as a real estate broker by the State of Illinois and by the Village of Lincolnwood. Plaintiff’s offices are located in that village. Plaintiff is not licensed by Elk Grove. In July of 1961, Elk Grove Village adopted an ordinance which provided that no person, firm or corporation should operate as a real estate broker without a license. The ordinance provided for the making of applications and the issuance of licenses. In the section headed “Penalty”, it provided that any person licensed thereunder who was guilty of any violation thereof should be fined from $5 to $100 for each offense. On each day that a violation occurred, it was deemed a separate offense. Provision was made for revocation of the license after the second offense. The ordinance contains no provision concerning broker’s commissions.

On August 20, 1968, the village authorities also adopted a Fair Housing Ordinance. The brokerage contract herein involved was executed by the parties on April 15, 1968, but steps taken by plaintiff in performance of the contract extended into 1969 after the effective date of the ordinance. The ordinance contained a declaration of policy and stated its purpose as that of securing fair housing, without discrimination, to all persons who desire to live in the village. It defined housing as including any building or structure used, or designed to be used, for housing and including vacant land within the village. Various provisions were set forth regarding the conduct of real estate brokers in dealing with all persons without discrimination; presenting housing on the market; advertising and other details. The ordinance also provided that every real estate broker should obtain a license from the village prior to transacting any business involving real estate in the village. It also provided, “The commission of a single act as such real estate broker without such license shall constitute a violation of this Ordinance.” The ordinance also contained detailed provisions for the issuance of licenses, for the making and processing of complaints before the Human Relations Commission of the village and for the revocation of brokers’ licenses. It provided that any person who violated any provision of the ordinance should be subject to a fine not to exceed $500.

A number of points are raised and argued extensively by counsel for both parties concerning these ordinances. For example, defendant urges that the Fair Housing Ordinance expressly provides that every real estate broker shall obtain a license before transacting business involving real estate in the village and that the commission of a single act as broker without a license shall constitute a violation. Defendant further urges that the original brokers’ license ordinance expressly prohibits operation as a broker without obtaining a license. In response, plaintiff contends that neither of these ordinances contains express language invalidating the brokerage contract or prohibiting recovery of commission thereunder but merely provides for assessment of a fine against the broker for violation. As regards application of the Fair Housing Ordinance, plaintiff contends that it applies only to residential housing, or land zoned for that purpose, while the evidence here shows that the property involved is vacant real estate zoned for industrial uses. Under the view we take of this appeal, we need not consider or decide these points or the various refinements thereof raised by both sides.

It is presently the law of Illinois that ordinances of the type involved here, which require the licensing of real estate brokers by the municipality, have primary reference to brokers whose place of business is within the city or village in question and such ordinances may not be applied to prevent recovery of commission by a broker doing business in another municipality, as a result of one isolated transaction within the boundaries of the licensing authority. This view was set forth by this court in Moehling v. Brickman, 98 Ill.App.2d 156, 164-165, 240 N.E.2d, 210, (leave to appeal denied by Supreme Court of Illinois, January, 1969). This is the valid and applicable principle of law which governs.the rights of the parties in the case at bar.

In Moehling, this court cited and relied upon First Nat. Bank of Millstadt v. Freant, 7 Ill.App.2d 204, 129 N.E.2d 276. That case involved an ordinance of Belleville which provided for the licensing of every broker carrying on business therein. Failure to do so was made a misdemeanor subject to a fine. The gist of the decision appears from the following language (7 Ill.App.2d at 208):

“From the foregoing, we are of the opinion that ordinances for broker licenses apply to the occupation where it is carried on, rather than where the property is situated, with the possible exception of a series of transactions in one'locality.”

The court went on to note “* * * that an ordinance prescribing a penalty by fine, does not usually invalidate a contract. The modem trend of authority appears to limit the penalty under any act to that prescribed by the act itself.” (7 Ill.App.2d at 208.) The court also considered the earlier Illinois case of Douthart v. Congdon (1902), 197 Ill. 349, which is cited and relied upon by defendant here. In that case, the supreme court held illegal promissory notes issued to a grain broker for payment of commissions where the broker had failed to obtain a license from the City of Chicago. The court pointed out that this decision, together with other earlier Illinois- cases, was based upon the transaction of business within the City of Chicago as distinguished from cases based upon the location of the property. The court pointed out that, in the latter type of cases, contracts for brokerage commission were enforceable by an unlicensed broker.

The remaining decisions cited by defendant do not help his situation. In Frankel v. Allied Mills, Inc„ 369 Ill. 578, 17 N.E.2d 570, the supreme court denied recovery by a broker licensed in Illinois for sale of a piece of property located in that state to a client in New York City. The contract for the commission was completely made in New York where the broker was not licensed. New York State had a statute forbidding any person from acting, even temporarily, as a real estate broker without a license. The statute forbade any unlicensed person from bringing an action to recover commission for services rendered as a broker. The court held that since the contract was not valid under the law of New York, it would not be enforced in Illinois;

Simpson v. Adkins, 386 Ill. 64, 53 N.E.2d 979, involved an action to acquire title to certain real estate in connection with rights to oil and gas. One of the questions decided was the right of lessors and of a highway commissioner to grant the lessee authority to maintain equipment upon a public highway for use in connection with the oil wells. The court held that such agreement was illegal and unenforceable in view of provisions of the Criminal Code and of other statutes forbidding obstructions or encroachments upon the public highway.

Freer v. Orr Realty, 336 Ill.App. 310, 83 N.E.2d 361, was concerned with a Chicago ordinance which applied to brokers but which also contained a provision purporting to prevent recovery of commissions by an unlicensed broker. The trial court acted properly in rejecting the defense based upon alleged violation of ordinances by plaintiff.

As regards the factual issue which remains, the evidence shows that defendant and his wife owned a parcel of vacant land close to an industrial park within the village. On April 15, 1968, defendant listed the property with plaintiff for sale, by means of a written exclusive sales contract. This provided for a price of 650 per square foot to be reviewed after six months unless the property was previously sold. Provision was included for payment of commission to the broker.

Thereafter, in November, 1968, the parties reviewed the situation. The evidence in plaintiff’s behalf is that they verbally agreed upon increasing the price to 750 per square foot. Defendant’s testimony is that they agreed upon 900 per square foot. In February of 1969, a prospective buyer, contacted by plaintiff’s agent, agreed to buy the property for 750 per square foot. This contract was tendered to defendant who rejected it. Testimony in behalf of plaintiff is that the contract was rejected only because it provided for payment of the purchase price in installments. Defendant testified that he rejected the contract for that reason and also because the price was inadequate.

In March of 1969, a contract was again submitted to defendant by the same buyer including a cash offer of 750 per square foot. Here again, the evidence conflicts. Testimony in plaintiffs behalf is that defendant gave verbal consent to the contract subject only to review by his attorney. Defendant testified that he merely said he would think about the matter. The prospective buyer then requested permission from plaintiffs agent to make soil tests upon the property. A letter was written by the agent to the buyer stating that he was authorized to make such tests; the agent had met with defendant who had approved the contract and granted permission to make the tests and the contract would be reviewed and executed upon return of defendant’s attorney. The letter shows that carbon copies thereof were directed to defendant and to his attorney and there was testimony to that effect. However, defendant testified that he did not recall receiving a copy of the letter.

Thereafter, plaintiff’s agent, Gerstenfeld, was told by the attorney that the contract would not be accepted. Defendant told him that the property was worth more than the contract or $1 a square foot. About this time, Gerstenfeld was hospitalized and another representative of plaintiff, its president, Kenneth Tucker, spoke to defendant. Defendant again stated that he would not proceed with the contract. Tucker, who had not previously had personal contact with the matter, wrote defendant a letter. He stated that plaintiff had obtained the purchaser in accordance with the terms of the contract. The letter also stated, incorrectly, that there had not, in fact, been any review of the selling price as provided in the original contract. The letter further stated that a contract for sale of the property was enclosed at the price in question and that plaintiff was holding an earnest money deposit of $5000. The letter further stated that the purchaser was ready, willing and able to proceed so that the broker’s commission had been earned.

Both sides have given us elaborate and extensive arguments as to the merits of the situation including repeated references to the error contained in the letter from Tucker to defendant. In cases such as the one at bar involving attempted recovery of commissions by real estate brokers, the determination of whether the broker was actually the procuring cause of the sale or whether he procured a purchaser ready, willing and able to purchase the property upon the specified terms and conditions, are issues of fact. (Cohen v. McKey & Poague, Inc., 1 Ill.App.3d 596, 274 N.E.2d 684.) Here, the evidence is sharply conflicting and presents questions of credibility for resolution by the trier of fact. In such a situation, the rule established beyond argument is that we may not substitute our opinion for that of the trial court and the findings arrived at by the court, which saw and heard the witnesses, can be set aside only where the result is manifestly against the weight of the evidence. Reese v. Melahn, 53 Ill.2d 508, 512, 513, 292 N.E.2d 375. See also W. F. Smith & Co. v. Lowenstein, 4 Ill.App.3d 153, 158, 280 N.E.2d 547.

The judgment here is amply supported by the evidence.

Judgment affirmed.

BURKE, P. J., and EGAN, J., concur.


author: PER CURIAM.

text:
    Josephine Odom Boyd, Plaintiff-Appellee, v. Jimmie Smith et al., Defendants-Appellants.
    (No. 56979;
    First District (1st Division)
    May 21, 1973.
    John L. Martin and James L. Tuohy, of Tuohy and Martin, of Chicago, for appellants.
    Seymour Ogden, of Chicago, (Levin & Novoselsky, of counsel,) for appellee.
   PER CURIAM.

GOLDBERG, J., took no part.


text:
    American National Bank and Trust Company, Plaintiff-Appellant, v. Mar-K-Z Motors and Leasing Co., Inc., et al., Defendants—(Henry Buttel, Defendant-Appellee.)
    (No. 56952;
    First District (2nd Division)
    May 22, 1973.

      Arnstein & Levin, of Chicago, (Harry G. Fins, of counsel,) for appellant.
    Donald J. Miller, of Forreston, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff appeals from a dismissal, with prejudice, of a replevin action it prosecuted against defendant Henry Buttel (hereinafter defendant). Plaintiff contends: (1) it was entitled to recover collateral in which it had a security interest; (2) it was error for the court to grant affirmative relief to defendant, absent a counterclaim and prayer therefor; and (3) it was error to award attorney’s fees to defendant.

On December 20, 1968, Mar-K-Z Motors and Leasing Co., Inc. (hereinafter Mar-K-Z) purchased a 1969 Buick Electra automobile. Thereafter, the automobile was leased to Donald Wenck for a two-year period. The purchase was financed by Mar-K-Z through plaintiff. A promissory note, pledging the automobile as collateral, was executed by Mar-K-Z and delivered to plaintiff with an assignment of the Wenck lease. Plaintiff caused its security interest in the automobile to be recorded with the Secretary of State of the State of Illinois. Mar-K-Z failed to make its scheduled payments on the note after March, 1970.

Defendant testified that he purchased the said 1969 Buick automobile in the latter part of March, 1970. He traded in his 1966 Buick automobile and financed the balance of the purchase price with the Pearl City Bank. He did not receive a bill of sale or a certificate of title for the 1969 Buick. He did receive a receipt for $4.00, dated March 20, 1970, bearing the notation “License and Title Transfer — ’66 to ’69 Buick.” He further testified that he had purchased approximately 10 automobiles from Mar-K-Z between the years 1940 and 1970.

Paul Storey, a used car dealer, testified that he purchased defendant’s 1966 Buick automobile from Mar-K-Z and had purchased several other used automobiles from Mar-K-Z previously.

Richard Sauer, a salesman employed by Mar-K-Z, testified that, while the primary business of Mar-K-Z was the leasing of automobiles, it was also engaged in the business of selling used “cars that were turned off a lease.”

The articles of incorporation of Mar-K-Z and the articles of amendment thereto were admitted in evidence as defendant’s exhibit 2. These documents recite that the purpose or purposes for which Mar-K-Z is organized are “[t]o own, purchase or otherwise acquire and sell, lease, rent or otherwise dispose of and deal in motor vehicles # # 0 and to do all other things necessary for the attainment of such ends.”

Plaintiff initially contends that it was entitled to recover the 1969 Buick automobile, and it was, therefore, error for the trial court to dismiss, with prejudice, the action of replevin. Plaintiff argues that it had a perfected security interest in the collateral which entitled it to possession thereof when Mar-K-Z defaulted on its obligation to plaintiff. Defendant argues that the trial court correctly decided that he was a buyer in the ordinary course of business and, therefore, took free of any security interest created by his seller.

A buyer in the ordinary course of business is defined in Ill. Rev. Stat. 1969, ch. 26, par. 1—201(9) as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. ‘Buying’ may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a pre-existing contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.”

Ill. Rev. Stat. ch. 26, par. 9—307, entitled “Protection of Buyers of Goods” provides in pertinent part:

“(1) A buyer in ordinary course of business (subsection (9) of Section 1 — 201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

Plaintiff contends that the trial court erred in deciding that defendant was a buyer in the ordinary course of business. It is urged that Mar-K-Z was not in the business of selling automobiles but rather of leasing them. Defendant’s uncontradicted testimony was that he had purchased approximately 10 automobiles from Mar-K-Z over a period of years. Paul Storey testified that he had purchased several automobiles from Mar-K-Z. Richard Sauer testified that Mar-K-Z sold automobiles after they had been leased. The articles of incorporation of Mar-K-Z state that one of the purposes for which it was organized is to sell automobiles. Thus, there is ample evidence to support the finding that MarK-Z was in the business of selling used automobiles. Plaintiff does not dispute that defendant acted in good faith and without knowledge of its security interest. Therefore, there was sufficient evidence to support the finding that defendant was a buyer in the ordinary course of business who is entitled to take the automobile free of the security interest in plaintiff.

Plaintiff next contends that it was error for the trial court to grant affirmative relief to defendant, absent a counterclaim and prayer therefor. The order entered by the trial court provides:

“This cause coming on to be heard and the Court and parties being present in open Court and the Court having heard the evidence, reviewed the exhibits and heard the arguments of counsel, it is hereby ordered that the replevin action as against HENRY BUTTEL is dismissed with prejudice; it is hereby ordered that HENRY BUTTEL is entitled to the ownership, possession and certificate of title to a 1969 Buick Electra No. 484399H180562 and the American National Bank and Trust Company is hereby directed to immediately assign said certificate of title to Henry But-tel free of all hens and encumbrances; it is further ordered that the American National Bank and Trust Company pay to Donald J. Miller the sum of Five Hundred Dollars ($500.00) as attorney’s fees. The Court finds there is no just reason for delaying enforcement or appeal from this order.”

In Count II of his answer defendant alleged that he was the owner of the property described in the complaint, that plaintiff wrongfully caused that property to be taken from him and that such taking caused him damage in the amount of $1500 because he was deprived of the use thereof. He then demanded the return of the property, damages, and costs of litigation.

Defendant did not designate Count II of his answer as a counterclaim. However, the Illinois Civil Practice Act provides that “[p] leadings shall be liberally construed with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1969, ch. 110, par. 33(3).) Inasmuch as Count II contains the necessary elements of a counterclaim except a designation as such, we deem it proper to consider it as a counterclaim.

Defendant did not demand assignment of the certificate of title to him in his prayer for relief. However, the Illinois Civil Practice Act also provides that “* s * the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise.” (Ill. Rev. Stat. 1969, ch. 110, par. 34.) The trial court found that defendant was entitled to possession of the automobile because he was the owner thereof. Defendant alleged that he was the owner of the property in the answer he filed. We are unable to perceive how plaintiff is prejudiced by reason of surprise by the order requiring it to assign the certificate of title to defendant. No useful purpose would be served by requiring defendant to institute further proceedings to acquire the certificate of title, which is of no apparent value to plaintiff in view of the court’s determination. Therefore, it was not error for the court to order plaintiff to assign the certificate of title to defendant.

Plaintiff finally contends that it was error for the court to award attorney’s fees to defendant. It is argued that attorney’s fees are not allowable to a successful litigant absent a statutory provision therefor. Defendant concedes the correctness of this proposition and agrees that the replevin statute does not provide for the allowance of attorney’s fees to the successful party, but he argues that he is nonetheless entitled to recover attorney’s fees because plaintiff agreed to pay them. Defendant’s argument is based upon the following colloquy between the court and plaintiff’s counsel:

“The Court: * * # You agree he is entitled to attorney’s fees?
Mr. Arnstein: I agree he is entitled to attorney’s fees.
The Court: All right. You are obliged to pay $500 in damages.”

It is elementary law that an agreement must be supported by a valuable consideration before it is binding upon the parties. The record in the instant case discloses no evidence of consideration supporting the alleged agreement. Absent consideration, the bare statement by plaintiff’s counsel that he agreed defendant was entitled to attorney’s fees can have no binding effect on plaintiff. Therefore, it was error to award attorney’s fees to defendant.

Accordingly, the order of the trial court is affirmed except as to the award of attorneys’ fees which is reversed.

Affirmed in part, reversed in part.

LEIGHTON and HAYES, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Respondent-Appellee, v. Maurice Blewett, Petitioner-Appellant.
    (No. 58035;
    First District (3rd Division)
    May 24, 1973.

      Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County dismissing a supplementary petition for a post-conviction hearing. (Ill. Rev. Stat. 1971, ch. 38, par. 122—1 et seq. ) On appeal petitioner raises five issues: (1) Whether the differences in testimony of a prosecution witness at a prior mistrial and at trial of this cause constituted a knowing use of false testimony by the prosecution; (2) Whether the identification of the petitioner at trial was so suggestive as to violate due process; (3) Whether the trial judge’s refusal to consider the sentences of the other defendants in this cause during the hearing in aggravation and mitigation violated petitioner’s constitutional rights; (4) Whether the disparity whereby prior to trial the petitioner was offered four to 15 years if he were to plead guilty but was sentenced to 15 to 30 years after trial violated his constitutional rights; and (5) Whether the court erred in admitting into evidence certain items, which the petitioner alleged were the fruits of an unconstitutional search and seizure, and whether failure to file a motion to suppress constituted incompetency of counsel.

We affirm.

In October, 1964, petitioner was found guilty, as charged in the indictment, of two counts of robbery after a jury trial in the circuit court of Cook County. He was sentenced to two terms of 15 to 30 years in the penitentiary, the sentences to run concurrently. On direct appeal to this court the judgment was affirmed. People v. Blewett (1966), 75 Ill.App.2d 281, 221 N.E.2d 135.

In January, 1967, petitioner filed, pro se, his petition for a post-conviction hearing where he sought leave to proceed in forma pauperis. This petition was denied, and appeal was taken to the Illinois Supreme Court. In July, 1970, petitioner filed a supplementary petition for post-conviction hearing which was prepared with the aid of counsel, and which alleged, inter alia, that in the prior petition he had not been represented or advised by counsel. By agreement of the parties, the appeal pending in the Supreme Court was dismissed. After a hearing on the prosecutions motion to dismiss the supplementary petition, the circuit court dismissed said petition. This appeal followed.

The Post Conviction Hearing Act is limited to a consideration of errors made at trial which result in a substantial denial of petitioners constitutional rights. (People v. Orndoff (1968), 39 Ill.2d 96, 233 N.E.2d 378; Ill. Rev. Stat. 1971, ch. 38, sec. 122—1.) However, it is well settled that a judgment of a reviewing court is res judicata to all issues raised, and those which could have been raised, but were not, are deemed to be waived. People v. Kamsler (1968), 40 Ill.2d 532, 240 N.E.2d 590, cert. den. 394 U.S. 911.

Petitioner’s first claim is that the testimony of the sole identification witness at trial was false, and that the prosecution knew it to be false, yet allowed it to stand uncorrected. In his pro se petition, petitioner sets out portions of testimony given at a prior mistrial and portions of testimony given at the second trial relating to the witness’s observation of the petitioner during the course of the robbery. The petitioner relies on Napue v. Illinois (1959), 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, which held that when the prosecution knowingly allows false testimony to stand uncorrected, due process is violated. After reviewing the allegations of the petitions and the record as a whole, we conclude that the discrepancies in testimony in the instant case fall short of establishing the knowing use of false testimony. Inconsistencies in the testimony of witnesses do not establish a knowing use of perjured testimony. (People v. Tyner (1968), 40 Ill.2d 1, 238 N.E.2d 377.) A petition which merely alleges that the prosecution condoned the use of false testimony is insufficient to require a hearing under the Act. (People v. Knight (1967), 38 Ill.2d 373, 232 N.E.2d 292.) At the second trial portions of testimony given at the prior mistrial were entered into evidence in order to apprise the jury of some of the discrepancies in the witness’s observation. Inconsistencies in a witness’s testimony go to the weight and credibility of the evidence and, in this case, do not present constitutional issues. People v. Vail (1970), 46 Ill.2d 589, 264 N.E.2d 201.

Petitioner argues that it was incompetence of counsel on direct appeal to incompletely present to the court the differences in testimony at the two trials, and therefore, petitioner should not be held to have waived the issue of whether the identifying witness had so little credibility that a conviction based on her identification should not stand. The waiver rule will not be applied so as to bar review of those issues as to which review by direct appeal has been unconstitutionally denied because of the deprivation of the right to competent counsel on appeal. (People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25.) In its motion to dismiss the pro se and supplementary petitions, respondent alleged that the issue of incompetence of counsel on appeal was raised in petitioner’s petition for a rehearing, which the appellate court denied, and that the determination is res judicata to the issue. It is evident from the opinion of the appellate court that on direct appeal the court considered whether the conflicts in the witness’s testimony destroyed her credibility as a witness. The court noted that “that part of the testimony given at the first trial which was entered into evidence at the second trial for impeachment pmposes is incomplete.” (People v. Blewett (1966), 75 Ill.App.2d 281, 221 N.E.2d 135.) Although we think that this does not amount to incompetence of counsel on appeal, we have considered those portions of testimony from the first trial which are set out in the petitions in the instant case, and we find that the testimony of the identification witness was not so unsatisfactory as to create a reasonable doubt as to the petitioner’s guilt. People v. Sykes (1969), 110 Ill.App.2d 91, 249 N.E.2d 121.

Petitioner’s second claim is that police procedures at a lineup in which the petitioner was identified were so suggestive and conducive to mistaken identification as to amount to a denial of due process. The petitioner cites Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which held that the “totality of circumstances” surrounding a pretrial confrontation determines whether the confrontation was violative of due process. Petitioner claims that he could not have raised this issue on direct appeal because the decision in the direct appeal predated the decision in Stovall. However, on direct appeal, petitioner argued that the imposition put upon him at the lineup to wear a jacket allegedly worn by one of the holdup men rendered the identification of the witness a nullity. The appellate court found that the jacket played no part in the identification, because the witness testified that she identified defendant “with the face, not with the jacket.” Also, the appellate court found that the witness had ample opportunity to observe the petitioner during the course of the robbery. In the instant appeal, petitioner raises basically the same objection to the lineup procedure. An in-court identification is not tainted by an allegedly illegal confrontation if an independent basis exists for the in-court identification. (People v. Blumenshine (1969), 42 Ill.2d 508, 250 N.E.2d 152.) We find nothing in the record to indicate that the positive in-court identification was tainted by the allegedly improper lineup. People v. Derengowski (1970), 44 Ill.2d 476, 256 N.E.2d 455. (Schaefer, J., concurring.)

Petitioner’s third claim is that due process was violated when the trial judge, during the hearing in aggravation and mitigation, refused to consider the sentences given to the other defendants in this cause. After a jury trial, one codefendant was sentenced to a term of four to seven years in the penitentiary. Another codefendant pleaded guilty and was sentenced to a term of two to six years in the penitentiary. Respondent contends that since this issue might have been raised on direct appeal, but was not, it is waived. Petitioner argues again that the waiver rule should be relaxed because of counsel’s alleged incompetence on appeal for failure to raise this issue. In People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25, the court answered petitioner’s contention and discussed what amounts to incompetence of counsel on appeal.

“We recognize no obligation of appointed counsel to brief every conceivable issue on appeal. It is not incompetence of counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong.” People v. Frank (1971), 48 Ill.2d 500, 505, 272 N.E.2d 25, 28.

Having examined the record in the instant case, we find that failure to raise the above issue on appeal was not incompetence of counsel. (See, People v. Martin (1970), 47 Ill.2d 331, 265 N.E.2d 685, cert. den. 403 U.S. 921.) Moreover, questions of what evidence will be allowed in the hearing in aggravation and mitigation (Ill. Rev. Stat. 1971, ch. 38, par. 1—7(g)) are not of constitutional magnitude and are not reviewable under the Post-Conviction Hearing Act. People v. Wilbourn (1971), 48 Ill.2d 187, 268 N.E.2d 418.

Petitioner’s fourth claim is that due process was violated because he was sentenced to a term of 15 to 30 years after exercising his constitutional right to a jury trial rather than accept a sentence of four to 15 years which the court had indicated would be imposed upon a guilty plea. Petitioner conceded that some advantage should be given to a person who pleads guilty, but in the instant case he argues that the disparity was too great, and that sentencing should not be dependent on the accused’s exercise of his right to trial by jury. Respondent argues that petitioner has waived review of this issue, because he could have raised it on direct appeal but did not.

In his sworn affidavit, petitioner alleged that after a conference among his court-appointed attorney, the prosecutor, and the trial judge, his attorney informed him that the trial judge had informed him in the conference that should he not accept the sentence of four to 15 years, he would be sentenced to "a lot more” in the event he were found guilty. Respondent argues that the allegations of the verified petitions and the sworn affidavit were insufficient to require a hearing under the Post-Conviction Hearing Act. We think that a hearing was not required because the petitions and affidavit did not make a substantial showing of a violation of petitioner’s constitutional rights. If petitioner’s lawyer had told him what the judge said in conference, then these fact should have been supported by an affidavit of the lawyer or an explanation given for the absence of the same. (People v. Pierce (1971), 48 Ill.2d 48, 268 N.E.2d 373.) As presented, we find the allegations relating to this issue too vague and indefinite to require a hearing. People v. Ashley (1966), 34 Ill.2d 402, 216 N.E.2d 126.

Petitioner’s final claim is that the seizure of certain items from an apartment and automobile was unconstitutional and that failure to raise this issue at trial constituted incompetence of counsel. At trial, the court admitted into evidence a gun found on the person of a codefendant, which was allegedly used in the commission of the crime. The court refused to admit two other exhibits consisting of two watches, which were the alleged fruits of the robbery. Counsel for petitioner did not move to suppress the gun and watches, did not object to the introduction of the exhibits into evidence on the ground of unreasonable search and seizure, and did not raise the issue of unreasonable search and seizure on appeal. Petitioner contends that failure of appointed counsel to inquire into the proper facts of this issue raises questions of incompetence at trial which require a post-conviction hearing. Respondent argues that the waiver rule should be invoked, because this issue was not raised on direct appeal, and no reason has been advanced why the rule should be relaxed.

In People v. Morris (1954), 3 Ill.2d 437, 121 N.E.2d 810, the court set out the standard for showing incompetence of appointed counsel at trial: “(1) actual incompetency of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.” (People v. Morris (1954), 3 Ill.2d 437, 449, 121 N.E.2d 810, 817.) Our review of the record of the trial proceedings discloses nothing but able and effective assistance of counsel. No substantial prejudice resulted from counsel’s failure to move to suppress certain items. Although the record of the trial is devoid of facts sub ficient to enable us to inquire into the circumstances of the seizure of the gun, the opinion in the case of petitioner’s codefendant (People v. Soldat (1965), 32 Ill.2d 478, 207 N,E.2d 449) reveals that any objection to the seizure of the gun on the ground of lack of probable cause would not be well founded. In any event, we find no reason why petitioner should not be deemed to have waived the issue of search and seizure. People v. Doherty (1966), 36 Ill.2d 286, 222 N.E.2d 501.

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

Judgment affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    Jeffrey Provus, Plaintiff-Appellant, v. The Board of Education of the City of Chicago et al., Defendants-Appellees.
    (No. 58134;
    First District (1st Division)
    May 29, 1973.

      Ligtenberg, Dejong & Poltrock, of Chicago, (John Ligtenberg, of counsel,) for appellant.
    John T. Mehigan, of Chicago, (Michael J. Murray, Richard E. Girard, and John L. Wren, of counsel,) for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff’s complaint sought a court order against the Board of Education and its General Superintendent reinstating the plaintiff as a teacher in the Chicago public schools. After the defendants had answered, the plaintiff moved for a temporary injunction. Following an argument, during which it was conceded that no real issues of fact were involved, the trial court denied the motion for a temporary injunction and entered judgment for the defendants on the pleadings. This appeal is from that denial and judgment.

The plaintiff was awarded a temporary teacher’s certificate and employed as a full time substitute teacher on a temporary teaching certificate. He continued his teaching and on March 17, 1969, received his formal appointment as a teacher from the eligible list.

On November 29, 1971, he was given written notice of unsatisfactory performance and subsequently received directions and instructions from his principal for the improvement of his teaching. On February 15, 1972, he was given a second written notice of unsatisfactory teaching performance. Thereafter, on March 3, 1972, a conference was held with him before the Bureau of Teacher Personnel to review the unsatisfactory evaluation of his teaching service by his principal. As a result of this conference, a recommendation was made to the defendant General Superintendent of Schools that the services of Provus as a probationary teacher be terminated.

On March 13, 1972, Provus was advised by letter from the General Superintendent that his services as a teacher were to be terminated effective March 15, 1972, because of his failure to maintain order and discipline in his classroom, his neglect of his pupils in fading to give them necessary individual attention and to correct their mistakes, his failure to prepare assignments, and finally his failure adequately to teach the pupils in his fourth grade class. The Board of Education at its regular meeting of April 12, 1972, approved a resolution dismissing Provus.

On May 9, 1972, Provus filed the present suit against the General Superintendent of Schools and the Chicago Board of Education for declaratory relief, injunctive relief, and damages.

The statutory provisions involved are Ill. Rev. Stat. 1967, ch. 122, pars. 34—83, 34—84, which provide as follows:

“SECTION 34 — 83. Board of examiners — Certificates—Examinations. A board of 3 examiners shall examine all applicants required to hold certificates to teach and the board of education shall issue gratuitously to those who pass a required test of character, scholarship and general fitness, such certificates to teach as they are found entitled to receive. The board of examiners shall consist of the general superintendent of schools and 2 persons approved and appointed by the board of education upon the nomination of the general superintendent of schools. The board of examiners shall hold such examinations as the board of education may prescribe, upon the recommendation of the general superintendent of schools and shall prepare all necessary eligible lists, which shall be kept in the office of the general superintendent of schools and be open to public inspection. Members of the board of examiners shall hold office for a term of 2 years.
SECTION 34 — 84. Appointments and promotions. Appointments and promotions of teachers, principals and other educational employees shall be made for merit only, and after satisfactory service for a probationary period of 3 years (during which period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools) appointments of teachers and principals shall become permanent subject to: (1) termination by compulsory retirement at the age of 65 years; (2) the rules of the board concerning conduct and efficiency; and (3) removal for cause in the manner provided by Section 34 — 85 * * V

The first question before us is — When did the plaintiff’s “probationary period of 3 years” begin? The plaintiff contends that, because he was already teaching at the time, it began on October 4, 1968, the date of his temporary certificate. The defendants contend that it did not begin until March 17, 1969, when, after having received said certificate, he was formally appointed as a teacher.

The defendant’s position was sustained in People ex rel. Thomas v. Board of Education of the City of Chicago (1963), 40 Ill.App.2d 308, 188 N.E.2d 237. There the trial court, in concluding that the relator had served her 3 years, added, to the time the teacher taught after being formally appointed from the eligible list, time she had served as an uncertified teacher. In reversing and remanding with directions to enter judgment against the relator, this court, as pages 313 and 316, said:

“Illinois courts have specifically held that persons occupying positions in the public service and in municipal employment as mere temporary employees cannot, by performing such services as temporary employees, gradually acquire civil service or tenure rights; to permit such a practice would nullify the purposes of tenure laws.
# # #
The term probationary period, although not specifically defined by statute, connotes an appointment from an eligible list following an examination; and a probationary period, being a testing period, begins with the date of the appointment which will ripen into a permanent position following the statutory probationary period. In the instant case the statutory probationary period of three years had not been completed, and therefore relator’s contention that she was entitled to a hearing is without merit. If the ruling of the trial judge in this case were to be approved, the board could retain the services of temporary teachers to the exclusion of regularly qualified teachers, a practice which would be contrary to the entire spirit of the Tenure Statute, and the board would thereby be given the power to circumvent and nullify the Tenure Act. Such an interpretation would permit the board to do indirectly what the statute forbids it to do directly. Hankenson v. Board of Education, 15 Ill.App.2d 440, 446, 146 N.E.2d 194 (1957). * * (Emphasis ours.)

The second question presented is — Whether the “dismissal or discharge” of a “probationary” teacher mentioned in Sec. 34 — 82 must be accomplished within the three years, as the plaintiff contends, or whether such action may be taken within a reasonable time after the teacher has completed his three year probationary period, as the defendants contend.

The defendants cite and rely heavily upon State v. East Baton Rouge Parish School Board, 213 La. 885, 35 So. 2d 804, where the Supreme Court of Louisiana, in passing on the effect of a Louisiana teachers’ tenure statute substantially hice ours, upheld the defendants’ contention and held, at page 897, that the dismissal or discharge could be accomplished,

"within a reasonable time after the expiration of the probationary period.”

For reasons hereinafter outlined, we doubt the soundness of that decision and are disinclined to follow it.

Had our statute, after providing for “a probationary period of 3 years”, set no limit on when a probationary teacher could be dismissed or discharged, the law would have implied, as did the Louisiana court,

"a reasonable time after the expiration of the probationary period.”

But the statute does not stop there and specifically says:

“during which period [i.e.: the three years] the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools.” (bracketed words ours.)

We are not free to ignore the plain language of the statute to the effect that the dismissal or discharge must be accomplished during the probationary three year period. (Levinson v. Home Bank and Trust Co., 337 Ill. 241, 243, 169 N.E. 193; In re Petition of Village of Hickory Park, 10 Ill.App.2d 146, 149; Mason v. Cutkomp, 15 Ill.App.2d 378, 382.) We therefore hold that, under our statute, the dismissal or discharge of a probationary teacher must be accomplished during the three year probationary period.

This rather obvious result finds support in the following decisions in other states under somewhat analogous teachers’ tenure laws:

State ex rel. Rutherford v. Barberton Board of Education, 148 Ohio St. 242, 74 N.E.2d 246 (1947);
Whittington v. Barfour County Board of Education, 250 Ala. 692, 36 So.2d 83 (1948);
Iredell County Board of Education v. Dickson, 235 N.C. 359, 70 S.E.2d 14 (1952);
Flowing Wells School District v. Stewart, 18 Ariz. App. 19, 499 P.2d 750 (1972);
Weckerly v. Mona Shores Board of Education, 388 Mich. 731, 202 N.W.2d 777 (1972).

This brings us to the third and last question — Does the General Superintendent of Schools have the power himself to discharge or dismiss a probationary teacher or must this be done by formal action of the defendant Board of Education?

Again we must follow the plain wording of the statute itself (Ill. Rev. Stat. (1967), ch. 122, par. 34—84), which provides that, during the probationary three year period above discussed,

“the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools.” (emphasis ours.)

We therefore must and do hold that only the defendant Board of Education, by formal action, can discharge or dismiss a probationary teacher and that the defendant General Superintendent of Schools cannot himself do so.

Again, this rather obvious conclusion is supported by decisions in other states under somewhat similar teachers’ tenure statutes. See:

State ex rel. Rutherford v. Barberton Board of Education, 148 Ohio St. 242, 74 N.E.2d 246 (1947);
Iredell County Board of Education v. Dickson, 235 N.C. 359, 70 S.E.2d 14 (1952);
Weckerly v. Mona Shores Board of Education, 388 Mich. 731, 202 N.W.2d 777 (1972).

Since it stands undisputed on the record in the case at bar that the defendant Board of Education took no action to discharge or dismiss the plaintiff until April 12, 1972, some 26 days after the three years, it follows that the plaintiff became and was a “tenured” teacher and entitled, under the statute (ch. 122, sec. 34—85), inter alia, to at least 20 days written notice of the charges against him, an adversary hearing before the full Board or a duly authorized committee thereof, to be represented by an attorney, and to be removed “only by a vote of a majority of all members of the board.” On the record, none of these steps was taken in this case.

As a result, the attempt here to terminate the plaintiff’s employment was legally ineffectual and he is entitled to reinstatement as a “tenured” teacher in the Chicago public schools.

We therefore reverse the order and judgment below and remand the cause for further proceedings consistent with views herein expressed.

Order and judgment reversed and cause remanded with directions.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The County of Winnebago ex rel. Corbin B. Munson, County Collector, Plaintiff-Appellee, v. Owners of Property, Lands and Lots, etc., Delinquent for Taxes 1969, et al., Defendants—(The Rockford Jewish Community Council, Defendant-Appellant.)
    (No. 71-387;
    Second District
    May 25, 1973.
    Connolly, Oliver, Goddard & Coplan, of Rockford, (Lewis B. Kaplan, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (William H, Gates, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant, the Rockford Jewish Community Council, an Illinois not-for-profit corporation, appeals from an order in favor of plaintiff, the County of Winnebago, wherein certain of defendant’s realty was denied tax exempt status. The appeal was transferred from the Supreme Court.

The Jewish Community Center of Rockford, Inc., also an Illinois not-for-profit corporation, is the “operating arm” of the defendant. No question is raised as to the charitable purposes of either corporation.

Defendant owns real estate improved with buildings, a swimming pool and other recreational facilities. Until 1969, the premises enjoyed a tax exempt status. That year, however, the land upon which the pool is located was assessed for taxes. The Board of Review denied a tax-free status, and defendant paid the taxes under protest.

Testimony and exhibits established that the membership in the Center, open to anyone, consisted of 248 families who paid annual dues of $85, which entitled them to the use of the total facilities; that the Center, a recipient of United Fund money, operated programs for a day camp and a nursery school for which charges were made, the charges determined on a sliding scale based upon a family’s ability to pay; that in 1969, six children were admitted to the day camp program at no charge; that children in the day camp had free use of the pool as did other groups who benefited under the United Fund; that, on scheduled hours, three such groups used the pool during 1969, one having used it one day a week for two hours; that the products of a pool-side snack bar were available at a charge and that the use of the pool, except as stated, was confined to members only or guests of members for whom a $.50 charge was imposed. It was further established that in 1969, the Center suffered a loss of $584.76 in its total operation.

Statutes allowing tax exemptions are to be strictly construed. Where exemption is claimed on charitable grounds, two elements must be proved: the property is owned by a charitable organization and the property is devoted exclusively to charitable purposes. It is insufficient that one of several uses results in charity, as charity must be the chief or primary use to which the property is devoted. In such case, the burden is on the claimant and the proof must clearly show that the property comes under the statute allowing the exemption. See, People v. Rockford Lodge B.P.O.E., 348 Ill. 528 (1932); People v. Rockford Masonic Ass’n, 348 Ill. 567 (1932); North Shore Post No. 21 v. Korzen, 38 Ill.2d 231 (1967); Childrens Development Center v. Olson, 52 Ill.2d 332 (1972).

Although evidence in the instant case discloses that the pool, on a few occasions, was used without charge by participating groups of the United Fund, such use was on a limited and scheduled basis. The general use of the pool was confined to dues-paying members and their guests. The fact that the Center suffered a financial loss is evidence of its not-for-profit status and not the test for establishing a tax exempt condition.

We hold that the defendant failed in its burden to prove by clear evidence that the primary use of the land upon which the pool is located was devoted to charitable purposes and thus find that the property is not exempt from taxation under the statute.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN.

text:
    Dunham-Bush, Inc., Plaintiff-Appellee, v. F. J. Bero & Co., Inc., Defendant-Appellant.
    (No. 71-390;
    Second District
    May 25, 1973.
    Kenneth F. Miles, of Jordan & Miles, of Elgin, for appellant.
    Thomas D. Chase, of Elgin, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE THOMAS J. MORAN.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Michael Guido et al., Defendants-Appellees.
    (No. 72-186;
    Second District
    May 29, 1973.

      William V. Hopf, State’s Attorney, of Wheaton, and James W. Jerz, of Elgin, for the People.
    Robert F. Casey, of Geneva, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal by the State questions the authority of the trial court to suppress confessions and evidence without a hearing on the defendants’ motion to suppress, and to enter an order dismissing misdemeanor charges for want of prosecution.

The defendants were arrested in Du Page County on September 28, 1971. Patrick Riedy, Jr. was charged with the unlawful possession of less than 2.5 grams of marijuana, drag racing and attempting to elude a police officer. Michael F. Guido was charged with the unlawful possession of marijuana, less than 2.5 grams. Both defendants pleaded not guilty. The cases were first set for a November 19, 1971, trial date in Du Page County. On November 15, 1971, the defendants filed motions to suppress confessions and evidence, for discovery and for a continuance. The cases were first continued to December 10, 1971, and later on defendants’ motion to December 22, 1971. On November 17, 1971, the State filed an answer to defendants’ discovery motion.

On January 6, 1972, the defendant Patrick Riedy, Jr. filed a motion for a change of venue from Du Page County to Kane County. The motion was granted and the cases of both defendants were ordered transferred to the 16th Judicial Circuit, Kane County, “for hearing on all pending motions, trial and all further proceedings”. It was further ordered that all files and papers be transferred to the clerk of the Circuit Court of Kane County. While it does not appear in the order, the transcript of the proceedings before the transferring judge in Du Page County reflects that he recused himself and further stated that the matters would be transferred for setting for trial by the chief judge of the Circuit Court of Kane County. There is nothing in the record to indicate that the cases appeared before the chief judge in Kane County, nor is the manner in which the cases appeared before the trial judge in Kane Comity on March 23, 1972, apparent from the record. The attorney for the defendants was present on this date but the State was not represented.

Without hearing evidence, the court below granted defendants’ motion to suppress on the ground that the State had failed to appear, and dismissed the cases on the same ground. The State’s motion to vacate the orders was denied, from which order it appeals under Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).

The State contends that the court did not have authority to suppress confessions and evidence without first conducting a hearing on defendants' motion; and that the trial court did not have authority to enter an order of dismissal for want of prosecution.

We agree with the State’s contention that the trial court did not have authority to enter the order of dismissal for want of prosecution. The comt on its own motion, or on the motion of the defendant, has no power before trial, in the absence of a statute, to dismiss criminal charges or enter a nolle prosequi in a criminal case, since this power rests initially and primarily with the prosecuting officer. (People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 86, 87; People v. Rotramel (1972), 5 Ill.App.3d 196, 198-199; State v. Hunter (1970), 10 Md.App. 300, 270 A.2d 343, 344-345; 22A C.J.S., Crim. Law, sec. 457(c); Annot., 69 A.L.R. 240.) The court may dismiss an indictment, information or complaint only upon the grounds set forth in section 114 — 1 of the Code of Criminal Procedure. (People v. Shick (1968), 101 Ill.App.2d 377, 379-380.) A dismissal for want of prosecution does not come within any of the statutory grounds set forth in section 114—1. Ill. Rev. Stat. 1971, ch. 38, par. 114—1.

The defendants rely heavily on the fact that dismissal for want of prosecution has been held to be an inherent power of the court in civil actions. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145; Casillas v. Rosengren (1967), 86 Ill.App.2d 139, 143.) However, in criminal cases the state is a party and considerations of public safety and welfare are directly involved. Thus it is the representative of the people who has

been vested with the discretion to dismiss. (See People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 85-89.) In addition, in criminal cases the protection against want of prosecution is embodied in the constitutional right to a speedy trial and the statutory enactments requiring a trial within a specified time. (Ill. Rev. Stat. 1971, ch. 38, par. 103—5. See People v. Shick (1968), 101 Ill.App.2d 377, 380; State v. Hunter (1970), 10 Md.App. 300, 270 A.2d 343, 345.) Preserving a defendant’s right to a speedy trial also preserves the court’s interest in eliminating from the dockets cases that have not been prosecuted for lengthy periods of time.

The conclusion we have reached does not leave the court powerless to control its calendar. Besides discharging cases pursuant to defendants’ rights, the court has contempt powers to require the State to appear. In the unlikely event that a prosecuting officer should refuse to proceed to trial after being ordered by the court to do so, the trial judge may order that the case proceed to trial. See Commonwealth v. Dipasquale (1968), 431 Pa. 536, 246 A.2d 430, 432.

The defendants do not address themselves to the remaining issue raised by the State, that the court had no authority to allow defendants’ motion to suppress in the absence of the prosecutor and without a hearing. They contend that tire dismissal of tire cases would have been entered irrespective of the ruling on the prior motion. But, as the State points out, while the dismissal alone would permit a further prosecution of aU of the charges (see People v. Watson (1946), 394 Ill. 177, 179), the suppression order becomes res judicata if not changed on appeal. (People ex rel. MacMillian v. Napoli (1966), 35 Ill.2d 80, 81-82; People v. Taylor (1972), 50 Ill.2d 136, 140.) In practical terms, the suppression ruling may preclude further proceedings for lack of evidence. If granting the suppression motion is grounded on failure to prosecute, it thus may be tantamount to dismissing the charge on its merits prior to trial, and equaUy beyond the court’s authority.

On the facts of this case we agree with the contention of the State that the court had no authority to suppress without a hearing as provided under sections 114 — 11 and 114 — 12 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, pars. 114—11 and 114—12.) These sections require sufficient factual allegations of illegality and involuntariness and a hearing thereon before evidence may be suppressed. Unless the record and the evidence are sufficient to sustain the ruling of the trial court, the suppression order is invalid. (People v. Green (1972), 133 Ill.App.2d 244.) Here no hearing was held and no evidence adduced. The order of suppression solely on the purported basis of lack of prosecution was invalid.

We therefore reverse both the orders of dismissal and the orders of suppression and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GUILD, P. J., and T. MORAN, J., concur.

       In its motion to vacate below, the State contended that it had, to the best of its knowledge, no prior notice of the setting before the trial judge, in the context of its claim that it was not dilatory. In its printed brief and argument here the State contends that “an examination of circumstances mitigating the State’s action need not be conducted * ° The question of notice or absence of it therefore has not been sufficiently placed in issue by the State.

         The dismissal of criminal charges before trial is, in effect, a nolle prosequi. See Commonwealth v. Brandano (Mass. 1971), 269 N.E.2d 84, 86-87; People v. Dennis (Col. 1967), 433 P.2d 339, 340.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger S. Friday, Defendant-Appellant.
    (No. 71-327;
    Second District
    June 6, 1973.

      Paul Bradley, of Defender Project, of Chicago, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (Leo Wotan, Jr., and W. Ben Morgan, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

This is a companion case to People v. Iverson, (1972), 9 Ill.App.3d 706, the defendant in the instant case involving the same armed robbery therein described.

The defendant herein was indicted for armed robbery, found guilty by a jury and sentenced to 15-35 years in the Illinois State Penitentiary. The defendant was on parole at the time of the instant offense and the sentence herein was ordered to be served consecutively to the prior sentence for which he had been paroled. While the facts of the armed robbery herein are identical to those set forth by us in Iverson, a brief resume is necessary because of the contentions of the defendant herein. At the outset, two of the issues raised in Iverson are raised here. The first is the defendant contends he was not proven guilty beyond a reasonable doubt, and the other contention raised in Iverson was the giving of the Allen type instruction with other instructions prior to the jury’s deliberation.

We hereby reaffirm our ruling in Iverson that the giving of the Allen instruction as part of the original series in this case and in the Iverson case was not prejudicial error.

With regard to the reasonable doubt question we find that the evidence herein clearly shows the defendant guilty beyond a reasonable doubt as we did in Iverson.

It appears that three men entered the home of Mrs. La Verne Garcia in Elgin, Illinois, about 10:00 o’clock in the evening of January 9, 1971. Two of the men were armed and the other carried a bag for the loot. Mrs. Garcia’s sister and father were also present in the house but were asleep. Lance Sherwood, the eleven-year-old grandson of Mrs. Garcia, was with her in the kitchen. The men took Mrs. Garcia and her grandson, Lance Sherwood, upstairs where they tied them all up with tape. After taking the rings off the fingers of the women they then covered them with a blanket or sheet and proceeded to ransack the house. Mrs. Garcia testified they obtained about $20,000. Mrs. Garcia untied herself, attempted to use the phone, but as the line had been cut, went down to the next block and called the police and her husband. Lance Sherwood identified Roger Friday as the man who came to the door with an automatic pistol and grabbed him. Mrs. Garcia was not able to identify Friday. One of the three men, subsequently identified as Robert Soule, an accomplice, testified for the State. The State had agreed to recommend a sentence of 2-5 years if Soule testified, and this was brought out to the jury. Soule identified Friday as being one of the four men involved in the robbery. His testimony was positive and credible.

The instant case differs slightly from that of Iverson in that one Judy Reaska, a former girl friend of Roger Friday, also testified for the State. Her testimony in substance was that the defendant had told her that he was going to commit a robbery in Elgin together with Gary Iverson, Robert Soule, and two other men. She was residing in Streator, Illinois, on the night in question. Roger Friday left Streator with Gary Iverson about 7:30 in the evening in Iverson’s Cadillac. She testified that Roger Friday, on the following Sunday, told her that he had robbed a woman, a small boy, and an elderly couple, and obtained a fur, money and jewelry. She further stated that he told her the victims were not American. It was brought out before the jury that she was in protective custody of the State’s Attorney and had been arrested for wearing a coat stolen in Streator. Soule’s testimony was in detail as to the trip from Streator to Elgin with the defendant, Roger Friday, and Gary Iverson, where they met Ollie Bums and Thurman Stephens about 9:15 in the evening. No useful purpose would be served in detailing Soule’s complete testimony as to what took place in the Garcia home except that Soule had cut the telephone line, that Stephens remained in the car, and that Friday, Soule and Iverson went into the Garcia house. They then signaled Stephens with a flashlight and he went into the house. The State contends that the testimony of the twelve-year-old boy, together with that of the accomplice of the defendant, and that of his girl friend to whom he had explained the whole robbery, was more than sufficient to prove his guilt beyond a reasonable doubt. We agree.

The defendant contends that the court erred in giving Federal Instruction 6.01 — 3 defining reasonable doubt, as the courts instruction. In support of this contention he has cited People v. Cagle (1969), 41 Ill.2d 528, 244 N.E.2d 200. The courts of Illinois have held that it is not necessary or desirable to give an instruction on reasonable doubt. However, the instruction listed in Cagle differs materially from the somewhat simple instruction given in the instant case. In Cagle the court said at page 536:

“This court has repeatedly held that the legal concept of reasonable doubt’ needs no definition, and that where an involved instruction on that concept is given it may be deemed prejudicial error. [Citations.]
# # #
It is patent that the controversial instruction No. 2 included not only an elaborate definition of reasonable doubt, but it also implied that the law requires that an acquittal be justified in violation of the. elementary precept of our jurisprudence that a man is presumed innocent until proved guilty beyond a reasonable doubt.”

While an instruction on reasonable doubt should not be given, we find that the instruction given here was not involved or controversial and in no way prejudiced the rights of the defendant.

The court likewise gave Federal Instruction 6.07 on accomplice testimony dealing with the testimony of Robert Soule. Both the defendant and the State had tendered IPI Instruction 3.17. Both the State and defense counsel agreed to the withdrawal of IPI accomplice instruction IPI 3.17 and the use of the court’s Federal Instruction 6.07 on accomplice. In this court’s opinion it is highly desirable that the Illinois instruction be given, but we find nothing in the Federal instruction agreed to by counsel for both the State and the defendant that would prejudice the rights of the defendant in any way.

Defendant also contends that the Judge himself was prejudiced by his conduct of the trial. In support of this contention he alleges that the voir dire examination of the prospective jurors was prejudicial and has cited the following:

“Court:
Q. You have no quarrel with the law that makes it a criminal offense for someone to commit an armed robbery?
A. No, Your Honor.
Q. You appreciate as the defendant is seated here in open court that presumption rests and abides with him throughout the trial, that he is presumed to be innocent?
A. Yes, Your Honor.
Q. You appreciate that that is a humane provision of our law for the benefit of all innocent people, but not, in fact, to aid one who is guilty to escape his just punishment?”

This court finds no error in these questions. It is the law and if anything, would benefit rather than prejudice the rights of the defendant. Another question asked by the court in the voir dire examination was:

“Q. The defendant is presumed to be innocent as he is seated here and that is for the benefit of all criminals, but not, in fact, to aid one who is guilty to escape his just punishment. You appreciate that? [Emphasis added.]
A. Yes.”

This is doubtless an inadvertent misstatement by the court in his choice of words, but we do not believe that it was of sufficient import to constitute prejudicial error, particularly in view of the fact that this was in the voir dire examination.

The next allegation of error by the defendant herein was that the court erred in permitting Judy Reaska to testify as the court’s witness. The court explained that to the jury as follows:

“THE COURT: Ladies and Gentlemen of the jury, it has been called to the Court’s attention that the next witness has been a girl friend of the defendant. I don’t know whether they were engaged or whether they just lived together.
But request has been made to call her as the Court’s witness. The defendant has objected. The objection is overruled. The court will call this next witness as the Court’s witness. We are interested in ascertaining the truth of the facts.”

Judy Reaska was then called and testified as indicated above. It is to be specifically noted that the defense counsel in his cross-examination brought out in detail that Judy Reaska was apprehended by the police in a store in Streator for wearing a stolen coat. He further brought out that she was not arrested but taken into the custody of a police officer, and she then told the police the facts involved in the offense charged herein. He further brought out that she was not prosecuted for the taking of the coat and that Judy Reaska had been in the protective custody of the State’s Attorney and furnished money and care, including her transportation to the trial. Whether or not she was called as the court’s witness is immaterial. Her interest in the proceeding was disclosed in detail to the jury. We therefore find that the comments of the court did not constitute prejudicial error.

The defendant contends that he was denied effective assistance of counsel. At the conclusion of the trial the defendant was queried by the court out of the presence of the juiy as to whether he was satisfied with the way defense counsel had tried his case, and if he had any fault to find with the way counsel handled his defense. The defendant replied that he had not. Defendant further said “I have no complaints.” In support of the alleged ineffective assistance of counsel, appellate counsel suggests that trial counsel should have asked for a determination of Friday’s competency to stand trial. Ill. Rev. Stat. 1969, ch. 38, sec. 104—2 dealing with the competency of a defendant provides:

“(c) The burden of going forward with evidence of the defendant’s incompetency shall be on the party, if any, requesting that determination.”

Defendant was previously given a psychiatric examination prior to trial in the former case in which he was on parole at the time of the commission of the instant offense. The psychiatrist there found no psychosis. There was no indication to the defendant’s counsel that he was incompetent. The record discloses throughout that the defendant was well represented by counsel. In People v. Williams (1970), 47 Ill.2d 239, 265 N.E.2d 107, the defendant contended that trial counsel was incompetent. After determination there that the factual situation presented very little in defense possibilities, Justice Schaefer stated at page 241:

“* * * a court appointment to represent an indigent defendant does not endow an attorney with the ability to perform miracles, nor is he to be branded as incompetent because the defendant he represented was not permitted to plead guilty to a lesser charge.” •

The last argument presented in this appeal is that the sentence imposed herein should run concurrently with any previous sentence. Indirectly, this would somewhat put a premium upon the commission of offenses by parolees. If a parolee were to commit an offense where the penalty is no greater than that for which he was paroled, he would receive no additional punishment for the second offense.

The defendant was on parole under a sentence of 18 months to 7 years at the time of the commission of the instant offense. The imposition of 15-35 years additional consecutive sentence is, in fact, excessive. Accordingly, by virtue of the authority granted to us by Supreme Court Rule 615 (Ill. Rev. Stat. 1969, ch. 110A, sec. 615(b)(4)), we reduce the consecutive sentence to 5-to-12 years. Judgment of the trial court is affirmed. Sentence modified as indicated herein.

Affirmed. Sentence modified.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Jacob Kriston, Defendant-Appellant.
    (No. 71-346;
    Second District
    June 7, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Charles Kriston was indicted by the grand jury of Lake County together with his brother, Henry Paul Kriston, and Charles Fick and charged with the offenses of attempt to commit murder and aggravated battery. The Kristons were tried together before a jury and found guilty of aggravated battery. Charles Kriston was sentenced to serve a term of 1 to 5 years in the penitentiary. On appeal, he contends that his guilt was not established beyond a reasonable doubt and that he was prejudiced in the eyes of the jury by reason of an improper display of a chain during his trial.

We also considered the appeal of Henry Paul Kriston in the case of People v. Kriston (Ill.App.3d). The grounds for appeal (as, indeed, the briefs filed with us) in the two cases are virtually identical and for that reason we will not repeat the factual narration set forth in the other case except where the evidence differs as to the defendants.

The defendant contends that his identification by the three eyewitnesses presented by the State rested mainly on the clothes he wore on the night in question and that the discrepancy in their descriptions of his clothing, when considered with the other inconsistencies and improbabilities in their testimony and the positive testimony of the defense witnesses, creates a substantial doubt as to the accuracy of the identification. It is apparent, however, from an examination of their testimony, that the State’s three witnesses were in substantial agreement as to clothes worn by Charles Kriston.

Kenneth Clark stated that he saw the two Kristons grab Roger Spice from either side and hold his arms while Charles Ficlc struck him with a chain. He testified that Charles Kriston wore a motorcycle jacket, levi’s and motorcycle boots and (he believed) a white T-shirt. He admitted that he did not notice the boots until he observed Charles at the police station later in the evening.

Wayne Flanigan testified that Charles Kriston was wearing blue levi’s or dungarees, boots, and a white shirt with “* # * what I call a motorcycle jacket, cut off at the armpit level, with various insignia and signs on the jacket.”

Martin Salminen, who was unable to identify Henry Kriston, testified that he saw Charles Kriston push Spice and kick at him after Fick hit him with a chain. He described Charles Kriston as a * * tall blond-haired fellow wearing a motorcycle jacket.”

Charles Kriston himself, testified that he was actually wearing black levi’s, a black shirt with letters on the front, a cut-off levi jacket and engineering boots.

The discrepancies in the descriptions given by the witnesses are insignificant when compared to the consistent elements in those descriptions. All witnesses agreed that Charles Kriston was blond, wore levi’s, a motorcycle jacket and boots. The description of the defendant’s clothing is of particular significance since it appears that only he and Fick wore motorcycle jackets on the night in question (although Salminen testified as to three).

As we pointed out in the other case, the discrepancies and inconsistencies in the testimony of the State’s witnesses were properly a matter to be considered by the jury in their determinations. Slight testimonial discrepancies do not render testimony unworthy of belief as a matter of law. (People v. Jordan, 38 Ill.2d 83, 88, 230 N.E.2d 161; People v. McAfee, 80 Ill.App.2d 142, 145, 225 N.E.2d 74.) We cannot say that the verdict returned by the jury was contrary to the weight of the evidence or could warrant reversal.

The defendant also contends that the evidence did not prove his guilt beyond a reasonable doubt by accountabUity principles. Henry Kriston made an identical contention in his brief and we discussed the issue in that opinion. Suffice it to say here that the positive identification of Charles Kriston by three eye-witnesses and their testimony that he held Spice and kicked him as he lay on the ground was sufficient to show that he aided or abetted in the commission of the offense.

We are of the further opinion that the display of a chain before the jury was improper but hardly likely to either impassion or prejudice that body against the defendant so as to merit reversal.

For the reasons stated, the judgment wiU be affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J., concur.