author: STOUDER, J.

text:
    Clarence E. Jones and Loraine E. Jones, Plaintiffs-Appellees, v. Joe E. Williamson and Naomi Dell Williamson, Defendants, and Roscoe Raker and Fyrne Raker, Defendants-Appellants. Roscoe Raker and Fyrne Raker, Third-Party Plaintiffs-Appellants, v. Joe E. Williamson and Naomi Dell Williamson, Third-Party Defendants-Appellees.
    Gen. No. 65-70.
    Third District.
    September 8, 1966.
    Modified opinion October 26,1966.

      Chiperfield, Froehling & Taylor, of Canton, for appellants.
    Lachlan Crissey, of Lewistown, and U. S. Collins, of Bushnell, for appellees.
   STOUDER, J.

This is an appeal from a decree of the Circuit Court of Fulton County permanently enjoining Defendant, Raker, from discharging surface water from his diversion ditch onto the property of Plaintiff, Jones. Defendant, Raker, as third party Plaintiff, also appeals from the judgment in favor of Williamson, the third-party Defendant, said judgment finding the latter not liable for damages. Petition for rehearing was filed herein and we have determined to modify the opinion upon rehearing. In view of the fact that the conclusion of this court is not changed but only its reasons assigned are modified, it was deemed unnecessary to require an answer to the petition for rehearing.

Raker and Jones owned adjoining tracts of farmland in Fulton County bounded on the east by the Spoon River, the land owned by Raker lying north of that owned by Jones. The land of the parties lying next to the river, referred to as bottom or bottom land, is low and flat. Although crops are planted on the bottom land periodic flooding from the Spoon River as well as other surface water drainage frequently damages the crops. The natural course of drainage of surface water on the bottom lands is from north to south. Surface water from bottom lands lying north of Raker’s property drains onto his property and thence onto the property of Jones. In addition surface water from the hills or bluffs, located on the westerly portion of the properties, drains onto the bottom lands. Prior to 1955, surface water from the Raker land flowed onto the Jones land in three well-defined swales.

In 1953 the land now referred to as the Jones’ land was owned by Simmons. Williamson rented the land from Simmons from 1953 until 1955 for a cash rent of $800 per year. In February, 1955, Simmons entered into a written contract to sell the land to Williamson for a total price of $8,000, receiving at the time of the execution of the contract a down payment of $2,000. The contract was not recorded.

In order to reduce damage to the bottom lands by overflow from the Spoon River, Raker, in conjunction with owners of property to the north and the soil conservation service, devised a plan which involved the construction of a levee and borrow pit.

In the spring of 1955, Raker, believing that Williamson was the owner of the property now owned by Jones, discussed the drainage plans with Williamson. A plan was worked out between Raker and Williamson whereby Raker would construct a diversion ditch near the bottom of the hills or bluffs on his property which would then discharge into a similar diversion ditch to be constructed by Williamson near the bottom of the hills and bluffs on his property. The surface water runoff on the hills and bluffs would thus be held against said bluffs and would finally discharge into Shoal Creek rather than upon the bottom lands. A written agreement concerning the diversion ditches was entered into between Raker and Williamson on May 31, 1955, and thereafter recorded. The written agreement also granted Williamson an option to attach to the levee by payment of $400.

The levee, borrow pit and diversion ditches were constructed in the spring and early summer of 1955. The diversion ditch constructed on the Williamson property was in 1962 described as being one foot deep at the north line of the property and increased to approximately two and one-half feet in depth at the point where it discharged into Shoal Creek. The diversion ditch had not been maintained and was not as deep in 1962 as when constructed in 1955. Williamson employed a bulldozer to construct a portion of the diversion ditch and used a plow for the remainder. The bulldozer was also employed to do some leveling of the center and east swales in his bottom land.

In September, 1955, Williamson was informed by the attorney for Simmons that merchantable title to a portion of the bottom land could not be furnished by Simmons. Because of this fact Williamson and Simmons decided to rescind the contract early in March, 1956. Under the rescission agreement which was concluded on March 30, 1956, Williamson was refunded his payment of $2,000 and was allowed the 1955 crops for his bulldozing expenses. On March 30, 1956, Williamson executed and delivered a quitclaim deed to Simmons and thereafter an assignment in blank of the drainage agreement. Early in March, 1956, Jones inspected the property twice making a deposit or down payment therefore about the middle of March. Prior to his purchase of the property Jones knew of the Simmons-Williamson purchase contract but it does not appear that Jones had any conversations with either Simmons or Williamson. Jones paid $8,000 for the property receiving from Simmons a warranty deed to part of the premises and a quitclaim deed to the remainder, said deeds being dated March 30,1956.

This action was filed in 1960 requesting that Raker be permanently enjoined from discharging water from his diversion ditch onto the Jones’ property. Raker, by way of affirmative defense, claimed that the discharge of water was lawful since based on an easement. Raker filed a third-party complaint against Williamson as third-party Defendant claiming damages on account of the latter’s breach of an implied or expressed warranty of title. This appeal follows from an order granting the injunction and finding against Raker on his third-party complaint.

It appears that the parties generally agree on the rights and obligations concerning surface water drainage between owners of upper and lower lands. As applied to the facts of this case it is agreed that Raker does not have any right to discharge water from his diversion ditch onto the Jones’ land merely because he is the owner of the upper land.

The principal argument with which we are concerned is Raker’s contention that his right to discharge surface water through the diversion ditch onto the Jones’ land is based on an easement validly subsisting and enforceable against Jones, such easement existing both by virtue of statute and common law. The claim that the Rakers are entitled to an easement was sufficiently in issue by their “Separate Affirmative Defense,” filed with their answer.

Both parties appear to find some solace in the cases of Baldwin v. Pool, 74 Ill 97 and Chicago Title and Trust v. Wabash-Randolph Corp., 384 Ill 78, 51 NE2d 132. These cases, in discussing the rights of a third party derived from a contract purchaser, hold that the rights of such third party are dependent upon the contract purchaser’s performance of his contract. The questions presented in the instant case do not depend merely on the actions of a contract purchaser or rights derived from such contract purchaser. Rather the actions of both contract purchaser and contract seller are involved. Consequently our inquiry must be directed to a consideration of the significance and effect of the contract seller’s conduct and action.

The trial court made certain findings of fact which we believe are amply supported by the evidence and determinative of the issues. It found that Simmons had knowledge of, acquiesced in and authorized, orally, the establishment and construction of the diversion ditch, that Jones had no actual knowledge of the diversion ditch agreement between Williamson and Raker and that prior to the date of purchase Jones knew of or is chargeable with knowledge of, the diversion ditch coming onto the Simmons’ land from the north and extending southerly therefrom.

Chapter 42, § 2-8, Ill Rev Stats (1965) provides, “When a ditch . . . has been . . . constructed by mutual license, consent or agreement ... by the owners, . . . such ditch . . . shall be deemed to be a drain . . . for the mutual benefit of all lands connected to, or protected by, it. The mutual license, consent or agreement required in this section need not be in writing, but may be established by parole or inferred from the acquiescence of the parties.” Although the aforementioned section of the statute became effective July 1,1956, after the ditch had been constructed, we believe that such section is applicable to rights theretofore created or existing within its terms. Section 2-10 of the same chapter provides, “Drains . . . deemed to be for the mutual benefit of the lands connected . . . shall constitute a perpetual easement on such lands . . . .” In Fobar v. Higginson, 6 Ill App2d 29, 126 NE2d 521, the court observed that these statutory provisions enlarge drainage rights as they existed at common law, and permit creation of easements before expiration of the necessary common-law period. See also Cox v. Deverick, 272 Ill 46, 111 NE 560.

In view of the trial court’s findings concerning the actions and conduct of the contract seller it is obvious that the queston whether a contract purchaser is the owner under the terms of section 2-8, chapter 42 is not involved. Where both contract seller and purchaser are bound by the drainage agreement, all rights of ownership are involved regardless of which party may be regarded as the owner. Furthermore, as provided by said section 2-8, if the ditch is a continuous line across the adjoining lands included in the agreement it is deemed for the mutual benefit of all. Evidence of actual benefit is unnecessary. We believe that an easement exists in favor of defendant Raker under the terms of the drainage statute, and that such easement is binding upon Jones as a subsequent grantee of the contract seller under principles of common law. If a grantee at the time of purchase has no knowledge of rights which could be asserted against his grantor or has no notice of circumstances putting him upon inquiry that would have led to such knowledge then such rights are not enforceable against the grantee. Rutz v. Kehr, 143 Ill 558, 25 NE 957. It seems clear that Plaintiff in purchasing lands burdened with the open, visible marks of an apparent drainage ditch easement in favor of an adjoining dominant estate, is chargeable with the duty of inquiry. An inquiry of either Simmons, Williamson or Raker would have revealed the agreement relative to the construction of such ditch. Accordingly we believe that the trial court’s conclusion based on its own findings of fact is erroneous and that those findings of fact established an easement enforceable against Jones.

In view of our decision we do not find it necessary to consider Raker’s objections to the judgment of the court below on his third-party complaint.

Finding error in the decree of the Circuit Court of Fulton County, its decree in favor of Clarence and Loraine Jones and against Roscoe and Fyrne Raker is reversed. The judgment in favor of Joe and Naomi Dell Williamson and against Roscoe and Fyrne Raker is affirmed.

Reversed in part, affirmed in part.

CORYN, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author:
ALLOY, J.
      STOUDER, J.,

license: Public Domain

text:
    In the Matter of the Estate of Ivan S. Aylsworth, Deceased.
    Gen. No. 65-65.
    Third District.
    September 9, 1966.

      Moran, Klockau, McCarthy, Schubert and Lonsberg, of Rock Island, for appellant.
    Kenneth E. Critzer, of Monmouth, and Barash & Stoerzbach, of Galesburg, for appellee.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of Warren County denying a petition for leave to make partial distribution in the Matter of the Estate of Ivan S. Aylsworth, deceased. Ivan S. Aylsworth died on June 28, 1963, and in his will provided that the rest, residue and remainder of his estate was given, devised and bequeathed to John J. Kritzer, in trust, for the benefit of the son of the testator, Homer H. Aylsworth, for life. The annual income under the trust was payable to the son with a discretionary right in the trustee to reserve such portions as the trustee shall deem for the best interest of Homer Aylsworth and the will also contained the customary spendthrift trust provisions prohibiting the transfer or assignment of payments to Homer Aylsworth, the life tenant, in anticipation thereof, and providing also that payments would not be available for any obligation, including alimony, of Homer Aylsworth. The will further provided that upon the death of the son, Homer Aylsworth, the trustee was to sell and convert the real and personal property into cash and “the balance remaining in his hands, including proceeds from the sale of said lands and personal property, rentals and all other items of income, shall be divided into four parts and distributed in the manner following:

1. I give, devise and bequeath to Dwane Huston one part absolutely.”

Similar provisions were made for three other beneficiaries. The will thereafter provided:

“It is further my will that in the event any of said legatees and devisees, namely: Dwane Huston, Dale Huston, Ruth Huston and Ralph Edwin Strickler die leaving child or children living at the date of distribution, it is my will that the part which such deceased legatee or devisee would have taken had he or she been living at the date of distribution shall pass to the child or children of the legatee or devisees so dying before said date of distribution.”

The will had a further gift over if any of the named beneficiaries died “without child or children at the date of distribution” in which case the share was to be distributed to the other legatees or devisees named who survived at the date of distribution.

There was evidence by Homer Aylsworth to the effect that he had talked with the trustee shortly after his father’s death and that when he requested money he was told “there wouldn’t be any money in the Estate for a long time.” Homer Aylsworth actually received no money until he was paid for a claim he had filed against the estate in March of 1964.

The record before us discloses that on April 13, 1964, Homer Aylsworth, the life tenant, pursuant to the Disclaimer Act of 1961 (1963 Ill Rev Stats, c 3, § 15(b), (c), (d)) and within 10 months following the date of the death of the decedent, disclaimed all interest in the trust established by his father’s will. On the same day and as part of a transaction which led to the disclaimer, Homer Aylsworth entered into a written agreement with three of the four remaindermen and their spouses in which the remaindermen promised to convey their shares of the corpus of the trust property to Homer Aylsworth, and Homer Aylsworth in turn, agreed to execute a will naming the three remaindermen as his sole beneficiaries. Thereafter, three of the four remaindermen who had entered into the agreement with Homer Aylsworth, petitioned the court for leave to make partial distribution on the theory that the estate was solvent and there were more than sufficient assets to pay any claims outstanding against the estate as well as taxes. The trustee objected to the petition and alleged affirmatively that the petitioners falsely conspired to defeat the trust. Two of the four remaindermen had already filed a complaint for partition in May of 1964 but this partition suit was dismissed by the court and it is not in issue in the instant case.

Homer Aylsworth met with the three remaindermen and with Homer Aylsworth’s attorney and the effect of a disclaimer was explained to all persons present. It was the plan and intent of the parties that Homer Aylsworth should file a disclaimer upon execution of the agreement; that the property would thereupon pass to the four remaindermen; that they in turn would deed the property to Homer; and Homer (pursuant to the written agreement executed on April 13, 1964) would leave it to them by will. The fourth remainderman to whom Homer Aylsworth had talked did not join in the agreement but Homer Aylsworth had entered into an understanding that this one-fourth interest was to be purchased for $30,000 and such figure was agreeable to all of the remaindermen.

A disclaimer could be made within 10 months of the date of the death of the testator, under the terms of the Disclaimer Act (1963 Ill Rev Stats, c 3, § 15(b), (c), (d)), where it is also provided:

“Any conveyance of or contract to convey real property or any interest therein, or assignment or transfer of or contract to assign or transfer personal property, or written waiver of the right to disclaim the succession to real or personal property, by an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary or person designated to take . . . pursuant to judicial process, made before the expiration of the period in which he may disclaim as herein provided, bars the right to disclaim as to the property or interest.”

In the instant case the Trial Court concluded that the agreement between the three remaindermen and the life tenant falls within the purview of the section of the act referred to and that the disclaimer was ineffective because the agreement was executed prior to April 28, 1964, which would have been within 10 months from the date of the death of the decedent, Ivan Aylsworth. In the process of so concluding, it was observed by the Trial Court that a beneficiary may disclaim any gift made to himself even though it is beneficial, and that one is not obligated to accept the benefit under all circumstances. The court likewise agreed that under the Disclaimer Act this right to disclaim applies equally to a spendthrift trust and that the motive for making the disclaimer is immaterial. In the present instance, it was observed by the court that if Homer Aylsworth executed and filed a disclaimer, he would be on firm ground regardless of the motive. He would thus have separated himself completely from any property interest involved and if the property would then have returned to him without further steps on his part as a result of the disclaimer, that is by operation of law, it would have been a true disclaimer. The court stated, however, that he did not do this. Instead he entered into a combination with three of the four remaindermen and executed a memorandum of agreement which had the effect of nullifying three-fourths of the purported disclaimer. If the fourth remainderman had also agreed, he would have nullified it completely.

The court observed that he was “disclaiming through the front door and reclaiming through the back door.” The Trial Court then posed the question: “Is this a true disclaimer or an attempt to break the trust using a fake disclaimer as the excuse?” That court stated that if it were a true disclaimer the motive would not be material and also that it would be immaterial if the effect of a disclaimer would be to alter the testator’s will so as to wipe out the spendthrift trust provision giving the life income to Homer Aylsworth. It was clear that the life tenant and the remaindermen understood that the action would break the trust and relieve the trustee. The court thereupon concluded that the memorandum of agreement which was executed contemporaneously with the disclaimer brought it within the prohibitions of the Disclaimer Act.

On appeal in this court it is contended by the appellants that a vested remainder may generally be accelerated where time for its vesting and possession is shortened by the premature determination of the preceding estate, whether by renunciation or otherwise. In this connection it is contended that under the Illinois Disclaimer Act the Aylsworth spendthrift trust was effectively terminated and, likewise, that the contract to convey made prior to or simultaneously with the disclaimer could not have any legal effect for the reason that the spendthrift trust beneficiary was not in position to make a conveyance but simply acted to disclaim as he had the undoubted right to do under the Act and under the authority of People v. Flanagin, 331 Ill 203, 162 NE 848. Appellees, on the contrary, contend that we are dealing with contingent remainders which cannot be accelerated by disclaimer by the beneficiary of a spendthrift trust; that in any event neither partial nor full distribution can be made under the terms of the trust; and, also, that collusion between the life tenant and the remaindermen by virtue of their written agreement bars the disclaimer under the Disclaimer Act.

We are primarily concerned with the effect of the Disclaimer Act heretofore referred to in this opinion. In dealing with such provision, the author in James Illinois Probate Law & Practice (1965 Pocket Part, Vol 1, page 113) reviews some of the reasons for the section of the Act under consideration. He observes that it is sometimes necessary to sell real property in the decedent’s estate before the expiration of the ten months in which a disclaimer can be filed. Thus, an heir or devisee can waive his right to disclaim for the purpose of clearing the title. The author then states (at page 114):

“Similarly, it is provided that various acts of a person entitled to disclaim in regard to the property, such as making a conveyance of or contract to convey real property or any interest therein, or an assignment or contract to assign personal property, bars the right of the person to disclaim as to the property or interest, and of all parties claiming by, through or under him.”

In this cause the Trial Judge in announcing his decision found that the disclaimer violated the terms of the Disclaimer Act. The court observed that the disclaimer is dated on the same date on which it is filed, April 13, 1964, and that on the same date, a memorandum of agreement was executed between Homer Aylsworth and three of the four remaindermen which deals with the identical property which is disclaimed.

It is argued in this court that Homer Aylsworth as beneficiary of the spendthrift trust, had no rights in the property so that he could not contract to convey it away or dispose of it in any manner. It is noted, however, that the disclaimer statute referred to gave him the right to disclaim, so that he does have such right in the property. If this act of disclaiming were all he had done, there would have been no violation of the Act, and what followed after the 10-month period had expired, irrespective of motive, would not have resulted in invalidating the disclaimer. In the case before us, however, Homer Aylsworth entered into a contract to leave the trust property by his will and this contract was made on the same date and within the 10-month period, and in consideration of the agreement of the remaindermen to convey to him. It was further made in consideration of his agreement to disclaim contemporaneously with the execution of the agreement. It could be argued theoretically that the disclaimer came first since an effective devise could not be made until after there was a disclaimer. It is noted, however, that the essence of the agreement which was made by the parties was that the remaindermen were to convey the property to Homer Aylsworth following a disclaimer by Homer Aylsworth, and in consideration thereof, and that the agreement was further to be carried out by a devise by will of Homer Aylsworth of said property to the remaindermen. The entire transaction was made within the 10-month period. One of the remaindermen testified that the purpose of the agreement was to give Homer an unlimited life estate. The Trial Court posed an appropriate question in asking whether this was a true disclaimer or simply an attempt to break the trust by using a “fake” disclaimer as an excuse. It is apparent that the purpose of the arrangement and agreement made between the parties was to frustrate the testator’s plan and to vest in Homer an unlimited life estate. On the basis of the record in this cause, we must, therefore, conclude that the Trial Court was justified in determining that the transaction constituted a violation of the Disclaimer Act and barred the right of Homer Aylsworth to disclaim the property interest he received under the will of Ivan Aylsworth.

Other issues were raised in the briefs of the parties which require comment. It is seriously contended that we are dealing with a contingent remainder and that there could have been no effective disclaimer in any event. The interest which was devised to the various beneficiaries under the will of Ivan S. Aylsworth created a life estate in Homer Aylsworth and a remainder in certain named beneficiaries subject to being divested in the event any of these four died prior to the date of distribution. The date of distribution was to be at the termination of Homer Aylsworth’s life estate. Such remainder interest in such four beneficiaries vested subject to being divested and such a devise is frequently referred to as a defeasible or determinable fee or an executory devise. As Professor Merrill I. Schnebly observed in an article written in the 1951 University of Illinois Law Forum, at page 406, where a testator devises all property for life and at death to A and B in equal shares providing that if either A or B shall die during the period of the life of the life tenant leaving children surviving that such children shall take the share of the deceased parent, the remainder in such case is vested subject to divestiture by an executory devise over to the children of A and B. The author observes that while such a remainder is not absolutely vested, it is not a contingent remainder.

In the case of Danz v. Danz, 373 Ill 482, 26 NE2d 872, there was a similar provision in the will under consideration. In that case the court specifically held the remainder was vested and the court therein quoted from Gray’s Rule Against Perpetuities, section 108, where the author states:

“Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description or into the gift to the remaindermen, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.”

Recognition of the defeasible fee is also apparent in the case of People v. Flanagin, 331 Ill 203, 162 NE 848 and Slocum v. Hagaman, 176 Ill 533, 52 NE 332. Again, as Professor Schnebly stated in his article in the 1951 University of Illinois Law Forum, a typical contingent remainder would be one where a will devises a life estate to a life tenant with a gift over at the death of the life tenant to children “then surviving.” In the case before us we have a will in which the remainder is vested subject to being divested. In the event of a proper disclaimer by the life tenant the remainder would have been accelerated.

In support of the conclusion that a defeasible fee is destroyed by acceleration is Slocum v. Hagaman, 176 Ill 533, 52 NE 332. In that case after renunciation by the widow-life tenant, the nephews and nieces sought a partition and the court allowed it on the ground that the estate of the nieces and nephews had been accelerated by renunciation of the widow and that the property was no longer subject to the executory devise over. This was followed in the later case of Sherman v. Flack, 283 Ill 457, 119 NE 293, in which there was a defeasible fee after a life estate. In Danz v. Danz, 373 Ill 482, 26 NE2d 872, these conclusions were cited with approval. In that case, at page 489, the court stated:

“The final question to be considered, is whether the remainder is prevented from being accelerated because of the executory devise over, which is limited to take effect in the event either remainderman should die before the time for distribution. Executory devises, being so limited that they would not have been permitted under the common law, were allowed as legal estates after the passage of the Statute of Wills, in order to prevent their defeat by the holder of the prior interest. . . .
“The executory devise is destructible by arrival of the period for distribution, for if the time for division is reached before the happening of the contingency upon which the remainder is to be divested, the executory devise is defeated.”

Contingent remainders in this estate ordinarily are not destroyed by acceleration of the remainder where the widow renounces her life estate under the will on the assumption that acceleration prior to fulfillment of the condition would defeat the expressed intent of the testator (Schaffenacker v. Beil, 320 Ill 31, 150 NE 333). In that case the court determined that it could not be ascertained who would take the remainder until the death of the widow. It is apparent, therefore, that the interests of the four remaindermen under the will of Ivan S. Aylsworth were vested subject to being divested and that if Homer Aylsworth had properly disclaimed his life interest, the executory devise over would have been destroyed and the remaindermen would have become absolute owners of the property in trust.

For purpose of clarification, we should point out that a proper disclaimer would have effectively terminated the trust in the instant case; that on termination of the life estate, the remainder would have been accelerated since there was obviously no showing of the testator’s intent to keep the defeasible fee alive until the actual date of the death of Homer Aylsworth (if no life estate still remained in Homer Aylsworth). The purpose of postponing the final vesting in the remaindermen was simply to allow the life estate to operate in favor of Homer Aylsworth and for no other purpose. The circumstance also that Homer Aylsworth’s life estate contains spendthrift trust provisions, did not evidence an intent to keep the defeasible fee alive nor would the spendthrift trust provisions operate to prevent a disclaimer.

On the record before us, however, the actions of the parties in the instant case in carrying into effect the agreement and in executing the disclaimer on April 13, 1964, made the disclaimer ineffective. We, therefore, conclude that the order of the Circuit Court of Warren County so finding, was proper and should be affirmed.

Affirmed.

CORYN, P. J., concurs.

STOUDER, J.,

concurring:

I agree and concur with the majority of the court concerning the conclusion that the purported disclaimer is invalid. However, having determined that the disclaimer is ineffectual, no determination of the character of the remainder is required. Consequently I take no position on that part of the opinion of the majority of the court with respect to the character of the remainder.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stanley Fletcher, Defendant-Appellant.
    Gen. No. 66-14M. (Abstract of Decision.)
    Third District.
    September 12, 1966.
    Frank W. Curran and Paul F. Davidson, of Kankakee, for appellant; Edward P. Drolet, State’s Attorney, of Kankakee, for appellee.
   Opinion by

JUSTICE ALLOY. Not to be published in full.


author: MORAN, J.

text:
    Marvin Rinnert and Vera Lee Rinnert, Plaintiffs-Appellants, v. Indianapolis Morris Plan Corporation, Defendant-Appellee.
    Gen. No. 66-13.
    Fifth District.
    September 13, 1966.
    Rehearing denied October 7,1966.
    Tolliver, Bayler & Rickelman, of Louisville, for appellants.

      Craig & Craig, of Mt. Vernon (Glenn E. Moore, of counsel), for appellee.
   MORAN, J.

This is an appeal from a judgment dismissing the plaintiff’s complaint. The complaint alleged that, on February 9, 1962, the plaintiffs, Marvin and Vera Lee Rinnert, executed a note to the Dixon Equipment and Manufacturing Company for $70,900, secured by a chattel mortgage on a l-T-8 National Oil Well Drilling Rig; that the note and mortgage were thereafter assigned to the defendant, Indianapolis Morris Plan Corporation; that on May 21, 1964, the mortgaged property was sold at a public sale, contrary to the provisions of the Ill Rev Stats c 95, § 27, in that the defendant failed to deliver within ten days after the sale a statement showing the items sold, the names of the purchasers, the amount for which each article sold and the necessary, reasonable expenses incurred in taking, keeping, and selling the property. The complaint then sought to enforce the penalty provision of the statute, which provides that “the owner of said property may sue for and recover one-third of the value of the property so sold, from the mortgagee or person making said sale as assignee of said mortgage” in the event the mortgagee fails to comply with the statute.

The defendant’s motion to dismiss alleged that the statute authorizing the penalty had been repealed by express provisions of the Uniform Commercial Code, which had become effective on July 1, 1962. The court granted the motion to dismiss and the plaintiffs appealed. The sole issue on this appeal is whether the penalty provision of the Ill Rev Stats, c 95, § 27, is applicable to property mortgaged in February, 1962, prior to the effective date of the Illinois Uniform Commercial Code, and sold in May, 1964, subsequent to the effective date.

The Uniform Commercial Code, Ill Rev Stats, c 26, §10-102(1), specifically repealed c 95, §§26, 27. However, § 10-102 (2) provides that:

Transactions validly entered into before the effective date specified in Section 10-101 (July 1, 1962) and the rights, duties, and interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute or other law amended or repealed by this Act as though such repeal or amendment had not occurred.

This savings provision makes former law applicable to transactions entered into prior to the effective date. The defendant, however, argues that section 10-102(2) provides only that rights, duties, and interests flowing from transactions remain valid thereafter, not rights, duties, and interests flowing from repealed statutes.

Our Supreme Court has recently stated that “the plain meaning of the language used is always the safest guide to follow in construing any act and the courts have no right to read into a statute words not found therein either by express inclusion or by fair implication.” Hagen v. City of Rock Island, 18 Ill2d 174, at 179, 163 NE2d 495. The plain meaning of the savings provision is that rights, duties, and interests flowing from a transaction, whether statutory or not, may be terminated, completed, or consummated under the provisions of the old statutes when the transaction was entered into prior to July 1, 1962. This is the same interpretation which other jurisdictions have given to the identical provision. First Nat. Bank of Marysville v. Bahan, 26 Ohio App2d 429, 198 NE2d 272; James Talcott, Inc. v. Shulman, 82 NJ Super 438, 198 A2d 98; Boeing Airplane Co. v. O’Malley, 329 F2d 585 (8th Cir); Roller v. Jaffe, 387 Pa 501, 128 A2d 355; Paramount Paper Products Co. v. Lynch, 182 Pa Super 504, 128 A 2d 157.

The penalty provision of chapter 95, section 27, was applicable to the sale of the mortgaged property and therefore the complaint should not have been dismissed.

The judgment of the trial court is reversed and this case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ„ concur.

       See the “Illinois Code Comments” under chapter 26, section 10-102, Smith-Hurd Illinois Annotated Statutes and the comments preceding the “Appendix to Illinois Commercial Code” in the same volume where section 27 of chapter 95 of the Smith-Hurd Illinois Revised Statutes is set out as one of the prior laws repealed by the code but which continues to be applicable to transactions validly entered into before the effective date of the code.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John C. Franklin, Defendant-Appellant.
    Gen. No. 50,379.
    First District, Second Division.
    September 13, 1966.
    Rehearing denied October 4,1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for aggravated battery, after the entry of pleas of not guilty to charges of attempted murder and aggravated battery, and trial before a jury, with sentence in the Illinois State Penitentiary of four (4) to eight (8) years.

Lawrence Humphrey, the complaining witness, testified that on December 19, 1963, at approximately noon, defendant threatened him with physical harm unless he left alone one Charlene DeLees, allegedly the object of defendant’s stepfather’s affections; that later that day, while in the company of Miss DeLees, he entered a car containing defendant and two of his friends, Dennis Procop and Richard Raff; that later Humphrey, who had fallen asleep, was awakened by being pulled out of the car by defendant and one of his acquaintances; that he was forced into a snow-covered alley; that defendant proceeded to repeatedly stab and hit him, while one of defendant’s acquaintances, Dennis Procop, kicked him; that defendant stated to him that he had been forewarned to avoid seeing Miss DeLees; and that after the attack he stumbled a few feet and next remembered awakening in a hospital. He further testified, over objection, that he had been stabbed thirteen (13) times; that he had lost much blood; that he was in the hospital for over a month; and that he had been in critical condition.

Miss Charlene DeLees’ testimony substantially corroborated that of Humphrey’s. She testified that defendant and Dennis Procop pulled Humphrey from the car while one Richard Raff, another acquaintance of defendant, held her in the car; that Humphrey walked away with defendant and Procop; that then she heard a scream; that defendant and Procop returned running to the car; that defendant placed a knife under his coat; that she was then taken to the home of defendant’s stepfather; that defendant stated “the jig is taken care of” and also said not to let her leave or make any phone calls; that, however, she did leave and phoned the police; and that she visited the victim at the hospital. She further testified, over objection, “He was, when I saw him, he had tubes, bandages all over his hands. He was swollen, black and blue, arms all swollen. His face, he was all just black and blue and bloody and bandages.” She also testified that later she went to the home of her sister, where the defendant was in attendance and that defendant stated that if he had known that Miss DeLees and his stepfather were in love, he would not have done what he did.

Officer Patrick Touhy of the Chicago Police Department testified that he made an investigation of the assault; that he went to the defendant’s stepfather’s home; that defendant was not at home; and that after finding out that" defendant had fled to Alabama, he and his partner traveled there, in order to return defendant to Illinois.

Darlene Ahrens, defendant’s half sister, testified for the defense and stated that she knew Charlene DeLees, had seen her take narcotics and that Miss DeLees said she wanted to see defendant rot.

Dennis Procop, a juvenile, age 15, who testified for the defense, related that he had given a statement to the police; that the police had “pressed him”; that defendant had directed him to drive to an alley, park, and leave the motor running; that Humphrey was told by defendant that he was going to take him somewhere; that Humphrey was willing but Miss DeLees objected and Raff held her; that he walked down the alley with Humphrey and defendant and after proceeding approximately 50 to 75 feet, he was instructed by defendant to return to the car; that when he was near the car, he turned around and saw a scuffle and something flashing, which appeared to be a knife; and that he could not tell who started the scuffle or who had possession of the knife.

On cross-examination, the People asked this witness if he had been convicted for the same offense as the one for which defendant was on trial. Defense counsel objected on the grounds that the witness was a juvenile, but the boy was told to answer and admitted that he was on probation for the offense.

John Franklin, the defendant, testified on his own behalf and represented that he helped Humphrey out of the car and accompanied him down the alley on the way to an elevated train station; that he then turned to walk away; that Humphrey approached him and threatened to kill him; that Humphrey was in possession of a knife and tried to grab him; that he tripped Humphrey and both parties fell to the ground where a struggle ensued; that he knocked the knife from the hands of Humphrey; that Humphrey started choking him and continued to do so until he was able to retrieve the knife and strike Humphrey; that he stabbed Humphrey until Humphrey ceased to hold him; and that he never attempted to murder or cause him great bodily harm.

Detective Roy Thyfault testified in rebuttal that the defense witness, Dennis Procop, was not threatened during his interrogation and that Procop’s exact answers were placed in Procop’s signed statement. Officer Paul Russell testified in rebuttal that he searched the area of the assault and found no knife.

At the close of the evidence, the court instructed the jury on the law but did not inform the jury on the proper use to be made of Procop’s statement. Defendant was found guilty of aggravated battery and not guilty of attempted murder.

Defendant’s theory of the case is (1) that the indictment is invalid because it did not name the place of the offense, (2) that defendant was prejudiced by the repeated testimony, over objection, describing the wounds and permanent nature of the complaining witness’ injuries, (3) that prejudicial error was committed by the trial court (a) by allowing the State to introduce a prior statement to impeach a defense witness, when there was no prior determination that the statement that was given was voluntary, and (b) by not instructing the jury on the proper use to be made of a prior statement of a juvenile witness, and (4) that prejudicial error was committed by the trial court in allowing the State to elicit from a juvenile witness testimony that he had been convicted for his part in the same offense.

We do not have to consider defendant’s first contention as a result of the decisions reached in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965) and People v. Petropoulous, 34 Ill2d 179, 214 NE2d 765 (1966).

Defendant’s second contention, that he was prejudiced by testimony regarding the injuries sustained by the victim of the assault, is also without merit. The theory of defendant at the trial was that of self-defense. Defendant does not deny that he stabbed the victim but claims whatever he did was done to prevent injury to himself. It was, therefore, proper for the State to present evidence of the number of stabbings and the injuries sustained by the victim of the assault in order to show that the force used by defendant was unreasonable even if such force was being utilized in defense of his person.

We are aware of the decision in People v. Nickolopoulous, 25 Ill2d 451, 185 NE2d 209 (1962), which held that evidence of the extent of a victim’s injuries is inadmissible. The defense in that case, however, was not one of self-defense but one of intoxicated inability to form the necessary homicidal intent and is therefore distinguishable.

We also disagree with defendant’s third contention that it was prejudicial error for the state to introduce a prior statement to impeach defense witness Procop prior to a determination that the statement given was voluntary. The only evidence that Procop gave as to the involuntary nature of the statement was in response to a question whether the police statement given was of his own free will. He answered “well, they sort of pressed me, they were rather hard on me.” First of all, the voluntariness of its character was first brought out and raised by counsel for defendant and subsequent testimony by the People was only comment on the evidence presented and developed by the defense.

Furthermore, no request was made for a hearing on the voluntariness of the statement, therefore, any such grounds were waived and not preserved for appeal. People v. French, 33 Ill2d 146, 210 NE2d 540 (1965).

No prejudicial error was committed because of the failure to tender an instruction to the jury on the proper use to be made of a prior statement of a juvenile witness. The defense requested no such instructions, even though they introduced the evidence. The Supreme Court in People v. Newman, 30 Ill2d 419, 197 NE2d 12 (1964), stated that the court should, upon request, instruct the jury of the purpose for which prior statements were admitted. (Emphasis supplied.)

Finally, no error was committed by the court in allowing a statement, by a defense witness who was on probation for the same offense, to stand. During the cross-examination of defense witness Dennis Procop, he was asked by the prosecutor if he was presently on probation for the same offense. The witness answered yes and an objection followed on the grounds that Procop was a juvenile. The court let the answer stand. Defendant claims that such examination was improper under Ill Rev Stats (1965), ch 23, Par 2001.

Par 2001 reads in part:

. . . Deposition of any child under this Act or any evidence given in such cause, is not, in any civil, criminal or other cause or proceeding whatever in any court, lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this Act, ....

It is the position of the People that defendant misinterpreted this section and in support of their position claim' that (1) the statute was enacted to protect the delinquent minor, not another individual adult subsequently on trial, and (2) the statute in question does not prohibit such conviction being shown in impeachment. They point out that such an interpretation is evident from the subsequent language of Par 2001 wherein it is stated in part:

. . . This Act shall be construed to the end that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that as far as practicable they shall be treated not as criminals but as children in need of aid, encouragement and guidance. . . .

We agree with the People that Par 2001 of the Family Court Act is directed toward protecting a delinquent minor in subsequent judicial proceedings involving the minor as a party to such an action. It was not enacted to prohibit the introduction of evidence against an adult defendant. To read such a construction into the Act would be interpreting legislative intent that is not apparent on the face of or in the tenor of the statutory language. The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Pearson, Defendant-Appellant.
    Gen. No. 50,553.
    First District, Second Division.
    September 13, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for arson, after a bench trial, with sentence in the Illinois State Penitentiary for a period of twelve (12) to twenty (20) years.

On August 26, 1964, at approximately 2:00 p. m., the building located at 3639 South State Street caught fire. On January 13, 1965, defendant waived a jury and was tried on a charge of arson. Mr. Morris, who had a store located in that building, testified that prior to the fire he saw defendant enter the building with a can.

Winston Cater stated that he saw defendant come out of the building; that he accused defendant of setting the place on fire; that defendant replied “I don’t give a . . . .” and when Cater said “Suppose my kids burn up there?” defendant said, “I burn them up too.”

Officer Cephas testified that he arrested defendant in a truck, which was parked in the rear of the burned building ; that defendant appeared to be sleeping; and that, in his opinion, defendant was under the influence of intoxicating liquor.

Officer Niehoff testified that he questioned defendant at approximately 6:30 p. m. on August 26, 1964; that at that time defendant admitted being in the vicinity of the building but denied that he was in the building proper; and that in his opinion defendant was under the influence of intoxicating liquor.

Defendant testified that he had drunk that morning; that he did not have much to drink — not enough to get drunk; that he estimated the amount to be one-half pint of whiskey; that he was near the building talking to Winston and Jesse Johnson; that he was standing there looking with everyone else when the fire started; and that he did not commit the offense of arson.

After hearing all the testimony, the trial court found defendant guilty of arson, and then stated:

Where a person gets intoxicated it is no defense to a crime. If it were why a person could get intoxicated, go out and kill people and say, well I didn’t know what I was doing, I was intoxicated. This type of crime, intoxication, is no defense to the crime of arson.

In aggravation the State showed three misdemeanor convictions: (1) assault with a deadly weapon, 90 days, House of Correction; (2) tampering with an auto, one year, House of Correction; (3) petty larceny, one year, House of Correction. It was further pointed out that one Eugene Patterson lost his life in the fire. Defendant was sentenced and appeals from that judgment.

Defendant’s theory of the case is (1) that the indictment was insufficient in that it failed to state the address of the property which was the alleged subject of arson, and (2) that the evidence failed to prove him guilty beyond all reasonable doubt.

We disagree with defendant’s first contention. The indictment was sufficiently definite to apprise the defendant as to the nature of the charge and enable him to prepare his defense. The case at bar falls directly within the application of the Supreme Court’s opinions in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965) and People v. Reed, 33 Ill2d 535, 213 NE2d 278 (1966).

The applicable statutory provision to be applied in response to defendant’s second contention is found in section 20-1 of the Criminal Code, Ill Rev Stats (1965) chap 38, par 20-1, and reads as follows:

20-1. § 20-1. Arson. A person commits arson when:

(a) By means of fire or explosive, he knowingly;
(1) Damages any building of another without his consent; or
(2) Damages any vehicle, aircraft, or watercraft of another designed for use as a dwelling without his consent; or
(3) With intent to defraud an insurer, damages any building, vehicle, aircraft or watercraft designed for use as a dwelling.
(b) By means of explosives, he knowingly damages any property of another without his consent.
A building or property “of another” means a building or property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.

Under the above section, the legislature required that the acts must be done knowingly. The crime of arson, therefore, requires the mental state defined in section 4-5 of the Criminal Code, Ill Rev Stats (1965) chap 38, par 4-5, which states as follows:

'4-5. § 4-5. Knowledge. A person knows, or acts knowingly or with knowledge of:

(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.

Conduct performed knowingly or with knowledge is performed wilfully within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.

Defendant contends that he did not have the necessary mental state to commit arson in that the evidence presented at the trial shows that he was intoxicated. Chap 38, sec 6-3 of the Criminal Code, Ill Rev Stats (1965) chap 38, par 6-3, reads as follows:

A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either:
(a) Negatives the existence of a mental state which is an element of the offense; or
(b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Since there is nothing in the record to indicate that the intoxication was involuntary, the only defense would be that type of intoxication found under subsection (a). Defendant’s contention that he was “severely” intoxicated and that this negated the existence of a mental state which is an element of the defense to the charge of arson, is not supported by the testimony of the witnesses. They only testified, that in their opinion, he was “intoxicated” or “under the influence of intoxicating liquor.” No one testified that he was “severely intoxicated” or “extremely drunk.” The defendant himself stated “I had drank that morning. I didn’t have that much to drink; not enough to get drunk. I would say approximately a half pint of whiskey.” Defendant further denied setting the fire and gave a detailed story of his conduct during the morning and afternoon of the fire. It included places he went and people he talked to that day. (Emphasis supplied.)

In the case of People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (1965), the degree of intoxication was much greater as the defendant testified he did not remember anything from early morning to late afternoon, which covered the period of the crime. In that case the Fourth Appellate District made the following remarks concerning intoxication as a defense:

Ch 38, Sec 6-3, Ill Rev Stats 1963, provides that a person who is in an intoxicated condition is criminally responsible for his conduct unless his condition of intoxication negatives the existence of a mental state which is an element of the offense. Intent is an essential element of the crime charged. People v. Freedman, 5 Ill2d 414, 128 NE2d 217. A defense based upon section 6-8 (supra) is an affirmative defense. (Ill Rev Stats 1963, c 38, § 6-4.) The defendant having raised the issue of lack of intent, the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. (Ill Rev Stats 1963, c 38, § 3-2.)
This case was tried to the Court without a jury. The Supreme Court has repeatedly stated that the trial judge, as trier of the facts, who saw and heard the witnesses and observed their conduct and demeanor while testifying, is in a better position to determine their credibility and determine the weight to be accorded their testimony, than is the reviewing court. The People v. Sudduth, 14 Ill2d 605, 153 NE 2d 557.
The record supports the finding of the trial court that the defendant’s intoxication was not so great as to exclude his having the specific intent essential to the crime, and under such circumstances we will not substitute our judgment for that of the trial court. The People v. Cozzie, 397 Ill 620, 74 NE2d 685.

In the case of People v. Strader, 23 Ill2d 13, 177 NE2d 126 (1961), the situation is similar to that of the case at bar, in that in both cases the defendants testified in detail to circumstances prior to the time of the crime and at the scene. There the Supreme Court stated the following concerning the defendant’s ability to reason:

Voluntary drunkenness is not a defense to the commission of crime. (People v. Jones, 263 Ill 564.) However, where malice is a necessary element of the crime, and where the intoxication is so extreme as to suspend the power of reason and the accused is incapable of forming an intent, he cannot be held guilty of the crime. There is nothing in the record to sustain defendant’s contention that his intoxication was so extreme as to make him incapable of having the intent necessary in a case of murder. Defendant’s testimony in regard to his intoxication proves too much, since he was in sufficient possession of his faculties to enable him to remember, in minute detail, all of the bars he visited and the nature and quantity of the various beverages he consumed in each. Moreover, he also recalls in detail the circumstances of his pursuit of the deceased and practically all of the details surrounding the shooting. The record does not support the contention that his intoxication prevented him from possessing in his mind the necessary intent for the crime charged, nor is his evidence in this regard sufficient to reduce the charge from murder to manslaughter. The defendant at all times knew what he was doing.

Since the necessary degree of intoxication, to negate the defendant’s mental state, was not clearly established, defendant was proved guilty beyond a reasonable doubt. Furthermore, the ruling of the trial court, in the case at bar, must be interpreted as saying that the intoxication of defendant was not so extreme as to negate intent; rather than that no amount of intoxication, no matter how extreme can ever be a defense to arson. The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leon Drew Stewart, Defendant-Appellant.
    Gen. No. 49,613.
    First District, Fourth Division.
    September 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John M. Branion, Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Carmen V. Speranza and George Saméis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charge

Attempt (to commit rape).

Judgment

After a jury verdict finding defendant guilty, the court imposed a sentence of one to five years.

Points Raised on Appeal

(1) The charge was not proved beyond a reasonable doubt.

(2) The State’s Attorney made prejudicial remarks in argument.

(3) The court committed error in the giving of instructions to the jury.

Evidence

Testimony on Behalf of the State

Deloris White

On the evening of January 3, 1963, she and two companions, Evelyn Coppage and Mary Clark, were walking east on the 59th Street bridge over the Dan Ryan Expressway. They were accosted by defendant who warned them not to move and not to “holler” or he would kill them with a gun. She saw the handle of a gun protruding from his coat. Defendant then walked the three girls to a dark and deserted ball park at 57th and Shields Streets where he told them to sit down on the ground. It was icy, muddy and dirty. Seeing that they were cold, defendant announced that he would kiss each girl to find out which was coldest and she would be “first.”

After directing the girls to spread their coats on the ground, he selected Deloris and told her to take down her slacks and panties and lie down on the coats. He said, “Remember, I got a gun and don’t try any funny business.” She did as she was told. He pulled down his zipper and lay on top of her for what seemed like fifteen minutes, but was unable to achieve an erection. He then had her get up and told Evelyn to take her place after first pulling her skirt up and her tights down. He lay on top of Evelyn for a short time during which time he had his hand on the gun in his pocket. He kept saying, “Don’t try no funny business.”

They all got up and put on their coats and went under a viaduct where defendant said he was looking for a truck or car where they might lie down. Finding none, and with the gun in Deloris’ back, they went into an apartment building hall, but a tenant there told them to get out.

Defendant then took them to a house and reminded them not to say anything because he had a gun. A teen-age boy let them in. Defendant introduced them to a woman in the house and had the girls take off their coats. Deloris did not yell; she was scared. She did not notice anyone laughing. They went to the basement where Deloris and Mary went to the washroom while defendant stayed with Evelyn. Defendant decided it was too cold in the basement. He had the girls go back upstairs, telling Evelyn and Mary to remain in the living room while he took Deloris to a bedroom on the second floor.

In the bedroom defendant had the gun in his hand and completely out of his pocket. He directed Deloris to disrobe from the waist down and get in bed, which she did. He then disrobed completely, and got in bed on top of her. She was crying, and asked him to let her go, telling him that she had kids at home. (Deloris had five children.) Intercourse was not realized, and, in addition, defendant was unsuccessful in attempting to force her to commit an act of oral copulation. At that time a man and woman came upstairs, and the woman said, “Leon, I am ashamed of you.” Leon “got his pants” and “ran out.” Deloris dressed and went downstairs where defendant told her not to report him to the police. Earlier the older woman said defendant had been in some trouble and she was so ashamed of him. Deloris took her coat and the coats of Evelyn and Mary and ran to a tavern at the corner where she found the other girls in the washroom. The young boy went with her to the door of the tavern, and on the way he said, “I don’t know what is in him to do things like that.” Two policemen came to the tavern and they all went back to the house, but they couldn’t find defendant.

Evelyn Copy age and Mary Clark

They corroborated the testimony of Deloris White in all essential particulars, there being only very minor discrepancies.

As to the gun: Evelyn saw the handle only and defendant kept his hand on it a good bit of the time; Mary testified similarly, but said that he pulled it out of his pocket when he first met them on the bridge. Both said that he threatened them from time to time and said he would kill them, or if they got away he would kill Deloris. For this reason, and because they were scared, they did not yell or try to run away.

Mary estimated that defendant’s efforts with Deloris in the ball park had lasted six or seven minutes, and with Evelyn about four minutes. Evelyn said five or ten, and one or two.

The two girls were in complete agreement that very shortly after defendant went to the bedroom with Deloris they ran out of the house to the tavern on the corner and called the police. They then waited in the washroom until someone told them the police had arrived.

Charles Mandel

He was a police officer who went to a tavern at 59th and Normal at about midnight on January 3, 1963, in response to a radio call. There he saw Deloris, Evelyn and Mary. Deloris and Evelyn were crying. He and his partner and the three girls then went about 150 feet up the street to the house where defendant lived. The policemen were joined by three other officers, and they searched the premises for defendant but did not find him. Mandel and his partner went back to the house about an hour and a half later. Defendant was not there.

Alfred Faro

He was a detective who was assigned to this case on January 3, 1963. In the course of his investigation he arrested defendant at his home on January 22, 1963. In the car en route to the police station, he asked defendant if he had been with the three girls and defendant said that he had. Asked whether he had a revolver, defendant said that he did not; that he “only had a toy pistol to scare them.”

Michael Carlo

He was employed by the State. On January 22, 1963, in response to a telephone call from defendant’s mother, he went to the home where she and defendant lived and she gave him a package which contained a gun. She did not tell him anything about the gun.

(After identification of the gun by this witness and by Deloris White, a toy revolver with a brown and white handle and a silver barrel was admitted into evidence.)

Testimony on Behalf of the Defendant

Tyree Wilson, Jr.

He was 16 years old and lived with his mother, stepfather and grandmother in the same house with defendant, who was his uncle. He saw defendant and three girls come to the house on the evening of January 3, 1963. He had no conversation with any of them. He saw two of the girls leave, and his mother watched them go to the tavern. Later the other girl asked about her friends and his mother gave her their coats and told her they had gone to the tavern. At his mother’s request he carried the coats and walked the girl over to the tavern door. Later they all came back with policemen. He denied that on the way to the tavern he had made any comment to the girl about defendant’s behavior.

Lucille Jones

Sister of defendant and mother of Tyree, she was at home when defendant came home with the three young ladies. They went to another room where they sat talking and smoking. She went in there after five or ten minutes and was introduced to the girls. She then returned to the TV room where she could hear defendant and the girls in the other room laughing and talking for a half hour or so. After another half hour two of them left without their coats and she watched them go to the tavern on the corner. It was pretty cold that night, and she thought it was strange that they left without their coats.

About ten minutes later the third girl inquired about her friends. Mrs. Jones gave her their coats and had her son escort the lady to the tavern where they had gone. Five or ten minutes later the police came. They talked to Mrs. Jones’ mother but did not search the house. She heard defendant somewhere in the back of the house at the time, but she did not see him again that night. The girls said they had been raped.

Mrs. Jones denied that she and her husband had gone upstairs or that she had told defendant that he should be ,ashamed of himself.

Rachel Faulkner

She is defendant’s mother. She was upstairs in their home and when she came down she saw her son and Deloris. They were talking in the TV room, and he introduced her to Debris. After a few minutes Debris left to go to meet her friends at the tavern. Mrs. Jones gave her their coats to take along.

When the police came Mrs. Faulkner and defendant were in the kitchen making coffee. She went to the door. The police said they had a complaint that some girls had been molested. (She made no reference to a search of the premises nor did she attempt to explain the inability of the police to find defendant.)

Mrs. Jones told the police that it couldn’t have happened there because no one had left the downstairs room where they all were.

Wilbur Jones

Defendant’s brother-in-law, he saw defendant come in with some ladies, but he was watching TV and did not come out and talk to them. They left after about half an hour. He didn’t pay any attention to them. Two left first, without their coats. The third one left about ten minutes later and took the coats. His son went with her. About ten minutes later the girls came back with the police.

(It was stipulated that defendant is 39 years old.)

Opinion

(1) The credibility of the witnesses is essentially a matter for the jury. There is evidence which establishes proof of defendant’s guilt beyond a reasonable doubt, and what inconsistencies exist are so minor as not to render it unworthy of belief. People v. Cole, 30 Ill2d 375,196 NE2d 691.

The testimony of the three girls showed that defendant, with the requisite statutory intent, performed an “act” which constitutes a substantial step toward the commission of the crime of rape. Ill Rev Stats (1961), c 38, §§ 8-4, 11-1. There was proof of sufficient force or threat of force to overcome the victim’s will (People v. Damen, 28 Ill2d 464, 193 NE2d 25; People v. Elder, 25 Ill2d 612, 186 NE2d 27); and under the circumstances resistance would have been dangerous and futile, and therefore not required (People v. Smith, 32 Ill2d 88, 203 NE2d 879; People v. Faulisi, 25 Ill2d 457, 185 NE 2d 211). In this view of the evidence, defendant’s citations based on consent or lack of will to resist are not in point. People v. Scott, 407 Ill 301, 95 NE2d 315; People v. Serrielle, 354 Ill 182, 188 NE 375; Adams v. People, 179 Ill 633, 54 NE 296.

(2) Defendant’s contention that the State’s Attorney made prejudicial remarks in his closing argument relate to two comments: first, that defendant had fled after the crime, thus indicating guilt; and, second, that defendant’s mother said he had been in trouble before. The objection to the first comment is that it is not supported by any evidence, and as to the second comment defendant says that it is not supported by evidence and was an improper attempt to prove a prior criminal record. When defense counsel made timely objections during the trial they were sustained by the trial court. A defense motion for a mistrial was denied, and properly so, in our opinion.

In fact, we find that both arguments were supported by the evidence; the State’s Attorney made only proper comment thereon; and the defendant’s objections to thé argument should have been overruled. There was testimony that when defendant and Deloris were seen in the bedroom, defendant “ran out,” the police were unable to find him that night, and did not accomplish his arrest until almost three weeks later. There was also testimony that defendant’s mother told Deloris that defendant had been in trouble and that she was ashamed of him.

(3) Defendant also argues that the court erred in giving an instruction on the subject of flight. There can be no question that a defendant’s flight may be considered with other evidence as tending to prove guilt. People v. Rossini, 25 Illd 617, 621, 185 NE2d 831. And in a long line of cases it has been held that where there is evidence of flight, as there is in this case, an appropriately worded instruction is properly given by the court. People v. Lobb, 17 Ill2d 287, 295, 296, 161 NE2d 325; People v. Dukes, 12 Ill2d 334, 343, 146 NE2d 14. We therefore cannot find that the giving of an instruction on flight constituted error. In passing, however, we should like to make note of our belief that instructions of this type which single out a particular portion of the evidence unquestionably give added and undue weight to the evidence in question by appearing to give it the approval of the court.

Defendant also complains of the giving of an instruction which included the statutory definitions of the crimes of attempt and rape. The objection here is because the evidence had established that under the circumstances of this case defendant was apparently incapable of engaging in intercourse and therefore incapable of rape. The answer to this contention is found in the Criminal Code where it is stated: “It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” Ill Rev Stats (1961), c 38, § 8-4 (b).

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1961), ch 38 includes:
      § 8-4. Attempt
      (a) Elements of the Offense.
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
      (b) Impossibility.
      It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.
      § 11 — 1. Rape
      (a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. . . .

       In People v. Henderson, 378 Ill 436, 448, 38 NE2d 727, the court said: “These two instructions were bad because they called the attention of the jury to particular facts in evidence (citation) and because particular portions of the evidence were singled out. (Citations.)” See also People v. Durand, 313 Ill 582, 586, 145 NE 162, and People v. Newbold, 178 Ill App 63, 65.

       Examples of other instructions of like kind, in our opinion, include those singling out the testimony of police officers, or instructing the jury that the testimony of an accomplice must be received cautiously and weighed with care. We consider such instructions to run counter in principle to the trend of modern thought on jury instructions generally. Inferences which may reasonably be drawn from facts in evidence, and matters reflect-

        ing on the credibility of a witness remain, of course, as proper subjects for the attorneys’ argument to the jury.
      With this footnote Justice McCormick does not agree. He believes, for example, that either “flight” or “accomplice” instructions (or both) should be given in cases where appropriate.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Joe Calloway, Defendant-Appellant.
    Gen. No. 49,760.
    First District, Fourth Division.
    September 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel) , for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charges.

Armed robbery and attempt (to commit murder) .

Defense at Trial

Alibi.

Judgments

A jury verdict on January 17, 1964, found defendant guilty of armed robbery. On February 3, 1964, the court entered judgment on the verdict and sentenced defendant to a term of seven to twelve years.

Also on February 3, 1964, defendant waived a jury as to the charge of attempt to commit murder, stipulated that the evidence in the robbery case be considered as the evidence in the attempt case, and, after a finding of guilty, was given a concurrent sentence of seven to twelve years.

Points Raised on Appeal

(1) The identity of defendant as the perpetrator of the crimes was not proved beyond a reasonable doubt.

(2) The court erred in the giving of an instruction to the jury.

(3) The trial for attempted murder was barred by the mandatory joinder provisions of the Criminal Code.

Evidence on Behalf of the State

Mary Mayes

She had worked as a waitress at Phillips Ice Cream Parlor for fifteen years, and on March 13, 1963 was working the hours from 10:00 a. m. to midnight. At 11:40 p. m. two colored men came into the store and she served them some pie. She identified defendant as one of the men. The other man exposed a gun and told her to keep silent or she would get hurt. He then escorted her at gunpoint to the back of the shop and into the kitchen. As they entered the kitchen, her employer, I. P. Phillips, who had been standing by the kitchen window facing the shop, grabbed the man’s gun; the gun fired striking Phillips in the wrist. The man called to defendant for help as he and Phillips wrestled on the floor for the gun. Defendant rushed into the kitchen and helped his friend. At this time the witness started to go out when the other man again pointed his gun at her, ordering her forward to the cash register where, still at gunpoint, he took approximately fifteen dollars. Defendant came running out with Phillips’ gun in his hand. She 'identified this gun at the trial, testifying that she had seen it many times before. The two men were in the store about twenty minutes. The store was well lighted. At the time of the robbery defendant had on a short length coat, dark in color, which was similar to one displayed in court by the State’s Attorney. (On cross-examination she said she was not sure she had seen the coat before.) Defendant also wore a black bandana on his head at the time of the robbery. She gave the police a description of the man, and later (April 10, 1963) identified defendant in a lineup of four men at the police station. He was wearing a black bandana at the time.

I. P. Phillips

He is the proprietor of Phillips Ice Cream Parlor where he and Mrs. Mayes were working at approximately 11:30 p. m. on March 13, 1963. He was in the kitchen attending to closing preparations when he noticed two fellows enter the establishment. They said that they were hungry and Mrs. Mayes served them some food. One of the men was defendant. After observing the men through the peep window of the kitchen for a period of five or six minutes, the witness resumed his cleaning up chores. There followed a period of silence and suddenly the witness heard Mrs. Mayes pleading for her life. In the next instant defendant’s accomplice and Mrs. Mayes entered the kitchen and the accomplice announced that this was a “stick up.” Phillips slapped his assailant’s gun, the gun fired and Phillips was shot, the bullet hitting him in the elbow and lodging in his spine. He fell, and in doing so reached for a revolver which he kept under his apron. A struggle ensued for possession of that gun, at which point defendant entered the kitchen to assist his friend. Defendant grabbed the gun and, ignoring Phillips’ plea for his life, shot him. A blue blaze came from the gun defendant was holding. Phillips had an opportunity to observe defendant’s face before he was shot. Defendant wore a dark coat and had a black scarf or bandana on his head at the time of the robbery. The coat submitted in evidence by the State was similar to that worn by defendant at the time Phillips also identified his gun.

On April 10, 1963, the police brought defendant and another man of similar appearance to Phillips’ home. At that time he identified defendant as the robber of his store. He identified him first without the bandana on his head and then with the bandana on his head. Phillips described defendant’s height and weight and color. He did not identify defendant by any specific facial features but he stated that “I looked right in his face” and “I noticed everything about him.” Phillips was at home on April 10, having just gotten out of the hospital. Over a period of six months he had a series of three operations for the injuries he received in the shooting. There were four bullet holes in his intestines.

Police Officer James Burns

He arrested defendant on April 10, 1963. The arrest was the result of information from a Mr. Pace that he had observed defendant discard a gun in an alley. The gun was ultimately retrieved. At the time of arrest defendant was wearing a three-quarter length leather coat, a pair of black trousers and a black bandana. Burns did not know what became of the black bandana. Burns confronted defendant with Mr. Pace, and defendant admitted he had put the gun in the alley. Burns then took defendant to the police station where Mrs. Mayes identified him as the robber, picking him out from a lineup of four men all similar in size and race. Later that same day Burns and his partner, Officer Cozzi, escorted defendant and another youth to the home of Mr. Phillips where the latter also identified defendant as one of the robbers. He identified him first before defendant put on his black bandana and also after he requested that defendant wear the bandana.

(The gun and the coat were admitted into evidence.)

Evidence on Behalf of Defendant

Willie Sanders, Catherine Calloway, Johnnie Ash and Flora Beaman.

Defendant was with them at Sanders’ home for the rehearsal of a choir group known as The Christian Harmonizers on March 13, 1963 from about 9:15 p. m. until after midnight. Sanders is defendant’s uncle. Catherine Calloway is defendant’s mother.

Willie Joe Johnson

He paid $25 for the gun submitted into evidence by the State on about March 16, 1963. The purchase was made from a fellow “called by the name of Joe” in a garage located at 13th and Kedzie Streets. The witness loaned the gun to defendant on about April 5, 1963 when the latter asked to borrow it. Defendant had not sold the gun to Johnson. Johnson is defendant’s cousin.

Willie Joe Calloway, defendant

He denied having committed the robbery, and said that he had never seen Mrs. Mayes before. On March 13, 1963, he was at Sanders’ home between the hours of 9:00 p. m. and 1:30 a. m. for a rehearsal of The Christian Harmonizers. The coat in evidence was not his coat but was borrowed by him from Johnnie Ash. The day he was arrested was the first day he had worn the coat. Defendant borrowed the gun in evidence from Willie Joe Johnson on April 6, 1963. He borrowed it for his own protection. On April 7, 1963, he dropped it in an alley when he feared that a “dick’s car” cruising the neighborhood might stop him, and he didn’t want to be picked up with a gun on him. The gun was then taken from the alley by someone else. Defendant never wore a bandana nor did he have one in his pocket when he was arrested. At the lineup a policeman furnished the black bandana for him to wear.

Rebuttal Evidence on Behalf of the State

Police Officer Robert Cozzi

He had a conversation with Willie Joe Johnson on April 10, 1963, in which Johnson stated that he bought the gun in evidence from defendant sometime in March of 1963 for $25, and that defendant had previously purchased the gun in a garage at 13th and Kedzie Streets.

At the time of defendant’s arrest he was wearing a three-quarter length leather car coat and a black bandana around his head. Defendant had the bandana both at the lineup where he was identified by Mrs. Mayes and at Phillips’ home where he was identified by Phillips, but he did not have it on when he went into Phillips’ home. He had taken it off voluntarily. At the lineup he had the bandana both on and off. Cozzi didn’t know what happened to the bandana.

Re-rebuttal Evidence on Behalf of Defendant

Defendant Calloway

Officers Burns and Cozzi took defendant and one Marcellus Williamson to Phillips’ home on April 9, 1963, at approximately 1:00 p. m. Phillips identified Williamson but could not identify defendant. Then Burns told Phillips that they had traced the gun to defendant and he was supposed to be one of the men in the restaurant. In addition, Burns took a black scarf from his pocket and ordered defendant to put it on. At this point, seeing the black scarf, Phillips identified defendant.

Re-rebuttal Evidence on Behalf of the State

I. P. Phillips

He identified only defendant on the day the police brought defendant and another person to Phillips’ home.

Police Officer Burns

When he and Cozzi took defendant and Williamson to Phillips’ home, Phillips identified defendant and did not identify Williamson.

Opinion

(1) Defendant’s contention as to insufficient identification must fail. Both Phillips and Mrs. Mayes had adequate opportunity to observe the robbers before and during the robbery, and their positive identifications of defendant both before and at the trial were essentially unshaken on cross-examination. Their identification of defendant by his physical features was bolstered by further identification of his clothing and of Phillips’ gun which was traced to defendant.

Defendant points out that Mrs. Mayes’ identification of the clothing was weak since there was a question as to its color, that defendant’s identification by both witnesses was based on the black bandana which he denied owning, and that neither witness was able to describe specific features of defendant’s face. The latter contention has no merit since it has been held that the credibility of identification evidence is not destroyed by failure to describe specifically any particular physical features of a robber. People v. McCall, 29 Ill 2d 292, 295, 194 NE2d 222; People v. Tunstall, 17 Ill2d 160, 163, 161 NE2d 300. The other contentions are said to find support in People v. McGee, 21 Ill2d 440, 444, 173 NE2d 434, in which a conviction was reversed because the identification evidence was considered unsatisfactory. The instant case is clearly distinguishable because both witnesses here had abundant opportunity under favorable conditions to observe the robbers, while the court in McGee noted that none of the identity witnesses there had more than a fleeting view of the offender in poor light. We are satisfied from the record that the identification of defendant in this case was based on much more than clothing. We are not unmindful of the alibi testimony of defendant’s relatives and friends which, if believed, clearly shows defendant’s innocence. However, it was for the jury in the trial for robbery and the court in the trial for attempted murder to evaluate all the testimony and determine the credibility of the various witnesses. People v. Donald, 29 Ill 2d 283, 286, 287, 194 NE2d 227; People v. Gray, 24 Ill 2d 229, 232, 181 NE2d 262; People v. Horodecki, 15 Ill 2d 130, 134, 135, 154 NE2d 67. We conclude that the evidence affords ample justification for findings that defendant was guilty of both charges beyond a reasonable doubt.

(2) Defendant contends that the State’s instruction No. 10 on accomplices or accessories to a crime, given over objection, improperly assumed that defendant was involved in the offense and thereby removed the State’s burden of proving that the defendant was so involved. The instruction reads:

The Court instructs the jury as a matter of law that if two or more persons are engaged in the prosecution of a felony, the acts of each in the prosecution of such felony are binding upon all, and all are alike responsible for the acts of each in the prosecution of such felony.

While an instruction on accountability (Ill Rev Stats (1963), c 38, § 5-2) would have been proper and might well have been given in this case, defendant failed to tender such an instruction. The situation here is similar to that in People v. Garvin, 20 Ill2d 32, 34-36, 169 NE 2d 260, where, over defendant’s objection, the jury was given an instruction to the effect that “exclusive possession ... of stolen property, ... if unexplained, may of itself raise an inference of guilt of the person having such possession, . . . .” Defendant there complained on appeal that the instruction assumed that the property was stolen and that it was error not to instruct the jury-on the identity of the stolen property. The court concluded :

If such instructions had been tendered, we think that they might well have been given. . . . Inasmuch as the trial court properly saw fit to give People’s instruction No. 3 and the defendant at the time did not request the giving of any instruction which he thought might be required to clarify that instruction there can be found no reversible error in the trial court’s failure sua sponte to give instructions which might be explanatory to the challenged instruction. The trial judge has no duty to give instructions on his own motion where defendant does not request them. (People v. Baker, 8 Ill2d 522,134 NE2d 786.) . . .

An examination of the record here discloses that defendant tendered several instructions, two of which were given by the court. Because none of defendant’s instructions was of a nature to cure the alleged defect in the questioned instruction, we think the Garvin case determinative of the issue.

In reaching this conclusion we do not withdraw from the position we have taken in People v. Davis, 74 Ill App2d 450, concerning the responsibility of the court to insure that the jury is instructed as to the elements of the crime charged. We consider the situation in that case to be quite different from the one here presented.

(3) Defendant contends that his prosecution for attempted murder was barred by the mandatory joinder provisions of the Illinois Criminal Code. Ill Rev Stats (1963), c 38, §§ 3-3 and 3-4. Section 3-3 provides:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.

Section 3-4 provides in pertinent part:

(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began; .... (Emphasis supplied.)

We think it clear that these sections of the statute were not intended to cover the situation in which more than one offense arises from a series of closely related acts such as burglary and robbery, rape and murder, or, as in the case at bar, robbery and attempted murder. (See Committee Comments, SHA, ch 38, § 3-3.) The two crimes are clearly distinct and require different elements of proof. Ill Rev Stats (1963), c 38, § § 18-1 (a), 18-2 (a), 8-4 (a) and 9-1 (a). Separate acts are involved, thus distinguishing the situation here from that which existed in People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744. That the State was properly permitted to elicit testimony at the robbery trial which later constituted the essential proof at defendant’s trial for attempted murder is irrelevant to the mandatory joinder proposition. Proof of such facts was not required in the robbery trial, and, in our opinion, section 3-4 (b) (1) does not bar the prosecution for attempted murder simply because the evidence happened to be the same. On the contrary, this situation constitutes a specific exception to compulsory joinder by virtue of the clause of the statute emphasized in the quotation above.

Decision

The judgments and sentences of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       Ill Rev Stats (1963), ch 38.
      § 18-1. Robbery
      (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
      § 18-2. Armed Robbery
      (a) A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.
      § 8-4. Attempt
      (a) Elements of the Offense.
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
      § 9-1. Murder
      (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (3) He is attempting or committing a forcible felony other than voluntary manslaughter.