author: GOLDENHERSH, J.

text:
    Albert Lee Wells, Plaintiff-Appellee, v. Gulf, Mobile & Ohio Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 66-82.
    Fifth District.
    April 14, 1967.
    Rehearing denied June 9,1967.

      Gillespie, Burke & Gillespie, of Springfield, and Griffith & Hoefert, of Alton (John W. Hoefert, Louis F. Gillespie, George B. Gillespie, and Robert E. Gillespie, of counsel), for appellant.
    Chapman, Strawn & Kinder, of Granite City (Morris B. Chapman and Norman H. Kinder, Jr., of counsel), for appellee.
   GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $75,000.

Plaintiff’s complaint states a cause of action based upon the Federal Employers’ Liability Act (45 USCA § 51 et seq.) arising out of an occurrence in April, 1963, while plaintiff was employed as a pipefitter in defendant’s yards at St. Louis, Missouri. In its answer, as an affirmative defense, defendant pleaded a release executed on June 17, 1963. In his reply, plaintiff avers that the release is not binding because it was “exacted” under a misapprehension of fact and an “erroneous conception as to the nature and extent of the disability suffered by plaintiff,” that the release is void because it is supported by “totally inadequate consideration,” “it resulted from the overreaching by defendant and its agent of plaintiff in the procurement of same,” and “it was procured from plaintiff by fraud and deception practiced upon him by the agents of defendant.”

As grounds for reversal defendant contends that the closing argument of plaintiff’s counsel was so inflammatory and prejudicial that the trial court abused its discretion in refusing to grant a new trial, that the verdict is excessive, and the court erred in giving two instructions tendered by plaintiff.

In its brief, defendant, in discussing plaintiff’s closing argument states, “The legion of improper remarks hurled by Plaintiff’s counsel at the jury contains unfortunate samplings of errors which have had a long and dishonorable tradition in jury trials. An enumeration of these errors reads like an infamous Who’s-Who of abuse of argument which has been long condemned by the courts of all jurisdiction.” Except for those instances hereinafter discussed, the record, however, shows no objection to the remarks of which defendant now complains.

During plaintiff’s opening argument to the jury, there was one objection. That this objection was properly overruled is so obvious as to require no further comment.

Twice during plaintiff’s final argument, defense counsel, without making an objection, interrupted the argument to say that he had not made statements attributed to him by plaintiff’s attorney. In one instance, the court said “The jury heard it. It should not be personal between counsel”; and in the other, “It is argument.”

In the course of the argument plaintiff’s attorney said:

“There is evidence in these x rays here, Mr. Hoefert, and that is what galls you, there is evidence that this man’s back has convexity from scoliosis, a bowing of the back. Smile, it is not your back, Mr. Hoefert. You don’t have to suffer. You are not the man who is out of work. You’ll eat your good steaks and everything whether this man gets any money or not.”

At that point, the following transpired:

“Mr. Dobbs: I object to the personal remarks of this man.
“The Court: Objection sustained.
“Mr. Dobbs: I move that a juror be withdrawn,
Your Honor, and a mistrial declared. This is completely improper.
“The Court: Motion denied.”

Following this incident, the argument of plaintiff’s counsel was concluded without further objection.

The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322, 163 NE 17.

The statement of plaintiff’s counsel was clearly improper, but in view of the fact that the objections above noted were the only ones made during arguments covering 28 printed pages, and after objection, counsel did not persist in the misconduct, we cannot say that the refusal of the trial court to grant a new trial was an abuse of discretion.

Defendant contends that the verdict is excessive and argues that the jury was actuated by some improper motive, “undoubtedly the prejudicial argument of plaintiff’s counsel.”

At the time of his alleged injury, plaintiff was engaged in installing a propane gas tank, cylindrically shaped, approximately 14 inches in diameter, 4*4 to 5 feet in length, and weighing approximately 240 pounds. The gas tank was to be placed in a bunker on a car, the bunker being approximately 30 inches above ground level. The car was spotted on a track along one side of which there is a sidewalk. The witnesses, in describing the scene, referred to a “sidewalk” side, and a “dirt” side, of the car on which plaintiff was working.

The filled propane gas tank was brought to the car, on the sidewalk side, by a fork lift truck. A man working the sidewalk side rolled the tank off the sidewalk and tried to roll it over the rail nearer the sidewalk. Plaintiff, working on the dirt side of the car, was pulling the tank from under the car, and when he pulled back, “it caught on something and would not give and when it did give I went back with the tank and hit the underskirt of the passenger coach.” He testified that he struck his back against the coach, and it hurt.

Plaintiff completed his shift, when he went home used a hot water bottle, and obtained some relief. He worked the next night, missed the following night, worked for approximately two weeks, missed work intermittently for the next six or seven weeks, and then resigned. He worked for Illinois Terminal Railroad for several months, had further trouble with his back, and severe headaches. He was off several weeks, returned to work, and shortly thereafter left the employ of Illinois Terminal. Plaintiff testified that after a medical examination he was refused employment at the Frisco Railroad. He sought other employment and worked a day or two at Continental Boiler, and one or two days at the Pullman Company. He could not stand the work, and in the period of approximately 22 months between the date of his leaving the employ of Illinois Terminal, and the date of the trial, he had worked 3 or 4 days.

Plaintiff testified he had received some treatment from a Dr. Hamm who was not called as a witness.

In August, 1964, approximately 16 months after the injury, at the suggestion of his attorney, plaintiff saw Dr. John W. Deyton. Dr. Deyton testified that in his opinion plaintiff was suffering from an aggravated arthritic condition, that his condition is such that he is “not industrially employable,” that his condition is permanent, and in his opinion the condition which he found is related to the occurrence of April 27, 1963.

Dr. John Parato, a physician who is employed part time at Missouri Pacific Employees Association Hospital in St. Louis, Mo., testified that on May 20, 1963, he diagnosed plaintiff’s condition as a lumbar muscular strain, and that in his opinion, there was no connection between the trauma of April, 1963, and plaintiff’s arthritic condition.

Dr. Marshall B. Conrad, an orthopedic surgeon, examined plaintiff on September 24, 1965, at defendant’s request. He reviewed X rays taken at various times between May 20, 1963, and September 24, 1965. In answer to a hypothetical question he stated that in his opinion there could be aggravation of arthritis in the lumbar area, but not of arthritis in the cervical area.

An actuary called by plaintiff, testified that based upon plaintiff’s age of 39.60 years, and earnings of $2.-73 per hour, the sum required to return payments of $473.20 per month for the 385 months of plaintiff’s life expectancy, at 4% would be $103,475.16 and at 4%%, $97,399.95.

The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury. Smith v. Illinois Cent. R. Co., 343 Ill App 593, 99 NE2d 717; Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; Ford v. Friel, 330 Ill App 136, 70 NE2d 626.

The assessment of damages is preeminently a jury function, Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358. On the record before us we are not prepared to say the judgment is excessive.

Over defendant’s objection, the court gave plaintiff’s instruction 1A, as follows:

“The Court instructs the jury that if you find from the evidence and under the instructions of the Court that at the time the parties entered into the release in question they were both under the belief that plaintiff’s injury was minor and not of severe consequence, and you further find that the said injuries were of a greater and more severe nature than contemplated by the parties at said time, then you may find that the release in question was executed as the result of a mutual mistake of fact and consequently is not a bar to plaintiff’s action.”

Defendant contends that the mutual mistake of fact, in order to avoid the release, must be a mistake as to plaintiff’s existing physical condition at the time the release was given. It argues that if the parties are not mistaken as to the plaintiff’s condition at that time, but are only mistaken as to the future developments or consequences of the known injury resulting in a subsequent deterioration of health, there is no mutual mistake. It states further that the record shows that “no one was mistaken as to the primary injury being a lumbosacral sprain plus minimal degenerative arthritis, or that it was the only injury sustained by the plaintiff.” It argues that the arthritis which now allegedly disables plaintiff is not traumatic arthritis, but “at the most, wear and tear arthritis,” and whether there would be any increase was conjectural at the time of the execution of the release. Defendant argues that the “primary vice” of the instruction is that it did not limit the consideration of the jury to the actual condition of the plaintiff at the time of the release, but rather allowed it to determine, without regard to the time element, whether plaintiff’s physical condition, after the execution of the release, became more deteriorated as a result of progressive arthritis.

We do not discuss the cases cited by defendant in support of this contention, other than to say that they are cases involving unilateral, not mutual mistake. The instruction correctly instructed the jury on the issue presented. Reede v. Treat, 62 Ill App2d 120, 210 NE2d 833.

Defendant argues further, that the instruction incorrectly permitted the jury to establish the amount of proof necessary to establish a mutual mistake, since it does not state that the plaintiff was required to prove this issue by a preponderance of the evidence. The record shows that this instruction, as originally tendered, contained the language “if you find from a preponderanee of the evidence,” and upon defendant’s objection was modified by the deletion of the words “a preponderance of.”

We do not consider this charge of error for the reason that if the court erred, the error was induced by defendant’s own action.

Over defendant’s objection, the court gave plaintiff’s instruction No. 2, defining the issues. The portions of the instruction to which defendant objected, and the giving of which it now urges as error, are:

“The plaintiff claims he was injured and sustained damage and that the defendant was negligent in one or more of the following respects:
“a. Failed to furnish plaintiff with careful and prudent fellow employees.
“e. Violated its rules and regulations pertaining to the transportation of propane gas tanks.
“Defendant further says that plaintiff has released his alleged cause of action against defendant. Plaintiff denies this and avers that any alleged release is not a binding one, as a defense, by defendant, because it was executed under a mutual mistake of fact as to the extent of plaintiff’s disability, or that it resulted from misrepresentation made by defendant to plaintiff.”

Although the words “careful and prudent fellow employees” were not used by the witnesses, there is evidence from which the jury could have found that plaintiff’s fellow employees were neither careful nor prudent. There was testimony regarding defendant’s rules, and defendant’s Exhibit 2, offered and admitted in evidence, is a booklet titled “Safety Rules, Mechanical Department,” which contains 11 rules under the heading “Handling Gas and Gas Cylinders.”

The requirement for the giving of an instruction that does not incorrectly state the law is that there be some evidence in the record to support the theory set out in the instruction. Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill App2d 85, 141 NE2d 77. The evidence meets that requirement.

We find no error which warrants reversal, and the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN, J., concurs.

EBERSPACHER, J., dissents.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William Hatchett, Jr., Defendant-Appellee.
    Gen. No. 65-89.
    Fifth District.
    April 28, 1967.

      K. T. Hubler, State’s Attorney of Williamson County, of Marion, for appellant.
    John R. Sprague and John R. Sprague, Jr., of Belle-ville, for appellee.
   EBERSPACHER, J.

This is an appeal by the People of the State of Illinois, from an order dismissing two arson indictments, discharging the defendant and releasing his bond, on the grounds that defendant had not been placed upon trial within the 120 days after demand for trial was made.

On October 7, 1964, three indictments were returned against this defendant, one of which was for arson. That indictment (No. 64-Cr.-578, hereinafter referred to as 578) charged the commission of the offense on August 27, 1964, by the use of explosive, damaging the fire station and fire truck, owned by the Village of Colp. He was arraigned and pled not guilty on November 5, 1964, being represented by counsel of his choice who had previously entered his written appearance. At all material times he remained free on bail. On February 19, 1965, while defendant’s attorney was before the court arguing motions in the case, he made an oral demand on behalf of the defendant for immediate trial. His demand was duly noted and appears in the record. It was supplemented by a written demand on April 6, 1965, providing that it was in addition to oral demands for trial previously made.

With these indictments still pending, a second Grand Jury, on March 5, 1965, returned three new indictments (No. 65-Cr.-95, No. 65-Cr.-96 and No. 65-Cr.-97, hereinafter referred to as 95, 96 and 97 respectively) against this defendant. Indictment 96 was for the crime of conspiracy, while indictments 95 and 97 each charged the commission of the offense of arson on August 27, 1964, by the use of explosives. Indictment 95 charged damage to the fire station owned by the Village of Colp, and indictment 96 charged damage to the fire truck owned by the Village of Colp. Defendant was rearrested, and admitted to bail and remained free on bail at all material times on these indictments. On March 24, 1965, he was arraigned on these three indictments, entered pleas of not guilty to each, and requested 20 to 30 days in which to file motions in regard to these three indictments. Motions not filed were ordered to be filed by April 2, 1965, and the State’s Attorney was ordered to furnish a separate list of witnesses in each of the three cases, in addition to the list that had been furnished on the earlier indictment, No. 578, and the court on its own motion continued the cause to April 2, 1965, advising that on that date it would be determined who would be the trial judge. Although the record at this point shows no order setting any of these cases for trial, both the People and defendant’s counsel were of the opinion that the cases were set for trial on April 19, 1965, having been set for that date prior to arraignment. Whether their references to that date of trial were to the indictments of October 7, 1964, or those of March 5, 1965, is not clear from this record. In some instances the reference was to “this case,” obviously referring to the conspiracy case which was first on the setting for May 24.

During the proceedings on March 24, 1965, defendant’s counsel stated in open court that he was standing on his demand for immediate trial in indictment 578, while the Assistant State’s Attorney requested that defendant’s counsel be directed to prepare for trial on the arson indictments, Nos. 95 and 97, on April 19; the record shows no disposition of this request, although defendant’s counsel voiced no objection to it.

The record next shows a letter from the presiding judge to defendant’s counsel advising that motions set for April 7, 1965, had been continued to April 12, 1965, at which time counsel was requested to be present with his client. On April 12, 1965, defendant filed his motion to consolidate the trial on Nos. 95, 96 and 97; and on that date the court entered an order consolidating the two arson cases, Nos. 95 and 97, but refused to consolidate the conspiracy case, No. 96, which was first on the setting for April 19, followed by 95 and 97 in that order. On April 12, 1965, defendant also filed his motion for substitution of judges in cases 95 and 97, in accordance with chapter 38, section 114-5 (a) Ill Rev Stats 1963. Apparently the court had been previously advised that such motion was forthcoming or had anticipated its being filed; a judge (who had been assigned to try the cases), other than the two to whom the motion was directed was present, ruled on the motion for consolidation, advised that he was taking defendant’s motion with reference to search and seizure under advisement, without argument, for disposition, denied certain other motions, indicated that the State would have to traverse allegations of the search and seizure motion, and concluded without any request for continuance that he didn’t see how they could get to trial on the 19th. The People called attention to the fact that a demand for immediate trial had been filed on indictment 578 and the court inquired if a demand had been filed “in all these cases” to which defendant’s counsel replied, “Oh, no,” but pointed out that his demand had been made on 578. The People again called attention that a demand had been made on “two arson indictments that preceded these,” to which the court concluded “but that doesn’t carry over to these cases here.” The court then advised, and asked defendant’s attorney to make a mental note, that he was tentatively setting “this case” for May 24th “and we are talking about all four of the cases, that are going up.” Obviously the four included a case against another defendant on a rape charge, in which this defendant was not involved. To this the Assistant State’s Attorney responded that “We’ll be ready, barring sickness or unforeseen difficulty.” The judge inquired concerning the availability of the jury and whether it would have served 10 days or more, and was advised by the Assistant State’s Attorney that the jury had never been in.

On May 7, 1965, the presiding judge of the Williamson County Circuit Court advised defendant’s counsel by letter that the State’s Attorney had undergone an emergency appendectomy, and had requested the continuance of any motions or hearings in the cases involving William Hatchett, Jr., until such time as he was able to be in attendance, and further advising that the Judge who was to conduct the trial had granted the State’s Attorney’s request. On May 15, upon motion of the People and without notice to defendant or his counsel indictment 578 was dismissed by the court. On July 15, the Clerk of the Court by letter advised defendant’s counsel that pursuant to his demand for trial, the three cases, 95, 96 and 97, had been set by order of court, for trial on August 2, and advised that all pending motions would be heard on July 30. Defendant then filed motions pursuant to section 114-1 (a) (1) of the Code of Criminal Procedure to dismiss indictments 95 and 97, alleging his demand for trial on 578 and that 95 and 97 related to the same crime, act and transaction allegedly occurring at the same time and place as was alleged in 578, and the dismissal of 578. The People filed answers to the motions, the motions were heard, and the court entered its order dismissing indictments 95 and 97, on the grounds that defendant had not been placed upon trial within 120 days after demand was made for trial on February 19, 1965, finding that delay was not occasioned by the defendant, and ordered defendant discharged and his bail released on those indictments.

Counsel representing defendant in this appeal by their brief, questioned the right of the People to appeal from the order dismissing the indictments and discharging defendant. Since that time our Supreme Court has published its opinion in People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765, firmly establishing the right of the People to appeal. This appeal therefore, raises only the question as to whether the defendant received a speedy trial in compliance with the constitutional provision (Art 2, § 9, Constitution of Illinois) and our statutes.

It is the State’s position that by proper computation under the 120-day statutory provision, the period had not expired on August 3, 1965, when the indictments were dismissed, contending that the period should begin on April 6, 1965, when the written demand for trial was filed; and further, that delay was occasioned by the defendant so as to bar him from claiming the benefit of the statute.

The defendant, Hatchett, being on bail, had to make a demand for trial to set the time limits of the statute in motion. People v. Klinger, 319 Ill 275, 149 NE 799; People v. Maniatis, 297 Ill 72, 130 NE 323. This he did on February 19, 1965. It is the defendant’s conduct after this date that must be considered in determining whether or not he occasioned delay. While the defendant’s demand for trial was oral, it clearly appears in the record and no authority has been pointed out to us, nor have we found any, which requires the defendant’s demand for trial to be written. All the cases treat an oral demand as adequate. This demand was formal and unequivocal. It appears as clearly in the record as it would have if made in writing. Therefore, the time that the statutory period starts to run in this case is not the date of the written demand, but the date of the first demand appearing on the record, February 19,1965.

In determining whether the delay in the trial was “occasioned by the defendant” we have carefully examined the facts as shown by the record to prevent a “mockery of justice” either by technical evasion of the right to speedy trial by the State, or by a delay in fact caused by defendant. Obviously the court did not enter an order as requested by the People on March 24, on defendant to prepare for trial on April 19, because it was apparent that the People would not be ready for trial on that date, that the court possibly might not be ready since no trial judge had been assigned and the presiding judge felt that the assigned trial judge should be the one to hear some of the motions pending, as well as set a trial date; also because the situation had been confused by the reindictment of defendant on March 5, and a realization on the part of the court that defendant had a right to attack as well as make various other motions in each of the then pending six cases against defendant.

It was obviously determined by the court on April 12, that fairness to both the prosecution and the defendant, as well as his own schedule, required a trial setting on May 24; and such determination was made in the face of his knowledge that a demand for trial had been made on 578, on February 19, and the possible misapprehension that such demand “doesn’t carry over to these cases.” However, it is to be pointed out that May 24th was well within the 120 days following the demand of February 19. It has been said that where a trial was postponed by consent of all parties and reset by agreement on a day beyond the statutory period, the delay thus occasioned was deemed as happening on the application “of each and all the parties.” Healy v. The People, 177 Ill 306, p 309, 52 NE 426; see also People v. Fosdick, 36 Ill2d 524, 224 NE2d 242, in which our Supreme Court most recently held that a defendant, who on the 119th day, when the State and trial court was ready for trial, waived a jury, and acquiesced in a bench trial setting on a date outside the 120-day period, was chargeable with delay, and that this constituted ample evidence to permit the trial court to find that the delay in the trial was occasioned by the defendant.

Here the State urges that “the defendant ask for a resetting of these cases from April 19, 1965 and they were reset for May 24”; and thus a new 120-day period began. As previously stated, we find nothing in this record showing a setting for April 19, although both defendant’s counsel and the Assistant State’s Attorney on the date of arraignment, March 24, mentioned that the “case was” and the “cases were” set for trial for the 19th. Even assuming that defendant counsel’s suggestions to the effect that he intended to make motions on each of the three new indictments, similar to those made on the three previous indictments, and his demand that he be furnished a separate list of witnesses on each of the three new indictments, were a request for continuance, no change in the trial date was made on March 24, and it was on April 12, when the assigned trial judge was sitting, that he determined a proper date for the trial, within the 120-day period. This was done on the court’s own motion, when he was aware of the demand for trial and cannot be ascribed to the defendant. People v. Wyatt, 24 Ill2d 151, 180 NE2d 478. Even if we were to assume, as the trial court did not, that the change of trial date from April 19 to May 24, was occasioned by defendant, we would not reach a different result; considering the Statute as having been tolled during those 34 days, extending the time 34 days would require trial before August 2.

The People have urged that defendant’s motion for substitution of judges should be considered as having the same effect as a motion for change of venue, relying on People v. Rankins, 18 Ill2d 260, 163 NE2d 814. In that case it was held that the right to be tried within a 4-months period is suspended by a motion for change of venue and starts to run again from the granting of the change. A change of venue starts a new four-months period, People v. Iasello, 410 Ill 252, 102 NE2d 138, because it involves going to a new county for trial. In both Rankins and Iasello the court found a delay was occasioned by the granting of defendant’s motion. Here the record is positive that the motion to substitute judges occasioned no delay. It was filed April 12, and a new judge substituted on that day. No time consuming consequences resulted, and no delay was occasioned by the motion. Under the factual situation here, such motion was not tantamount to a change of venue motion. An examination of each of defendant’s other motions, does not disclose that they were of such a dilatory nature as would prevent the running of the statutory period. A number of them required the State to respond and the court so advised the Assistant State’s Attorney. The motions which the State urges were the cause of delay were disposed of in less than a month from arraignment on the last three indictments. Each of them was authorized under our Code of Criminal Procedure, (§ 114), wherein is provided a uniform and efficient method of insuring rights to the accused prior to the trial without prejudice to the State, and were not made on the eve of the trial.

The People have conceded that the charges of arson contained in 578, 95 and 97 arise out of the same factual situation. The People may not avoid and evade the constitutional provision or the statute by returning indictment after indictment in order to either toll the statute or extend the time, People ex rel. Nagel v. Heider, 225 Ill 347, 80 NE 291; Brooks v. People, 88 Ill 327 at 330. In People v. Witt, 333 Ill 258, 164 NE 682, the court held that the fact that indictments were from time to time returned against the defendant would not stop the running of the time requiring trial within four months after commitment where all the indictments charge the same offense and delay in trial was not caused by the defendant.

Here, unlike the trial court in People v. Fosdick, supra, the trial court did not find that defendant occasioned any delay; and in fact, found that the resetting from April 19 to May 24 was on the court’s own motion. Our examination of the record discloses that the sole reason defendant was not tried on 95 and 97 on May 24, or within the 120-day period was the State’s Attorney’s illness and the ensuing continuance honoring his request. The illness of the trial judge has been held not to justify delay of the trial. Newlin v. People, 221 Ill 166, 77 NE 529. We see no reason for the State’s Attorney’s illness to have a different effect.

The findings of the trial court to the effect that no delay in the trial was occasioned by defendant are supported by the record, and we therefore affirm the judgment.

Judgment affirmed.

GOLDENHEESH and MOEAN, JJ., concur.

       Ill Rev Stats 1963, e 38, § 114-1 (a). Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information on complaint upon any of the following grounds: (1) The defendant has not been placed on trial in compliance with section 103-5 of this Code.

       Illinois Revised Statutes 1963, c 38, § 103-5 (b). Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.


author: PRESIDING JUSTICE MORAN.

text:
    Milton Kroenig and Ed Schempp, Plaintiffs-Appellants, v. Casper Yoch, Defendant-Appellee.
    Gen. No. 66-112.
    Fifth District.
    April 29, 1967.
    John E. Norton, of Belleville, for appellant; Walker & Williams, of East St. Louis (Edward G. Maag, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Defendant in Error, v. Marcus Payton, Plaintiff in Error.
    Gen. No. 50,038.
    First District, Third Division.
    March 9, 1967.
    Rehearing denied March 30,1967.

      Sherman Carmell, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Jay J. Poole, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Marcus Payton and a codefendant, Theodore Lewis, were indicted for the crime of armed robbery. They were tried by a jury and convicted. While testifying in their own behalf they admitted that they had served prior prison sentences for robbery and, upon the judgment of guilty in this case, Payton was sentenced to a term of 40 years to life and Lewis from 50 years to life in the penitentiary.

This appeal is by Payton alone. He contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt, that improper remarks were made by the trial court in ruling upon objections and that an inflammatory argument was made by the prosecutor. He also complains that an admission made by him was treated as an oral confession and that because of this he was denied due process of law in violation of the Fourteenth Amendment to the Federal Constitution. The appeal was first taken to the Supreme Court but was transferred here with the finding that the court had no jurisdiction on direct appeal.

About 9:15 a. m., on March 21, 1960, the Cyril Lounge located in the Cyril Hotel, Chicago, was robbed by two men wearing handkerchief masks. The men, armed with automatic pistols, herded the customers against a wall and directed the bartender to unlock the door to a storeroom. When the bartender said he could not open the door, two customers were forced to tear the door from its hinges. One robber took the bartender into the room, obtained $212.27 which was in two metal boxes and placed the boxes in a cardboard box.

While the robbery was in progress a janitor, who had seen two men standing on the rear stairway earlier that morning, looked into the lounge and saw a customer with his hands raised in the air. He told the hotel’s switchboard operator what he saw and she notified the police.

The police responded to the call at once; they entered the front door of the lounge a moment after the robbers departed through the rear door. After hurriedly obtaining their description the police pursued them and within two or three minutes captured two men answering the description. The men had the proceeds of the robbery in their possession, carried guns which were identified as being those used in the robbery and wore clothing identical to that worn by the robbers.

The men, Payton and Lewis, were recognized as patrons of the lounge; Lewis was a regular customer and Payton had been there once or twice before. They were identified by the janitor as the two men, then unmasked, whom he had seen on the back stairway before the robbery.

At his trial Payton testified that he and Lewis were drinking wine, which he said he had bought at the lounge that morning, in the alley back of the lounge when they noticed two men place a box under a porch at the rear of the lounge and run away. He said he and Lewis investigated the box and found that it contained a quantity of money and two guns; they were returning to the alley with the cardboard box when they were arrested. He denied committing the robbery.

The defendant claims that the evidence was wholly insufficient to establish his guilt. He points out that no witness identified him as one of the robbers, and that the case against him rests on circumstantial evidence. He stresses the fact that Lewis had a physical deformity— a hump on his back — which should have made him readily identifiable if he had been one of the robbers and that, as a regular customer Lewis’ voice should have been known to the bartender and other habitues of the lounge, but that no witness recognized Lewis’ voice or said that either robber had a hump on his back.

This argument is more pertinent to Lewis than to the defendant and Lewis’ conviction was affirmed in a separate appeal, People v. Lewis, 60 Ill App2d 462, 210 NE2d 586 (1965). The defendant was at the scene of the crime minutes before it took place and was apprehended fleeing from the scene minutes after it took place. He had in his possession the property taken in the robbery. He had in his pocket a gun used in the robbery. He had on clothes which duplicated those worn by one of the robbers. His explanation for these incriminating circumstances was disbelieved by the jury. The evidence, although circumstantial, was more than sufficient to remove all reasonable doubt of his guilt.

The chief trial error urged by the defendant for the reversal of this cause is that an oral admission supposedly made by him was construed as a confession by the court and so treated by the State. In presenting its case the State referred to only one statement taken from the defendant and this pertained to the gun found in his possession. In cross-examining the policeman who testified about this statement, the defendant’s attorney inquired whether the defendant had been asked other questions. The witness replied that he had asked both defendants if they would like to give a statement but they refused. The attorney persisted; he asked this question and received this answer.

“Q. In their refusal, did they deny committing the holdup ?

“A. No, contrary. They admitted the holdup to me orally.”

The defendant argues that this admission was equated with a confession and that this prejudiced him and resulted in the denial of due process of law. The error alleged and the argument in support of it are difficult to understand. Seemingly, they are based on observations made by the court outside the presence of the jury to the effect that what was said to the officer was a confession, and on the use of the word “confession” by the prosecutor in his final argument. But the court instructed the jury that testimony as to an oral admission should be received with great caution; and the prosecutor in using the word “confession” coupled it with the word “admission.” Moreover, it would not have been error if the oral admission had been treated as a confession because the admission amounted to a confession: it was a direct acknowledgment of guilt by the admission of the ultimate fact — the commission of the robbery. People v. Sleezer, 9 Ill2d 57, 136 NE2d 808 (1956). Furthermore, the admission was elicited by his own counsel on cross-examination and, if the answer be regarded as responsive, he cannot complain of an answer responsive to his question. People v. Realmo, 28 Ill2d 510, 192 NE2d 918 (1963). If the answer be regarded as not responsive, he cannot benefit because there was no objection to the answer and no motion was made to strike it. In addition, the defendant never claimed, and does not now, that he was coerced by the police in an attempt to obtain a confession. A confession or admission is admissible without preliminary proof where no objection is made that it is involuntary. People v. Hurry, 385 Ill 486, 52 NE2d 173 (1944).

The defendant next complains about the comments made by the trial judge when he ruled upon objections to questions asked by the defendant’s attorney. The attorney, in cross-examining a State’s witness, implied by the form of his questions that he had information which differed from the witness’ testimony. A question might begin with the words “Isn’t it a fact that?” and end with an alleged fact contrary to what the witness had testified. This happened on three or four occasions and the State objected unless the attorney intended to prove the contrary fact. The court overruled the objections but remarked on each occasion that he assumed the attorney knew the rule: that when he asked questions framed in this fashion he was required to prove what he had intimated was the truth. The defendant argues that there is no such rule and that the court’s comments placed the burden of proof upon him and might have led the jury to believe that he was required to prove his innocence.

The attorney’s method of interrogation was one that is commonly used in probing for the truth and it is unobjectionable if done in good faith and if the examiner is prepared to back up the implication incorporated in his questions. Too often, however, an examiner will assume something in his questions which is neither based on evidence nor likely to be introduced into evidence. He thus succeeds in implanting suspicion in the jury’s mind by innuendo. This practice substitutes insinuation for proof and is highly improper.

Because the defendant’s attorney asked questions which suggested that the truth was otherwise than testified to by the witness, the court was justified in admonishing him as it did. People v. Irish, 77 Ill App2d 67, 222 NE2d 117 (1966). It would have been better if the admonishments had been made outside of the jury’s hearing, but no burden of the State was shifted to the defendant by the court’s comments and we do not think they could have led the jury to believe that the State no longer had the duty to prove him guilty beyond a reasonable doubt.

Finally, it is claimed that inflammatory argument by an assistant State’s attorney denied the defendant a fair and impartial trial. Exception is taken to the following:

“This case is a robbery. But it goes to my mind far beyond a simple robbery. It goes beyond a man going in with a gun and stealing money. ... It goes to the question of whether a man can run a store . . . without having the fear of having someone come in and take away his property or his money or his goods or even his life. ... It is up to people like you to determine whether or not a woman can walk from a bus stop to her own home in this city without having the fear of being assaulted or whether a man and wife can walk to a park without being beaten and abused. Ultimately it is up to you people to decide just what kind of law enforcement we are going to have in this city. You people rightfully say to the police, why don’t you stop these rapes and beatings. Why don’t you stop these beatings.”

We agree with the defendant that the latter part of this argument was out of place; the defendant was being tried for robbery not for assault or rape. However, we do not agree that the argument was prejudicial. Then too, no objection was made to the latter part of the arguxnent. An objection to an allegedly prejudicial argument will not be considered on appeal unless the objection was first made at the time of the trial. An exception to this rule is when an argument is so prejudicial that it prevents a defendant from receiving a fair trial. The argument in the present case does not come within this exception. People v. Morgan, 20 Ill2d 437, 170 NE2d 529 (1960); People v. Moore, 9 Ill2d 224, 137 NE2d 246 (1956).

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stanley J. Andrews, Defendant-Appellant.
    Gen. No. 50,230.
    First District, Third Division.
    March 9, 1967.

      Joseph I. Bulger, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was convicted in May, 1961, on the charge of operating a truck that weighed 11,380 pounds in excess of the limit prescribed by statute and fined $1,138 in accordance with the provisions of the Act. Ill Rev Stats, c 95%, § 228(b) (1965). This appeal is one of approximately 29 such cases which have been presented to this court, three of which have already been decided— People v. Fair, 61 Ill App2d 360, 210 NE2d 593; People v. Fraschetti, 73 Ill App2d 449, 220 NE2d 98; People v. Hansen, 74 Ill App2d 49, 220 NE2d 96. The State has now moved to dismiss this appeal and thirteen similar cases on the ground that the errors charged cannot be reviewed without a bill of exceptions or a report of proceedings and that no genuine document of that kind has been filed.

Defendant was arrested on September 6, 1960. The record shows that a written motion in arrest of judgment was filed on March 2, 1961, but the record also reveals that the case was tried and a finding of guilty entered on May 4, 1961. No other written motion in arrest of judgment or for new trial appears in the entire record, and there is no explanation anywhere with respect to the filing of the motion in arrest of judgment two months prior to the trial and conviction. Notwithstanding this, the court after finding defendant guilty on May 4, 1961, further ordered that “the motion for new trial and motion in arrest of judgment be and the same are hereby entered and continued to May 10, 1961.”

The hearing on the motions was then continued to October 25, 1961, but it appears that no hearing was held in October, 1961, and that no further action was taken until April 29, 1964, at which time the court denied the motion for new trial and in arrest of judgment. In a criminal case the defendant may perfect an appeal by filing a notice of appeal within thirty days after the ruling of the court on a motion in arrest of judgment or for a new trial. Supreme Court Rule 27(7) (a), Illinois Revised Statutes, c 110, § 101.27 (7) (a) (1965). Exactly thirty days after the denial of the motions, or on May 29, 1964, the defendant filed a notice of appeal. The rules provide that the record be filed in the reviewing court within sixty days from the date of the filing of the notice of appeal and that the trial court or the reviewing court may for good cause extend the time for filing the record in the reviewing court. Supreme Court Rule 27(10), Ill Rev Stats, c 110, § 101.27(10) (1965). The following extensions of time were granted:

On July 13, 1964, defense counsel filed a verified petition stating, “That on April 29, 196k, Judge Barth em tered findings of guilty and assessed judgments against each of the defendants in the above entitled cause.” (Emphasis added); that notice of appeal had been filed, and that a transcript could not be prepared in the time allotted by law because this case was one of twenty-nine such cases, all of which were being appealed. As the record reveals, the finding of guilty was entered on May k, 1961, not April 29,196k. Furthermore, the report of proceedings when it was finally presented was only three pages long. Nevertheless, the court extended the time for the filing of the “transcript of proceedings” until August 17, 1964. In August, September and October of 1964, defense counsel filed additional petitions for ex-tentions of time in which to file transcripts of proceedings alleging on all occasions that the delay was unavoidable in that twenty-nine cases were being appealed.

On November 20, 1964, defense counsel presented another verified petition. On that occasion he averred that the court reporter had transcribed 20 of the 29 pending cases and had lost the shorthand notes in the other nine cases. He further alleged that he had reached an agreement with the State’s Attorney to the effect that they would prepare an agreed statement of facts in the other cases. The time for filing was extended to December 23,1964.

On December 21, 1964, counsel filed another petition. This time he alleged that the court reporter had died and that his notes were destroyed; that the trucking companies involved in three of the cases had gone out of business; that the individual truck drivers could not pay the fines imposed by the court; and that the State’s Attorney refused to cooperate with him in the preparation of an agreed statement of facts. He further alleged:

“That it is due to the fact that these cases were pending for more than two years before final disposition has contributed to this dilemma; that there is attached hereto and made a part hereof an affidavit by said William J. Cleary [the court reporting firm] in support of the relief prayed.”

No such exhibit is appended to this record.

The next document to appear in the record is an order signed by the trial court and dated December 29, 1964. The phrase, “transcript of proceedings” is scratched out, and the phrase, “agreed statements of fact” is interlineated in longhand. The order provides:

“It is hereby ordered that the time within which the defendants in the above entitled cause may file agreed statements of fact is hereby extended to and including December 29, 1964. Nunc pro tunc December 21,1964.”

It must be noted that the earlier extensions of time extended only to December 23, 1964, so that when this order was entered, the time for the filing of the transcript had run out.

On December 29, 1964, counsel submitted a document captioned, “An Agreed Statement of Fact,” which purports to be a complete record of the evidence produced at the trial. Defense counsel apparently prepared this document from his own recollection and portions of it are typed, while other portions are written in longhand. The document is three pages long. The State’s Attorney present at that conference refused to stipulate to the accuracy of the document. Although there was no agreement between the parties and no rehearing of the evidence, the court certified the document to be “a full, true and complete transcript of all the evidence taken and offered at the hearing of the case and the rulings of the court with respect to such evidence.”

Seven months had elapsed between the filing of the notice of appeal and the certification of the three page “agreed statement of fact,” and no explanation of the extraordinary character of these post conviction proceedings appears. Counsel in his petition filed December 21, 1964, alleged however “[t]hat the fines levied in the above matters have been levied against the individual truck drivers in large amounts and if they are not able to perfect their appeals due to the loss of the transcripts an injustice and hardship will be done each of them, as they will have to find some way to pay the specific fine.”

The motion to dismiss this appeal involves two basic issues: (1) whether the document filed in lieu of a report of proceedings has any official standing before this court; and (2) whether the facts alleged by defendant warrant a reversal of the judgment below.

If a report of proceedings in unavailable, the parties to the suit may stipulate to the facts and incorporate their agreed statement into the record for purposes of review. Ill Rev Stats, c 110, § 101.36(1) (d) (1965). A somewhat different situation exists when a litigant presents a purported report of proceedings to the court for certification and his adversary contests the accuracy or authenticity of the transcript. In that case the party seeking certification must substantiate matters contained in the contested report and the trial court may hear testimony in order to resolve the dispute. Feldman v. Munizzo, 16 Ill App2d 58, 147 NE2d 427.

The document proffered by defendant does not purport to be a true report of proceedings. Nor is it an agreed statement of fact because the State refused to stipulate to its accuracy. Since it is neither an agreed statement nor a report of proceedings, the document has no standing before this court. Johnson Ford Co., Inc. v. Lewan, 71 Ill App2d 420, 218 NE2d 893. The issues raised by the Points and Authorities cannot be resolved by an examination of the remaining portion of the record, that is, the common-law record, and accordingly the appeal must be dismissed.

In any event the facts set forth in the proffered statement do not warrant reversal of the judgment. To summarize briefly the account of the testimony provided by the defendant, Officer Richard Walsh testified that he observed the vehicle driven by the defendant at 130th Street and Muskegon Avenue in Chicago; that from such observation he had reason to believe that it was overweight and that he stopped the defendant and ordered him to proceed to a scale located at 95th Street and Stony Island Avenue. The vehicle was too long to be weighed in a single draft and for that reason each axle was weighed separately and the weights were totalled to arrive at a gross weight figure. The arresting officer observed the scale indicator, recorded the weights shown, and testified to his observations in open court. The weighing was conducted by a deputy weighmaster on an electrically operated scale.

On appeal the defendant contends that the State failed to prove the violation beyond a reasonable doubt in that the axle by axle method of weighing vehicles produces a speculative result. This argument was considered by the court and rejected in several recent decisions. People v. Fair, 61 Ill App2d 360, 210 NE2d 593 (leave to appeal denied); People v. Fraschetti, 73 Ill App2d 449, 220 NE2d 98; People v. Hansen, 74 Ill App2d 49, 220 NE2d 96. The facts presented in the instant case are substantially identical with those presented in the cases hereinbefore cited and therefore the statement of fact does not raise a defense of merit.

The motion to dismiss the appeal is granted.

Appeal dismissed.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       The Supreme Court Rules were revised in November, 1966, and became effective January 1, 1967. The requirements for the certification of a report of proceedings are now set out in Supreme Court Rule 323 (c), (d). The new rules were not in effect when this case was filed, and in any event, the modifications in the rule merely codify the case law regarding the old Supreme Court Rule 36.
      The new rules make it clear that the procedure for preparing a record when no verbatim transcript is available is identical in both civil and criminal appeals. Supreme Court Rule 612(c).

       Ill Rev Stats, c 110, § 201.1 (1965).
      “(d) Agreed Statement of Facts. In lieu of a report of proceedings, the parties may by written stipulation agree upon a statement of the facts material to the controversy and present the statement to any judge qualified to certify to the correctness of a report of the proceedings in said case, for his certificate of correctness, and file the same, duly certified, in the trial court within 50 days after the notice of appeal shall have been filed, subject to the same provisions as to extensions hereinbefore set forth regarding the filing of a report of proceedings.”
      In Johnson Ford Co., Inc. v. Lewan, 71 Ill App2d 420, the court said, at 422:
      “As to its contents, the ‘Statement of Facts’ is governed by Supreme Court Rule 36. Ill Rev Stats (1963) c 110, § 101.36. The document must be a report of proceedings setting forth the testimony, the rulings of the trial judge, etc., pursuant to paragraph (1) (c); or it must be a statement of facts agreed to by the parties on written stipulation, pursuant to paragraph (l)(d). The rule contemplates no other hind of document for preserving a record of the trial proceedings.” (Emphasis added.)


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Teggelaar, et al., Defendants-Appellants.
    Gen. Nos. 50,231-50,243.
    First District, Third Division.
    March 9, 1967.
    Joseph I. Bulger, of Chicago, for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: SMITH, J.

text:
    Ruth Wilkey, Administrator of the Estate of David Wilkey, Deceased, and Ruth Wilkey, Plaintiffs, Discovery-Citation, Petitioners-Appellees, v. William A. Wax, Defendant, and Ramona A. Wax, Discovery-Citation, Respondent-Appellant.
    Gen. No. 10,797.
    Fourth District.
    April 20, 1967.

      Jack E. Horsley and John P. Ewart of Craig & Craig, and Fred H. Kelly, of Mattoon (Fred H. Kelly, of Mattoon, and Burt Greaves of Champaign, of counsel), for appellant.
    William F. Meehling, of Marshall (Victor C. Miller, of counsel), for appellees.
   SMITH, J.

Every lawyer has had the experience of being importuned at one time or another by frantic clients who wish to be stripped of their properties and have them shed in favor of spouses, relatives or friends. Such generosity is rightly suspect for largess is not the way of the world. A little friendly cross-examination to plumb the depths of motive quite often brings forth the intelligence that the client has been sued, or rather, is about to be sued. He may not know it, but the law expects men to be just, before they are generous — and not the other way around. The trouble with their wish is that their intent is not really donative but rather one to thwart the oncoming creditor. Now, even the least sophisticated debtor or debtor to be, on reflection, has some hazy notion that this subterfuge won’t work. More sophisticated is the approach of preferring one creditor over another, or effecting transfers to favorites where the consideration may be deemed adequate in law and doesn’t involve hard cash. Of course, the ne plus ultra is to sell everything to innocent purchasers for value and dissipate the proceeds. Understandably, few debtors take this tack, rather, they attempt to make other “arrangements,” and such arrangements are as varied and ingenuous and disingenuous as people are varied, ingenuous and disingenuous. Sometimes they suffer a judgment or decree against them. There is, of course, nothing wrong in preferring one creditor over another so long as it is not done with an intent to defraud the other one. But if there is an intent to defraud another creditor, and if the transferee-creditor knows of such intent, or indeed, a purchaser, the conveyance is void as to the other creditor. We characterize such as fraudulent transfers or conveyances.

Without explicitly saying so, we have spelled out in passing the two distinct grounds of fraud whereby a debtor’s conveyances will be deemed fraudulent so far as creditors are concerned. If there is no consideration for the transfer, it is “fraud in law,” and with consideration, it is “fraud in fact.” In fraud in fact cases there must be an actual fraud, a specific intent to defraud creditors. In fraud in law cases, fraud is presumed from the circumstances. 20 ILP 85, 114, Fraudulent Conveyances, §§ 1, 61.

Since 1819 Illinois has had a statute on fraudulent conveyances. One section provides that every gift, conveyance, assignment or transfer with intent to disturb, hinder, or defraud creditors, or every suit commenced, decree or judgment suffered with such intent, shall be void as against creditors. Section 4, c 59, Ill Rev Stats 1965. This is more or less a facsimile of the English statute on fraudulent conveyances going back to the time of Elizabeth I and beyond. The succeeding section (§5) qualifies the impact as to innocent transferees by providing that the title of a purchaser for valuable consideration (fraud in fact) will not be affected unless it appears that the purchaser had notice of the fraudulent intent of his grantor. Initially this all seems at odds with what are generally considered to be an owner’s perquisites with regard to his property. Ordinarily we think that an owner has the right to dispose of his property in accordance with his desires, even to the extent of preferring one creditor or another, and this is true if it is done in good faith. However, pervading our entire corpus is the stricture that no one has an absolute right to do anything if it accomplishes a fraudulent result. It is said that a creditor does have a claim upon the property of his debtor which constitutes a fund for payment and the debtor may not ignore the right of the creditor to be paid out of it, hence the ancient caveat that a debtor cannot dispose of his property if such infringes on the rights of his creditors and accomplishes a fraudulent result. This concept is still consonant with the right to exercise extensive discretion in handling one’s affairs, and it is certainly not asking too much to require that such discretion be exercised fairly and honestly. It is only if the debtor exceeds these limits that courts will control and regulate such exercise and compel him to do justice to his creditors.

The matter before us concerns transfers by a debtor-husband to his creditor-wife before and after they were divorced. Such were either ordered or approved by the decree divorcing them. The creditor who sought to have these transfers set aside was a judgment creditor ($30,-900) of the debtor-husband. The debtor-husband had murdered creditor’s husband. Having obtained this judgment and finding no property of the debtor, she instituted citation proceedings for discovery of assets against the debtor’s erstwhile wife who is the respondent here. For clarity, we will refer to the judgment-creditor as “creditor,” the husband-debtor as “debtor,” and his divorced wife-transferee as “respondent.” The trial court found that the transfers were made by debtor to respondent with intent to defraud creditor and entered judgment against respondent for $12,639.52. Re-conveyance was ordered for purposes of sale to satisfy this judgment. Respondent appeals urging the propriety of the transfers.

It all began when the debtor murdered creditor’s husband. We recently affirmed the conviction. People v. Wax, 75 Ill App2d 163, 220 NE2d 600. The sequence of events — the murder, creditor’s wrongful death action, debtor’s conviction and sentence (20-35 years), the divorce, the judgment, and the citation proceedings— provide our context. All of the transfers postdated the murder and antedated the judgment. Respondent argues strenuously that the decree provided an imprimatur for the transfers, that the transfers were for a valuable consideration, therefore negating presumptive fraud (fraud in law), and since there was a legal consideration and no proof of actual fraud, the transfers were eminently proper. In the divorce decree, the court found that the parties had two minor children, had accumulated substantial properties, and ordered the debt- or to transfer everything he had to respondent in lieu of alimony. Some had already been transferred, and such was specifically approved. Debtor acquiesced, and he had nothing left. In the citation proceedings, the trial court found that the decree was procured by fraud, hence rendering the transfers fraudulent. Did the debt- or suffer this decree with a specific intent to defraud creditor, and if so, did respondent partake therein, or at the very least have knowledge of such intent?

We can reasonably infer, we think, that in fact the debtor “suffered” this decree, or at least the decretal portions authorizing and approving the transfers, with such intent, and that respondent had cognizance thereof. Of interest is the happenstance that the decree was obtained in the county of debtor’s imprisonment (Will), and not in the county of their residence (Edgar). Respondent indubitably had grounds for divorce and the choice was clearly hers to seek one. We cast no aspersions on the fact that she exercised this right, but this does not mean that the debtor did not suffer the decretal portions relative to the transfers as would belie a specific intent to defraud, much less delay and hinder his creditor in realizing on her judgment. Facts are stubborn things and we should look them in the face. Thus we premise our affirmance on the existence of fraud in fact, or actual fraud.

We will assume that the transfers ordered in lieu of alimony, constitute a lawful consideration and still declare the transfers to be fraudulent. In Phillips v. Meyers, 82 Ill 67, 69, it was said:

“It is believed that the power of a husband to make a settlement of property or funds on his wife by the intervention of a trustee, has never been questioned, and this may be done by a marriage settlement before marriage, or by deed to a trustee afterwards. When the settlement or advancement is thus made, as between the parties, it has always been held binding, and can only be questioned by existing creditors. Such settlements and advances have always been favored by the courts. A husband, being bound for the support of his wife, may undoubtedly make provision therefor by settlement or otherwise, and this obligation, and the relation of the parties, have ever been held to constitute a sufficient consideration to support the transaction, unless creditors are thereby injured or defrauded. The wife is regarded as a meritorious object of the bounty of the husband. Provisions for her support are always upheld, unless wrong or injury results to those holding legal obligations against the husband. In such cases, the duty to support forms a sufficient consideration.” (Emphasis ours.)

On what do we base actual fraud? We look to the sequence of events, and the events themselves, without resort to less explicit indicia — such as, obtaining the decree at a distance. The relationship between debtor and respondent, his act in depriving another of his life, his conviction and sentence, his continuing duty of support, created the type of circumstances that would not unnaturally lead the debtor to think less of his tort-creditor and more of his family from whom he is not only physically barred, but by being imprisoned for a very long time is foreclosed from providing for them. Taking these factors into account, it is impossible to escape the conclusion that debtor and respondent, under a misguided notion as to the law, not the facts, embarked upon a course of conduct whereby the debtor endowed respondent with all his worldly goods so as to immunize them from diminution at the hands of a newly and wilfully created tort-creditor. The fact that the debtor, as well as respondent, chose section 18 of the Divorce Act for camouflage (§19, c 40, Ill Rev Stats 1965), cannot change the coloration. Certainly, the court in entering the divorce decree, for aught that it knew, could very well consider the dispostive provisions as perfectly proper and indeed equitable. What it obviously did not know, and could not know, was the debtor’s obvious sufferance to defeat creditor, and respondent’s knowledge thereof, if not, her actual participation. In coming to this conclusion, we are well aware that there must be proof of circumstances from which we can so infer and that the circumstances must be shown by clear and convincing evidence. But as we have said, the stark simple facts as narrated are clear and convincing and, in our opinion, the inferences inexorable.

Certainly, creditor fits the description of a “creditor” within the definition even before the time her action ripened into judgment. Regardless of when the action was brought, both debtor and respondent knew that for a determinative period — two years — someone could and most probably would commence proceedings, with every prospect of ultimate success in the maximal amount— as creditor was left not only a widow, but with four children to support. Armed with this knowledge of the shape of things certainly to come, it was not unnatural, as we have said, that they desired to devise some means of holding what they had without regard for the rights of debtor’s putative creditor. Apropos is Cook v. Tedrick, 338 Ill App 573, 88 NE2d 515. There, the debtor without provocation assaulted plaintiff “without a single mitigating circumstance.” Debtor there, as here, “realized that he would have absolutely no defense to a civil action for damages based upon his wrongful conduct.” With less subtlety, but with greater speed than here, he disposed of his property by sale. We quote,

“It would appear to us that defendant, Tedrick, [debtor] proceeded with dispatch to defraud a tort creditor he had greviously [sic] injured. Under the evidence produced in this case it seems to us that grantees unquestionably had notice of the fraudulent intent of their grantor, and in any event, they were certainly possessed of such facts as would place a reasonably prudent person upon inquiry and thus lead him to discover the fraud. Knowledge of the purchaser may be established by the pendency of litigation (citing case). Even though the grantee pays a full consideration, yet if the grantor sells for the purpose of defeating his creditors, and the grantee has notice thereof, he will be regarded as a participator in the fraud (citing cases). A transaction of this character cannot have equitable approval.”

While the systematic liquidation here was robed in a judgment, as the cases say, it is not enough to conceal the stark fact that whatever the debtor had pri- or to the murder, he had nothing at the time of judgment. That which he did have, respondent had received and in part used. Section 18 of the Divorce Act may permit transfers to a wife in lieu of alimony, if such transfers can be effected without fraud, but it was certainly never intended to be a vehicle to effect a fraudulent end, or to transmute that which would otherwise be fraudulent into something lawful.

We do not need direct evidence to say that the order appealed from is proper. Fraud necessarily has to be inferred from the circumstances. It would be singular indeed if there was direct evidence. But the overall circumstances speak for themselves as raising a permissible inference of specific intent to defraud creditor and that both the debtor and respondent possessed such intent. One further rule impinges on us that the trial court was not concerned with, the rule that we will not disturb an order unless it is manifestly against the weight of the evidence, whatever might have been our predispositions had we tried the matter. We cannot say that the order appealed from is not bottomed on sufficient evidence to support the order and we will therefore not disturb it.

The order appealed from is affirmed.

Affirmed.

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


text:
    William Coursey, Plaintiff-Appellant, v. The Greater Niles Township Publishing Corporation, an Illinois Corporation, Roland R. Moore, Jr., et al., Defendants-Appellees.
    Gen. No. 50,920.
    First District, Third Division.
    March 9, 1967.
    Rehearing denied April 6,1967.

      Edward G. Raszus and Gene J. Shapiro, of Chicago (Edward G. Raszus, of counsel), for appellant.
    Hoellen & Willens, of Chicago (Sherwin Widens, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action for libel, summary judgment was entered for the defendants and plaintiff appeals on the ground that the pleadings present a genuine issue of fact which should have been tried. Plaintiff is a former patrolman in the employ of the Police Department of the village of Skokie, a suburb of Chicago. The charge of libel is based on an article printed in the September 17, 1964, edition of the “Skokie News,” a weekly newspaper circulated principally in Skokie. It was owned and published by the corporate defendant and Moore. Sanders, who was a defendant and whose name appears in the title of the briefs, was not included in the notice of appeal and is not therefore a party to this appeal. The text of the article follows:

“Fire Coursey, Tell of Girl’s Lie Test.
“The teenage girl responsible for having several charges leveled against Skokie Ptm. William Coursey did take a lie detector test — and passed it with ‘flying colors’ — one day last week, reports Corporation Counsel Marvin Glink.
“This was not made public, however, until after the fire and police commission last Wednesday found Coursey guilty of all charges and ordered him discharged from the department.
“Coursey had been charged with unbecoming conduct, leaving his beat, leaving the village (both without permission) and failure to carry out a direct order.
“The commission’s formal decision is not expected to be published until early next week, according to chairman Anthony Ross, who, incidentally, will be re-appointed to a new three year term by Mayor Greisdorf very shortly.
“Atty. Gene Shapiro, representing the policeman, indicated the case would be presented to the Circuit Court for trial if motions for a rehearing before the commission are denied.
“The charges stem from an incident at a Skokie bowling alley one Saturday last April when Coursey found several teens out after curfew, sent some of them home, but allegedly followed — in his squad— the girl as she dropped off a friend in Morton Grove, made immoral suggestions to the girl, then followed her into Lineolnwood.”

The summary judgment was granted upon the pleadings and upon memoranda of law submitted by both parties. The pleadings consisted of an amended complaint and answer thereto. The amended complaint charged that defendants, intending to injure plaintiff’s good name and livelihood and with knowledge that the article was false and with reckless disregard as to whether it was false or not, maliciously composed and caused the article to be published in their newspaper; that the headline was printed in black type, “Fire Coursey, Tell of Girl’s Lie Test,” and that defendants by this meant that plaintiff was “fired from his position with said police department”; that he was disreputable, depraved and of low morals and character and had been “fired for unbecoming conduct.”

The defendants’ answer admitted the publication of the article, denied any intention to injure the plaintiff, or that the article was maliciously published or that it contained scandalous and malicious libels. In addition an affirmative defense was filed averring that the defamatory construction placed on the article was not reasonable and that the news story was fair and privileged comment on a quasi-judicial proceeding. Following the filing of their answer, defendants made their motion for summary judgment.

The five charges made to the Fire and Police Commission against the plaintiff are as follows:

“(1) Failure to obey a direct order to submit to a polygraph examination; (2) insubordination, resulting from plaintiff’s refusal to submit to a polygraph examination; (8) conduct tending to bring the Skokie Police Department in disrepute, resulting from the alleged improper conduct complained of by the citizen; (4) a technical violation of leaving the assigned ‘beat’ and (5) a technical violation of failing to properly complete ‘activity reports.’ ”

The Commission found the plaintiff guilty on four of the five charges, but made no finding on the third charge here involved. Its report on that aspect of the case is as follows:

“3. On Charge #3, no verdial is rendered. While there was much testimony heard concerning the alleged incident, there was also conflict as to times, locations, etc. The Commission, in general, believes that Officer Coursey’s conduct on the night in question was unprofessional. He certainly should have handled the situation in a different manner. The Commission feels that there is no need to make a conclusive finding on Charge #3 in view of the decisions on the other charges. The Commission believes that good police procedure would require that an officer who detains juveniles on a curfew violation for any length of time should report the same in a proper fashion to his superiors.” (Emphasis added.)

The statement in the article that plaintiff was found guilty on all charges was therefore incorrect.

The amended complaint does not allege special damages. To state a case, plaintiff must therefore show that the printed matter in question was libelous per se, in which case damages are presumed. Lorillard v. Field Enterprises, Inc., 65 Ill App2d 65, 213 NE2d 1; Cook v. East Shore Newspapers, Inc., 327 Ill App 559, 64 NE2d 751. In a recent case this court concluded that “as a practical matter the categories of words which constitute libel per se will usually be those which, if spoken, were slander per se at common law.” Reed v. Albanese, 78 Ill App2d 53, 223 NE2d 419. This aspect of the decision in the Reed case was based upon the holding in Whitby v. Associates Discount Corp., 59 Ill App2d 337, 207 NE2d 482, where the court adopted the prevailing point of view in the majority of jurisdictions equating the categories of words libelous per se to those which are slanderous per se. The court (at pp 340, 341) stated that those classes of words held actionable per se in Illinois are as follows:

“1. Those imputing the commission of a criminal offense;
“2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;
“3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;
“4. Those prejudicing a particular party in his profession or trade.”

The words alleged to be libelous in the instant case come within the third and fourth categories and hence plaintiff’s amended complaint states a cause of action for libel per se.

Defendants argue that the words are capable of an innocent construction and hence that the action must fail. John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105. In determining whether an article is libelous per se, the words must be taken in the sense which readers of common and reasonable understanding would attribute to them. Lorillard v. Field Enterprises, Inc., supra; Hotz v. Alton Tel. Printing Co., 324 Ill App 1, 57 NE2d 137. The only conclusion that can reasonably be drawn from the article in question is that the plaintiff was guilty of making immoral suggestions of a sexual character to a teen-aged girl. An innocent reading is not plausible, and summary judgment on this ground was improper.

Defendants further contend that they may avail themselves of the well-recognized privilege of reporting the proceedings of public hearings regardless of their defamatory content. The controlling principle is expressed in Restatement of Torts, sec 611, as follows:

“[a newspaper is privileged to report the activities of a] municipal corporation or of a body empowered by law to perform a public duty . . . although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgment of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.”

The rule as hereinbefore stated was adopted by the Illinois Supreme Court in Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746. In that case the court held that the defendant was privileged because the account in the newspaper was “an accurate and capsulized summation of the plaintiff’s difficulty with the Peoria Health Department.” Similarly, in Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill App2d 209, 215 NE2d 295, the court applied the decision in the Lulay case holding that the defendant was privileged to report proceedings in open court in connection with a pending criminal case where the plaintiff did not complain that the proceedings themselves were falsely reported. These decisions are distinguishable from the instant case, for here the defendants published what turned out to be an inaccurate account of the proceedings of the Fire and Police Commission. The error was therefore solely attributable to the defendants and hence the matter is not within the privilege hereinbefore discussed.

Finally, defendants contend that plaintiff’s action is barred by the decision in New York Times Co. v. Sullivan, 376 US 254 (1964), which held that a State could not award damages to a public official in a suit for libel based upon defamatory criticism of his official conduct without proof that the defendant acted with actual malice or with reckless disregard of the truth. In that case it was held that the Chief of Police of Montgomery, Ala., was a public official. Since the decision in New York Times, supra, the court has had occasion to discuss more fully the concept of “public official.” Rosenblatt v. Baer, 383 US 75, (1966). In that case the court reversed a libel judgment for the plaintiff which had been affirmed by the New Hampshire Supreme Court after the New York Times decision and remanded the case for a new trial on the issue of whether the plaintiff was a public official. The court said (p 85):

“There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. . . . Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

The court also admonished the state courts against using state law guidelines to determine who is a public official, noting that the standards for a constitutional principle cannot “vary with state lines.”

We must turn then to a consideration of the status of a patrolman. He is an important symbol of government, but the lowest in rank of police officials, and it cannot be said that he has “substantial responsibility for or control over the conduct of governmental affairs.” But even if we were to consider him a public official, the complaint charges that the article was false and made with reckless disregard as to whether it was false or true and maliciously composed. This we consider to be within the exception as set forth in New York Times Co. v. Sullivan, supra, and Rosenblatt v. Baer, supra.

We conclude that it was error for the court to allow the motion for summary judgment. The judgment is reversed and the cause is remanded with directions to take such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. James Burks, Plaintiff in Error.
    Gen. No. 51,275.
    First District, Third Division.
    March 9, 1967.
    James Burks, pro se, of Chicago, plaintiff in error; 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 defendant in error.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    J. L. Kamsler, Plaintiff-Appellant, v. Chicago American Publishing Co., Inc., Defendant-Appellee.
    Gen. No. 50,807.
    First District, Third Division.
    March 16, 1967.
    J. L. Kamsler, pro se, of Chicago, appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Don H. Reuben and Lawrence Gunnels, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff appeals from an order dismissing his complaint in libel based on two articles printed in defendant’s newspaper on March 25th and March 26, 1964. He contends that the matters related in the articles are libelous per se and that no privilege exists with respect to their publication. The articles follow.

Article of March 25,1964.

“$40,000 SWINDLE PROBED BY JURY.
“A rapidly-moving confidence game that allegedly netted two men $40,000 to $100,000 is under grand jury investigation.
“Fifty complainants have told the state’s attorney’s office that Allan Solomon, 44; and Jack Kamsler, 51, bilked them by setting up phony companies, buying merchandise on credit, selling out at rock-bottom prices, and then moving on and leaving unpaid bills.
“Four complainants have been subpenaed to testify before the grand jury Wednesday.
“Solomon and Kamsler operated the swindle in transactions with steel, clothing, household goods, hardware, and other commodities, according to the complaints.
“Assistant State’s Atty. Clyde Bofles presented six witnesses to the grand jury Tuesday. They included two truck drivers who made deliveries.
“Solomon is free on $17,000 bond, and Kamsler on $10,000 bond on charges of theft by deception.
“The state’s attorney’s office said neither man has a known permanent address.”

Article of March 26,1964.

“More Indictments on Fraud Charge.
“The county grand jury Thursday reportedly voted to indict Allan Solomon, 44, and Jack Kamsler, 51, on 11 counts of confidence game and theft by deception for allegedly obtaining $11,423.17 by fraud from five steel and aluminum firms.
“The same two men, who made $40,000 to $100,000 in a fast-moving confidence game, according to the state’s attorney’s office, were reportedly named by the grand jury Wednesday in indictments charging grand theft by deception and conspiracy.
“6 Aliases Listed.
“Authorities say Kamsler is also known as Joe White, Dick Conlon, D. Thomas, Ken Atley, Bob Hacker, and Darell Eastman.
“Fifty complainants have charged to the state’s attorney’s office that Solomon and Kamsler bilked them by setting up phony companies, buying merchandise on credit, selling it at low prices, and then moving on, leaving bills unpaid.
“Firms Listed.
“Firms and the amounts they charge they were bilked of, involved in Thursday’s grand jury action, are:
“MFI corporation 9525 Franklin av., Franklin Park, $3,501.00; Cain Steel company, 5501 Grand av., $1,291.90; Beverly Steel corporation, 400 E. 142d st., Dolton, $2,997.65. G. & H. Steel Plates, Inc., 2910 W. Carroll Ave., $2,144.98, and Clearing Steel, Inc., 6400 W. 66th St., Bedford Park, $1,371.90.
“The state’s attorney’s office said it will go before future grand juries with stories of deals involving clothing, bicycles and Christmas trees.”

It appears from plaintiff’s brief and oral argument that the particular portions of the articles which he contends are libelous are: first, the final paragraph in the article of March 25th, which states that plaintiff has no known permanent address, and, second, the third paragraph of the article of March 26th, reciting that plaintiff was known by several aliases. With respect to the former, the words in question are not libelous per se. They do not impute the commission of a crime, nor are they so “obviously and naturally hurtful . . . that the proof of their injurious character can be . . . dispensed with.” Reed v. Albanese, 78 Ill App2d 53, 223 NE2d 419. Furthermore, the words themselves could be construed as meaning merely that plaintiff’s address was not “known.” Where an innocent construction can be placed upon words alleged to be actionable, the suit must fail. John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105. The remaining portions of the article of March 25th provide no basis for a libel action as they come within the classification of reports of governmental activities and are privileged unless shown to have been inaccurately reported. Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746; cf. Coursey v. Greater Niles Tp. Pub. Co., Inc., 82 Ill App2d 76.

Similarly, the third paragraph of the article of March 26, 1964, cannot be the basis of a libel suit because the aliases there listed were contained in the several indictments against' the plaintiff and are therefore privileged as accurate reports of judicial proceedings. Lulay v. Peoria Journal-Star, Inc., supra. The remainder of the second article comes within the same privilege.

The trial court properly dismissed plaintiff’s complaint and its order n(mst be affirmed.

Order affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    Leo Pazdell, Plaintiff-Appellant, v. Joseph F. Cotteller and H. J. Mackin, Individually and as Partners d/b/a American Calculating and Typing Service, Defendants-Appellees.
    Gen. No. 50,811.
    First District, First Division.
    April 10, 1967.
    John C. Mullin, of Chicago, for appellant; Howard, French and Healy, of Chicago, for appellees.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene McIntosh, Defendant-Appellant.
    Gen. No. 50,594.
    First District, Third Division.
    April 6, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos 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 Robert J. Beranek, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Eugene McIntosh was found guilty in a non jury trial of the offense of armed robbery. He was sentenced to the penitentiary for a term of four to ten years. He contends that the State failed to prove him guilty beyond a reasonable doubt.

Max Mason, a cabdriver, picked up a male passenger at California Avenue and Madison Street, Chicago, about 2:40 a. m. on January 12,1965. As he neared the address given him the passenger told him to stop. He stopped his cab and opened the left-hand door. As the door opened the interior lights of the cab came on. The passenger told him to shut off the lights and, when the door was closed, said “now give me your money.” Mason turned and saw the man take a gun from his pocket. He pointed it in. Mason’s face and repeated his demand. Mason said “I need this money . . . that is all I have.” The man did not answer so Mason reached into his pockets with both hands and gave the robber his paper money with one hand and his change with the other. Part of the money dropped and, as the robber reached for it, Mason leaped from the cab and ran. The robber climbed over the front seat and drove the cab away. Mason hailed a police car and together they searched for the robber. The cab was located a few blocks from the scene of the robbery but the robber could not be found.

On February 17,1965, Mason was summoned to a police station. The police told him they had a suspect in another room. He testified that the minute he walked into the room he recognized the robber, the defendant McIntosh, and he asked him “What did you do with my hat?” He was referring to a hat that was in his cab at the time of the robbery. He said the defendant covered the lower part of his face with his hand and mumbled something about not knowing anything about a hat.

The defendant, who admitted his previous conviction for armed robbery, testified that at the time of the robbery he was at his sister’s home. He said he and his married girl friend and her children moved in with his sister on the night of January 11,1965, the evening before the robbery. His alibi was supported by his girl friend, his sister and his sister’s husband.

The defendant defines the issue as being “whether the complainant, Max Mason, was a credible witness and whether his identification of the defendant was positive.” The defendant recognizes that the law is that the testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962); People v. Hayes, 20 Ill2d 319, 169 NE2d 760 (1960). The attack on the identification of the defendant does not question Mason’s integrity or veracity but does question his powers of observation and the influence brought to bear upon him preceding his identification of the defendant.

Mason testified that the robber was wearing a light colored, bluish grey, three-quarter length outer coat with trim around the collar which was darker than the coat. He said that the defendant wore the same coat in court the day after he saw him at the police station but that at the station he was wearing a short jacket. The police officer who testified in the case, and who was one of those in the room at the station with the defendant when Mason walked in, said that the garment worn by the defendant in the station and in court the following day was the same. He described it as a black, three-quarter jacket with a black fur collar. The defendant also testified that he had on the same clothing in the station and in court; he called his coat “a black shorty with a fur collar.” The discrepancies between the clothing descriptions given by Mason and the officer are the basis for questioning the former’s powers of observation. These discrepancies are two: the color of the coat and whether the defendant was wearing a coat or a jacket in the police station. Neither of these discrepancies is too important. The defendant was sitting down when Mason saw him at the station and the length of his coat or jacket would not be as apparent as if he had been standing. The defendant’s argument assumes that Mason’s version of the coat’s color was inaccurate and the police officer’s and the defendant’s correct. This may be so, but the coat was not introduced into evidence and the color of the coat did not enter into Mason’s identification of the defendant. He identified the defendant by his face and not by his clothing. Although he had described these as well as the robber’s height, weight and age after the robbery, he recognized the robber immediately upon seeing him at the police station despite the fact that he was seated and had on what Mason thought was a different coat.

The factors influencing Mason’s identification are said to be the telephone call he received from the police that they had a suspect in custody who fitted the description he had given and his not viewing the defendant in a lineup. Any time a victim of a crime is asked to come to a police station to look over persons arrested, there is an unavoidable intimation that the police have arrested someone who they believe might be the perpetrator of the crime. The fact that there was no lineup does not fatally weaken the evidence of identification but bears only on the weight to be accorded that evidence. People v. Washington, 26 Ill2d 207, 186 NE2d 259 (1962); People v. Lamphear, 6 Ill2d 346, 128 NE2d 892 (1955). There is nothing in the record which would suggest that Mason was influenced or was susceptible to influence. The day after the robbery he looked at films and photographs of individuals for one and one-half hours; he picked out some that resembled the robber but identified no one. No policeman talked to him from that day until he was telephoned approximately five weeks later. At the police station nothing was said to him except that they had a suspect in another room.

There are other factors which must be considered in appraising the identification, such as the means, circumstances and opportunity for identifying the defendant. Mason said that as a nighttime cabdriver he was wary about picking up rough looking characters. On the night of the robbery, when the man waved for him to stop, he slowed down and looked him over before accepting him; the corner was very well illuminated and he said “I got a clear look at him” and that the man appeared neat and well dressed. The four doors of the cab were locked. In admitting the passenger, Mason turned around to unlock and open the right rear door and he faced the passenger as he entered. When the door opened the interior lights in the cab came on. Mason said these lights were extra bright, that he had them bright so that he could read street guides and other material. When Mason was told to stop the cab he opened the left front door; the lights came on again and he once more looked at the passenger. He had another look in the darkened cab after the door was closed and the gun was pointed in his face. Pour times he scrutinized the gunman — three of them under lights. He had ample and favorable opportunities to observe and to remember him, and when he saw him again his identification was instantaneous and positive.

The trial court, as the trier of facts in this case, was justified in concluding that the defendant was guilty. The judgment will be affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWAKTZ, J., concur.