text:
    Catherine Cole, Plaintiff-Appellee, v. Carter Cole, Defendant-Appellant.
    Gen. No. 51,392.
    First District, First Division.
    June 30, 1967.

      Starke, Anglin, Savage, Frazin, Stewart & May, and Elliott L. DuBois, of Chicago (Howard T. Savage, of counsel), for appellant.
    Marcus & Corn, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order adjudging the defendant, Carter Cole, guilty of contempt of court for nonpayment of $4,860 in child support arrearages.

The parties were married on October 12, 1946, and divorced on June 29, 1954. By the terms of the divorce decree, entered in favor of plaintiff by stipulation, the plaintiff, mother, was given custody of the four children born of the marriage, namely Kathleen Anne, then over six years, Carter Jenkins Cole II, then over five, Densey Jerome, four and Byron Jenson, two. The defendant was ordered to pay $15 a week for the support of each child until they attained their majority.

On April 1,1966, plaintiff, now known as Helen C. Powell, filed a petition alleging that the defendant had wilfully neglected and refused to pay $4,860 in child support as provided in the decree although well able to pay the same. She prayed that a rule issue to show cause why he should not be held in contempt of court for his failure to comply with said decree, and for reasonable attorney’s fees. In his answer the defendant denied he was in arrears of any amount whatsoever; denied that the petitioner made repeated demands for support payments for the children; or that he wilfully neglected and refused to pay the same. He alleged affirmatively that on April 8, 1963, the parties entered into an agreement to the effect that the defendant need no longer pay for the support of the children, and at the defendant’s request the plaintiff informed him in a letter dated April 8, 1963, that he should take custody of the two older children because she was unable to control their behavior and she would retain the custody of the two other children “including their support which you may cease to pay; namely, $15.00 per week per child.” The defendant further denied that the plaintiff was required to retain counsel and alleged that he paid large sums of money in excess of the decretal requirements for the support of the children.

At a hearing held on May 16, 1966, the court found the defendant guilty of wilful contempt for failure to pay the plaintiff the sum of $4,860 for child support, and ordered the defendant committed until he purged himself by the payment bf said arrearage. The defendant was further ordered to pay plaintiff’s attorneys’ fees of $250. The trial judge set a $5,000 supersedeas bond and on motion of defendant reduced it to $500 and defendant was released from custody of the sheriff.

The defendant contends that the court erred on the May 16th hearing by denying him the opportunity to cross-examine the plaintiff and by refusing to permit him an opportunity to present evidence in his own defense, contrary to his right of due process guaranteed by the constitution, and further that the agreement entered into by the parties is valid and released him from his decretal obligation to pay child support.

The plaintiff contends that the record does not support defendant’s claim of an unfair hearing; that the record on appeal is incomplete, wherefore the reviewing court will presume any state of facts necessary to sustain the action of the trial court providing such facts are embraced by the pleadings and consistent with the record; and that the extrajudicial agreement between the parties respecting support payments for children is not binding upon the court and does not preclude court action.

It is clear from the record that nine years after the entry of the divorce decree the plaintiff voluntarily requested that the defendant take complete custody of the two older children and this he did. It appears that no claim for support arrearage was pending at the time. Three years later the plaintiff filed the instant petition alleging that there was then due and owing to her for the support of the four children the sum of $4,860 and that the defendant wilfully refused and still refuses to pay that sum although well able to pay the same.

The defendant was ordered to show cause why he should not be held in contempt of court and after he filed his answer, heretofore referred to, the cause was heard on May 16, 1966. Evidence was taken and transcribed and made a part of this record. In order to deter- ■ mine the propriety of the contempt order we have examined the record as the power to enforce payment for support money by contempt is limited to cases of wilful and continuous refusal to obey the order of the court. Wick v. Wick, 19 Ill2d 457,167 NE2d 207.

Plaintiff says the defendant purports to convey the impression that there was only one hearing, (the final one on May 16th) in which he allegedly was denied the right to cross-examine and confront witnesses or to introduce testimony on his own behalf when in fact, there were three other hearings and what transpired at those dates other than the last was not preserved by defendant. That the defendant and his lawyer participated at all the hearings and the orders respectively recited “that the court was fully advised in the premises.” The plaintiff strenuously insists that after the petition was filed there were four separate hearings before the court previous to the May 16th hearing; that orders were entered on each occasion and no record was preserved by the defendant or made a part of this record.

Initially we agree with the plaintiff that where the record on appeal is incomplete, the reviewing court will presume any state of facts necessary to sustain the action of the trial judge, provided such facts are embraced by the pleadings and consistent with the record. 2 ILP, Appeal and Error, § 716, citing inter alia, Anderson v. Anderson, 30 Ill App2d 345, 174 NE2d 716. (Abst. decision.) Every reasonable intendment not negatived by the record will be indulged in support of the judgment, order, or decree upon appeal. O’Berry v. O’Berry, 36 Ill App2d 163,183 NE2d 539.

It appears from the statement of facts in plaintiff’s brief that on April 1, 1966, plaintiff filed and presented her petition to show cause and an order was entered on that day which recited that “the court being fully advised” ordered the defendant to appear before the court on April 28, 1966, to show cause why he should not be punished for contempt. On April 28,1966, the cause came on to be heard and an order was entered reciting inter alia “. . . and the court having heard the testimony of the parties and arguments of counsel, and being fully advised in the premises” the defendant was ordered to show cause on May 9th why he should not be punished for contempt of court. On May 9, the court’s order recites inter alia: “This matter again coming on to be heard . . . and the court being fully advised in the premises” the defendant was ordered to appear on May 16th to show cause and it was further ordered that “the arrearages of $4,860.00 as of April 1, 1966, as stated by plaintiff may be reviewed by the parties on an accounting, and in the event the parties cannot agree to an accounting the court shall appoint an accountant and respondent shall pay the accountant’s fee and charges.”

The record shows that the defendant filed his answer to the petition on May 9th pursuant to the order of court. The matters heard on that date and on previous hearings were in our opinion preliminary matters to the contempt hearing held on May 16th and therefore the transcription of those proceedings was not necessary. The Ill Rev Stats 1965, c 40, § 16, provides that “Whoever wilfully refuses to comply with the court’s order to pay alimony . . . may be declared by the court in contempt. . . .” Extraordinary power is vested in the court to commit a person for contempt, to compel obedience to decrees for payment of support money, where it appears the defendant had pecuniary ability to comply and his disobedience is wilful. The order of court entered on May 16th found the defendant guilty of wilful contempt to be purged by payment to the plaintiff of the sum of $4,860.

The defendant brought a court reporter on May 16th and evidence was transcribed and appears in the abstract. At this hearing the following took place. Plaintiff’s attorney informed the court that the matter “comes on a return of a rule to show cause” and stated that the defendant was in arrears the sum of $4,860 and that the last time the case came up the defendant filed an answer contending that there was an agreement between the parties not allowing him credit, but he explained that plaintiff gave him credit for the period the defendant had custody of two of the four children and he offered an accounting statement pursuant to the previous order. The court inquired whether plaintiff had the four children and defense counsel replied she had two children and plaintiff’s counsel claimed she had three. Counsel for defendant stated that he wished to offer testimony in regard to the contempt proceeding and that he had prepared a memoranda of law. The court informally inquired of plaintiff when she last received payment and she replied in August of 1964. Defense counsel then stated that it was his position that there was no contumacious or wilful conduct on the part of defendant and he suggested that he would like" to question the plaintiff to prove this contention. The plaintiff was sworn and the Court proceeded to question her as follows:

Q. The ages of the children that are now with you are what?
A. Thirteen, one just turned sixteen and seventeen.
Q. All right.
A. Three boys.
Q. Have you received any money from your husband since August of 1964, any money whatever towards the support of these children?
A. No, I haven’t.
Q. You have not?
A. No.
Q. Did you ever ask him for money ?
A. Yes, I wrote a letter in September.
Q. Of’64?
A. No. September of ’65.
Q. All right, and what did he say in response to that letter?
A. I had no answer.
Q. No answer. And, since that time you have been working and supporting these children, is that right ?
A. I was until February.
Q. All right. These children are going to school, is that right?
A. That’s correct.
Q. Okay.
(Witness excused.)
The Court: Prepare an order of Commitment. Bailiff, you want to take him into custody.

Defense counsel requested permission to question the witness and the court replied, “Counsel, I have nothing before me, now. I will hear all your arguments at some future date.” He then ordered the defendant taken into custody and entered two orders in which the defendant was found guilty of wilful contempt of the court for his wilful failure to pay the plaintiff the sum of $4,860 and he was committed to jail for a period of six months unless he purged himself of contempt by paying the sum of $4,860.

The contempt alleged against the defendant was indirect. Provenzale v. Provenzale, 339 Ill App 345, 90 NE2d 115. The failure of a husband to comply with the decree directing the payment of support money for children is prima facie evidence of contempt. 16 ILP, Divorce, § 194; Shaffner v. Shaffner, 212 Ill 492, 72 NE 447. The burden then is on the husband to show that he had a valid excuse for nonpayment. The power to enforce payment of support money by contempt is limited, however, to cases of wilful and contumacious refusal to obey the order of the court. Wick v. Wick, 19 Ill2d 457, 167 NE2d 207. “In determining the propriety of orders in enforcement proceedings it is necessary, however, that each case be viewed in the light of its own peculiar facts.” P 461.

In the instant case the court entered a rule upon the defendant to show cause why he should not be held in contempt of court for wilfully refusing to comply with its support decree. In our judgment the defendant’s counsel was improperly refused permission to cross-examine the plaintiff or to present evidence in an attempt to purge defendant of contempt. It is evident from the record that the arrearages for support of the children commenced after plaintiff voluntarily relinquished custody of two children and stated in a letter to the defendant that she would retain custody of the two younger children “including their support which you may cease to pay.” The defense to the contempt charge should, in our opinion, be thoroughly heard and considered. It is not enough in contempt proceedings to find that the defendant is in arrears. Mere absence of compliance with the provisions of the decree is not sufficient basis for a judgment of contempt of court unless the evidence shows the failure to comply was a wilful and contumacious refusal to obey the court order. Mesirow v. Mesirow, 346 111 219, 178 NE 411. Therefore, without expressing any opinion on the merits, we hold that the finding by the court holding the defendant to be in contempt of court was premature.

The order entered on May 16, 1966, finding the defendant guilty of contempt of court is reversed and the cause remanded for further proceedings consistent with the views expressed.

Reversed and remanded.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MURPHY

license: Public Domain

text:
    Estate of Lou Fushanis, Deceased, Appellee, v. Jeanne Poulos, Claimant-Appellant.
    Gen. Nos. 51,419 and M-51,614. (Consolidated.)
    First District, First Division.
    June 30, 1967.

      Haft, Shapiro & Haft, of Chicago (Morris A. Haft, of counsel), for appellant.
    Gregory A. Gelderman, guardian ad litem, and Edward L. S. Arkema, for administrators, of Chicago (Gregory A. Gelderman, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Jeanne Poulos, claimant against the estate of Lou Fushanis, her deceased brother, appeals from an order which dismissed her fifth class claim for $11,870. The record indicates the estate is insolvent. No evidence was offered on behalf of the estate.

Lou Fushanis died in Chicago, Illinois, and left surviving him a widow and two children; also, his mother and his sister, the claimant. During his lifetime, he either owned or operated approximately 1,000 parcels of real estate through the use of various corporations and partnerships. He invested money for many persons, and his records primarily consisted of individual account cards and ledgers. The account cards contained the account number, the amount of money that was originally paid in, the monthly payments, and the balance due.

Shortly after David Zaransky’s appointment as co-administrator of the estate of Lou Fushanis, he permitted the claimant to examine decedent’s books and records. There were six cards bearing the name of Jeanne Poulos and a master card, all of which were lost or misplaced by the representatives of the estate before the hearing of the claim. The claim of Jeanne Poulos (hereinafter set forth) was prepared under the direction of Zaransky and from books in her possession.

“Claimant (Jeanne Poulos) did heretofore deliver to the deceased funds to be held specifically in trust for claimant’s benefit in the following amounts:
Account No. 155 17 33 105 62 112
Original Amount 2000.00 2000.00 2000.00 2000.00 2000.00 10000.00
Monthly Payments 40.00 40.00 40.00 40.00 40.00 125.00
Balance Due 960.00 1520.00 1200.00 1660.00 1480.00 5050.00
That for a period of time last past said Lou Fushanis, deceased, did from time to time make payments to reduce the trust indebtedness leaving balances due as indicated hereinabove. That the said funds were at all times treated by the decedent as trust funds and were accepted by Lou Fushanis, deceased, specifically as trust funds, and accordingly your claimant represents that said total of $11,870.00 as indicated above should in view of the facts and circumstances be allowed and preferred over all other general creditors, and that an order be entered directing the co-administrators to treat said claim as a trust fund, and that the said co-administrators be directed as moneys become available to pay said claim in such installments as shall be ordered by the Court and as said funds accrue.”

At the hearing of the claim, Zaransky testified both as an adverse witness and as a witness for claimant. Although a subpoena had been served upon him to produce “Books, record cards, account records numbered 155, 17, 33, 105, 62 and 112 kept by the decedent during his lifetime,” no estate records were produced. Zaransky related in detail the preparation of the claim, and that it set forth the amounts “exactly as they were in the booklets she had.”

Under cross-examination by the attorney for the estate, Zaransky stated, “I verified the balances due against the account numbers, and I saw these cards which indicated the name of Jeanne Poulos, the account number, the amount of money paid in, the amount of loan, no interest, or interest included, I am not sure, the amount of monthly payments and the balance due.” In reply to a question as to whether the amounts shown as received on the cards were actually received, the witness stated, “The account card indicated that the original amounts on the opening entry were the same as the claim, but the amount paid in was less. ... It appeared from my examination that Mrs. Poulos sent to her brother moneys that he accepted and entered, and opened an account card for double the amount that she sent him, and indicated payment of so much per month, with no interest, or waiving of the interest, I am not sure again as to the exact term it set at that time. ... It is very difficult for me at this time to testify that it is exactly true on each one (the six accounts).” He stated it was true on several of the accounts, but that he did not know “of his own personal knowledge this was actually done.”

When the claim was being prepared, the cards were in the estate office, and he had access to the cards. After he examined the account cards, “they were supposedly put back in the files, and I haven’t seen them since.” As to the books of Mrs. Poulos from which he secured the data for the claim, he stated “they were either returned to Mrs. Poulos or they were misplaced.”

A witness for claimant, Betty Smith, an employee of decedent since 1959 and his secretary at the time of death, testified in detail as to the bookkeeping practices of the decedent and the keeping of cards which contained “names, addresses, and they showed the transaction, what type of transaction it was.” She saw cards which bore the name of Jeanne Poulos, on which “it said ‘Jeanne Poulos, trust loan accounts.’ It gave the numbers and it gave the date that the payments were to go out and the amounts.” She further stated that she didn’t see the words “trust or trust account” on any of the other cards in the office. Decedent told her that “Jeanne sent him this money, so that he could keep it for her and because her husband had been sick. . . . [H] e would be sure that she had money, because he never did know when her husband would be able to work or wouldn’t be able to work, and he wanted to be sure that she had money, because she had a lot of children . . . .”

On cross-examination, Miss Smith stated she did not know whether the amounts received were the amounts entered on the cards, that when decedent would receive a check from his sister he would tell her the total amount to be put on the card. If he received $1,800, it might be $2,300 on the card. If the claimant sent her brother a check for $1,000, “he would tell me so much money, maybe it was $2,000 maybe it was $1,800.” The witness further testified that when the decedent received checks from his sister, they were not deposited in the decedent’s regular account but in the Happy Builders Account, out of which account he paid bills and used it for his personal use and made mortgage payments out of it. When monthly payments were made to claimant, they were paid out of the Happy Builders Account.

Another witness for claimant, Vito Theodore, who was in the employ of decedent at the time of his death as office manager, testified that he was in charge of the books and knew the system used by the decedent in his financial transactions, which were kept on a series of cards. There were a couple of hundred in number and disclosed all of his transactions with other people. “We would take notes, keep a record of contractors that did work for us, we would loan them money.” He stated, “I don’t know exactly how many cards there were that bore Jeanne Poulos’ name, but the cards said ‘Letter of trust loan accounts, Jeanne Poulos.’ One card had all the transactions, then other cards had due dates and amounts. . . . there were separate cards which showed the individual amounts of money.” He said, “I spoke with the decedent about these cards from time to time, and he told me that I guaranteed to give my sister all her money and take care of her kids and put them through college and that was the end of that. He mentioned the word trust in connection with Jeanne Poulos’ accounts, and I thought he was protecting himself under a ‘trust’; he said that if at any time his sister wanted her money, she could send him a letter and he would give it to her all in cash; that he was using her money and was charging high interest on it. . . . to my knowledge he never asked his sister where to put the money; he put the money wherever he wanted to.” He further stated that he did not know how much money was given by claimant to decedent at the time the card entries were made. Money that came into the office was deposited by decedent in the “Happy Builders Account,” and he would transfer from that account into a number of other bank accounts which decedent maintained in other names.

Claimant testified in her own behalf as to events which occurred after the death of her brother. She went to the office of the decedent two days after his death and checked his records. The records she saw consisted of one main card, and “that card had my name, Jeanne Poulos, my address in Florida, and it had ‘trust account,’ and it had all the numbers of the various accounts listed on the front of it.” She testified there were about six account numbers and “these cards . . . had figures on there, how much we started with, and how much he was sending me and how much was deducted. Well it had the whole transaction.”

On cross-examination, claimant affirmed that the claim filed by her contained “those same amounts on the cards that you stated that you examined in the estate office.” She was further questioned, “Is this, these sums as listed in this exhibit (the claim) the actual amount that you sent to Mr. Fushanis, or are these the increased amounts ?” She replied, “All I know is that that is what I sent. What he did, I don’t know how he handled it. That is what I sent my brother.” She further stated that the amount of her claim was for “the amounts you also found on the cards.”

The court received in evidence a copy of a letter dated December 23, 1963, addressed to the attorney for the estate and written by Zaransky, in which it is said, “Per our conversation, I have examined the personal records of Lou Fushanis, and find that he held in trust for his sister, six accounts. . . . The personal records of Lou Fushanis clearly indicate no interest.” The letter set forth the account numbers, original amount, monthly payments, and balance due, all of which are included in the claim.

The court refused to receive in evidence a letter dated October 31, 1956, addressed to claimant, which closed with a typewritten name “Lou Fushanis,” above which appeared in handwriting “Lou.” The witness Betty Smith, identified the handwriting as that of the decedent, but she was not familiar with the letter. The letter requested claimant to send him $5,000, and related details as to previous investments. The letter further stated, “The plan I have for you is to liquidate all your present deals you have with me and reinvest all the money and you will be the beneficiary under a Trust. In short, I want to secure your money with property which you can control by yourself. I will be responsible for the management and the safety of your funds. I will cash you out if you ever have need for the money. . . . All your new deals will be in trust with you as a beneficiary if you own the entire Trust. If you and I are partners, we each have a one-half undivided interest in the Trust and the Power of Direction is vested in both of us and both our signatures are required for anything we wish to do. . . . After the Trusts are set up, I will send you a Will to sign that will protect the children. The deals you had now were short term. The new ones will be long term and if you do not touch the returns and reinvest once a year, by the time your children are grown, you will be wealthy.”

It is claimant’s theory that the various sums of money which she deposited with her brother were to be held in trust for her “solely for the purpose of investment and reinvestment thereof”; that “the monies so deposited were in the nature of trust funds and were monies and properties received or held in trust by the decedent which cannot be identified or traced”; and that “the proof made by the claimant was sufficient to establish a claim of the 5th Class.”

It is the theory of the coadministrators and the guardian ad litem for the minor children of the decedent that “the claimant has failed to prove, by a preponderance of the evidence, that her deceased brother, Lou Fushanis, was indebted to her at the date of his death in the amount of her claim,” and “if this court should be of the opinion that an obligation was owed by the decedent in the amount of the claim, that the evidence does not warrant or justify allowing the claim as a claim of the Fifth Class. The refusal of the claimant to change her claim from that of the Fifth Class and her insistence that it be allowed as filed or not at all, gave the court no alternative but to dismiss the claim with prejudice.”

Initially, it is reasonable to infer that it is not disputed that Jeanne Poulos has a claim against the estate of the decedent. The questions are (1) the amount, and (2) its classification.

In considering the evidence offered by plaintiff in support of her claim, the controlling guidelines to be used here are those covering “written admissions or declarations against interest” and the “admission of secondary evidence.” As to “written admissions,” entries or memoranda made by decedent against his interest, found in his books or papers, are, in general, admissible against his estate in favor of a party seeking to establish their truth. (Patten v. Knowe, 354 Ill 156, 161, 188 NE 173 (1933); Sidwell v. Sidwell, 75 Ill App2d 133, 140, 220 NE 2d 479 (1966).) As to “secondary evidence,” 18 ILP, Evidence, § 101, states the rule to be that to introduce secondary evidence of a writing, a party must first prove its existence, genuineness, and loss or destruction, and his own due diligence in attempting to procure it. Claimant’s evidence as to the records of the decedent meets these requirements and may be properly considered in the determination of the merits of her claim.

As to the amount, it is apparent that although the claim was prepared from the books of the claimant, it was verified by the coadministrator with account cards in the office of the decedent before they were lost or misplaced. Also, Betty Smith, decedent’s secretary, testified that the entries and the amounts on the cards were made at decedent’s instruction. Notwithstanding the testimony of both Zaransky and Betty Smith, which indicates that in some instances decedent increased the amount received from his sister and recorded a larger amount on the account card, the witnesses were unable to identify any part of the instant claim as being a transaction of that nature. The claimant, while under cross-examination by the estate, testified that her claim was for the amount sent her brother.

The testimony of Zaransky and Betty Smith, as to the practice of decedent of increasing the amounts sent him by claimant, was inconclusive and was offset by the statement of claimant that the account cards reflected the amounts sent by her. If the records of the estate contained any information which militated against the amount claimed by claimant, it was the responsibility of the representatives of the estate to produce the cards to offset and reduce the amount claimed by her. In the absence of the production of the account cards by the estate, and in view of the inconclusive testimony on this point, the claim should have been allowed for the full amount asserted thereon.

We next consider the question of whether the proof made by claimant was sufficient to establish a claim of the fifth class. Section 202 of the Probate Act (111 Rev Stats, c 3) directs the classification of all claims against the estate of a decedent, and the fifth classification is “money and property received or held in trust by decedent which cannot be identified or traced.” In Schaack v. Reiter, 372 Ill 328, 23 NE2d 714 (1939), the Supreme Court considered at length the classification of fifth class claims where the claims against the estate exceeded the assets, so that the general claimants received but a small percentage of their claims. There, the court said (p 331):

“It was held in Wilson v. Kirby, 88 111 566, that the words ‘in trust for any purpose’ were not inclusive of every case where money or property had come into the possession of a person by reason of a confidence or trust reposed. In the broadest sense of the term it would include factors, agents, etc., but it was used in a restricted sense and referred only to special or technical trusts, and did not include those which the law implies from the contract. . . . This character of trust arises from the direct and positive action of the parties. Those actions may be evidenced by written instrument, words expressed, or both. One of the essential elements to the creation of such a trust is the intent of the parties. Before there can be an express or technical trust, there must be proof of circumstances which clearly evidences an intention to create a trust. . . . The mere relationship of debtor and creditor or of principal and agent, does not furnish a basis for the establishment of a trust of the character contemplated in section 70 of the Administration act.”

And on p 333:

“In determining whether the parties intended to create an express or technical trust, we may look to their acts in the management and payment of the funds as well as to the receipt which was issued. The method adopted by the parties in dealing with the funds clearly negatives any intention to create a trust. The Appellate Court properly classified the claim as of the sixth class.”

In the foregoing case, Justice Gunn dissented and said (p 334):

“The writing set out in full and signed by Reiter includes all the elements of an express trust. It specifies a property, the name of the beneficiary and her interest and the manner in which the trust is to be executed. We have held an instrument in writing, including the foregoing, creates an express trust. ... In Marble v. Estate of Marble, 304 111 229, quoting from Perry on Trusts the court, on page 240, says: Tn section 82 it is said that “there is no particular formality required or necessary in the creation of a trust. Any agreement or contract in writing made by a person having power of disposal over property, whereby such person agrees or directs that a particular part of property or a certain fund shall be held or dealt with in a particular manner for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him, voluntarily or with notice.” ’ The fact that Reiter, prior to delivering the writing, had been in possession of a larger sum belonging to appellant, which had been treated between them as a loan, is not material as it was competent for the parties to change that situation and bring into effect the trust relationship by the giving and acceptance of the instrument in question. This writing established the trust relationship and the burden is upon the trustee to discharge it. . . . There is nothing in the record that indicates appellant waived the rights she acquired by the writing or that she had information that Reiter had not invested the money in a first mortgage as specified. Reiter recognized the importance of the paper he delivered by requiring it to be surrendered when he delivered the mortgage or mortgages. It is not the law that a trust relationship declared in writing, can be discharged by the actions of the trustee alone. . . . With nothing in the record to establish that appellant knew how Reiter was handling the funds, she had a right to assume that he had invested it in a first mortgage as he had agreed.”

After examining this record in the light of the foregoing pronouncements in Schaack v. Reiter, 372 Ill 328, 23 NE2d 714 (1939), we conclude that claimant’s evidence is sufficient to classify her claim as of the fifth class. Betty Smith testified that the cards stated “Jeanne Poulos, trust loan accounts,” and she did not see the words “trust or trust account” on any other cards in the office. Vito Theodore testified that the cards said “Letter of trust loan accounts, Jeanne Poulos,” and stated that the decedent mentioned the word “trust” in connection with Jeanne Poulos’ accounts. The foregoing is buttressed by the letter of October 31, 1956, written on stationery used by decedent and addressed to claimant, which closed with a typewritten name “Lou Fushanis,” above which appeared in handwriting, “Lou.” Betty Smith identified the handwriting as that of the decedent. The trial court should have received it in evidence because it was a written communication passing between the claimant and the decedent which was relevant to the issues of her claim. The genuineness of the signature of the decedent was proved and its delivery to claimant may be presumed from the fact that it was in her undisputed possession at the time of his death. 29 Am Jur2d, §§ 878, 879.

For the reasons given, the order of the Circuit Court dismissing the claim of Jeanne Poulos with prejudice is reversed, and the cause is remanded to the Circuit Court with directions to allow the claim for the sum of $11,870 and as of the fifth class.

Reversed and remanded with directions.

BURMAN and ADESKO, JJ., concur.


text:
    Village of Homewood, a Municipal Corporation, Plaintiff-Appellant, and Melvin K. Meyer, Chief of Police of the Village of Homewood, Appellant, v. William E. Dauber, Defendant-Appellee.
    Gen. No. M-51,600.
    First District, First Division.
    June 30, 1967.
    Richard W. Austin, Stanley A. Walton, HI, and Walter D. Cummings, of Chicago (Winston, Strawn, Smith & Patterson, of counsel), for appellants.
    No brief filed for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant was found guilty and fined for a Village traffic violation. The trial court then ordered the Chief of Police of the Village of Homewood to return to defendant his fingerprints and photographs, which were taken at time of arrest. The Village of Homewood and the Chief of Police appeal. Defendant has filed no brief.

The appellants’ contentions and authorities cited in support include: (1) fingerprinting and photographing arrested persons is a vital and necessary element of modern law enforcement (United States v. Kelly, 55 F2d 67 (1932); Kolb v. O’Connor, 14 Ill App2d 81, 142 NE2d 818 (1957)); (2) there is no Illinois statutory provision which bars police acquisition of fingerprints or photographs in traffic violation cases (Kolb v. O’Connor, 14 Ill App2d 81, 142 NE2d 818; People v. Lewerenz, 42 Ill App 2d 410, 192 NE2d 401 (1963)); and (3) fingerprinting and photographing does not violate any constitutional right (Poyer v. Boustead, 3 Ill App2d 562, 122 NE2d 838 (1954); Schmerber v. California, 384 US 757 (1966)).

Although defendant was convicted of a misdemeanor, we are not persuaded that this classification of the offense is determinative of the issue presented. We believe the guidelines set forth in Kolb v. O’Connor, 14 Ill App2d 81, 142 NE2d 818, apply here. There the court concluded (p 91):

“The rights of the individual must be subordinate to the safety of the public. The question involved here is one of public policy. The legislature has not indicated what the public policy of the State should be. Without a specific mandate of the legislature ordering the return to an arrested person of all records of identification held by sheriffs or police departments we are constrained to hold that such departments may retain in their files records of identification such as were here taken, for the purpose of such limited exhibition as is here involved.”

For the reasons given, the order of the trial court to return to defendant his fingerprints and photographs is reversed.

Reversed.

BURMAN and ADESKO, JJ., concur.


author: TRAPP, J. CRAVEN, P. J.,

text:
    Marie Manion, Executor of the Estate of Joseph Thomas Manion, Deceased, Plaintiff-Appellee, v. Brant Oil Company, a Corporation, Defendant-Appellant.
    Gen. No. 10,805.
    Fourth District.
    July 5, 1967.
    Rehearing denied and opinion modified September 6, 1967.

      CRAVEN, P. J. dissenting.
    Thomas, Mulliken & Mamer, of Champaign (Wallace M. Mulliken and Carl J. Sinder, of counsel), for appellant.
    Mitchem, Hendrix & Aldeen (Charles W. Hendrix, of counsel), of Urbana, for appellee.
   TRAPP, J.

Defendant appeals judgments entered upon verdicts of a jury in favor of the executor of the estate of Manion in the sum of $18,000, and in favor of his widow, individually, for medical and funeral expense in the sum of $3,445.24.

A collision occurred on February 14, 1964, when the automobile of the decedent was struck in the rear by defendant’s truck. Decedent died on February 5,1965. Prior to his death he had filed suit for injuries sustained in the collision. Following his death, the present action was filed in a count for wrongful death, and a count for the medical and funeral expenses incurred by the widow.

On the date of the collision, decedent, while driving to work at about 8:30 a. m., travelled easterly on Florida Avenue to its intersection with Race Street in Urbana, Illinois. This intersection is a four-way stop intersection. The evidence is that his car was stopped with the wheels turned as if to make a left turn on to Florida Avenue. Defendant’s motor truck approached from the west, and decedent’s automobile was observed standing at the intersection as the truck approached from behind for a distance of something more than one block. During this period of time no traffic was observed at the intersection of Florida and Race Street. As defendant’s truck approached from the rear, slowing for the intersection, decedent’s car continued to stand at the intersection and was struck by defendant’s truck. Testimony is that its speed was then 3 to 5 miles an hour. Following the impact, decedent’s car moved across Florida Avenue and came to rest against the curb. Defendant’s driver, and a man with him, immediately went to decedent’s car. Decedent stated that he needed no help, and apparently declined an offer of medical assistance. The parties exchanged identification and decedent proceeded to his office where he was employed as a petroleum technician by the Department of Revenue of the State of Illinois. Remaining a short time at his office, he complained of not feeling well and returned to his home. During the day his wife took him to see a Dr. Scott at the Christy Clinic.

A review of the medical history and the development of decedent’s condition following the collision is pertinent. At the time of the collision, decedent was approximately 68 years of age; he was described by his wife and a witness employed in the same building as being in good health in the sense that he was regularly at his employment.

Following his death, an autopsy was performed and the report is in evidence. The immediate causes of death discovered include acute coronary thrombosis with congestive heart failure, pulmonary adenoma and diffuse cerebral atrophy. The autopsy set forth findings in some nine or ten categories which, as interpreted by one of the doctors, includes: (1) a heart attack, left ventricle; (2) arteriolosclerosis, hardening of the small arteries; (3) atherosclerosis of the brain with atrophy; (4) arteriolamephrosclerosis in the kidneys; (6) kidney disease; (7) acute bronchitis; (8) damage to the spleen; (9) interstitial nephritis in the kidney tissue and (10) hypertensive cardiovascular disease and long standing damage of the adrenal glands.

It is agreed by the doctors, both for the plaintiff and the defendant, that the items found on the autopsy are degenerative diseases and that none of the conditions discovered on the autopsy, and no cause of death found, could be directly attributed to trauma.

The medical history of the decedent included surgery for hernia and a prostatectomy in the 1940’s. In 1951 or 1952 he was found to have glaucoma and treatment was instituted. An examination in 1956 discloses cardiac enlargement with pulmonary congestion. In 1962 he was examined again because of the condition of his heart, and in that and the following year he was seen with regard to upper respiratory infections and heart fibrillation. The treatment for the latter condition was the use of digitalis, apparently taken regularly.

Upon examination following the collision, decedent complained of a pain in his right arm and his right chest, stating that he had hit his arm and neck. All X rays, including that of the skull, were negative. The doctor observed a bruise on decedent’s arm. On the 16th of February, decedent was admitted to the hospital with a diagnosis of acute cervical muscle strain, intravertebral (sic) ligament strain and contusion of the right shoulder and arm. In addition, the diagnosis included arteriosclerotic heart disease, irregular fibrillation and congestive heart failure. Decedent exhibited confusion, but no localizing signs were found to explain disorientation. Decedent was treated for the heart failure and given medication for the muscular strain and was released on February 19th. Dr. Scott saw decedent on March 6th, at which time he was confused and suffering heart fibrillation. Later in the month decedent underwent surgery for glaucoma.

Dr. Scott made an examination in April which disclosed that decedent remained confused, had irregular fibrillation, with his heart failure under fairly good control by medication.

On June 29, 1964, decedent was again admitted to the hospital with a diagnosis of arteriosclerotic heart disease, irregular fibrillation and heart failure. He was discharged on July 20th. Decedent was seen by the doctor on January 23, 1965, because of his confusion and he was admitted to the hospital on January 30th. He was found to be markedly short of breath on exertion and while lying flat, there was fluid retention in the limbs and he was completely confused, disoriented and described as in marked cardiac failure.

We have the issue whether a causal connection exists between the collision and the death of the decedent substantially one year later. To support this proposition the plaintiff presented testimony of the opinion of Dr. Scott, a general practitioner attending the decedent, and of Dr. Bonnett, a general practitioner, testifying only upon hypothetical questions. Each doctor testified directly or upon cross-examination that the autopsy findings showed no condition of decedent that was caused by the collision, and showed no cause of death which could be directly attributable to trauma.

Dr. Scott’s opinion was expressed in several places in the record. He first stated:

“I believe that his confusion and disorientation possibly could have been related to the accident on February 14, 1964. I believe the cardiac failure was a preexisting condition which may have been aggravated by the accident on February 14, 1964.” (Emphasis supplied.)

At another point he said:

“I believe that the accident aggravated a previous existing condition also.”

Such condition was not specified, but upon cross-examination, he said:

“I think he could have had an aggravation of preexisting arteriolosclerosis from the accident.”

Being further examined as to whether he believed the accident could actually have aggravated the arteriolosclerosis, he answered:

“I think it is possible, far possible yes.”

Describing arteriolosclerosis as hardening of the arteries and the collection of materials in the artery, he was asked how even a blow on the head would affect the collection of substances inside the blood vessels, and he replied:

“I suppose that it could result in a minor hemorrhage inside the blood vessel. . . . Again, this is a presumption.”

Neither doctor was asked in the hypothetical question, or otherwise, as to the significance, or lack thereof in the evidence in the record, of decedent’s conduct in sitting or waiting at the intersection for an apparent extended or unusual period of time.

Dr. Scott cited no medical authority or experience explaining or supporting the views expressed by him, and we find no explanation or reasons for such views other than as set out in the quoted portions of the testimony. The substance of his testimony was that the principal basis for his belief that a causal connection existed was his suspicion of a subdural hematoma occasioned by trauma. Because of the condition of confusion exhibited by the decedent, he had suspected as possible causes therefor, a brain tumor, an aneurysm, or a subdural hematoma. Through tests made while decedent was being treated, he had pretty well eliminated the first two possible causes of confusion. The last cause, subdural hematoma, was eliminated through the findings of the autopsy. He agreed that it was a fair statement that the calcification and atrophy of the brain as disclosed by the autopsy, were the cause of decedent’s confusion, and that such atrophy and calcification of the brain were from natural causes. It will be recalled that neither upon his first examination, or his first hospitalization, was any complaint made by decedent of head injury, and no evidence of such is shown in the diagnosis in evidence.

Dr. Bonnett expressed the opinion that a causal connection existed between the death and the collision. He agreed that the primary cause of death was coronary thrombosis and that none of the several causes of death disclosed by the autopsy were directly connected with the collision; that none of the conditions found to exist could be attributed to trauma, and that no cause of death attributable to trauma was found. It appears from his testimony that he assumed an injury to the brain as:

“. . . otherwise there would not be reason to explain confusion.”

There is no testimony establishing or giving a basis for a reasonable inference of brain injury sustained in the collision. While Dr. Bonnett was not asked about any relationship between the state of confusion and the calcification and atrophy of the brain, his conclusion stated as to brain injury is contradicted by the statement of Dr. Scott that the confusion originated in brain atrophy.

Dr. Bonnett also included, as a basis of his opinion, the view that decedent was ostensibly healthy to the lay observer and that he carried on with his job. The testimony of an appearance of health to the layman would seem to be of little weight when measured by the findings of the autopsy, and we doubt that an appearance of health to a layman is the basis for a medical opinion.

In behalf of the defendant, Dr. Babowski expressed an opinion that there was no relation between the collision and the autopsy finding of causes of death. A practicing pathologist, he had reviewed the autopsy findings but had not performed it. He testified that the conditions disclosed arose from natural causes and that nothing in the report reflected traumatic injury or conditions induced by or originating in trauma. It is his view that there is no medical explanation of the process of developing arteriosclerosis and that as a result there is no medical knowledge as to whether or not arteriosclerosis is aggravated by trauma. He expressed the view that the atrophy of the brain was the cause of the confusion.

The findings of the autopsy that the causes of death were coronary thrombosis with congestive heart failure, pulmonary adenoma, and diffusive cerebral atrophy are almost categorical that the conditions found were natural causes of death, and that nothing was found that could be attributed to trauma. This is joined with decedent’s medical history of a heart ailment that had required medication over a period of years.

Our courts have held that there should be no recovery where there has been a failure to prove a causal connection between the injury and the event at issue. Jensen v. Elgin, J. & E. Ry. Co., 15 Ill App2d 559, 147 NE2d 204, 210; Allison v. Chicago Transit Authority, 336 Ill App 224, 83 NE2d 386.

Plaintiff undertakes to establish such causal connection by or through opinions expressed by Dr. Scott and Dr. Bonnett. We note the rules relevant to opinion evidence. It is said that “naked opinion” unsupported by reasons is entitled to little weight and that the weight and value of evidence expressed through opinions largely depends upon the foundations of fact and reason upon which such opinions stand. Opinion Evidence in Illinois, King & Pillinger, p 318.

Again, the standards in decisions of our courts are that the causal connection between the injury sustained must not be contingent, speculative or merely possible, but that there must be such degree of probability as to amount to a reasonable certainty that such causal connection exists. Lauth v. Chicago Union Traction Co., 244 Ill 244 at 251, 91 NE 431. In Stevens v. Illinois Cent. E. Co., 306 Ill 370, 137 NE 859, two physicians examined X rays and testified that epilepsy and even death were disabilities which “might possibly result.” The Supreme Court said, at p 377:

“Mere surmise or conjecture cannot be regarded as proof of an existing fact. . . . Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow.”

In Kimbrough v. Chicago City Ry. Co., 272 Ill 71 at p 76, Ill NE 499, in discussing a ruling on objections to questions, the court said:

“Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow.”

The court expressed the view that surmise or conjecture cannot be regarded as proof of fact, or of a future condition that will result. In Carter v. Winter, 50 Ill App2d 467, 200 NE2d 528, plaintiff’s automobile was struck from behind as it was making a left turn onto a highway. Eleven days following this event plaintiff suffered a heart attack and stroke bringing on total disability. The court reversed a verdict in the amount of $100,000, because of failure to prove the causal connection between the collision and the ensuing attack. The court noted, amongst other things, that no doctor testified directly to causal connection and the most offered in behalf of the plaintiff was the opinion of a possible connection.

The testimony of Dr. Bonnett is premised upon the assumption of a blow to the head, for he states that otherwise there was no cause for the reported disorientation and confusion of the decedent. There is nothing in the record showing that decedent complained of such head injury, and no objective findings of such were made during the several examinations in evidence. Opinions based upon assumed injuries not established by the weight of the evidence have been deemed totally inadequate as proof of causal connection. Carter v. Winter, 50 Ill App2d 467, 200 NE2d 528. In Shell Petroleum Corp. v. Industrial Commission, 366 Ill 642, 10 NE2d 352, the court noted that the opinion expressed in support of plaintiff’s cause depended upon the existence of a brain lesion which was not in evidence. Similarly, in Wanzer & Sons, Inc. v. Industrial Commission, 380 Ill 409, 44 NE2d 40, the medical opinion as to causal connection was based upon an assumed back injury, although such injury was not in evidence. The Supreme Court reversed the award. In Peterson v. Cochran & McCluer Co., 308 Ill App 348, 31 NE2d 825, decedent suffered a head injury in a fall. His death occurred twelve days later. An autopsy showed the cause of death to be mumps. The only evidence supporting a theory of causal connection was based upon an opinion suggesting the spread of an infection from the head wound through the glands of the body. The court noted that such opinion disregarded the evidence that the wound was completely healed at the time of death as shown by the autopsy findings.

Consideration of the opinion of Dr. Scott regarding the causal connection expressed in the direct and cross-examination noted herein, does not appear to have the degree of probability which has been stated in the several opinions noted. So far as we can ascertain, such views are essentially a “naked opinion,” in that they are not based upon any stated medical authority and that no physiological explanation or reasons were given for the conclusion expressed. His opinion that cardiac failure was a preexisting condition which may have been aggravated is a tentative view stated as a “naked opinion” and without any statement of a physiological basis for the opinion. See Laclede Steel Co. v. Industrial Commission, 6 Ill2d 296, 128 NE2d 718; Electro-Motive Division, General Motors Corp. v. Industrial Commission, 411 Ill 132, 103 NE2d 489. Testimony in a similar vein is found in Panepinto v. Morrison Hotel, Inc., 71 Ill App2d 319, 218 NE2d 880, wherein it was held that the jury should not be permitted to speculate upon such matters. Dr. Scott’s opinion that there might be aggravation of the preexisting arteriosclerosis seems nullified when, upon cross-examination, he was asked to explain how even an assumed blow upon the head would affect the substances inside the blood vessels and he stated a process which he described as a presumption.

The plaintiff points out that decedent enjoyed ostensible good health prior to the collision, at least, in the sense that he was regularly employed. Such evidence has been held to be competent, but we believe that it must be considered in the light of all of the evidence in the case. In Ford v. Panhandle Eastern Pipe Line Co., 344 Ill App 566, 101 NE2d 869, plaintiff’s wife testified concerning his prior good health but such testimony was held not adequate where the doctors agree that there was no causal connection between plaintiff’s cerebral thrombosis and the trauma testified to, i. e., a bump on the head and a broken ankle. Again, in Shell Petroleum Corp. v. Industrial Commission, 366 Ill 642, 10 NE2d- 352, twelve witnesses testified to the good health of the employee, but the medical evidence was that the trauma, a blow on the head during a robbery, was not a cause of Parkinson’s disease with which the employee was afflicted. The premise of a state of good health in the decedent in this case is not borne out, either in the recorded history of cardiac impairment, nor in the objective postmortem findings of extensive degenerative diseases in many organs of the body.

Plaintiff urges that where medical evidence is conflicting, the court will not undertake to determine which opinion is more worthy of credence, but is obligated to follow the findings of the triers of fact unless such are found contrary to the manifest weight of the evidence.

While this appeal has been under advisement, the Supreme Court has filed its opinion, Pedrick v. Peoria & Eastern R. R. Co., — Ill2d —, — NE2d —, in which it reexamines and restates the standards to be employed by trial courts in ruling upon motions for a directed verdict, or for judgment n. o. v., and similarly reconsiders the rule under which reviewing courts are authorized to determine issues of negligence or contributory negligence as a matter of law, albeit, contrary to a verdict.

In its review the Supreme Court concluded that the standards, characterized succinctly as the “any evidence” rule and the “reasonable man” rule, heretofore employed separately or in combination in the several courts were unsatisfactory in their operation and result.

It is established in Pedrick that it is the responsibility of the court to ascertain and determine whether there is, in fact, a substantial factual dispute which calls for resolution by a jury. The judicial role operates from two fundamental propositions: (1) it is a constitutional right of the parties to have substantial factual disputes resolved by a jury, and (2) in determining whether such substantial factual dispute exists the court considers all of the evidence in its aspect most favorable to the party against whom the court is called upon to rule.

It is established for a court of review that where verdicts are not factually sustainable, there is no real reason to remand for a new trial in the absence of some probability that new or different evidence would be available upon a subsequent trial. This appeal includes the issues as to whether or not the trial court erred in denying the defendant’s motions for directed verdict and for a judgment n. o. v., and in this court it is urged that the verdicts are contrary to the manifest weight of the evidence in that the negligence complained of was not the proximate cause of death.

Considering all of the evidence in the light of the rule of Pedrick, we conclude that the verdict of the jury is not factually sustainable in that the plaintiff failed to prove the element of causal connection between the collision in evidence and the death of Manion. It may be said that the medical opinion offered in proof of such issue appears to be based upon an inference that traumatic injuries were, in fact, sustained, which in turn, gives rise to an inference that decedent’s death resulted from non-traumatic causes aggravated by the traumatic injury inferred. Upon such a basis an opinion was expressed which, by the standards of evidence considered, has but little probative value. A medical opinion of causal connection is essentially meaningful for a jury or court only when founded upon recognized medical authority or experience, or when there has been persuasive explanation of physiological processes establishing a reason for the opinion.

In contrast, each doctor testifying agreed that the autopsy, unchallenged in its detail or scope, demonstrated that the several causes of death disclosed were natural and progressive, and that there was no evidence discovered of any traumatic aggravation of such preexisting natural conditions. Within the standards of Pedrick, such evidence overwhelmingly favors the defendant upon the issue of causal connection.

It appearing upon Petition for Rehearing that there are, or may be, damages and expenses incurred by the plaintiff, Marie Manion, Individually, under Count II of the Complaint, which are the direct and proximate result of the collision at issue, the Order of this Court upon the appeal is modified as follows:

The judgment entered in the trial court in favor of Marie Manion, Executor of the estate of Joseph Thomas Manion, deceased, is reversed.
The judgment entered in favor of Marie Manion, Individually, is reversed and the cause is remanded for a new trial for the sole purpose of ascertaining such expenses incurred and paid by the said plaintiff, which are the proximate and direct result of the collision at issue.

Reversed and remanded in part.

SMITH, J., concurs.

CRAVEN, P. J., dissents.

CRAVEN, P. J.,

dissenting:

The verdicts in this case are supported by opinion evidence from the treating physician and from a general practitioner testifying in response to hypothetical questions. Both expressed the view that there was a causal connection, to a reasonable degree of medical certainty, between the trauma of the accident of February 14, 1964, and the ultimate death of Joseph Manion on February 5, 1965. This medical opinion evidence was based upon the course of the decedent’s physical health following treatments begun two days after the accident, as well as upon the factors discussed in the majority opinion, and upon the medical belief that the accident might have caused an aggravation of certain of the degenerative processes present in the decedent’s body as shown by the autopsy and the testimony of the pathologist based upon the autopsy performed by another. The opinion evidence, as such, cannot be faulted in this case, for that evidence is couched in language and terms that reviewing courts in Illinois have accepted as evidence. See Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582; Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312,156 NE2d 361.

The majority opinion equates these expressions of medical opinion with an absence of evidence and characterizes them as a “naked opinion,” concluding that they are devoid of any foundation. I agree that the foundation for these ultimate opinions has been badly fractured by the findings of the autopsy report and the other items discussed in the majority opinion. Indeed, I might even agree that the foundation is so weakened as not to be sufficient to sustain the verdicts which the jury rendered. Accordingly, as I view the record, remandment for a new trial is the proper disposition of this case.

The recent opinion of the Supreme Court in Pedrick effects a substantial change in a vital area of Illinois law. It is a far-reaching change but the new rules as expressed in Pedrick have not been properly applied to this case as I view this record and the expressions in Pedrick.

There is some factual residual basis for the doctors’ opinions and there is no showing that additional evidence could not be developed which would cure the defect in the present foundation testimony on which these opinions are based. The real problem in this case is that the verdicts are against the manifest weight of the evidence. My colleagues employ a doctrine in this case which should be employed only when there is no substantial factual dispute between the parties and when a remandment for a new trial would be an empty judicial gesture. Pedrick leaves in full force and undisturbed the former rule that a verdict against the manifest weight of the evidence should be set aside and a new trial granted. The Supreme Court, in Pedrick, stated:

“We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial (verdict against the manifest weight of the evidence Lau v. West Towns Bus Co., 16 Ill2d 442, 451, cert den 361 US 127) and that justifying direction of a verdict or judgment n. o. v. There is, in our judgment, excellent reason for so differentiating to be found, in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial. It is not our intention by this opinion to alter this concept. . . .”

In a case strikingly similar to the instant case, the weakening of the foundation for the doctors’ opinions on causation was held to require a new trial. In Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633, the court considered a doctor’s testimony that plaintiff’s meningoencephalitis could be causally related to injury. The doctor had based his testimony on the assumption that the brain or spinal cord had been injured. There was no evidentiary basis for that assumption. It was held that the evidence should not have been admitted but the case was remanded for a new trial.

It cannot be said, in this case, that all of the evidence, viewed most favorably to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on this evidence could ever stand. This record involves an evidentiary situation which requires a new trial, and I would remand for that purpose.


author: CRAVEN, P. J.

text:
    Freeman Coal Mining Corporation, an Illinois Corporation, Bell & Zoller Coal Company, an Illinois Corporation, and Consolidation Coal Company, a Pennsylvania Corporation, Plaintiffs-Appellants, v. L. Leon Ruff, Director of Mines and Minerals in the Department of Mines and Minerals in the State of Illinois, Harry Williamson, et al., and William G. Clark, Attorney General of the State of Illinois, DefendantsAppellees.
    Gen. No. 10,835.
    Fourth District.
    July 5, 1967.
    Rehearing denied August 10, 1967.

      Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Winning, of counsel), and Lord, Bissell & Brook, of Chicago (Hamilton K. Beebe and Stephen A. Milwid, of counsel), for appellants.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael, John J. O’Toole, and Lee D. Martin, Assistant Attorneys General, of counsel), for appellees.
   CRAVEN, P. J.

In December of 1965, the attorney general issued an opinion construing the Illinois Coal Mining Act of 1953 as amended. Section 2.11 of that act (111 Rev Stats 1965, c 93, par 2.11) provides that when an opinion of the attorney general is at variance with an opinion of the mining board, then all parties must abide by the attorney general’s opinion except that recourse may be had to the courts.

The 1965 opinion was in conflict with an opinion of the attorney general issued in 1956 and at variance with an interpretation of the act issued by the mining board, also in 1956. This proceeding, then, is an action for declaratory judgment to resolve the question in controversy. The sole issue presented is the construction of sections 5.09 and 6.04 of the Illinois Coal Mining Act (111 Rev Stats 1965, c 93, pars 5.09 and 6.04) as these sections apply to the inspection of gassy mines prior to the entry of workmen on a noncoal-producing shift.

The plaintiffs contend, and the 1956 opinion of the attorney general held, that a gassy mine was required to be examined within twelve hours immediately preceding the entrance of workmen for a noncoal-producing shift into the underground area. The defendants contend, and the 1965 opinion of the attorney general held, that gassy mines are required to be examined within four hours immediately preceding the entrance of workmen of any shift, coal-producing or noncoal-producing.

The question is one of law. There are no controverted factual issues, and the circuit court granted summary judgment for the defendants and entered a declaratory judgment accordingly. This appeal is from that judgment.

Section 5.09 of the act relates to the duties of the mine manager and provides in part:

“ (A) In gassy mines:
“1. When the mine is to be operated he shall have the prescribed working places of such mine examined by a certified mine examiner within 4 hours before the workmen of any shift, other than the examiner or the examiners designated by the mine manager to make the examination, enter the underground areas of such mine. Have the mine examiner inspect every active working place in the mine and make tests therein with a permissible flame safety lamp for accumulation of methane and oxygen deficiency in the air therein; examine seals and doors to determine whether they are functioning properly; inspect and test the roof, face and rib conditions in the working areas and on active roadways and travelways; inspect active roadways, travelways, approaches to abandoned workings and accessible falls in active sections for explosive gas and other hazards; and inspect to determine whether the air in each split is traveling in its proper course and in normal volume.
“4. He shall see that no person, other than competent personnel, enters any underground area in a gassy mine, except during a coal-producing shift, unless an examination of such area has been made by a mine examiner within 12 hours immediately preceding his entrance into such area.”

Section 6.04, also dealing with examination of gassy mines, sets forth the duties of the mine examiners and provides in part:

“ (A) In gassy mines:
“1. When the mine is to be operated he shall examine the prescribed working places of such mine within 4 hours before any workmen in such shift, other than the examiner or the examiners designated by the Mine Manager to make the examination, enter the underground areas of the mine. Examine every active working place in the mine and make tests therein with a permissible flame safety lamp for accumulation of methane and oxygen deficiency in the air therein; examine seals and doors to determine whether they are functioning properly; inspect and test the roof, face and rib conditions in the working areas and on active roadways and travelways; inspect active roadways, travelways, approaches to abandoned workings and accessible falls in active sections for explosive gas and other hazards; and inspect to determine whether the air in each split is traveling in its proper course and in normal volume. . . .”

There is no language in section 6.04 comparable to the language in subparagraph 4 in section 5.09. If the language of subparagraph 1 of each of the quoted sections, by the use of the term “is to be operated” governs only as to coal-producing shifts, as the plaintiffs contend, then there is no ambiguity in the statutory language and consequently no need for construction. However, the language to be found in the same subparagraph also relates to the workmen of any shift.

If subparagraph 4 is applicable and determinative of the need for inspection as to noncoal-producing shifts, as plaintiffs contend, then there is an apparent conflict in the language of subparagraph 1 of both sections and sub-paragraph 4 of section 5.09, and if not a conflict, certainly an ambiguity appears in the statutory language.

The legislature found no difficulty in expressing itself in clear and unambiguous terms when it sought to describe “coal-producing shift” and distinguish such a shift from a maintenance shift. The phrase “coal-producing shift” is used, as is the phrase “during which coal is produced,” and maintenance crews are found to be described as a shift of workmen who are to work and “no coal is to be mined.” The absence of this clear and concise language in the two sections under consideration is further evidence of a reasonable difference of opinion as to the legislative intent. The fact that there are conflicting opinions of the attorney general indicates that there must be some vagueness requiring construction to ascertain legislative intent.

Rules of statutory construction are tools or aids for ascertaining legislative intention and the application of a particular rule is not in and of itself determinative of legislative intention. It is, of course, axiomatic that long-standing contemporaneous construction by ones charged with the administration of a particular statute is entitled to great weight in construing the statute. This doctrine of contemporaneous construction becomes even more persuasive when it has been of long standing and the legislature, presumably aware of the administrative interpretation, has amended other sections of the act during the period involved but left untouched the sections subject to the seemingly approved administrative interpretation. Illinois Bell Tel. Co. v. Illinois Commerce Commission, 414 Ill 275, 111 NE2d 329 (1953); People ex rel. Spiegel v. Lyons, 1 Ill2d 409, 115 NE2d 895 (1953); Bell v. South Cook Co. Mosquito Abatement Dist., 3 Ill2d 353, 121 NE2d 473 (1954); Mississippi River Fuel Corp. v. Illinois Commerce Commission, 1 Ill2d 509, 116 NE2d 394 (1953).

As noted, however, rules of construction are mere aids for use in search of legislative intent. We must construe the language and arrive at that intent based upon rules of construction, objects and purposes of the legislation and on other factors.

The legislation here in question relates to mine-safety and is aimed at minimizing the possibility of mine disasters. This legislation, then, was enacted to comply with the constitutional mandate that “it shall be the duty of the general assembly to pass such laws as may be necessary for the protection of operative miners, . . . .” (Sec 29, art IV, Ill Const, 1870.) The Supreme Court of this state has repeatedly made reference to this mandate when considering legislation touching on mine safety. Starne v. People, 222 Ill 189, 78 NE 61 (1906); Rogers v. St. Louis-Carterville Coal Co., 254 Ill 104, 98 NE 270 (1912); Fowler v. Johnston City & Big Muddy Coal & Mining Co., 292 Ill 440, 127 NE 31 (1920). This legislation must be liberally construed to make effective the legislative purpose — safety of coal miners.

Turning now to the specific issue in this case, more frequent inspection of gassy mines clearly may be equated with enhanced safety. Examination within four hours before entry of workmen on any shift, coal-producing or noncoal-producing, must decrease the hazard of this, an extrahazardous activity. Nothing in this record establishes or suggests a substantial difference in the exposure to danger between workmen on a coal-producing as distinguished from workmen on a noncoal-producing shift.

We are not, therefore, at liberty to read the language of the legislature as to draw a distinction in the degree of safety afforded miners as between the two categories. Thus, we read the language of subparagraph 1 of section 5.09(A) to be applicable, as it says, to workmen of any shift entering the underground areas. The language of subparagraph 4, as quoted, if read as the plaintiffs contend, as being applicable except to coal-producing shifts, would effectively negative the safety-producing language of subparagraph 1. The circuit court of Sangamon County properly construed the statutory language to reconcile the apparently conflicting provisions and to give effect to both sections. The judgment of that court is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Potter, Defendant-Appellant.
    Gen. No. 10,836.
    Fourth District.
    July 5, 1967.

      Schimmel & Schimmel, of Pittsfield (Albert W. Schimmel, of counsel), for appellant.
    Cecil J. Burrows, State’s Attorney of Pike County, of Pittsfield, for appellee.
   SMITH, J.

Found to be a sexually dangerous person under the provisions of our Sexually Dangerous Persons Act, 111 Rev Stats 1965, c 38, par 105-1.01 et seq., the defendant appeals from an order of the Circuit Court committing him to the custody of the Director of Public Safety as required by the Act. He levels a one-two punch against his conviction on the theory that he was deprived of his constitutional rights in that procedural due process and his privilege against self-incrimination were each denied him.

He was charged with the crime of public indecency. Ill Rev-Stats 1965, c 38, § 11-9. A warrant was duly issued and he was arrested. The arresting officer testified that he told the defendant why he was under arrest and that the defendant did not have to talk to him. The defendant said he didn’t need a lawyer, that he would not say anything he did not want to, and that he would go to the lady’s house to see if he was the right man. The complaining witness in the pending case was not at home and the officer then advised him that he had had several complaints about public indecency and exhibitionism and took him then to nine other young girls for purposes of identification. This occurred on May 19, 1966. On May 26, the State’s Attorney filed a petition charging the defendant with being a sexually dangerous person. On this same day he was taken into court and an order appointing two psychiatrists to examine him was entered. On June 3, he was taken to Quincy, Illinois, and examined by the two appointed psychiatrists. On June 7,1966, an attorney was appointed by the court to represent him. The reports of the psychiatrists were filed in court and the trial on the sexually dangerous persons charge began on August 12. The petition filed by the State’s Attorney alleged five different acts of exhibitionism occurring on various previous dates at various different places before various people. Defendant apparently talked freely to the psychiatrists and they both testified that the defendant told them in substance that he was charged with exposing himself to young girls; that he was under sentence and on probation for similar occurrences in Missouri; that he was unable to state why he did these things; that he was aware they were wrong, but was unable to control his behavior. Over objection, both were allowed to express the opinion that he was a sexually dangerous person. The defendant asserted in the trial court and here that prior to the appointment of his attorney, he was never advised by anybody of his statutory and constitutional rights in this proceeding.

It is conceded by the State’s Attorney that the information given to the psychiatrists by the defendant was self-incriminating and subjected him to possible multiple prosecutions under the Public Indecency Statute. Instead of prosecuting these, the State’s Attorney elected to file a petition under the Sexually Dangerous Persons Act setting forth five different circumstances or occurrences. We thus come face to face with a question of procedural due process and the constitutional privilege against self-incrimination.

Section 105-3.01 of the Sexually Dangerous Persons Act declares the proceeding to be civil in nature and our Supreme Court has so construed it. People v. Sims, 382 Ill 472, 47 NE2d 703; People v. Redlich, 402 Ill 270, 83 NE2d 736; People v. Capoldi, 10 Ill2d 261, 139 NE2d 776; People v. English, 31 Ill2d 301, 201 NE2d 455; People v. Jenneski, 36 Ill2d 624, 225 NE2d 19; People v. Nastasio, 19 Ill2d 524, 168 NE2d 728. Nevertheless, in these same cases, the Supreme Court recognized and imposed procedural safeguards normally applicable only where procedural due process in criminal cases is involved. The determination to be made under the Act is whether or not the defendant is suffering from a mental disorder. This is a status determination. Call them civil commitments if you will, nevertheless, their end result is incarceration, incarceration for an indeterminate time and until there is a probationary discharge or a final discharge based on recovery from the mental disorder. In construing a similar sex offender statute, the United States Supreme Court said: “These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 US 107, 15 L Ed2d 620, 86 S Ct 760, and to the Due Process Clause.” Specht v. Patterson, 386 US 605, 18 L Ed2d 326, 87 S Ct 1209. Justice dictates that the State should have the right to confine those who because of mental illness are a danger to the public welfare and safety. Justice likewise dictates that such confinement shall be only in proper cases and only in a proper manner. Specht states unequivocally that this includes the right to counsel. Our own Supreme Court has just recently stated that on a recovery petition under the Sexually Dangerous Persons Act, the defendant is entitled to both court-appointed counsel and a jury trial. People v. Capoldi, 37 Ill2d 11, 225 NE2d 634. This brings us to the question then as to what stage in the proceedings shall the defendant have an explanation of his rights and when shall his attorney be appointed.

In the instant case, counsel was not appointed until after the psychiatric examination. The defendant had not then been advised of his constitutional privilege against self-incrimination in his statements to the psychiatrists as our Supreme Court requires. People v. English, 31 Ill 2d 301, 201 NE2d 455. The hole in the bucket was plugged after the water had been pretty well drained out. In English, the State urged that the defendant could be fully protected by grant of immunity from criminal prosecution on account of any statements, self-inCriminating, made to the psychiatrists. Our Supreme Court repudiated this doctrine and stated that the removal of the constitutional privilege by grant of immunity is not for the courts but must be left to the Legislature. Posited in this factual and legal format, the defendant thus claims that the principles of Miranda v. State of Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602, are applicable to this proceeding.

Miranda articulates the requirements that must be met before statements made by a defendant in an in-custody interrogation are admissible against him in a criminal case. Decisionally, Miranda is restricted to a criminal case. It is urged by the State that Miranda should not apply to a proceedings such as this, civil in nature, and should be confined only to a criminal case in its specific pronouncements. It is urged that Miranda would be more appropriately applicable to criminal prosecutions arising out of criminal prosecutions for the underlying sex acts, occurrences, and transactions. Our Legislature has granted immunity from prosecution after discharge on any outstanding information or indictment which formed the basis by which the original commitment was made. Ill Rev Stats 1965, c 38, § 105-9. There is no purported protection against self-incriminating testimony based on other occurrences of sexual crimes not yet ripened into either an information or indictment. Thus, in the meantime, the defendant enjoys his indeterminate confinement awaiting a discharge when on these subsequent prosecutions he may then exercise his constitutional privilege against self-incrimination and then enjoy due process of law. The end result is a practical prostitution of constitutional rights and privileges. We have already observed that whether the commitment is civil or criminal, the strait jacket on the freedom of the individual is judicially imposed. Neither sound logic nor fundamental justice dictates that the constitutional protectives may be ignored in the one and must be followed in the other. In re Gault, 387 US 1, 18 L Ed2d 527, 87 S Ct 1428, the United States Supreme Court reviewed the Juvenile Court Act of the State of Arizona, recognized that its proceedings were denominated “civil” and held that the constitutional safeguards against self-incrimination nevertheless apply. The end result of such proceedings, the court said, is incarceration against one’s will whether it is called “civil” or “criminal.” The defendant was discharged. The end result under our Sexually Dangerous Persons Act is incarceration for an indeterminate period of time and is against one’s will. It is thus crystal clear to us that the road map laid down in Miranda must be followed in proceedings under our Sexually Dangerous Persons Act as to in-custody interrogation.

The defendant was in custody when this proceeding was instituted. He was entitled to his constitutional privilege against self-incrimination and to the appointment of counsel prior to psychiatric examination unless these rights were knowingly and understanding^ waived. This record shows no such waiver. Accordingly, this case must be reversed and remanded to the trial court for a new trial in accordance with the views herein expressed.

Reversed and remanded with directions.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold E. Trent and William E. Pfoutz, Defendants-Appellants.
    Gen. No. 10,854.
    Fourth District.
    July 5, 1967.

      Albert E. Hurt, Public Defender, of Decatur, and Glenn O. Fuller, Assistant Public Defender, for appellants.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

Defendants were jointly tried and convicted of the crime of armed robbery and were each sentenced to the penitentiary. Trial errors alleged as a ground for a new trial are as follows: (a) the trial court erred in refusing to suppress certain evidence obtained through an unreasonable search of the defendant’s automobile, (b) the court erred in admitting into evidence a prior conviction of the defendant Pfoutz which was not infamous, (c) that the pieces of tape used in the robbery were not properly identified and not properly traced through an unbroken chain of possession, and (d) that the defendants were not advised of their constitutional rights prior to a search and seizure of the automobile.

Two men held up the Redbird Service Station at gunpoint in Decatur about 11:00 p. m. on October 7, 1964. After obtaining about $170 from the attendant, he was taken into the back room of the station where his wrist and ankles were taped with adhesive tape. Around 2:00 in the early morning of October 8, the defendants were cruising around in the downtown streets of Springfield, Illinois. Police officers stopped them because a portion of the defendant’s rear license plate was obscured with mud. The defendant Trent, who was driving, could produce no driver’s license and was arrested for driving without a license. Defendant Pfoutz was also placed under arrest for allowing an unauthorized person to drive his automobile. Trent was immediately placed in a squad car and taken to police headquarters. After he left, Pfoutz got out of the automobile and talked with Detectives Wright and Lampkin. They testified that they asked him if it was o. k. to search his automobile and he said “go ahead.” Pfoutz denies this. In plain sight on the seat was a blue baseball cap. They also found a roll of adhesive tape, two pairs of sunglasses, and a pair of brown jersey gloves. None of the items mentioned were removed from the car at the time of the arrest and Pfoutz was permitted to drive his own car down to the police station in the company of a police officer. The items in controversy were not actually removed from the car until some time later the same afternoon. The station attendant testified that the man with the gun had on a pair of brown jersey gloves and was wearing sunglasses. The second man was about 21 years old, wearing blue wrap around bubble sunglasses, and a blue sportsman’s hat with a fish emblem in the center of the hat in front. The hat was light blue or powder blue. The police officers testified that when they first arrested the defendants on the street, they believed that they could have been the persons involved in the Decatur robbery. They also testified that the report they had was that the men were between 20 and 24 years old, one wearing toe clips or toe caps and both wearing sunglasses, one pair wraparound, and one wore a blue baseball cap. The search at the scene of the arrest revealed the items to which we have just referred.

Our statute pertaining to search and seizure provides that when a lawful arrest is effected, the police may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of: “(d) Discovering any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, an offense.” Ill Rev Stats 1965, c 38, § 108-1. Such search may be made without a search warrant. The police officers testified and the trial court found in his order denying the motion to suppress the evidence that the defendant Pfoutz, the owner of the automobile, consented to the search of the automobile at the scene of the arrest. The consequences of such a consent is concisely stated in People v. Harris, 34 Ill2d 282, 285, 215 NE2d 214, 215, as follows:

“Consent is a waiver of the constitutional privilege against unreasonable search, (People v. Henderson, 33 Ill2d 225; People v. DiGerlando, 30 Ill2d 544; People v. Fiorito, 19 Ill2d 246; Zap v. United States, 328 US 624, 90 L Ed 1477,) and where the evidence on the issue of consent is in conflict, this court will accept the finding of the trial court unless it is clearly unreasonable. (People v. DiGerlando, 30 Ill 2d 544; People v. Fiorito, 19 Ill2d 246; People v. Peterson, 17 Ill2d 513.) We cannot say that it was unreasonable to believe the officers’ testimony on the issue of consent. See People v. Henderson, 33 Ill2d 225.”

It is clearly established in Illinois that some traffic violations would justify a present search of the automobile. The total absence of license plates, People v. Berry, 17 Ill2d 247, 161 NE2d 315, or an obscured license plate upon a car being driven in the early morning hours, People v. Esposito, 18 Ill2d 104, 163 NE2d 487, could reasonably suggest a serious violation of the law. People v. Watkins, 19 Ill2d 11, 166 NE2d 433. The argument that the items were not removed from the car until later on in the afternoon of the same day suggests that the search originally was unreasonable is not well founded. These articles were discovered at the time of the original search and the automobile from that time on was then in the custody and possession of the police officers until the articles were removed. See People v. Jeffries, 31 Ill2d 597, 203 NE2d 396. In any event the consent given by the defendant to the search obviates any constitutional questions of illegal search and seizure. There is nothing in this record to suggest that the testimony of the police officers as to the consent is unreasonable and nothing that militates against the truth of their testimony. The trial court correctly denied the motion to suppress the evidence.

The defendants further argue that the consent thus given by the defendant Pfoutz is invalid for the reason that he was not previously advised of his constitutional rights against unreasonable search and seizure and was not advised of his rights to consult with an attorney prior to giving the consent. This contention is without merit for several reasons. The constitutional protection given by both the Illinois and the Federal Constitutions against unreasonable search and seizure is wholly different than the constitutional protection against self-incrimination. The suggestion that Miranda v. Arizona, 384 US 436, 16 L Ed2d 694, and its philosophy is applicable to illegal searches and seizures is without merit for the reason just stated and for the further reason that the Miranda decision was announced on June 13, 1966, while this case was tried in 1964. In Johnson v. New Jersey, 384 US 719, the Supreme Court held that the rule of Miranda did not apply to trials concluded before the date of the Miranda decision. A final reason why this point is not now before us is that it was not raised nor passed on in the trial court.

The defendants further contend that the admission of a prior conviction of Pfoutz in Iowa into evidence was error for the reason that the crime for which he was there convicted is not an infamous crime under the laws of the State of Illinois. Burglary is an infamous crime in Illinois. Ill Rev Stats 1965, c 38, § 124-1. Defendants contend that the Iowa conviction, denominated “breaking and entering,” is not comparable with or analogous to our burglary statute. The Iowa information charged that Pfoutz did break and enter the building of the Ruben Motor Company contrary to section 708.8 of the 1946 Code of Iowa. Our statute, chapter 38, section 19-1, Ill Rev Stats 1965, states “(a) A person commits burglary when without authority he knowingly enters . . . a building . . . with intent to commit therein a felony or theft. . . .” The defendants first urge that a charge of “breaking and entering” is not analogous to a charge of knowingly entering without authority. We must look to the gist of the offense in the foreign jurisdiction to determine whether the crime, if committed in Illinois, would be an infamous crime. People v. Witherspoon, 27 Ill2d 483, 193 NE2d 281. Surely the breaking and entering under the Iowa statute connotes and implies the same acts that our statute contemplates when it says “without authority he knowingly enters.” It seems clear to us that the same acts or conduct would establish either the Iowa charge or the Illinois charge and that on this point the gist of the charges is substantially the same. It is further urged that the Illinois statute requires as a material element of burglary that the entry be “with intent to commit therein a felony or theft.” Section 769 of the Iowa Code provides that the prosecutor may file an information charging an indictable offense endorsing thereon the names of the witnesses and a minute or summary of the evidence relating to the guilt of the crime charged which he intends to prove by the witnesses. The minute evidence of one A. F. Stewart in the Iowa case shows that the defendant at the time that he broke and entered was “looking for money or things of value.” Section 773.6 of the Iowa Code provides that these minutes serve as a bill of particulars to the defendant. It thus shows that the charge in Iowa would establish that there was an intent on the part of the defendant Pfoutz to commit a theft in the building. It seems to us that the charge for which he was indicted and convicted in Iowa is basically identical with the requirements of the Illinois statute on burglary, that such a conviction was a conviction of an infamous crime under the Illinois law, and that no error was committed in receiving this Iowa conviction into evidence for the purpose of impeachment.

In our judgment the tape offered in evidence was properly identified and a chain of proper protective custody established. The victim Ward removed the tape used to bind him, called the police and delivered it to Officer Chaney in a ball and all stuck together. Chaney then placed it in a brown manila bag after initialing it on two of the pieces. He placed a police I. D. tag on the package and placed it in the police evidence locker. He testified at the trial that two of the strips bore his initials and that People’s Exhibit 4B was the same tape that he had placed in the brown manila bag and attached the police I. D. marker. Sergeant Schawitsch testified that he removed a package with brown wrapping paper and a string around it from the evidence locker and gave it to Officer Miller. Miller testified that he received the brown paper wrapped up with the I. D. tag on it and delivered it to Officer Pitman. Pitman testified that he removed it from the package, that it was stuck together, and marked two places with Chaney’s signature. He placed the tape in a package with a partial roll of tape, wrote a letter and delivered it to his secretary for mailing to the F. B. I. The secretary testified that she mailed it. F. B. I. Agent Duckett testified that he received the package containing six strips of adhesive tape stuck together and a partial roll of tape. He separated the six strips, marked them, and the partial roll of tape. On the trial, he identified the various strips of tape and testified that they all came from the same roll. He also testified as to the ball of tape and to the initials of Detective Chaney. Under these circumstances, it is our judgment that the tape in evidence was properly identified and that its course of travel was properly traced through successive hands. F. B. I. Agent Duckett’s testimony makes it rather clear that there had been no tampering, alteration, or change in the tape by anyone.

It thus appears to us that the errors alleged in the trial of the case are without merit, and the judgment should be and it is hereby affirmed.

Affirmed.

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