text:
    Fred Bagat, Plaintiff-Appellant, v. Police Board of the City of Chicago, Franklin M. Kreml, Chairman of the Police Board of the City of Chicago, Paul W. Goodrich, et al., Members of the Police Board of the City of Chicago, Orlando Wilson, Superintendent of Police of the City of Chicago, and Department of Police of the City of Chicago, Defendants-Appellees.
    Gen. No. 52,043.
    First District, First Division.
    April 15, 1968.
    Rehearing denied May 7, 1968.

      Dante J. Taddeucei and Powers McGuire, of Chicago (Murray McGuire, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The Superintendent of Police sought the dismissal of the plaintiff, Fred Bagat, from the Chicago Police Department and filed charges with the Police Board of the City of Chicago. Bagat was alleged to be guilty of (1) conduct unbecoming a police officer, (2) drinking alcoholic beverages while in uniform whether on or off duty, (3) neglect of duty, and (4) incompetence.

A full hearing was held before the Police Board on all of the charges and Bagat appeared in person and was represented by privately retained legal counsel. At the conclusion of hearing all of the evidence, the Board made specific findings of fact as follows:

“8. Respondent, as charged herein, contrary to the rules and regulations of the Department of Police, was upon December 25, 1964, guilty of violation of Rule 374, Section 3 of the Rules and Regulations entitled ‘Drinking Alcoholic Beverages While in Uniform Whether On or Off Duty’ in that upon the date aforesaid the said Fred Bagat at 1730 hours was found to have an odor of alcohol on his breath and alcohol content was found in his blood as a result of a breathalyzer test.
“9. Respondent, as charged herein contrary to the rules and regulations of the Department of Police was upon December 25, 1964, guilty of a violation of Rule 374 of the Rules and Regulations entitled ‘Neglect of Duty’ in that upon the date aforesaid Fred Bagat failed to dictate a field case report to the recording center as prescribed by the Rules and Regulations of the Police Department and also upon the date aforesaid, the said Fred Bagat failed and neglected to make himself available for police service.
“10. Respondent, as charged herein, contrary to the rules and regulations of the Department of Police was upon December 25, 1964, guilty of a violation of Rule 374 Section 7 of the Rules and Regulations entitled ‘Neglect of Duty’ in that upon the date aforesaid the said Fred Bagat failed or neglected to respond to radio broadcasts at 1259 hours, 1304 hours, 1305 hours, 1313 hours, 1329 hours, 1330 hours, 1341 hours, 1406 hours, 1410 hours, 1421 hours and 1436 hours.
“11. Respondent, as charged herein, contrary to the rules and regulations of the Department of Police was upon December 25, 1964, guilty of a violation of Rule 374 Section 7 of the Rules and Regulations entitled ‘Neglect of Duty’ in that upon the time aforesaid the said Fred Bagat did not report to his station house at the termination of his tour of duty at 1630 hours.
“12. Respondent, as charged herein, contrary to the rules and regulations of the Department of Police was for a period of time from May 4, 1960 to December 25, 1964, guilty of violation of Rule 371A of the said Rules and Regulations entitled ‘Separation for Incompetence’ in that during the time aforesaid the said Fred Bagat was the subject of repeated disciplinary actions.
“13. Respondent, as charged herein, contrary to the rules and regulations of the Department of Police was upon December 25, 1964, guilty of violation of Rule 374, Section 5 of the said rules and regulations entitled ‘Conduct Unbecoming a Police Officer an Employee of the Police Department’ in that on or about the date aforesaid the said Fred Bagat violated Section 3 of Rule 374 and Section 7 of Rule 374 of the said Rules and Regulations as hereinabove stated further in paragraphs 7, 8, 9,10 and 11.”

The Police Board concluded that, “by reason of the findings of fact and of guilt herein, cause exists for the discharge of the respondent from his position as patrolman and as a member of the Department of Police of the City of Chicago,” and Bagat was thereby discharged. An administrative review action was brought to reverse the order of the Police Board, but the trial court affirmed the order of dismissal.

Bagat now prosecutes this appeal attacking only two of the Board’s six findings. First, he contends that the Police Board’s finding of fact number 8, that he was guilty of drinking an alcoholic beverage while in uniform is not substantiated by the evidence. Secondly, he argues that the finding that he was incompetent (number 12), was improper because that finding was based on Rule 371A of the Chicago Police Department and that rule is invalid. Rule 371A provides that a record of repeated disciplinary action by the Superintendent for minor infractions constitutes prima facie evidence of incompetence. This, defendant claims, denies him the right to face his accusers.

No challenge is levied against the Police Board’s findings of fact that Bagat failed to dictate a field report and to make himself available for police service (number 9), failed to respond to eleven different radio broadcasts (number 10), failed to report to his station house at the termination of his tour of duty (number 11), and was guilty of conduct unbecoming a police officer (number 13). These four unchallenged findings of fact are sufficient to form the basis of an order of discharge. Zinser v. Board of Fire and Police Commissioners of Belleville, 28 Ill App2d 435, 172 NE2d 33 (1961). Furthermore, we have examined the record and find that each of the Police Board’s findings is amply supported therein.

In DeGrazio v. Civil Service Commission of Chicago, 31 Ill2d 482, 202 NE2d 522 (1964), a police officer was charged with the violation of two Police Department rules. The Supreme Court held that one of the rules was invalid and sustained the officer’s contention as to the impropriety of the finding thereunder. However, the second finding, conduct unbecoming a policeman, was supported by the evidence presented to the Civil Service Commission. Even though only one finding of fact made by the Commission was sustainable upon review, the Supreme Court affirmed the dismissal order.

In Mitchell v. Sackett, 27 Ill App2d 335, 169 NE2d 833 (1960), a liquor license had been revoked based on two findings of fact. Upon review, one finding was held to be not supported by the evidence. This, however, did not invalidate the revocation order since the second finding of fact was sufficient to sustain a revocation order and was supported by the evidence.

Under the principles of DeGrazio and Mitchell it is unnecessary for us to respond to Bagat’s allegations that Rule 371A is invalid and the finding of drinking while in uniform is not supported by the evidence. Even if we were to agree with him on these points, the order of dismissal would be sustained on the basis of the other four fact findings.

We are requested, however, to remand this cause to the Police Board for a second determination as to whether, based upon the four unchallenged findings of fact, the Board would nevertheless discharge Bagat. In the complaint for administrative review the only remedy sought was a reversal of the Police Board’s order. We are fully aware that under the Administrative Review Act, the Circuit Court has the power to reverse and remand decisions of an administrative agency. Bagat’s theory that he is entitled to what in effect amounts to a rehearing because two out of six findings of fact are invalid, was not presented to the trial court and cannot be raised for the first time on this appeal. Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209 (1961).

For the foregoing reasons, the decision of the Circuit Court of Cook County, affirming the discharge order of the Police Board is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Beatrice Frazier, Plaintiff-Appellant, v. Dan Burks and Clarence Cummings, Defendants, and Virgus Mosby, d/b/a Mosley’s Lounge, and Theola Mosby, Defendants-Appellees.
    Gen. No. 52,568.
    First District, First Division.
    April 15, 1968.
    Rehearing denied June 12, 1968.
    Heller and Morris, and Jerome H. Torshen, of Chicago, for appellant.
    Elijah B. Kelley, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a four-count complaint, plaintiff sought recovery for personal injuries received in an automobile collision, allegedly caused by a drunken driver, defendant Clarence Cummings. Count I was based on the Dram Shop Act (Ill Rev Stats, c 43, ¶ 135) and was directed solely against defendants Mosby, tavern owners. At the close of plaintiff’s evidence, the trial court directed a verdict in favor of the Mosbys stating, “The record is totally devoid of any evidence of consumption of the half-pint of whiskey the defendant Mrs. Mosby, testified she sold to the alleged intoxicated person.”

Plaintiff appeals on the theory that Cummings was unavailable at the time of the trial, and the trial court improperly refused to admit in evidence, on behalf of plaintiff and against the Mosbys, an alleged written declaration against interest made by Cummings three days after the occurrence. Plaintiff asserts that the “admission of the declaration against interest clearly would have brought before the trial court sufficient evidence to compel this cause to be submitted to a jury.”

Plaintiff’s evidence shows that on the afternoon of Saturday, June 3, 1961, plaintiff was a passenger in a northbound car on Wentworth Avenue at 48th Place in Chicago, and defendant Cummings was driving his car south on Wentworth. The Cummings’ car struck another southbound car in the rear, bounced off it and entered the northbound lane, where it collided head on with plaintiff’s car, and plaintiff was injured.

Defendant Burks, the driver of the other southbound car, testified that after the occurrence he noticed that Cummings had bloodshot eyes, was staggering around and had an odor of alcohol.

Defendant Theola Mosby, called as an adverse witness, testified that Cummings was a “regular customer” at the Mosbys’ tavern. On the day of the occurrence, at 12:45 p. m., Cummings entered the tavern and purchased a half-pint of Scotch Whiskey and left, and did not return.

Defendant Cummings was not present at the trial, and plaintiff sought to introduce into evidence a written statement made by Cummings. Plaintiff’s witness Irving Schaffner testified that he took the statement from Cummings in his home and in the presence of Mrs. Cummings. He had them both read it, and they both signed it in his presence. The court ruled that the statement was not admissible in evidence against the Mosbys. The document was read into the record as part of an offer of proof and includes the following:

“On Saturday, June 3, 1961, about 1:00 p. m. I left my apartment and drove my 1959 Buick Sedan over to Mosley’s Lounge located at 4425 South Wells Street. I was alone and after I walked into the tavern I met Isiah Banks, Walter Banks and a fellow named Wolf. We sat down in the first booth from the front door and we ordered a couple of half pints of Ballentine Scotch. We sat there drinking and talking for awhile. A little after 7 P. M. I figured I had plenty to drink and decided to get home. I managed to get into my car and my head was spinning. I vague [ly] remember driving south on Wentworth Avenue, and suddenly there was a car ahead of me. The next thing I remembered was loud crashing noises. Later a policeman told me that I had hit two cars. He asked me if I had been drinking liquor and I told him that I had and where I drank it at.
“I have read the above statements on June 6, 1961 at 7 P. M. in my apartment in the presence of my wife and believe them all to be true.
“By: Clarence Cummings.
“Witness: Mattie Cummings.”

Later, another witness for plaintiff, Julian Burkman, testified in detail as to his attempt to serve a subpoena on defendant Cummings during the week previous to the trial, and that he had not been able to find Cummings.

The court again denied plaintiff’s motion to admit the statement and stated, “It is the court’s judgment, that the statement may be admitted as to the defendant Cummings as an admission against interest. It would be error to admit it generally, and thereby bind the dramshop defendants, Mr. and Mrs. Mosby.” The court then sustained the defendants Mosbys’ motion for a directed verdict on the ground that there was no evidence of consumption of the liquor admittedly sold to Cummings.

On appeal, the defendants Mosbys contend that the statement of Cummings was inadmissible as evidence against them because their alleged liabilities were not joint, and they were not master and servant or principal and agent, and an admission or declaration made by a defendant, out of the presence of the codefendant, is not admissible against the codefendant. Authorities cited include Pellico v. Jackson, 70 Ill App2d 313, 217 NE2d 281 (1966); 18 ILP, Evidence, § 152. We have examined defendants’ authorities and do not consider them to be in point in this case.

The authorities on the admissibility of declarations against interest made by third persons indicate that such declarations are admissible in evidence where the declarant is unavailable and not in privity with the party against whom the declaration is sought to be used.

In 29 Am Jur, § 617, it is said (p 670):

“C. DECLARATIONS AGAINST INTEREST
“An important exception to the hearsay rule renders admissible in evidence relevant declarations against interest by one not a party nor in privity with a party to the action, where the declarant has since died or is not available as a witness, even though there is no opportunity to confront the declarant or to cross-examine him. The theory under which declarations against interest are received in evidence is that the necessity of the occasion renders the reception of such evidence advisable, and further, that the reliability of such declarations is generally to be depended upon, since a person does not ordinarily assert facts which are against his own interest. A declaration against interest is admissible as an entirety, including parts not against interest, if the latter are substantially connected with the same subject matter as that covered by the part against interest. The reason why this is so is that the portion which is trustworthy, because against interest, imparts credit to the whole declaration.”

In 31A CJS, Evidence § 217, it is said (p 600):

“In general.
“As an exception to the hearsay rule, declarations against interest are admissible under certain conditions, and may be admissible as proof both of facts directly asserted and of facts incidental thereto and within the scope of the declaration.”

At page 602:

“Such evidence is competent and admissible even though declarant is not a party, or in privity with a party, to the action or proceeding. The statement to be admissible as a declaration against interest need not be made to a person adverse to declarant. It may also be made to one united in interest or to a neutral party.
“While it has been stated that this class of evidence is not favorably regarded, the objection thereto concerns its weight rather than its competency.”

Authorities in Illinois include 18 ILP, § 114, p 253:

“Declarations Against Interest
U
“A declaration which is contrary to the interests of the declarant is ordinarily admissible if the declarant is unavailable as a witness, on the theory that he would not have made the statement unless it was true. The fundamental distinction between a declaration against interest and an admission is the fact that with respect to the former, the declarant must be unavailable as a witness.”

Cleary, Handbook of Illinois Evidence, § 17.22 (2nd ed, 1963) states the rule and its rationale:

“The assumption that people do not make false statements against their own interests furnishes the basis for admitting declarations against interest by third persons, as an exception to the Hearsay Rule.
“The requirements for this exception are: (1) the declarant is unavailable; (2) the declaration was against his pecuniary interest when made; (3) the declarant had competent knowledge of the fact declared ; and (4) the declarant had no probable motive to falsify.”

See, also, Levy v. American Automobile Ins. Co., 31 Ill App2d 157, 164, 175 NE2d 607 (1961); Sidwell v. Sidwell, 75 Ill App2d 133, 140, 220 NE2d 479 (1966).

Examining the Cummings’ statement in the light of the foregoing authorities, we believe it met the four requirements set forth by Cleary, and it was admissible in evidence on behalf of plaintiff and against the defendants Mosbys.

For the reasons given, the judgment in favor of the defendants, Virgus Mosby and Theola Mosby, is reversed and the cause is remanded for a new trial, with directions to proceed in accordance with the views expressed herein.

Reversed and remanded with directions.

BURMAN, P. J. and ADESKO, J., concur.


text:
    Sally A. Kocis, Plaintiff-Appellee, v. Valentine W. Kocis, Defendant-Appellant.
    Gen. No. 52,349. (Abstract of Decision.)
    First District, Second Division.
    April 16, 1968.
    Arthur George, of Chicago, for appellant;
    Chester L. Chowaniec, of Chicago, for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John L. Bush and Luther W. Miller, Defendants-Appellants.
    Gen. Nos. 51,214, 51,215.
    First District, Second Division.
    April 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendants, Luther W. Miller (age 19) and John L. Bush (age 25), join in a consolidated appeal from their convictions, upon pleas of guilty, for the offense of armed robbery predicating their theory solely upon the excessiveness of the sentences imposed upon them by the trial court. They offer in support thereof the contention that the trial judge acted summarily and without aid of a hearing in aggravation and mitigation of the offense as was required of him by section 1-7 (g) of our Criminal Code. Defendants request accordingly that, pursuant to the powers available to this court by virtue of Supreme Court Rule 615, their sentences be vacated and the cause remanded with directions to conduct such a hearing, or alternatively, that their sentences be reduced on the record before us as arbitrary and harsh.

In response the State submits that the practical consequence of the post-conviction proceeding conducted by the court below was, among other purposes, to in fact provide defendants with a full and formal hearing in aggravation and mitigation of their crime. The State also takes the position that inasmuch as the sentences entered were within the limits prescribed by the governing statute, the imposition of same by the trial judge must be deemed, absent a contrary showing, as within the legitimate bounds of sound judicial discretion, particularly in view of the gravity of the offense involved.

The facts giving rise to the instant cause concern themselves with the armed robbery of approximately $34,000 in cash from two Brinks guards in the process of making a money delivery to the R. R. Donnelly Company in the City of Chicago on August 19, 1966, at which establishment it appears that defendant Bush had been formerly employed. Defendants were apprehended by the authorities the very next day and identified in separate lineups as the offenders. Prolonged police investigations, however, succeeded in recovering but approximately $22,000 of the secreted proceeds.

Defendants were jointly indicted and arraigned upon the charge of armed robbery, each entering his respective plea of not guilty by counsel. Thereupon, the cause was set down and proceeded to trial on December 2, 1966. On that date, at the requests of counsel for defendants, Philip Basvic (privately retained counsel for Bush) and Jerome Wexler (Assistant Public Defender representing Miller), an impromptu pretrial conference of unknown duration was conducted off the record for the subsequently acknowledged purpose of negotiating pleas of guilty to the charge, and as a prelude to which the trial judge admonished defendants in the following manner:

"... [do] you understand that in this conference which your attorney, . . . has requested, that we will learn all about you; that is, I will, from your attorney and from the State’s Attorney, I will learn about your background, about your record, if you have any, and about the facts in this case. Do you understand that?”
Answers: “Yes.”

The conference being adjourned, defendants returned to open court and announced their respective pleas of guilty to the offense in question.

Immediately following, the court ordered further proceedings to ascertain the precise factual context for the commission of the crime itself as well as in regard to the subsequent events culminating in defendants’ arrests and acquisition of the money. This necessary material was supplied to the court by means of certain stipulations between counsels, offers of proof and the testimony of several witnesses, including that of defendants themselves. It was at this point that the court rendered formal findings of guilt, ordering that judgments be entered on his findings. Sentencing however was continued until further hearing on December 22nd, on the court’s own motion, to facilitate additional investigation into the apparent and unexplained absence of in excess of $12,000 of the robbery proceeds. The judge advised defendants that the stay would similarly provide them with an extended opportunity to inquire into and verify their purported lack of knowledge as to the whereabouts of the missing funds, the court remarking:

“And depending upon the outcome of my determination of those facts will depend on the severity, or lack thereof, of the sentence I am going to impose upon these two defendants. You are both going to the penitentiary, you know that.”

Contrary to defendants’ suggestions however, it would appear from our examination of the Report of Proceedings of December 22, 1966, that such hearing was not as limited in scope of inquiry as that comment from the bench would alone indicate. Notwithstanding that hearing’s otherwise ostensible purpose, we think it can be fairly concluded that defendants were afforded therein full and ample opportunity to present matters in mitigation of their conduct.

The material portions of the applicable statute (Ill Rev Stats (1965) c 38, par 1-7(g)) provides in this regard:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.” [Emphasis supplied.]

In aid of our construction of the statute, we have no quarrel with defendants or their authorities to the extent that a trial judge cannot foreclose upon a legitimate attempt to introduce matters in mitigation, nor single out from the statute’s requirements an offender who has pled guilty to his particular crime, as the fundamental duty remains incumbent upon the court to apprise itself of that information which is available and relevant to his determination of the appropriate duration of imprisonment.

We are, nonetheless, of the disposition that defendants were permitted those presentencing opportunities to submit evidence in mitigation of their acts as would be in full compliance with the dictates of section 1-7 (g). A perusal of that latter hearing of December 22nd discloses that the court, by stipulation, was aware of defendants’ comparatively youthful ages, emphatic argument being directed therein at the amateurish and almost jestful manner in which the offense had been effectuated. To account for their clients’ inability to explain their disposition of the undiscovered money, their attorneys alluded to defendants’ prior testimony to demonstrate to the court that the defendants in the span of one day, flaunted their new found wealth by indiscriminately distributing bundles of wrapped paper currency in varying denominations to numerous friends.

Notwithstanding the court’s professed distrust of polygraph examinations, counsel for Bush was permitted considerable latitude to offer and have read into the record the favorable results of a lie detector test to which his client had consented to corroborate his account of the missing proceeds. The court similarly was requested to note and consider that Bush suffered from a physical handicap (loss of leg), heard argument relative to his continued cooperation with the authorities, and received comment as to the absence of felonies in Bush’s criminal record, although that record was never introduced.

Counsel for Miller pointed to Bush’s superior age and former employment at the Donnelly Company to stress his client’s passive participation in the offense. It was submitted that Bush had planned and was the “brains” behind the occurrence. Reiterating Miller’s absence of knowledge as to the whereabouts of the $12,000, counsel apprised the court in his behalf that his criminal record indicated only “petty theft, shoplifting, and things of this sort,” again that record not being introduced into the proceedings. While a probation report on defendant-Miller had been ordered prepared by the court, no such report as to either defendant was ever offered into the record. This was the extent of the evidence and argument offered in mitigation of the offense.

At this juncture the trial judge delivered a brief statement in answer to that argument, manifesting his dismay over defendants’ apparent disregard for human life by confrontation of two armed guards while themselves carrying loaded revolvers. The judge then sentenced defendant-Miller to a term of from not less than seven (7) nor more than twelve (12) years and defendant-Bush to a term of from not less than ten (10) nor more than fifteen (15) years, both sentences to be served in the Illinois State Penitentiary, and from which defendants bring this appeal.

Lest we are prepared to hold that a defendant can no longer meaningfully avail himself of the relief by reduction of sentence made obtainable by Rule 615 (Ill Rev Stats (1967) c 110A, par 615), we must necessarily presuppose that the statute places upon him the duty of providing the trial court with adequate and persuasive evidence in mitigation of his crime.

While the events transpiring during the pretrial “plea bargaining” conference are themselves open to conjecture, the admonishing remarks of the court made immediately prior thereto would nonetheless serve to indicate the trial judge’s cognizance of the burden thrust upon him by the statute, to afford the opportunity to apprise the court of the salient elements indicative of a possible rehabilitation of the defendants. Defendants’ authorities of People v. Smice, 79 Ill App2d 348, 223 NE2d 548 (1967) and People v. Mace, 79 Ill App2d 422, 223 NE2d 725 (1967) furthermore find no application in the case at bar, as the record from the instant post-hearing proceeding demonstrates that, in fact, numerous and different circumstances were permitted to be argued before the court in behalf of defendants without objections or restrictions.

Significantly, defendants do not aver that any motion or request such as for a presentencing investigation or offer of proof, was ever denied them by the court below, nor do they purport to now advance some fact of an ameliorating nature to evidence defendants’ good char-actor, facts we might add, which they claim were prejudicially absent from the hearing in the trial court. By our interpretation of their position, defendants, in effect, endeavor to gain by their own inaction below. While the State does not attempt to suggest that defendants thereby waived the benefits of further hearing in the matter as was the point in issue in People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331 (1966), defendants’ contention taken in this light must be viewed with disfavor.

Where, as here, the court possessed sufficient evidence with which to arrive at an intelligent determination, we do not think the statute makes the trial judge chargeable with the duty of proceeding ex parte by independent examination in search of additional data relative to the offenders’ environmental histories. People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1968).

Defendants were represented in the trial court by competent counsel and no claim is leveled at their mishandling of their case. In such an instance, we do not feel defendants can complain of the absence or inadequacy of favorable argument in mitigation of their crime, which information, if in fact favorable, certainly would have been peculiar to their own knowledge. Involving somewhat related circumstances, we think the case of People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1965) most expeditiously disposes of the point defendants urge. There the court stated:

“ . . . the statute places the burden for the hearing where it properly belongs: upon the party who has evidence to present. We see no solid reason why-section 1-7 (g) of the new statute should be given a different interpretation or why the burden of seeing that there is a mitigation hearing should be shifted from the defendant to the court. If the defendant has been of good moral character and his past life free of guilt, or if there are extenuating circumstances, family history, educational, health or occupational background which might favorably affect the punishment about to be imposed, the defendant should be eager to make this known to the trial court.
“ . . . Adequate information about the defendant is of help to a court of review when a request is made for a reduction of sentence, but the power to reduce sentences benefits only the defendant and the information should be supplied by the defendant. If a defendant has a clean record and a good reputation and if there are circumstances which mitigate or explain his involvement in the crime for which he stands convicted, he has the privilege to bring these factors to the attention of the trial court and, through the record, to the reviewing court if an appeal is taken. It should not be the responsibility of the trial court to initiate the inquiry or to insert material into the record so that a defendant may possibly benefit from it on appeal. The obligation to preserve matters in the record which are relied upon to reverse a judgment should remain with the party who seeks the reversal. . . .”

People v. Thurman, 76 Ill App2d 41, 221 NE2d 798 (1966); People v. Hohmann, 72 Ill App2d 374, 219 NE2d 621 (1966).

Finally, as to defendants’ alternative prayer for reduction of their sentences, the court must similarly take a negative stand. Our authority to reduce sentence is a power exercised only from within the realm of caution and circumspection inasmuch as we are asked thereby to pass in judgment upon the determination of the trial judge, who resides clearly in the superior position to evaluate such matters during the course of the proceedings before him. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965). Accordingly, Supreme Court Rule 615 is not held to sanction the reduction of a sentence within statutory limits unless first shown by the attacking party to be either manifestly excessive or of extreme departure from the underlying rationale for our system of penology. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965). This defendants have failed to do. While defendants were shown to be youthful, amateurish offenders with nonfelonious criminal records, when viewed against their possible propensities to inflict grievous bodily harm or death, and failure to produce the missing money, we cannot say that the trial judge abused his discretion in imposing the sentences.

For the above reasons, the judgments are affirmed.

Judgments affirmed.

BURKE, P. J. and MCNAMARA, J., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Defendant in Error, v. Julius Brown, Plaintiff in Error.
    Gen. No. 51,920.
    First District, Fourth Division.
    April 17, 1968.

      John R. Sullivan, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Unlawful sale of a narcotic drug.

Judgment

After a bench trial, defendant was found guilty and sentenced to a term of eleven and one half years to twenty years.

Contentions on Appeal

(1) Entrapment.

(2) The substance received in evidence was not proved to be heroin as defined by statute.

(3) The chain of possession of the alleged narcotic was not sufficiently established.

Evidence

Thomas E. Manson, for the State.

On March 6, 1962, he was a narcotics inspector for the State of Illinois. On that date he met John Melkonian, who he believed was an addict. Melkonian was in the employ of the State Narcotics Bureau at that time, receiving payment for information and services.

The two men drove to the area of 1642 West Warren Boulevard, where Melkonian left the car and entered a building. About fifteen minutes later he returned to the car. After another five minutes defendant emerged from the building and entered the same car.

Melkonian introduced Manson to defendant as “Joey from Melrose Park.” In reply to defendant’s inquiry as to what he wanted, Manson requested “half a sixteenth,” whereupon defendant asked for $20, which Manson gave him.

They then drove to Orchard and Clybourn Avenues where defendant left the car, returning some fifteen minutes later with a small aluminum foil packet which he gave to Hanson. Defendant was driven back to the Warren Boulevard address.

Hanson and Helkonian proceeded to Laflin and Hadison Streets where Hanson opened the foil packet and made a “field test” of the white powder inside for the presence of narcotics. There was a reaction. Hanson retained possession of the foil packet and the powder until the following day when he took the powder from the packet, poured it into a glassine bag, weighed it, and initialed the bag and the aluminum foil wrapper. Both articles were sealed in a lock-seal envelope. Later that day he delivered this envelope to the United States Chemist.

John Melkonian, for the State.

His testimony substantially corroborated that of Hanson.

Donald Norton, for the State.

He was also a State narcotics inspector. He picked up two sealed envelopes, stapled together, from the United States Chemist’s office on the day of the trial, and brought them to court.

John D. Endriz, for the State.

He was Assistant Chief Chemist employed by the United States Treasury Department. In the regular course of business a sample would be received at the laboratory, stamped with a laboratory number, and logged in the journal. It would then be taken to the narcotics section and placed in a trough with other samples.

The first time he saw the lock-seal envelope which Hanson had delivered to the laboratory was on Harch 9. He got the envelope from the trough, broke the seal, subjected the powder in the glassine bag to laboratory analysis, and placed the remainder of the powder and the foil in another envelope which he sealed and stapled to the torn lock-seal envelope in which the same had been delivered to the laboratory. These envelopes were then placed in the vault until picked up by Inspector Norton.

Based on the laboratory tests which he performed, Endriz gave his opinion that the white powder contained heroin. On cross-examination he stated that the white powder could have been a synthetic heroin derivative, as he had not tested the material for synthetic character. The reaction observed by Hanson when he made a “field test” of the powder indicated, though not conclusively, the presence of some sort of derivative of opium or morphine.

Endriz identified both envelopes, the glassine bag, and the aluminum foil wrapper as the same articles he had seen in the laboratory on March 9. In so testifying, he relied on the various identification marks which had been placed on the envelopes.

Opinion

(1) Defendant’s claim of entrapment is untenable. There is no evidence that the narcotics inspector did more than follow the commonplace, approved procedure of affording defendant an opportunity to commit the crime. Ill Rev Stats (1961), c 38, § 7-12; People v. Washington, 81 Ill App2d 162, 167-171, 225 NE2d 472, and cases there cited. Since the State’s evidence did not raise the issue of entrapment, and since this is an affirmative defense, the burden rested on defendant to introduce some evidence of entrapment before he could require the State to undertake proof of its negative. Ill Rev Stats (1961), c 38, § 3-2. This he did not do, electing, instead, to present no evidence whatsoever.

Furthermore, not having interposed the defense of entrapment in the trial court, defendant may not be heard to urge it on review. People v. Redding, 28 Ill2d 305, 192 NE2d 341; People v. Outten, 13 Ill2d 21, 147 NE2d 284.

(2) Defendant contends that the substance in evidence at the trial was not proved to be a narcotic drug as defined in the statute. Ill Rev Stats (1961), c 38, § 22-2 (r) (4). However, Hanson testified that when he made a “field test” of the powder, he saw a reaction. Endriz, the chemist, testified that this reaction indicated the presence of an opium or morphine derivative. Also, Endriz testified that, on the basis of the laboratory analysis, he believed that the powder contained heroin, even though he did not make a test to determine whether or not it had been synthetically produced.

In People v. Harrison, 26 Ill2d 377, 186 NE2d 657, the court affirmed a conviction for the unlawful sale of a narcotic drug where the only evidence establishing the substance as a narcotic drug was the positive reaction to a “field test,” and testimony that the substance was represented to be a narcotic at the time of sale.

More specifically, this court, in People v. Smith, 52 Ill App2d 321, 202 NE2d 63, held that:

The unlawful sale of heroin, of itself and without any showing that the substance is opium or a derivative of opium, is sufficient to subject the seller to criminal penalties under the Uniform Narcotic Drug Act. The obvious intent of the statute is to prohibit the unlawful sale, not only of any compound, manufacture, salt, derivative, mixture or preparation of opium, but also morphine, codeine, and heroin.

We believe this conclusion to have been a sound one, based upon the same statutory definition as is applicable in the instant case, namely,

“Opium” includes morphine, codeine, and heroin, and any compound, manufacture, salt, derivative, mixture, or preparation of opium, .... Ill Rev Stats (1961), c 38, § 22(r) (4).

The sale of heroin is thus proscribed regardless of whether it is derived from opium or produced synthetically.

(3) Finally, defendant contends that chain of possession of the narcotics was not shown to have been unbroken. Defendant points to the period between the time of the arrest and the time when Hanson sealed the articles into the lock-seal envelope. Defendant further claims that the proof did not cover breaches in the chain occurring between the time the envelope was delivered to the laboratory and the time Endriz analyzed the powder, and between the time Endriz placed the envelopes in the vault and the time Norton called for them.

However, Hanson testified that the articles were in his possession from the time he received them until he delivered them to the laboratory sealed in the lock-seal envelope. Endriz testified that this envelope was sealed and showed no signs of tampering when he opened it at the laboratory. He then broke the seal, analyzed the powder, and replaced all the items in another sealed envelope, attaching the first envelope to the new one.

The procedures followed in the handling of the narcotics samples in this case were approved in People v. Webb, 60 Ill App2d 365, 208 NE2d 639; People v. Norman, 24 Ill2d 403, 182 NE2d 188; and People v. Anthony, 28 Ill2d 65, 190 NE2d 837. Therefore, the question of whether continuity of possession was established beyond a reasonable doubt rests on the credibility of the witnesses Hanson and Endriz, a matter essentially for the trial judge. We find no basis for disturbing his conclusion in this case.

The judgment of the Circuit Court is affirmed.

Affirmed.

HcCORHICK, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Marquis Who’s Who, Inc., Browne & Storch, Inc., Philip Berman, Louis Berman & Co., Hibbard, Spencer, Bartlett & Co., E. W. Murdock, J. Murdock, Cinema Processors, Inc., Chicago Dock Canal Trust, A. Bartimoccia, The Greater North Michigan Avenue Association, and Howard L. Storch, Plaintiffs-Appellants, v. Ohio-St. Clair Garage Corporation, Women’s Athletic Club of Chicago, Harris Trust & Savings Bank, Trust No. 14455, Baird and Warner, Inc., Gertrude K. Hamilton, Lake Shore National Bank, Arthur T. Galt, et al., Benjamin E. Sherman and Son, B. E. Tewes, Time, Incorporated, H. W. Sherman Corporation, Normlyn Corporation, First National Bank, State Bank and Trust Company, M. S. Sharp, 218 E. Ontario Building, C. Bonas, S. Magglos, J. Meyers, H. Gilden, Brokers Building, Bowes Realty Company, Commerce Mart, Zoning Board of Appeals of City of Chicago, B. Emmet Hartnett, John P. Kringas, Hubert F. Messee, Karl M. Vitzhum, Sidney Smith, Building Commissioner of the City of Chicago, and Sam D. Kaplan, Defendants-Appellees.
    Gen. No. 52,270.
    First District, Fourth Division.
    April 17, 1968.

      King, Robin, Gale & Pillinger, of Chicago (J. William Braithwaite and Leroy J. Tornquist, of counsel), for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), and Oscar M. Nudelman, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiffs appeal from a judgment entered in an administrative review in the Circuit Court upholding the decision of the Zoning Board of Appeals of the City of Chicago which granted a special use to the Ohio-St. Clair Garage Corporation. Defendants contend that plaintiffs have not established that they were adversely affected by the decision of the Zoning Board of Appeals and therefore were not entitled to challenge the decision by way of administrative review. Plaintiffs argue that they were entitled to an administrative review and that the decision of the Board should be reversed and plaintiffs given a new hearing because one of the four votes necessary to grant the special use was cast by a board member who was not present at all the proceedings. Plaintiffs also urge that the court erred in refusing to call the Chairman of the Board of Appeals as a witness.

To obtain an administrative review plaintiffs must prove that they are adversely affected by the decision of the Board (Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill App2d 447, 451, 154 NE2d 323) and that they have suffered a “special or peculiar injury.” 222 E. Chestnut St. Corp. v. Board of Appeals of the City of Chicago, 14 Ill2d 190, 152 NE2d 465. Defendants assert that no such injury has been shown.

Defendant Ohio-St. Clair Garage Corporation applied for a variation in the nature of a special use to the Zoning Board of Appeals on June 2, 1966, proposing to build a four-story parking facility on the southwest corner of Ohio and St. Clair Streets. The first floor was to contain retail stores and the top three floors were to be devoted exclusively to parking. Plaintiff Howard L. Storch of Browne & Storch, a real estate firm which owned and managed a number of properties in the area, sent the Board a letter objecting to the proposed use because it would create traffic congestion and would block the proper development of the area. The Board also received letters authorizing Storch to object on behalf of the St. Clair Hotel (located directly across the street of the subject property) and Louis Berman & Co. (owners of nearby property). Others of the plaintiffs also communicated with the Board. Marquis Who’s Who, Inc., sent an objection virtually identical word for word to that sent by Storch. The Greater North Michigan Avenue Association wrote the Board objecting to the manner of construction of the proposed facility and stated that: “We . . . will work energetically with . . . the applicant ... to upgrade the present parking structure proposal . . . .” Later the Association, of which Howard L. Storch is a vice-president, wrote letters suggesting that the site be used for a business or residential structure with off-street parking included and objecting to the construction of a building which would house a parking facility exclusively. The Board also received letters from the Chicago Dock & Canal Trust and Bowes Realty Co.

A hearing on the special use application was set for June 30, 1966. One of the five board members had died, creating a vacancy on the Board which was not filled during the proceedings involved here. All four of the remaining board members were present on June 30 and voted to continue the hearing until September 14. At the hearing held on September 14 Chairman B. Emmet Hart-nett was absent and the hearing was conducted by the three remaining board members. The Board met with the same three members on September 16 and again on November 22, when it passed a resolution approving the special use application. Although Chairman Hartnett was absent from these meetings, according to the minutes of the Board he “concurred in taking the action designated on the face of the resolutions.”

At the hearing of September 14 the objectors presented four witnesses in support of their objections. Howard L. Storch stated that he had been in the real estate business in the area of the subject property for thirty-eight years and that this special use would substantially damage the surrounding property because it would start a precedent for gasoline stations and because it would take up one of the few remaining plots, thereby stopping the proper development of the area. He also testified that the parking facility would cause traffic congestion, create safety hazards and attract vagrants and that although such facilities were appropriate to the area west of Michigan Avenue they were incompatible with the properties to the east. He said that he had offered to buy the property in question and lease it back for a parking lot. One of the board members referred to a letter on file with the Board which Storch had written to the president of the applicant corporation stating:

I am sure it would be far better for you to let us negotiate a ground lease with one of the major developers, making a condition of this transaction a long-term lease on large garage facilities in its base; this would provide you both with the profit of the garage operation as well as income from the land; in effect, you can have your cake and eat it too!

Carl Gardner testified that he was a city planning and zoning consultant. He asserted that the proposed use was incompatible with the surrounding uses; that it would create backups onto Michigan Avenue and that this use would interfere with the proper development of the area. On cross-examination he said that the best use for the land would be for a highrise apartment with parking built into the structure.

Kenneth Anglemire, president of Marquis Who’s Who, Inc., which owns the property diagonally across from the subject property, said that the proposed use would impair the value of his company’s building because it would interfere with the type of development which is expected to be carried over from Michigan Avenue and because it would create a pedestrian hazard.

Philip Berman, president of Louis Berman & Co., stated that he agreed with the testimony of Anglemire and that the garage exits would stop people from walking on this street, cheapen the neighborhood and hurt retail business on Michigan Avenue.

The applicant offered the testimony of four witnesses. Sam D. Kaplan, president of the applicant, stated that he talked to Philip Berman and was told that Mr. Berman himself had no objection but was just going along with the property owners association. He said that he also talked to Leo Wallach of the St. Clair Hotel and was told that he saw no objections to the garage and that in fact the hotel needed a garage but that he would want to talk to someone else before committing himself. Kaplan further testified that there was a need for parking in this area and that the cars would be hidden from view by precast metal grill work.

Norman Kraemer testified that he was the operator of the city parking facility located one block away at Grand and St. Clair. He said that there was a growing need for parking in the area and that this need would soon be increased because certain parking facilities, which he named, were giving way to the construction of buildings eliminating facilities for 750 cars.

William Horowitz testified that he was an architect and had drawn plans for the proposed garage. He said that the building would use architecturally finished concrete and that through use of concrete parapets and aluminum screening devices the parked cars would not be visible from the street.

John J. Mack testified that he was a real estate developer and was familiar with the area in question. He said that Kaplan had come to him for suggestions on how to best develop the subject property and that he had advised Kaplan that a multistory apartment building was not economically feasible. He said he based his estimate on a 248-unit building. Mr. Mack stated that the contemplated parking facility would not hurt the area and that it was more attractive than many buildings already there.

Plaintiffs have argued that they will be adversely affected by this special use because of pedestrian hazards, interference with the development of the area and traffic congestion. Although both Anglemire and Berman asserted that this garage would constitute a pedestrian hazard, neither was an expert nor was any reason advanced by them for this conclusion. Storeh’s assertion that the garage would attract vagrants is equally without evidentiary support. Storch and Gardner testified that this use was incompatible with the proper development of the area. However, the Chicago Department of Development and Planning, which is required to make recommendations to the Board on all special use applications, approved this use. The real estate developer John Mack said that he saw no incompatibility between this use and the surrounding property. Kaplan and Kraemer testified that there was a positive need for parking facilities in the area and there was no testimony to the contrary. Finally, the objectors asserted this use would cause traffic congestion. However, the Chicago Department of Streets and Sanitation submitted a written report stating: “We have no objections from a traffic standpoint . . . .” We also note that Storch was willing to have a ground level parking lot there and both he and Gardner favored a high-rise building with built-in-garage facilities. Furthermore, in Exchange Nat. Bank v. Village of Skokie, 86 Ill App2d 12, 229 NE2d 552, in considering a contention that an auto laundry would cause more traffic congestion than other business uses, we stated at page 20:

The traffic on Skokie Boulevard was shown to be 16,000 cars per day, whereas plaintiff’s proposed operation would involve 200 to 300 to possibly 500 cars per day. It should be noted, however, that there is no evidence that the auto laundry would introduce into the area any substantial volume of traffic not presently there as through traffic or as a result of existing patronage of the other businesses in the area. We find defendant’s argument on the question of traffic congestion to be without merit.

In the instant case Mr. Gardner, the expert, was the only-witness for plaintiffs who testified to traffic congestion with any specificity. He said:

The traffic on Ohio Street is very heavy. The actual last count that I was able to get from official sources was for 1961. At that time the count was 44,000 and some on a typical week day two directional count and I would have to factor that up considerably for the increase of traffic in the last five years.

We cannot conclude that the proposed garage with a capacity to park 130 vehicles would add significantly to the congestion of traffic on Ohio Street.

At best the objectors’ opinions amount to a conclusion that a garage is “less desirable” than a highrise building. In 222 E. Chestnut St. Corp. v. Board of Appeals of the City of Chicago, 14 Ill2d 190, 152 NE2d 465, the court stated at page 194:

Nor do we believe that the testimony of present tenants, to the effect that the parking lot will render their apartments less desirable, permits us to take judicial notice that plaintiff’s building will be depreciated in sale and rental value.
Here there is a complete absence of proof relating to the value of plaintiff’s property and of the effect the parking lot will have on such values. It is true, as plaintiff suggests, that the proximity of certain uses will depreciate the rental value of nearby property, but we have found no authority holding that a mere showing of the existence of such use relieves a party from affirmatively proving alleged damage to his property ....

We do not believe that plaintiffs have sustained their burden of proving the special injury required to obtain administrative review. We, therefore, need not decide the other points raised.

The judgment is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       On July 12, 1967, St. Clair Hotel, one of the appellants, was voluntarily dismissed. On September 6, 1967, another appellant, Chicago House for the Friendless, was granted leave to withdraw. Another appellant, Appelgate Leason & Co., has also withdrawn from this appeal.

       Ill Rev Stats, 1965, c 24, § 11-13-3, provides for a Board of Appeals of five members in a municipality of more than 500,000 and requires the concurring vote of four board members “to decide in favor of the applicant.” Plaintiffs contend that the board member who did not attend all of the proceedings could not effectively vote thus rendering the decision invalid. This provision was revised by the Legislature in 1967 so that only three concurring votes are now required.

       See note 1.


author: MR. JUSTICE SULLIVAN

text:
    City of Chicago, Richard R. Hansen, et al., Plaintiff Respondent-Appellants, v. Johnny Carpenter, et al., Defendant-Petitioner-Appellee.
    Gen. No. 51,871.
    First District, Third Division.
    April 18, 1968.

      Richard B. Hansen and Julian R. Hansen, of Chicago, for appellants.
    William T. Halvorsen, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order distributing a condemnation award. Plaintiffs Richard B. and Julian R. Hansen are owners of a one-half interest in the subject property, the other half of which is owned by defendant Robert Brunton.

Brunton originally purchased the subject property for $6,000, in August, 1961, with funds from a first mortgage loan of $6,500 which he received from a friend. The property was held in trust by the South Chicago Savings Bank with Brunton as beneficiary. In October, 1961, he discussed the investment with George W. Hansen, Sr., a friend and past business associate, who said he would be interested in getting in on the deal. The discussion took place in Wisconsin, at or near Brunton’s home. Another friend of Brunton’s, Robert Pierce, was present during a part of the discussion. At one point Hansen, Sr. typed additional terms onto and signed a standard promissory note. The note was in the amount of $3,000, payable on demand and provided in part:

“Consideration for one half interest in property 253 West 69th Street. Payable when property is sold. This note is binding on my beneficiaries, heirs, executors administrators and assigns. Assignment of one half interest in Trust 11-864 by Brunton to follow.”

Hansen, Sr. originally provided that, in the event of his death, his interest in the trust was to go to his wife. Later he changed that provision to have the interest pass at his death to Richard B. and Julian R. Hansen, his sons. Hansen, Sr. died in March, 1964.

In September, 1964, the property was condemned by the City of Chicago and an award of $10,750 was deposited with the Cook County Treasurer.

A petition to distribute the award was filed by the Hansen brothers and Brunton filed an answer thereto. The petition was dismissed in May, 1966, when the Hansen brothers failed to appear for a hearing on the matter. May 25th Brunton filed his petition to distribute. On July 13th a hearing was held on the matter, at which time Brunton produced his income tax returns for the relevant years (for an accounting regarding the operation of the property) and the original note signed by Hansen, Sr. (A photocopy of the note had been mailed to the Hansen brothers on April 27th.) The Hansen brothers had a handwriting expert with them in court on July 13th and some two hours were spent in a room adjoining the courtroom while the plaintiffs were allowed to examine the items produced by the defendant. Testimony was heard later that day. Robert Pierce testified that he saw Hansen, Sr. type out and sign the note. He also read the note when Hansen, Sr. gave it to Brunton. Brunton also testified on the 13th, as did a man from the South Chicago Savings Bank. The hearing was then continued until the 15th so that Mr. Doud, the handwriting expert, could complete his examination and tests and be ready to testify.

On July 15th the Hansen brothers moved for a continuance because Mr. Doud would be unable to finish his examination of the note for two to three weeks. The judge pointed out that on the 13th he had made it clear that he was going away after the 15th and wanted to finish the case that date. At that time Mr. Doud had told the court that by the 15th he would have ample time for his examination and could do it "very handy.” The court, on the 15th, stated that since there was testimony by a disinterested third party witness that Hansen, Sr. had signed the note, the testimony of a handwriting expert witness would not overcome Pierce’s testimony. The court also refused to admit 12 documents tendered by the Hansen brothers on the ground that they were self-serving. These were letters by the brothers to Brunton or his attorney.

The court entered an order which provided that the note for $3,000 was due and payable, binding on the Hansen brothers and should be paid from their share of the proceeds of the condemnation award.

Plaintiffs contend on appeal that the promissory note did not create a security lien upon the beneficial interest of the land trust as a matter of law; the trial court denied the plaintiffs a fair day in court by refusing to hear their expert’s testimony and deciding the case prior to hearing all offered testimony, and the court erred in failing to read offered exhibits before refusing their admission into evidence.

Plaintiffs first contend that the note did not create a security interest in their beneficial interest. It should be here noted that the plaintiffs also argue that there was no agreement to pay the debt out of the proceeds of the sale of the property. Under the authority of Hibernian Banking Ass’n v. Davis, 295 Ill 537, 129 NE 540, we agree that the promise to pay a debt out of the proceeds of a sale of property does not create an equitable mortgage lien on the property. However, that is not to say that the debt need not be paid out of the proceeds, if indeed that was the intention of the parties.

It is plaintiffs’ position that the term “payable when property is sold” merely sets the due date and does not indicate that the sum is payable out of the proceeds of the sale. Following from that position is the argument that the brothers who took the property at the death of their father are not liable on the note, but rather that the note should have been presented as a claim against the estate of Hansen, Sr. Plaintiffs rely on Floor v. Schaffhausen Corp., 49 Ill App2d 97, 199 NE2d 434, and Illinois State Toll Highway Commission v. M. J. Boyle & Co., 38 Ill App2d 38, 186 NE2d 390. The Floor ease merely held that the contract involved was in no way ambiguous, and, therefore, the rules of construction of contracts need not be employed. In Illinois State Toll Highway Commission, supra, the court was considering a public contract and determined that there was no ambiguity in the language of the contract.

It is the position of defendant that the language of the contract or note was ambiguous and must therefore be construed with the intention of the parties in mind. In Robinson v. Stow, 39 Ill 568, the court construed the phrase “as soon as practicable and thought proper by the parties.” The court said on page 572:

“While it is not the province of the courts to interpolate new terms into contracts, against the evident intention of the parties, with the view of making such contracts more reasonable, yet, on the other hand, even a strained construction of the language will be adopted for the purpose of preventing obvious injustice. The intention of the parties, it is true, must govern; but the experience of human affairs teaches courts that this intention is not to be sought merely in the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the objects they evidently had in view.”

In United States Trust Co. of New York v. Jones, 414 Ill 265, 111 NE2d 144, the court construed an inter vivos trust and said on page 270:

“The object of judicial construction of a written instrument is to ascertain the true intent of the parties and to carry it out if it does not conflict with any rule of law, or good morals, or the public policy of the State.
“In construing a written instrument, its letter should be controlled by its spirit and purpose, bearing in mind that the terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent.”

In the instant case, the note was written and delivered by Hansen, Sr. an attorney. Brunton was not an attorney. It is well known that an instrument will be construed most strongly against its author and in favor of the other party. (Cedar Park Cemetery Ass’n, Inc. v. Village of Calumet Park, 398 Ill 324, 75 NE2d 874; Hardesty v. Forest City Ins. Co., 77 Ill App 413.) Obviously Hansen, Sr. did not wish to incur any out-of-pocket expense in getting his beneficial interest in the trust. He intended to share in the receipt of income and growth in the value of the property but did not wish to pay any cash for that interest. It is true that Brunton did not pay cash and perhaps Hansen, Sr. felt that he should not have to do so either. It is clear that Hansen, Sr. meant to pay for his beneficial interest at the time it was sold and to do so out of the proceeds of that sale. If the property had sold for just the mortgage value certainly Hansen, Sr. did not intend that Brunton, who had no initial cash outlay, would be able to collect $3,000 from him. The final result here was a large growth in the property value and it is only fair that Brunton be paid, out of that growth, the amount for which Hansen, Sr. purchased the one-half of the beneficial interest.

The Hansen brothers cannot fairly get the benefit of the proceeds of sale of the property and at the same time avoid payment of the purchase price therefor. Although they argue that the note should have been presented as a claim against Hansen, Sr.’s estate, we do not agree. The intention of the parties was to have the note payable out of the proceeds of sale and, therefore, there would be no liability on the part of the estate.

Plaintiffs also contend that they were denied a fair and impartial trial because the court decided the case without having heard their expert witness and the court’s comments showed that the decision was made prior to a hearing of all the offered testimony. The record shows that on July 13th plaintiffs’ expert was in court and told the judge that he could easily finish his examinations and appear with the results on the 15th. On the 13th the judge made it clear that he was going on vacation after the 15th and wished to finish the case before he left. On the 15th the expert was not in court and Richard Hansen testified that Mr. Doud, the expert, would need two to three weeks to complete his examination of the note and signature. The court stated there had been testimony that Hansen, Sr. signed the note in the witness’ (Mr. Pierce) presence and expert testimony is overcome by the slightest evidence to show the genuineness of the signature. Because of that rule the court would not have believed the expert if his testimony was that the signature was not genuine. The ruling is supported by the language of the Illinois Supreme Court in Jones v. Jones, 406 Ill 448, 94 NE2d 314. The trial court did not err in denying the plaintiffs’ request for a continuance so as to present the testimony of Mr. Doud. Furthermore, plaintiffs’ contention that the court determined the issues prior to hearing all the testimony offered is merely another way of saying the court erred in failing to give the continuance so Mr. Doud could be heard. The plaintiffs did not offer any directly contradictory evidence which could have overcome the testimony of Pierce. The remarks to which the plaintiffs object do not indicate unfairness on the part of the court but rather show that the court had examined the evidence and considered the positions and stated its opinion thereon. The plaintiffs insist that the court refused to consider or believe any witness produced by the Hansen brothers. This argument overlooks the fact that the only witness they sought to produce was Mr. Doud. We have already determined that the trial court was correct in its ruling as to that witness. The Hansen brothers argue that the presumption of genuineness of a signature is negated when the purported signer has died. Here the court never indicated it relied on any such presumption. There was positive testimony by an eyewitness to the signing of the note.

Plaintiffs finally contend that intrinsic fairness requires the court to actually read the offered written exhibits prior to refusing their admission into evidence. On July 15th the Hansen brothers sought to introduce 12 letters into evidence. These documents were letters from plaintiffs to Brunton or his attorney. Upon discovering that the documents were not Hansen, Sr.’s but rather those of his sons, the court sustained defendant’s objection to their admission on the ground that they were self-serving. The letters were properly excluded. (ILP, Evidence, § 229.) The Hansen brothers admitted that the letters were from them and not from their father. Once the judge knew that, it was unnecessary for him to read the letters. Plaintiffs’ position that the court would have better understood the situation after a reading of those documents is untenable as it would require the court to form its opinion on the basis of inadmissible evidence.

For the foregoing reasons the decision of the trial court is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Moore, Defendant-Appellant.
    Gen. No. 51,983.
    First District, Third Division.
    April 18, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Alan S. Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a nonjury case the defendant was found guilty of attempted robbery, attempted murder and aggravated battery. He was sentenced to serve a term in the penitentiary of five to ten years on each count, the sentences to run concurrently.

On appeal the defendant raises three contentions which merit consideration: (1) that he was denied his right to a speedy trial pursuant to statute; (2) that he was not proven guilty beyond a reasonable doubt; and (3) that hearsay evidence tending to corroborate the testimony of a witness for the prosecution was improperly admitted. We have decided to reverse and remand on the third point, but will first state our reasons for not reversing on Points One and Two.

On August 10, 1965, at 1:50 a. m., McDay Whitaker, a cabdriver, picked up two passengers, a man and woman, at the corner of 39th Street and Michigan Avenue, in Chicago. At the end of the trip the driver was robbed and shot by the man passenger. He was taken to a hospital by two police officers, and gave the policemen a description of his assailant as follows: male Negro, 140-145 lbs., 5' 8" or 9", wearing a black trench coat and hat. The description fitted the defendant.

On September 8, 1965, Jacqueline Young went to the police station and told Officer James Branick that she was the woman passenger who had accompanied the defendant on August 10, 1965, when he shot and robbed the cabdriver. Miss Young did not testify at the trial, but Officer Branick, for a reason which will be later considered, was permitted to testify as to what she had told him. On September 9, 1965, the cabdriver was called to police headquarters, where he identified the defendant as his assailant from a group of five or six photographs submitted to him by the police. On October 14, 1965, the defendant was arrested and has since been in custody.

We will first consider defendant’s contention that he was denied a right to a speedy trial, as provided by statute. Ill Rev Stats, c 38, § 103-5 (1965). On May 31, 1966, the day preceding the four-term expiration date, a motion for extension of time was timely made by the State. The motion was allowed. On July 1, 1966, a motion for discharge was made by the defendant. The motion was denied and trial was had on July 5, 1966. Defendant contends that the court abused its discretion in granting the State’s motion for continuance because the State had not exercised due diligence in locating the witness, although it had been given many continuances to enable it to do so.

The granting of continuances in and of itself is not an abuse of discretion. People v. Taylor, 82 Ill App2d 5, 226 NE2d 693. The fact that the witness for whose appearance the continuance was sought was not ultimately produced is not relevant. Whether the granting of a continuance was reasonable must be determined as of the time the motion was considered. People v. Canada, 81 Ill App2d 220, 225 NE2d 639. The State in its petition properly alleged the exercise of due diligence in its effort to procure the attendance of the witness. The testimony of Officer Branick at the trial substantiated this, and there was reasonable ground to believe that such evidence would be obtained in time for trial. The court’s denial of the motion for discharge was not erroneous.

We proceed to consider whether the defendant was proven guilty beyond a reasonable doubt. Whitaker the cabdriver identified the defendant as his assailant. At the time of the commission of the crime and shortly before, he was within a few inches of the defendant and in a well-lighted area. Defendant entered the cab from the left while it was at a gas station which was amply lighted. At the time of the shooting and while the driver was facing the robber, three lights were on in the cab— one on the dashboard, one on the meter and one in the center of the cab. Whitaker not only gave a general description of the defendant, but was able to identify him positively out of five or six photographs submitted to him. He also identified him in open court. Jerome Wexler, one of the attorneys for defendant, who interviewed Whitaker and questioned him as to his identification of the defendant, testified that Whitaker said he could not say positively, “100%,” that the defendant was the person. The credibility of witnesses is for the trier of fact to decide.

A conviction can be sustained on the testimony of a witness who has ample opportunity for observation and positively identifies the defendant. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; People v. Martin, 62 Ill App2d 203, 210 NE2d 798. The testimony of Wexler is not of sufficient consequence to alter our conclusion that the evidence was adequate to sustain a finding of guilty beyond a reasonable doubt.

We proceed to consider the third point. Defendant contends that the court erroneously admitted the testimony of Officer Branick to a conversation he had with Miss Young, the woman passenger in the taxicab. The State acknowledges that the testimony was hearsay but contends that it was properly admitted in order to explain “certain procedures rather than for its truth or veracity.” It appears that Officer Branick on cross-examination by the attorney for defendant was asked whether the reason he showed the photographs before mentioned to the driver was based on the police report or on the fact that a warrant had been issued for the defendant’s arrest. Both questions were answered in the negative, and defense counsel went no further on this line of questioning. On redirect examination the State, over objection by defendant, questioned Branick as to conversations he had with Miss Young and elicited the following answer:

“On the 8th day of September I received information from Jacqueline Young, Charles Moore’s ex-girl friend, that she was with Charles Moore the night of this occurrence and that he was the one that shot McDay Whitaker in a robbery attempt.”

The only reasonable conclusion to be drawn from this questioning of Officer Branick by the State is that the testimony so elicited corroborated the testimony of the cabdriver, the one witness who had testified to the robbery. It was clearly prejudicial hearsay evidence. It is true that an exception to the admission of hearsay evidence applies when a line of questioning is opened up by the adverse party. Testimony on behalf of the other party is then admissible to clarify the points touched upon. Such testimony will be limited to that which has a direct tendency to contradict or explain that which has been received. People v. Baker, 290 Ill 349, 125 NE 263.

In examining Officer Branick about the basis for exhibiting the photographs to Whitaker, the only inquiry by the defendant was whether a police report or a warrant was the basis for Branick’s action. There was no inquiry into the general procedures of the Police Department or the motivation of Officer Branick. The State could not use this as a basis for the introduction of hearsay evidence which did not contradict nor explain the testimony of the witness nor the inferences which might be drawn therefrom.

The State argues that the case having been tried by the court without a jury, it will be presumed that the trial judge considered only competent evidence in arriving at his judgment. People v. Smith, 55 Ill App2d 480, 204 NE2d 577. It appears affirmatively however that the court did consider the evidence in question. The court said that he would not “deprive counsel of an opportunity to give the court some insight as to Jacqueline.” This was reversible error as it bears directly on the vital issue of fact.

Other errors are charged, but they are not likely to recur on a new trial and need not be here considered.

The judgment is reversed and the cause is remanded for new trial, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    Knickerbocker Roofing & Paving Company, Inc., Plaintiff-Appellant, v. Mendius Associates, Inc., Defendant-Appellee.
    Gen. No. 51,971.
    First District, First Division.
    April 22, 1968.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann and Thomas J. Weithers, of counsel), for appellant.
    Schaffenegger & Watson, of Chicago (Jack L. Watson, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Knickerbocker Roofing & Paving Company, (hereinafter referred to as Knickerbocker) contractor, filed an action for declaratory judgment wherein it sought indemnification from the defendant, Mendius Associates, Inc., (hereinafter referred to as Mendius) subcontractor, under the terms of an indemnity provision in a written contract entered into by the parties, for all loss, damage, costs and expenses arising out of lawsuits brought against Knickerbocker by two of Mendius’ employees. After a trial without a jury the court entered judgment for Mendius from which this appeal is taken by Knickerbocker. No questions are raised on the pleadings.

On August 13, 1962, Knickerbocker and Mendius entered into a written contract whereby Mendius, as subcontractor, agreed to furnish all materials and perform all work with reference to certain insulated roofing material to be installed on the new Main Post Office Building in Chicago, in accordance with the terms of a contract between Knickerbocker and the United States of America. The contract between Mendius and Knickerbocker contained the following indemnity provision:

The Subcontractor does hereby agree to indemnify and save harmless the Contractor, its employees and agents, and the Government, from all loss, damage, costs and expenses which any of them may suffer or sustain or be threatened with liability for, arising, either under the laws of the State of Illinois or of the United States of America, or otherwise, out of performance of this contract by the Subcontractor, its agents, employees or materialmen.

Prior to the execution of the written contract, the parties, on August 9,1962, entered into an oral agreement by the terms of which Mendius agreed, for a set fee, to lift, by means of its hoist, Knickerbocker materials to the roof of the post office. This oral contract contained no indemnity provisions, and made no reference to the written contract. The written contract neither incorporated nor referred to the oral agreement; and it did not contain any provisions dealing with the hoisting by Mendius of Knickerbocker materials.

On August 29, 1962, an accident occurred on the premises of the new Main Post Office Building as a result of which two Mendius employees, Lonnie Mathis and Ivory Aeree, filed actions against Knickerbocker for personal injuries. In their complaints, Mathis and Aeree alleged, inter alia, that their injuries had been proximateIy caused through the negligent act of a Knickerbocker employee who placed cans of gasoline in the Mendius hoist bucket, causing the bucket to tip and the gasoline to ignite and explode. Knickerbocker tendered to Mendius its defense to the aforesaid actions; however, Mendius refused to accept said defense, contending that it had no duty to indemnify or save harmless Knickerbocker with reference to the actions filed. Upon the refusal of Mendius to accept its defense Knickerbocker filed the instant action.

It appears from the record that the Mendius hoist bucket, at the time of the accident, contained a roofing substance called “All-Weather-Crete,” which had been mixed by Lonnie Mathis and loaded into the bucket by Ivory Aeree; and the bucket was raised by Mendius’ hoist operator, William Myer. These acts performed by the employees of Mendius were accomplished in furtherance of the written contract between Knickerbocker and Mendius. At the time of the accident the hoist bucket was also loaded with two cans of gasoline owned by Knickerbocker, and placed thereon by an employee of Knickerbocker. At the trial, Carl Mendius, president of his firm, testified that pursuant to the oral contract Knickerbocker had been charged for sixteen hours of hoisting on the day of the accident, but that his records did not reveal a specific charge for the hoisting of the two cans of gasoline in question. He further testified that his records did not reveal whether the sixteen hours of hoisting was done during working hours, when the accident occurred.

The sole contention raised by Knickerbocker, on appeal, is that the injuries to the Mendius employees arose “out of the performance” of the written contract and were, therefore, within the express terms of the indemnity agreement. It argues that the evidence established that the two cans of gasoline which brought about the injuries to the two Mendius employees were being hoisted in pursuance of the written contract; and, in the alternative, even if the cans were being hoisted in pursuance of the oral contract, the written indemnity agreement would still apply because the injured employees were acting in furtherance of the written contract at the time of the accident. On the other hand, Mendius contends that the accident in issue arose from its performance only of the oral agreement, which related to Knickerbocker’s use of the Mendius hoist, and therefore, considering the fact that the oral contract contained no indemnity provision, Knickerbocker is not entitled to indemnification under the provisions of the inapplicable written contract.

Whether the loading and hoisting of the two cans of gasoline was within the terms of the oral agreement was a question of fact for the trial judge, as trier of fact, to determine. Tomasek v. City of Edwardsville, 183 Ill App 493. Presumably the trial judge found that the gasoline was loaded and hoisted in pursuance of the oral contract, and this finding was adequately supported by the evidence. The two cans of gasoline in question were owned by Knickerbocker and were placed in the hoist bucket by a Knickerbocker employee. Furthermore, only the oral contract provided for the hoisting of Knickerbocker materials by Mendius; the latter party had no duty under the written agreement to lift the cans of gasoline.

Knickerbocker argues that the testimony of Carl Mendius, Jr. could reasonably only lead to the inference that the loading and hoisting was a gratuitous act performed by the Mendius’ employees. It refers specifically to his testimony to the effect that there was no record kept by Mendius to show that Knickerbocker was billed specifically for the hoisting of the two cans of gasoline, and that Mendius had no record as to the time at which the hoisting in question took place. However, Mendius did testify that Knickerbocker was billed for sixteen hours of hoisting on the date of the accident. The trial judge could reasonably have found that Knickerbocker was in fact billed for the hoisting of the gasoline cans within the billing for the sixteen hours of hoisting. In any event, the objection raised by Knickerbocker goes only to the weight of Mendius’ testimony, a factor which was solely within the province of the trial judge.

The question as to the scope of the coverage of the written indemnity agreement is one of law. ILP, Contracts, § 246. Therefore, it will be determined on appeal independently of the judgment of the trial court. Lepkowski v. Laukemper, 317 Ill App 304, 45 NE2d 979. The interpretation of the indemnity provision in the written contract calls for our use of the same rules of construction applicable to any other contract; therefore, the primary rule of construction is to seek to ascertain the intention of Knickerbocker and Mendius as it is revealed in the entire contract through the language employed by the parties. Gay v. S. N. Nielsen Co., 18 Ill App2d 368, 152 NE2d 468.

As we have already pointed out the loading and hoisting of the two cans of gasoline (the alleged proximate cause of the injuries to Aeree and Mathis) was accomplished pursuant to the oral agreement. The question dispositive of this appeal is whether the written contract’s indemnification provision was intended by the parties to cover suits filed as the result of the kind of accident involved in the case at bar.

The significant portion of the written indemnification provision provides that Mendius shall indemnify Knickerbocker from “. . . all loss . . . arising . . . out of performance of this contract by the Subcontractor, its agents, employees or materialmen.” The plain meaning of this language is that the right to indemnification only arises when the “. . . Sub-contractor, its agents, employees or materialmen” are engaged in the performance of the written agreement. The threatened loss to Knickerbocker has not arisen out of the performance of the written agreement. Even though the “All-Weather-Crete” had been mixed, loaded, and hoisted pursuant to the written contract, the threatened loss to Knickerbocker did not arise out of these actions; rather, it arose out of the loading and hoisting of the cans of gasoline in performance of the oral contract. The language of the indemnity provision, along with the fact that the written contract as a whole makes no mention of the oral agreement or of the kind of duties to be performed under it, clearly shows that the parties did not intend for the indemnity provision to apply to losses arising from Mendius’ performance of the oral contract. Therefore, in the absence of an indemnity provision in the oral contract, Knickerbocker is not entitled to indemnification from Mendius for the suits brought by Aeree and Mathis.

Knickerbocker contends that "... a contractor who has entered into a written contract providing for indemnity is obligated to provide indemnity when any employee of the contractor is injured while engaged in any activity in any way connected with the written contract.” We cannot agree with this contention. Suffice it to say that the indemnification clause did not provide for so broad an indemnity, and it has not been argued here that any right of implied indemnification exists. Li Petri v. Turner Const. Co., 36 Ill2d 597, 224 NE2d 841.

Our views are not contrary to those expressed by the court in Meeks v. George A. Fuller Co., 40 Ill App2d 172, 189 NE2d 387, cited" by Knickerbocker. There the indemnity provision provided that the subcontractor would indemnify the contractor against loss “. . . arising out of or in consequence of the performance of this work . . .” The basic issue resolved by the court was that under the terms of the indemnity provision the indemnitee was entitled to indemnification in spite of the fact that the negligent acts complained of had been committed by its employees. The court also held that the employee of the indemnitor, who had filed suit against the indemnitee, had been injured “in consequence of the performance” of the work referred to in the indemnification provision. The court reasoned that had the injured employee not been performing the work in the contract he would not have been upon the premises and sustained injury. In the instant case, there is no question that had the injuries arisen from the negligent performance of the written contract, Knickerbocker would have been entitled to indemnification from Mendius. However, unlike the situation in Meeks, the injuries and threatened loss arose from the performance of a separate oral contract which contains no indemnification provision and is not referred to in the written contract. Therefore, we conclude that the Meeks case is inapplicable factually to the case at bar.

Likewise, in the cases of De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240; Newberg Const. Co. v. Fischbach, Moore & Morrissey, Inc., 46 Ill App2d 238, 196 NE2d 513; and Northern States Co., Inc. v. A. Finkl & Sons Co., 8 Ill App2d 419, 132 NE2d 59, cited by Knickerbocker, the respective courts were presented with situations wherein the indemnity provisions in question were contained within the only contracts applicable to the incidents out of which losses (actual or threatened) to the indemnitees arose. In other words, unlike the case at bar, these cases cited by Knickerbocker did not contain separate contracts providing for duties not enumerated in the contracts containing the indemnity provisions.

In sum, the evidence in the instant case established that the parties entered into two separate contracts, one written and one oral, and that the threatened losses to Knickerbocker arose out of the performance of the latter one, which contained no indemnity provision. Furthermore, the written contract’s indemnity provision was not intended to apply to the activities outlined in the oral agreement. Therefore, we hold that the trial court was correct in denying to Knickerbocker indemnification under the written contract and in entering judgment for Mendius. The judgment for Mendius is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.