author: MR. PRESIDING JUSTICE BRYANT

text:
    Robert Seneca, Plaintiff-Appellant, v. Board of Fire & Police Commissioners of the Village of Lyons, Cook County, Illinois, and Stephen Wagoner, Defendants-Appellees.
    Gen. No. 50,601.
    First District, Second Division.
    May 31, 1966.

      Sidney Z. Karasik, of Chicago (Mary M. Shaw, of counsel) , for appellant.
    Walter C. Wellman, of Lyons, for appellees.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment entered February 18, 1965, in the Circuit Court of Cook County affirming the findings of fact and the decision of the Board of Fire and Police Commissioners of the Village of Lyons. It is the appellant’s theory that the findings of the Board of Fire and Police Commissioners, hereinafter called the Board, were against the manifest weight of the evidence and that the proceedings conducted by the Board were not fair, reasonable and impartial.

The proceedings before the Board were held subsequent to a charge that the appellant had accepted $30 for not arresting Stephen Wagoner, age 20, and Jane Bormann, age 16, on a charge of disorderly conduct in a public park.

The first witness to testify at the hearing was Stephen Wagoner, one of the complainants. He testified that at about 10:00 p. m. on the night of March 5, 1964, he and his girl friend, Jane Bormann, were necking in his automobile in Cermak Park in the Village of Lyons. According to this witness, the appellant approached their car from the right side and asked for Wagoner’s driver’s license. The officer told them they were under arrest. The appellant then left the couple and went to his squad car which pulled up alongside Wagoner’s automobile.

Wagoner said the policeman, whom he had identified as the appellant, was wearing “a policeman’s uniform.” The police car was described as a white car. “At the time I — the tail of it was pointed and I thought it was either an Oldsmobile or a Chevrolet.” There was a second officer in the police car to whom another youth was talking, according to this witness. Wagoner could not hear any of the conversation between these two.

This witness testified that the appellant again came over to the right side of his car and told his girl friend to tell him to get out. Wagoner said the appellant told him that they would have to go to the police station and that both their parents would have to go down there and post bond for them. Then the appellant is reported to have said that Wagoner could post the bonds himself so that their parents would not have to go to the station. Wagoner said he was told that the bonds would be $200 each. “When I didn’t have four hundred dollars on me and he asked me how much money I had on me, and I said I had sixty-two dollars .... Then Mr. Seneca .. . said, I will tell you what. I will give your driver’s license back if you give me forty dollars. Then he said right after that he said, well, make it thirty. I said, okay.” The policeman was paid with three-ten-dollar bills.

Wagoner testified that the appellant told him not to speak of the transaction to anyone including his girl friend. The couple then went back to town and notified the police of what had occurred. Each of the two wrote out a statement at the police station that night.

On cross-examination this witness stated that the park was dark at night and that there are no street lights there. He said he was nervous and upset when talking with the policeman and that he did not want to be arrested. He said he did not get the policeman’s badge number and saw nothing on the policeman’s uniform that indicated he was from the Lyons police department. The police car was described as being light in color.

The next time this witness saw the appellant was pri- or to a lineup held in the police station one or two days later. “We were going back to the Chief of Police’s office. On the way I glanced in another office through a glass window and I saw Officer Seneca sitting in a chair there facing me .... There were other officers standing around the room. There were three or four officers in there.” The witness said he identified the appellant to Mr. Klomann at this time though no one had told him that Officer Seneca was the man whom they suspected of accepting the bribe.

The next witness called was Frank Krall, a police officer for the Village of Lyons. He testified that on the night of March 5, 1964, Officers Robert Seneca and Anthony Misek were on duty. Theirs was the only car other than Krall’s which was out that night. This witness further testified that the Village of Lyons had four police cars. Three of these cars were 1963 Chevrolets. Two of these cars are black, one a “kind of gold color,” and the fourth car is a white, 1964 Chevrolet. This witness said he did not know if the other car on duty was the white car or a black one. He said the Lyons cars have a star on each side, the name Lyons and a patrol car number. He also said that some police cars of the neighboring villages could fit the description of being white with an insignia.

Officer Krall stated that the policemen of the neighboring villages would sometimes come in to Lyons if they had specific business to transact there. They usually informed the Lyons police department if they were going to be in Lyons, but to this witness’ knowledge the Lyons police were not informed by any of the neighboring police departments that they were coming into the Village that night.

The complainant’s girl friend, Jane Bormann, testified that a policeman came up to Stephen Wagoner and her the night in question. She said she saw the police car; that it was white with an insignia on it. Her testimony did not differ in any material respect from that of Stephen Wagoner except that she said she could not identify the policeman.

Officer Seneca took the stand in his own behalf. He said that on the evening in question he and Officer Misek were on Ogden Avenue giving tickets to speeders. The time on the last ticket was 8:35 p. m. He said that around 10:00 p. m. they went to a restaurant to get something to drink and eat. He said that they saw some trucks illegally parked and that they made the drivers move their trucks. They were at the Chicagoland Motel at this time, apparently the place where the truck drivers were staying. They got a call at the Motel telling them to return to the station.

When they returned to the station, the witness said, they emptied their pockets. The appellant said he had seven one-dollar bills in his wallet at this time. He denied being in Cermak Park the night in question. He said that he talked to the owner of the Chicagoland Motel the night the bribe is said to have been taken, but he did not ask the owner to come before the Board to corroborate his testimony. The other policeman in the car, Anthony Misek took the stand to corroborate Seneca’s testimony. It was stipulated that Officer Schiefelbein would testify that he searched the two officers and their car and did not find three ten-dollar bills. This was the evidence heard at the original hearing. The Board found the appellant guilty of official misconduct and ordered that he be dismissed from the police force.

Officer Seneca then filed suit in the Circuit Court of Cook County asking that the finding and order of the Board be set aside. This complaint alleged, among other things, that the village prosecutor, Karl Klomann, discussed the matter informally with members of the Board on several occasions prior to the formal hearing; that Stephen Wagoner was given a lie detector test six days before the hearing, that he was accompanied by a member of the Board on this occasion, and that the results were announced to the Board; that the appellant went to have a lie detector test taken and that the operator refused to give him the test; that the Board held a hearing on the charges brought against the appellant and that he was not notified of or present at this meeting.

The Circuit Court remanded the proceedings to the Board stating, “that matters have occurred as set forth in Paragraph 5 not appearing in the record of said cause and that the evidence of one James Svoboda, Chief of Police of the Village of Lyons, was not taken at the hearing of said cause and that it is just that the aforesaid evidence be made a part of the record herein.”

Accordingly, a second hearing was held. At that hearing the Chairman of the Board stated, “In behalf of the Board I wish to state that the only discussion I and the other Members of the Board had with Karl Klomann, the Village Prosecutor of the Village of Lyons, was pertaining to the filing of charges against the respondent, Robert Seneca, and in connection with our investigation of the charges as provided by statute.

“As to the lie detector tests both the complaining witness and the respondent challenged each other to take a lie detector test and both respondent and the complaining witness agreed to take lie detector tests, which I arranged to be taken by Leonards Keeler, Inc.

“Stephen A. Wagoner took a lie detector test on the 20th day of March, 1964, and I have here the results of that test which will be made a part of the record. . . . “. . . the Board denies that any hearing was held on the charges for which the respondent was accused for the reason that no charges were filed prior to March 9, 1964, nor was any hearing held prior to said date or on said date and that the only investigation conducted by this Board was to determine whether or not there was probable cause for charges to be filed against said respondent.

“The result of the lie detector test given Stephen A. Wagoner was not considered in arriving at a decision due to the fact that no test was given to the respondent, Robert Seneca.”

The appellant’s attorney objected to the admission into evidence of the lie detector test results for the test given Stephen Wagoner. He stated that he had not asked to have the test result made part of the record, but only had complained in the Circuit Court that the Board members knew the test results. The chairman pointed to the Circuit Court order which required “that the aforesaid evidence” including the test result “be made evidence herein.” The test result was admitted into evidence over the objection of the appellant. In the report concerning the lie detector test given Mr. Wagoner it was noted that “some reactions were noted on the question, ‘Do you have any doubt as to who the police officer was?’” The subject’s answer to this question was, “No.” The examiner noted that the reaction was not specific enough to be deception per se. Officer Seneca’s attorney then asked for a further hearing so he could question the man who gave the lie detector test about the report. The Board indicated that such a request would be granted.

At this second hearing, the following further testimony was taken: James Svoboda, Chief of Police of the Village of Lyons, testified that the day following the occurrence he asked Officer Seneca if the charges were true. He said that the appellant told him they were not true. He then testified that the day following that, he had another conversation with Officer Seneca and that at that time the appellant admitted to him that the charges were true. According to this witness, Officer Seneca said, “I took it, three ten-dollar bills.”

No one else was present when this statement is said to have been made. Chief Svoboda testified that he did not make any written memoranda of the incident. He said he told Mr. Homolka, a member of the Board, of this confession, but does not remember whether this was before or after the first hearing. He said he thought it was after the hearing, but was not sure.

Robert Seneca took the stand again to deny that he had made a confession to the police chief. He testified that he had said, “Well, there were three ten-dollar bills that I was accused of taking.” The appellant’s attorney then asked permission to examine Mr. Homolka, which motion was denied. The second hearing was then adjourned.

The first claim made on this appeal is that the findings of the Board that Officer Seneca was guilty of soliciting a bribe were against the manifest weight of the evidence. Appellant points to Bruce v. Department of Registration, 26 Ill2d 612, 187 NE2d 711 (1963) for the proposition that a judgment based on the controverted evidence of a single witness to a single transaction is against the manifest weight of the evidence and cannot be allowed to stand. That case, however, is not controlling in the matter before us. There, the testimony of the one witness, even if taken as true, did not establish that the alleged offense took place. The Supreme Court there said that the evidence was simply not enough to support the committee’s finding that the plaintiff dentist had violated the Dental Practice Act.

In the case at bar, the testimony of Stephen Wagoner if taken as true, does establish the commission of the alleged offense. Mr. Wagoner testified that a police officer solicited a bribe from him and he identified the appellant herein as that officer. The testimony of Miss Bormann is corroborative of at least the fact that the couple was approached by a policeman that night. She said, of course, that she could not identify the policeman and she could not testify as to any money passing hands, but what evidence she did give was basically consistent with that of Mr. Wagoner. Finally, there is the evidence given at the hearing by Police Chief Svoboda that the appellant admitted soliciting a bribe. All this evidence, if believed, is sufficient to sustain a finding that the appellant was guilty of official misconduct.

The appellant argues that the evidence shows the policeman who solicited the bribe might have been from another of the villages. The complaining witness, however, identified the appellant as being the policeman in question, picking him out, even before the lineup, from a group of policemen who were simply in the station house.

The appellant points out that it was dark in the park; this is true, but there is no evidence whatsoever that it was so dark that night that the witness could not have seen the policeman clearly enough to identify him. It is also argued that it is inherently improbable that a policeman would risk his career by soliciting a thirty-dollar bribe. We are not persuaded. In short, we find nothing that would permit us to say that the Board could not properly have found the way it did. The findings of the Board are prima facie true and correct and we cannot reverse where the evidence fairly tends to sustain the charges. Etscheid v. Police Board of Chicago, 47 Ill App2d 124, 197 NE2d 484 (1964).

The second claim made by the appellant is that he was not given a fair and impartial hearing by the Board. It is first argued that the Board considered matters entirely outside the record. These extraneous matters, according to the appellant’s brief, “were for the most part the result of the participation by the Board members in the investigations which preceded the actual hearing.”

According to the appellant’s brief, “The day after the events on which this charge is based, the prosecuting witness appeared at what he described as a ‘preliminary hearing,’ at which all the Board members and the Attorney for the Board were present. At that time, he told them the same story that he later told at the hearing. Officer Seneca was not present at that time, and so had no opportunity to deny the charge.”

In his statement at the second hearing, the chairman remarked that the only investigation concerning this matter that had been conducted by the Board was to determine whether or not there was probable cause for charges to be filed against Officer Seneca. There is no indication in the record that this is not true, nor has the appellant cited any authority for the proposition that such an investigation was improper.

The next irregularity in the proceedings, according to the appellant, is the fact that the Board arranged for both the appellant and the complaining witness to take lie detector tests. According to a colloquy at the second hearing concerning the admissibility of the lie detector test administered to Stephen Wagoner, both the complaining witness and the plaintiff here challenged each other to take a lie detector test and both appellant and the complaining witness agreed to take these tests. Stephen Wagoner took the test; Officer Seneca did not. The Board admitted the results of the test given Stephen Wagoner into evidence. This was error.

Neither party to this appeal has raised the question of the general admissibility of lie detector tests in hearings before administrative boards. We find, however, that we do not need to deal with that general issue here. Even if the test were admissible in a hearing such as this, it would still be necessary to prove the qualifications of the person who administered the test. People ex rel. Perz v. Schneemilch, 65 Ill App2d 337, 213 NE2d 50 (1965).

We find, however, that this error was not prejudicial. The most this report shows is that the complaining witness thought he was telling the truth. We have read the record at both hearings, and it is clear that Officer Seneca’s defense was not based on the proposition that the complaining witness was lying; the defense was based on the theory that Mr. Wagoner was mistaken in his identification. This theory is based on the assumption that Mr. Wagoner thought he was telling the truth.

The appellant next points to the fact that the Chief of Police of the Village of Lyons did not testify at the original hearing. They suggest that this indicates that Chief Svoboda fabricated his testimony when it looked as if there would not be enough evidence to sustain the charge. This argument is without merit. The Chief said he did not testify at the first hearing because no one asked him to testify. However this may reflect on the thoroughness of the original hearing, this cannot be said to render Chief Svoboda’s testimony unworthy of belief.

Chief Svoboda testified that he told Mr. Homolka, a member of the Board, that Seneca had admitted taking the money, but the witness could not remember whether he related this before or after the original hearing was held. As we noted above concerning the results of the lie detector examination, any error that might have existed concerning information not received as evidence being related to members of the Board was cured at the second hearing when the information was properly admitted into evidence. This review is on the record as it stands at the close of the second hearing; we are not here concerned with failings which might have existed when the original hearing was concluded.

The final allegation of error concerns the statement made by the Chairman of the Board at the beginning of the second hearing. It is alleged that the Chairman made himself a witness and should have been subject to cross-examination. The “testimony” which the Chairman is said to have given is his statement that the only proceedings held before the Board prior to the first hearing was an investigation to determine whether there was probable cause for holding a hearing. As we noted above, there is no indication in the record that this is not true. The appellant should not be permitted to upset the orderly hearing of the Board by cross-examining the Board members only on the allegation that he thinks something might have been wrong. There is nothing in the record which would indicate that the Board acted improperly by meeting before the first hearing. The appellant’s unsubstantiated suspicions are not sufficient to achieve a reversal of the Board’s action in this court. McGann v. Lurie, 15 Ill App2d 297, 146 NE2d 223 (1957).

Other points raised by the appellant are too insubstantial to merit comment. For the reasons given above, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Estate of Mamie Weaver, Deceased. Lena Rucker, et al., Petitioners Below-Appellants, v. George K. Harris, Respondent Below-Appellee.
    Gen. No. 50,689.
    First District, Second Division.
    May 31, 1966.

      Benjamin G. Clanton, of Chicago, for appellants.
    Thomas M. Clarke, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from an order in the Circuit Court of Cook County, the Probate Division, whereby the alleged joint will of Archie Weaver and Mamie Weaver was refused probate and a subsequent will of Mamie Weaver was admitted to probate. The will was properly executed and witnessed by both parties.

The joint will recites that both are of sound mind and disposing memory, and

“being mindful of the uncertainties of this frail and transitory existence, and being desirous of placing our worldly house of goods in order, do make, publish and declare the following to be our joint last will and testament hereby revoking any 'and all prior wills made by us, either jointly or severally:
“7. In the event that our deaths be not simultaneous, I Archie L. Weaver above named hereby give, devise and bequeath to my very dear and faithful wife who has stood by my side with love and devotion thruout all of our happy years together all of my entire estate of every description whatsoever for the period of her natural life to use as she sees fit without restriction or limitation, and upon her death said unused portion I give, devise and bequeath share and share alike to my well-beloved daughters, Catherine Dixon, Helen Ford and Lena Rucker.”

It is to be noted that Catherine Dixon, Helen Ford and Lena Rucker are the daughters of Archie L. Weaver, by a previous marriage.

Paragraph 9 of the will reads:

“9. I, Mamie Weaver, above named, in the event that my dear and faithful husband, Archie L. Weaver, should survive me, give, devise and bequeath to my dear and faithful husband, Archie L. Weaver, all of my estate, real personal and mixed for the period of his natural life, and at his death all of the estate as immediately above described I give, devise and bequeath in remainder to my step-daughters, Catherine Dixon, Helen Ford and Lina [sic] Rucker and to their hears [sic] forever share and share alike.”

It is clear from these above quotations that it was the intention of the parties to make a joint will, and repeatedly declared it to be a joint will in the will itself. This joint declaration is sufficient to make a joint will.

The first question which we face is, is this document such a joint will that it cannot be revoked. The courts in Illinois early described a joint will and what constitued one as far as revocability was concerned.

“When joint wills first came before the English courts they were held invalid. (Earl of Darlington v. Pulteney, 11 Cowp 260; Hobson v. Blackburn, 1 Add Ecc 277; Clayton v. Liverman, 2 Dev & B 558) Such was also the ruling of the earlier decisions of the courts of this country. In more modem times such wills are generally recognized by our courts. Gerbrich v. Freitag, 213 Ill 552; Frazier v. Patterson, supra; Lewis v. Scofield, 27 Conn 452, 68 Am Dec 404; Evans v. Smith, 28 Ga 98, 73 Am Dec 751, Carle v. Miles, 89 Kan 540, Ann Cas 1915—A, 363; In the Matter of Dietz, 50 NY 88.
“. . . Frazier v. Patterson, supra, is one of the leading cases in this State on the subject of joint Wills. The case of Dufour v. Pereira, supra, was there reviewed by this court, and the doctrine announced on the subject’ of notice and revocation in the Dufour case was approved by this court. Buehrle v. Buehrle, 291 Ill 589, involved the question of mutual wills made pursuant to a contract. The court there held that the terms of the contract made the mutual wills of the parties their joint will, irrevocable by either without notice to the other, and cited Frazier v. Patterson in support of that holding. The rule announced in the Dufour case has received recognition and approval in Carmichael v. Carmichael, 72 Mich 76, 40 NW 176, Allen v. Boomer, 86 Wis 364, and Edson v. Parsons, 155 NY 555.
“The rule of law that a joint will is irrevocable without notice is particularly applicable in those instances where the joint will is that of the husband and wife. On account of the relationship of mutual trust and confidence imposed by such status, it may be presumed that the provisions made are induced by the mutual love, respect for and faith which the parties have in each other. Neither should be permitted to violate such fiduciary relation by publishing a separate will subsequent to the execution of a joint will by the parties without full disclosure of such fact by the one making such separate will to the other testator of the joint will.
“. . . If the joint will is made pursuant to the terms of a contract written into the will or a contract made dehors the will, whether such joint will may be revoked even upon notice to the other testator would depend upon the circumstances. If the contract is for a legal consideration and the one testator has fulfilled his part of it, generally speaking such joint will could not be revoked by one testator without the consent of the other.” Curry v. Cotton, 356 Ill 538, 191 NE 307 (1934).

Here the will which Mamie Weaver made was not known to Archie Weaver because it was written and offered for probate after he had died.

It was decided that this was an appeal concerning a joint will which was not also mutual.

A joint will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will and be again probated at the death of the other as the will of the latter. Wills may be joint or mutual or both joint and mutual. A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. It is not necessarily either mutual or reciprocal. ... A joint and mutual will is revocable during the joint lives by either party, so far as relates to his own disposition, upon giving notice to the other, but it becomes irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other. 30 Am Eng Ency of Law, (2d ed) 621, and cases cited; 1 Redfield on Wills, 182, 183; Walpole v. Orford, 3 Ves Jr 402; Schouler on Wills, sec 455, et seq.
“When mutual or joint wills first came up for consideration, the courts of England, both common law and spiritual, pronounced against them, and the same unfavorable position was taken by some of the earlier American cases, but the later and better opinions in both countries now sustain such wills where they have been executed with the necessary formalities and have not been revoked by some later instrument. (Schouler on Wills, 456, and cases there cited.) The leading case in England on this subject is Dufour v. Pereira, 1 Dick 419. In that case it was held that a joint and mutual will might be revoked by both jointly or that it might be revoked separately, provided the party intending it had given notice to the other of such revocation, but that neither of them could, during their joint lives, revoke it secretly, nor could it be done by the survivor after the death of the other; that such wills constituted a mutual contract between the parties which could not be rescinded by the survivor after the death of one, on the theory that the first that dies carries his part of the contract into execution. In such case the courts will not permit the other party to afterwards break the contract. The doctrine of this case has been approved in a number of well considered cases in this country. Allen v. Boomer, 86 Wis 364; Edson v. Parsons, 155 NY 555; Carmichael v. Carmichael, 72 Mich 76; Bower v. Daniel, 198 Mo 289.” Frazier v. Patterson, 243 Ill 80, pp 84, 85, 90 NE 216, pp 217, 218 (1909).

Thus it was the clear decision of the Illinois courts that a joint will such as this can not be revoked. The purpose of construing a will is to ascertain if possible the intention of the testator and that should be gathered from the four comers of the instrument itself. In the instant case, from the four comers of the instrument, it can be found that all of the property of the decedent was disposed of in the event that either of them survives.

It was held In re Last Will of Lortz, 28 Ill App2d 287, 171 NE2d 244 (1961) the existence of such a contract was also inferred from the terms of the will. It decided that a joint will was not revocable unless it could be proved by satisfactory evidence that it was not a will of joint makers, which was the case in Jacoby v. Jacoby, 342 Ill App 277, 96 NE2d 362 (1950).

In re Last Will of Lortz, supra, the court said:

“In Frazier v. Patterson, 243 Ill 80, 90 NE2d 216, the existence of such contract was also inferred from the terms of the Will. In that case the Court stated (at page 86), that where the parties execute the Wills by the same instrument and are husband and wife, the inference is especially strong that there was an understanding that the Will of the survivor was not to be changed. The Court stated that the making of such Will alone was evidence that it was done in accordance with a mutual compact to dispose of the property as set forth in the Will.”

And in Frazier v. Patterson, supra, it is further said, at p 85:

“In such case the courts will not permit the other party to afterwards break the contract. The doctrine of this case has been approved in a number of well considered cases in this country.”

In Helms v. Darmstatter, 34 Ill2d 295, 215 NE2d 245 (1966), it was found that the evidence supported the finding that the joint will of husband and wife was a valid contract and that the codicil subsequently executed by the wife was not effective to provide for contrary disposition.

We are aware of Supreme Court opinions antedating the passage of the new judicial article including In re Will of Lortz, 23 Ill2d 344, 178 NE2d 298 (1961) and In re Estate of Baughman, 20 Ill2d 593, 170 NE2d 557 (1960) which held that the Probate Court did not have jurisdiction to determine whether or not there was a valid contract which would prevent the operation of a later will made by a decedent. The new article, however, did away with the Probative Court and many of these jurisdictional problems. Neither party here argues that the Probate Division of the Circuit Court is not the proper place for a determination of the issues presented. That being so, we feel that the Probate Division had the power to rule on the issues presented in this case.

So in this case it should be found that the will shows a contract for disposition of the entire estate and that it is proved by the will itself and that the second will executed by the plaintiff, Mamie Weaver, was contrary to the original will and was therefore not valid.

Therefore, we find that the court erred in admitting the second will of Mamie Weaver to probate and that the order should be reversed. The order of the Circuit Court of Cook County, Probate Division, is reversed with directions to deny the admission to probate of the separate will of Mamie Weaver dated October 21, 1960, and to admit to probate the joint will dated February 4,1959, as the will of Mamie Weaver.

Order reversed and cause remanded with directions.

LYONS and BURKE, JJ., concur.


author: STOUDEB, J.

text:
    Glenn Hoagland, Plaintiff Appellant, v. William B. Brown, d/b/a General Spray Service of Peoria, Defendant Appellee.
    Gen. No. 65-80.
    Third District.
    June 1, 1966.
    Winget & Winget, of Peoria, for appellant.
    Leiter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for appellee.
   STOUDEB, J.

This is an appeal from the Magistrate Division of the Tenth Judicial Circuit, Peoria County, in which Appellant seeks the reversal of an order of said court dismissing William B. Brown, d/b/a General Spray Service of Peoria, as a party Defendant and adding General Spray Service, Inc. as a party Defendant.

The matter comes before this court on the pleadings of the parties, which pleadings consist of a complaint, a motion to dismiss and an affidavit in support of said motion. Appellant’s complaint is brought against William B. Brown, d/b/a General Spray Service of Peoria, on a contract, a copy of which is attached to the complaint, and an offer to perform certain work for Appellant which offer was accepted by Appellant and a copy of which is attached to the complaint. Appellee moved his dismissal as a party Defendant and the addition of another party, a corporation known as General Spray Service, Inc., as party Defendant under sections 21(3) and 45(1) of chap 110, Ill Rev Stats, 1963. The motion states that the party with whom Appellant contracted is shown on the face of the contract to be General Spray Service, Inc. and that Appellee’s name does not appear on the face of the contract, that the offer was made by the same corporation and that Appellee’s name does not appear on the face of said offer. The affidavit in support of this motion was signed by a person purporting to be the secretary and office manager of an Illinois corporation known as Central Illinois General Spray Service, Inc., operating under the name General Spray Service of Peoria. The affidavit states that this corporation was created on March 15, 1961, and dissolved on May 3, 1965, and that during this period it was the franchised operator for General Spray Service, Inc., a foreign corporation, and the only such franchised operator. That Central Illinois General Spray Service, Inc. operating under the name General Spray Service of Peoria performed the work for Appellant under the contract and that Appellee was not authorized to use the name of General Spray Service, Inc. nor did he do business under the name General Spray Service of Peoria and finally that Appellee was one of the incorporators of Central Illinois General Spray Service, Inc., was the president of this corporation from the date of its incorporation to the date of its dissolution, and that Central Illinois General Spray Service, Inc. is the proper defendant in this suit whereas William B. Brown is not and should be dismissed.

The order entered by the trial court orders “that the defendant William B. Brown be dismissed as a party defendant, on grounds of misnomer, and that the General Spray Service, Inc., a corporation, be added as a party in this action, and named as a defendant.”

The contract which is the subject of the controversy shows on its face that it is a contract order form of General Spray Service, Inc. and that the franchised operator was General Spray Service of Peoria. The terms of the agreement include that the services will be performed by the duly authorized operator named on the face of the order, that only the named Franchised Operator may use the equipment and supplies of General Spray Service Inc. and that the only equipment and supplies to be used are those of General Spray Service, Inc., that the Franchised Operator agrees to an unconditional refund if the customer is dissatisfied for any reason not specifically excluded and that the warranties are made by the Franchised Operator. The offer contains only the name General Spray Service, Inc. under which appears General Spray Service of Peoria, a telephone number and address, the name and partial address of Appellant, the date and the work to be done and costs thereof. No signatures appear anywhere on either instrument.

The statutes under which Appellee filed his motion are as follows:

Chapter 110, section 21(3), Ill Rev Stats 1963, “Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time before or after judgment, on motion, upon any terms and proof that the court requires.”

Chapter 110, section 45(1), Ill Rev Stats 1963, “All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as: that a pleading or portion thereof be stricken because substantially insufficient in law, or that the action be dismissed, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.”

Issues concerning sections 21(3) and 45(1), chap 110, Ill Rev Stats 1963, are properly raised by motion. If in fact there was “misnomer” a proper relief as provided by section 21(1), chap 110, Ill Rev Stats 1963, is not dismissal of a party but correction of a name. The true test in this case is whether the party sued is the real party in interest and if so his only recourse is to correct his designation if incorrect. Pennsylvania Co. v. Sloan, 125 Ill 72, 17 NE 37; Pond v. Ennis, 69 Ill 341; Proctor v. Wells Bros. Co., 262 Ill 77, 104 NE 186. Failing to do so he is bound by whatever action the court may take under whatever name is used. Ferenc v. Walden W. Shaw Auto Livery Co., 210 Ill App 340; Goff v. Will County Nat. Bldg. Corp., 311 Ill App 207, 35 NE2d 718; Livestock Corp. v. Keller, 336 Ill App 282, 83 NE2d 356. Nowhere does Appellee argue that he was not the real party in interest, or that Appellant has mistaken him for someone else nor does he suggest by what name he should have been designated. We cannot agree with the trial court that this is a case of misnomer.

Likewise we do not believe that section 45(1) is applicable to the situation presented. There is nothing nr the pleadings to show the proper party Defendant to be anyone other than Appellee. Appellee states categorically that he is not the proper party but that General Spray Service, Inc. is. This is merely a conclusion and is not supported by his affidavit which states still another conclusion, that the proper Defendant is not Appellee but Central Illinois General Spray Service, Inc. We cannot tell from these pleadings who acted for the designated Franchised Operator, we cannot determine why the designated Franchised Operator chose to operate under another name and a name which did not indicate its corporate status. We can only determine that the apparent contracting party was General Spray Service of Peoria. Appellant says that this was the name under which Appellee operated, Appellee says this was the name under which a corporation operated but admits that he was the president of that corporation. In reality Appellee is arguing only that he is not liable to Appellant because someone else is and for this reason he sould be dismissed. Proof that another is liable with Defendant does not tend to show that Defendant is not liable. Wilson v. Wilson, 235 Ill App 385. These are not matters contemplated under section 45(1). Stedman v. Spiros, 23 Ill App2d 69, 161 NE2d 590; Toledo v. Brown, 375 Ill 438, 31 NE2d 767.

We will not consider whether or not Appellant could have filed counteraffidavits under section 48(1) (i), chap 110, Ill Rev Stats 1963. Appellee’s motion was specifically made under sections 21 (3) and 45 (1) of said chapter and was granted on grounds of misnomer which could only be section 21 (3).

For the reasons stated we find the order of the Circuit Court of Peoria County to be erroneous and said order is hereby reversed and the cause remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.

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


author: EBERSPACHER, J.

text:
    Wilson H. West, et al., Plaintiffs-Appellants, v. Vernon K. Storm, et al., Defendants-Appellees.
    Gen. No. 65-57.
    Fifth District.
    June 2, 1966.
    Rehearing denied June 22, 1966.

      James B. Wham, Wham & Wham, of Centraba, for appellants.
    Charles E. Herzog, of Chicago (Bell, Boyd, Lloyd, Haddad & Burns, of counsel), for Shriners Hospitals for Crippled Children, appellee. Charles E. Bliss, of Taylorville (Hershey and Bliss, of counsel), for Vernon K. Storm and St. Louis Union Trust Co., as executors, and Vernon K. Storm, Irma Jett and St. Louis Trust Co., as trustees, under the will of Albert H. Sebastian, deceased, appellees.
   EBERSPACHER, J.

The circuit court on motion dismissed Count II of plaintiff’s complaint to construe the will of Albert H. Sebastian, filed by certain heirs at law. Count H is based on the theory that certain provisions of the will violate the rule against perpetuities and the statute restricting accumulations.

The principal dispute concerns the meaning of the last paragraph of the first item of the will. The first item of the will reads as follows:

“FIRST: I direct the payment of all my just debts, the expenses of my last illness and of my funeral, and that said debts be paid as promptly as possible after my decease, and I further provide and direct the payment out of the assets of my estate of all taxes which may be due or a lien at the time of my death and during the course of administration of my estate including not only general taxes, but also income and estate taxes both federal and state which may be found, levied or assessed against my estate and the beneficiaries thereof under the provisions of this will, and I further direct that all letters now held by the St. Louis Union Trust Company (hereinafter appointed one of my Trustees) from me to be delivered to various persons after my death shall be so delivered regardless of the dates of said letters as if they were written today and referred to this last will and testament.
“I have erected on my burial lots in Peaceful Valley Cemetery at Odin, Illinois, a mausoleum to which I have transferred and in which I have placed the remains of my deceased wife and of my deceased daughter and all necessary inscriptions have been made on said mausoleum except the date of my death, and I further provide that when my death occurs my remains shall be placed in my said mausoleum beside those of my deceased wife and daughter, and that thereupon after my death the date of my death shall be carved thereon in letters and figures in perfect workmanship to harmonize with the rest of said inscriptions.
“I further direct and provide that there shall be no distribution under any of the provisions of this will until all of the directions contained in this paragraph have been fully complied with.”

It is the contention of appellants that the direction that the St. Louis Union Trust Company deliver the letters is a condition precedent to vesting, and since by the last paragraph of the first item no distribution was to be made until all the directions were complied with, and since there are the bare possibilities that the letters might not be delivered within the lives in being and 21 years, or might never be delivered, the rule against perpetuities is violated. Appellees contend that this provides for a postponement of possession or enjoyment rather than a condition precedent, in which case there would be no delay in vesting and the rule would be inapplicable.

In construing a will, the court should ascertain the intention of the testator taking into account all the provisions of the will. Papa v. Papa, 377 Ill 316, 36 NE2d 717.

“That wills must be sustained, and the intention of the testator given effect by the courts, whenever it can be done without violating established rules of law, or some public policy, is a saying so often repeated it has become trite; but, nevertheless, it expresses a rule applicable to the construction of every will, when its validity, or any part of it, is called in question.” Crerar, et al., v. Williams, et al., 145 Ill 625, 34 NE 467.

The first item of the will contained directions for: payment of just debts, expenses of last illness and funeral and all taxes; delivery of the letters; placement of testator’s remains in his mausoleum in a particular cemetery; and for an appropriate inscription on the mausoleum. The item must, of course, be read as a whole, and with and in light of the other provisions of the will. Testator has treated the provision for delivery of the letters as being in the same category as each of the other three duties of the executors prescribed in the first item. It is therefore only reasonable to conclude that he intended the delivery of the letters to be made in the same period as that normally taken for the payment of debts and for the performance of the other duties, within the normal period of administration.

It is also to be noted that, with the exception of the fifth item, which relates to testator’s home, the will draws no distinction whatever between real and personal property. By the seventh item, the entire residue is given, devised and bequeathed to the trustees. There is no indication anywhere in the will that residual personal property was to be treated differently than the residual real property. In the seventh item, testator provides:

“All the land which I own in fee at the time of my death . . . may be sold by my trustees either immediately or later, whenever they see fit, . .

The express authorization of immediate sale indicates that the testator intended the trustees to take title to the real estate upon his death.

The testator by the fifth item gave his home and furnishings subject to certain conditions and further made a gift in case the conditions were broken. The term “condition” was also used two other times in the will and four times in one codicil. Since testator thus knew and used the term, it would indicate he did not intend a condition where he did not use the term or provide a gift over in event of breach.

It further appears that the second item states: “I give, devise and bequeath to Pearl Ramsey, a sister of my deceased wife, the sum of One Thousand Dollars.” The other bequests are in similar form. This is not the language of a'conditional bequest.

In the eleventh item of the will testator states that he is presently able to pay in full every gift made in the will but should the unexpected happen and at his death there not be sufficient property to pay all beneficiaries in full, then each shall be reduced pro rata. The fact that testator thought of the possibility that the estate would be insufficient, and that such insufficiency might be a reason to postpone the actual turning over of the money until such time as all taxes, including estate taxes, had been paid, and made provision for such situation, indicates that he intended reasonably expedient vesting. On the other hand, the fact that bequests may be reduced pro rata to pay debts or taxes does not prevent their being vested.

Distribution in an estate is commonly thought of as turning over money by the administrator or executor to the heirs or legatees. It would appear that the testator used it in this sense.

The devise and bequest of testator’s home and furnishings, by the fifth item, to Irma Jett contained the following:

“. . . I give the same to her on the following conditions: She shall make the above property, and the house thereon her permanent home and residence, and she shall actually physically occupy said house at least three hundred and twenty (320) days each year; by which is meant, that she, if possible or feasible, shall actually physically occupy and pass the night in said house on said property herein described, on at least three hundred and twenty (320) days of each year, unless sickness or accident requiring hospitalization should befall her, in which event the provision herein requiring actual occupancy for three hundred and twenty (320) days of each year by her shall be inoperative as long as said hospitalization, if any, continues. She shall keep the assessed taxes paid thereon when due, and never encumber said property. She shall also keep the said buildings and residence on said lots insured for not less than Fifteen Thousand Dollars ($15,-000.00), and further, the insurance on the furnishings and furniture therein at not less than Three Thousand Dollars ($3,000.00), and I further provide that if said residence should be destroyed, whether by fire or by some calamity of nature, then the insurance thereon shall be used to rebuild and reproduce said destroyed residence as fully and completely in every detail as the insurance money which may be collected thereon will permit.”

Certainly, the testator who was so desirous of having his home occupied did not intend to require it to remain vacant until estate taxes were paid and then require it to be occupied 320 days and nights per year. Neither would he desire a gap in the maintenance of insurance.

By the second codicil, it is quite evident that testator wanted the taxes and insurance on his home and furnishings maintained. By it he provided funds for Irma Jett to pay these items and provided their payment in lump sum annually, while other payments were to be paid to her monthly, after distribution.

By giving the term “distribution” in the first item of the will its common meaning of payment or turning over of money, the devise and bequest of the home and furnishings vest immediately on death and the provisions about occupancy and insurance make sense. It thus follows that the only way we can give meaning to all parts of the will is to hold that the term “distribution” is used in the commonly accepted sense of payment of money and thus constitutes a postponement of enjoyment rather than a condition precedent to vesting.

This interpretation avoids a delay in vesting, forfeitures of interests, and an intestacy. It also protects the gift of the residue to charity. All of these are objectives favored by the law.

The testamentary power of appointment given in the fifth item of the will must be exercised, if at all, by Irma Jett, a named living person. Thus, the power can only be exercised within the period of the rule against perpetuities. Northern Trust Co. v. Porter, 368 Ill 256, 13 NE2d 487. Under our interpretation of the will there is no accumulation. However, if there is an invalid attempt to exercise the power of appointment or should there be an accumulation beyond what is permitted by statute (c 30 Ill Rev Stats § 153), the result under this will would be an acceleration of the gift to charity rather than to have an intestacy and let in the heirs. Webb v. Webb, 340 Ill 407,172 NE 730.

Finding no error, the order of the circuit court is affirmed.

Affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Kay Ann Redmond, Plaintiff-Appellee, v. George C. Huppertz, Defendant-Appellant.
    Gen. No. 65-84.
    Second District.
    June 6, 1966.

      Sears, Streit, Dreyer & Foote, of Aurora, for appellant.
    Matthews, Jordan, Dean & Suhler, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court for the 16th Judicial Circuit, Kane County. The case was tried by a jury and a judgment was entered on the jury’s verdict in the amount of $90,000 for personal injuries suffered by the plaintiff when struck by an automobile being driven by the defendant, on June 29, 1962, at approximately 9:45 a. m. in St. Charles, Illinois. The plaintiff, then 16 years of age, and a friend were walking East on the South side of Main Street, West of Third and East of Second Street. The defendant was waiting for his wife in his automobile which was facing East on the South side of Main Street about ten feet West of Third Street. His wife was shopping in a store at the corner of Main and Third Streets.

The evidence was conflicting as to the events which next occurred. Defendant testified that when his wife rejoined him he started up slowly and stopped for a red light at the intersection with the intention of making a right turn. When the light turned green he started to execute his right turn when a car coming from the opposite direction turned in front of him. Defendant testified he jammed on his brakes but that his foot slipped, hitting the accelerator. The car crossed the intersection, jumped the curb, and proceeded East for more than half a block down the South sidewalk of Main Street, between Third and Second Streets, before coming to a stop when it hit a light pole and a parked truck. While the car was out of defendant’s control it struck the plaintiff.

Defendant further testified that after his foot hit the accelerator, the accelerator became stuck and he could not loosen it. He does not remember seeing the plaintiff. Several eyewitnesses to the occurrence testified their attention was first attracted to defendant’s car when they heard the roar of its engine. It appears from their testimony that while parked in front of the grocery store defendant had repeatedly raced his engine. Finally, his car took off at terrific speed, jumped the curb and proceeded down the sidewalk. None of these witnesses observed another car turning left in front of defendant. There was also conflicting testimony as to the extent and permanency of the injuries suffered by the plaintiff when she was struck by defendant’s automobile.

Defendant urges that the court erred in refusing to admit the testimony of an investigating police officer to the effect that after the accident, either the same or within the next day or two, he observed a test as to whether the accelerator of the car was defective. In the offer of proof the investigating officer testified that while he was at the garage to which the damaged car was taken, he observed the owner of the garage test the accelerator by pressing it down with his hand. He testified that it would only go halfway down and then would stick and would not release. The officer himself did not test it and no further test was made. We do not feel the rejection of this testimony was erroneous as the record does not show that the defendant laid a proper foundation to indicate with reasonable certainty that the condition of the accelerator after the accident was the same as prior to the accident and that the reason for its sticking after the accident was not due to some malfunction or defect caused by the accident. Jines v. Greyhound Corp., 33 Ill2d 83, 88, 210 NE2d 562; Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 36, 37, and 38, 139 NE2d 274.

Defendant charges error in that several eyewitnesses to the occurrence, in describing what happened, testified that as defendant’s car jumped the curb and proceeded down the sidewalk, it struck other pedestrians before hitting the plaintiff. The testimony of these witnesses was merely a recitation of what they saw. They did not testify as to the nature or the severity of the injuries suffered by any of the other persons struck by defendant’s car. In Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 126 NE2d 731, relied upon by the defendant, the court had held that the introduction of photographs showing firemen assisting other passengers who had pained and frightened expressions on their faces from the scene of the collision had no bearing on the injuries sustained by the passenger-plaintiff and was therefore inadmissible. We believe that there is a substantial difference between the testimony here offered which merely explained and described the whole of the scene of the accident and that which, as in the Vujovich case, depicts the injuries, pain and suffering of other parties which might tend to unduly prejudice the jury and bring before it collateral issues. Injury or death of others in the same accident is an incident of the accident, Budek v. City of Chicago, 279 Ill App 410, 421, and is admissible as part of the res gestae, West Chicago St. R. Co. v. Kennedy, 170 Ill 508, 510, 48 NE 996. We cannot find that this testimony was prejudicial to the defendant.

The defendant contends that the plaintiff’s argument to the jury was not fair comment on the evidence but was highly prejudicial in many respects and constitutes reversible error. The brief sets forth five excerpts from a lengthy argument with citations concerning what may or may not have been fair comment or reasonable inferences from the evidence. No objections were made by the defendant. It is probable, had objection been made to this argument, part of such objections would have been sustained by the trial court. The general rule is that assignments of error will not be considered on appeal unless objection to the alleged prejudicial argument has been made in the trial court, a ruling of the court obtained and the record showing the objection and ruling preserved. Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312, 331, 156 NE2d 361; Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 334 to 336, inclusive, 200 NE2d 149. Our attention has been called to an exception to the general rule, namely, that if prejudicial arguments are made without objection of counsel or interference by the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review the court may consider such assignments of error, even though no objection was made and no ruling made or preserved. Belfield v. Coop, 8 Ill2d 293, 313, 134 NE2d 249. We have read the argument in the case at bar and find that while there may have been portions of it to which the trial court could have sustained objections had any been made, the overall argument was not prejudicial and was within the broad latitude granted to attorneys. Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 127, 170 NE2d 635; Reinmueller v. Chicago Motor Coach Co., 341 Ill App 178, 186. This was not a Belfield v. Coop, supra, type of argument.

The trial judge in giving instructions to the jury included two instructions, one which related to the future loss of earnings to the plaintiff, IPI 30.07, and the other to future medical expense, IPI 30.06, both of which defendant claims were erroneous. No testimony was adduced to indicate that the injuries sustained would impair plaintiff’s ability to obtain work or be gainfully employed. The medical opinion indicates a brain injury with permanent loss of the sense of smell and a permanent disruption of the sense of taste and some loss of emotional control and a degree of epileptic activity, for which medication is indicated. To a contraindication is the defendant’s proof that the plaintiff participated in the usual school activities and was fully and gainfully employed at the time of the trial. Our attention is directed to Stewart v. DuPlessis, 42 Ill App2d 192, 201, 191 NE2d 622 wherein a young boy suffered the loss of an eye; Wolczek v. Public Service Company, 342 Ill 482, 496, wherein a boy lost an arm, and Parnham v. Carl W. Linder Co., 36 Ill App2d 224, 183 NE2d 744, where an adult plaintiff lost an eye. In these cases the court permitted an inference of future loss of earnings, from the nature of the injury. It is urged that the injuries sustained are not obvious, and therefore, proof of loss of future earning power must be proven to permit and give an instruction on that issue. We do not concur with this interpretation of the foregoing citations and conclude that an instruction on the future loss of earnings, where evidence is adduced of some permanent injury to a minor child, is proper. There is some evidence indicating the necessity for future medical care and the instruction on future medical expense was pertinent.

The defendant contends that the general rule in Illinois on hypothetical questions is well defined in Illinois, citing Olofsson v. Wood, 23 Ill App2d 32, 46, 161 NE2d 681, as follows:

“The rule is that there an expert witness is asked a hypothetical question and the facts are not disputed, the question must contain all the material facts or the opinion is likely to mislead the jury.”

Defendant urges, however, that there is a limit to the reasonable application of this general rule. He points out a series of undisputed facts which were omitted in the hypothetical question, making inquiry as to whether the questioning lawyer could ask a question including only one fact and then sit back and force the objecting lawyer to add all of the undisputed facts to complete the hypothetical question which he could think of on the spur of the moment, or waive his objection. An examination of the hypothetical question leaves no doubt but that the plaintiff sought to elicit all of the facts in evidence and there was no attempt to burden the defendant unduly or unnecessarily in furnishing the remaining undisputed facts. We construe this point of the brief in the light of a general objection and a ruling thereon is waived by the failure to point out the facts improperly included in or omitted in such question. Goldberg v. Capitol Freight Lines, 382 Ill 283, 290, 47 NE2d 67.

Defendant’s final contention is that the verdict is excessive for the injuries sustained. Should we adopt the defendant’s proof of the activities of the plaintiff after the accident, assuming there were no permanent injuries, it is true that the amount awarded appears excessive. In the light of the testimony of the permanent injuries, the evaluation by the jury should not be disturbed. We do not find that the record reveals that the amount is so excessive as to show passion and prejudice on the part of the jury. Lau v. West Towns Bus Co., 16 Ill2d 442, 452, 453, 158 NE2d 63; Whitford v. Downs, 44 Ill App2d 151, 155, 156, 194 NE2d 553, and Jines v. Greyhound Corp., 46 Ill App2d 364, 379-384, 197 NE2d 58.

We therefore conclude that the verdict and judgment below are correct and the judgment is hereby affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


author:
CRAVEN, J.
      SMITH, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles W. Haun, Defendant-Appellant.
    Gen. No. 10,623.
    Fourth District.
    June 6, 1966.

      SMITH, J., dissenting.
    Carl 0. Hoffee, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, and Laurin A. Wollan, Jr., Assistant State’s Attorney of counsel), for appellee.
   CRAVEN, J.

The defendant-appellant was convicted of attempted murder and aggravated battery, by a jury, and sentenced to a term of a minimum of eight years and a maximum of fourteen years in the penitentiary. This appeal is from that judgment and sentence. In his appeal the defendant alleges seven separate errors. The mixed issues of the defendant’s sanity and waiver of counsel, in light of the facts disclosed in this record, are, however, the controlling questions in this appeal.

The facts of this case are somewhat unique. The defendant was indigent at the time the court appointed his first legal counsel, the public defender. Thereafter, the court dismissed the public defender at the defendant’s request. The defendant, at that time, stated he wished to retain private counsel. The defendant appeared at a later date and informed the court he did not have the funds to employ private counsel and the court then appointed an attorney of the Sangamon County Bar.

The trial began with the second appointed counsel representing the defendant. In the opening statement for the defendant, it was stated that the defense to the charges presented would be insanity.

Marilyn Haun, the defendant’s 26-year-old wife, was the victim of the alleged offenses and appeared as a witness for the People. Mrs. Haun testified that she and her husband were at Reverend Harold Elijah Harrison’s home, in Springfield, in a meeting, attempting to resolve their marital difficulties. She stated that, after some time, they left the Harrison home together and both walked to a car parked in front of the house; then the witness stated the defendant struck her, that she felt a cutting, although she did not see a knife. The witness stated she ran and called for help from Reverend and Mrs. Harrison who, together with a third woman, helped the witness to the hospital. She testified she had thirteen separate wounds. She was pregnant at the time of the attack.

After a brief cross-examination, the defendant announced to the court, outside the presence of the jury, that he wished to excuse counsel because of the disagreement with his attorney’s method of cross-examination. The court admonished the defendant that he must represent himself or hire a private attorney if he again dismissed counsel. The court further warned the defendant that he would not interrupt the progress of the trial. After the defendant indicated that he intended to proceed with the defense of his case without the services of counsel, the court then directed counsel to assist the defendant through his presence and advice. Thereafter the defendant assumed the trial of his own case.

Marilyn Haun was then recalled and the defendant asked her about certain conversations occurring on July 26, 1968. Upon objection, the court limited the cross-examination to the date of December 23, 1963, the date of the offense, the only date testifed to on direct examination.

The People then called Reverend Harold Elijah Harrison, who testified that the defendant and his Wife were at his home on the night of December 23, 1963, attempting to effect a reconciliation. He stated that after hearing screams he saw the defendant approach him, without speaking, and hand him a paring knife which belonged to Reverend Harrison and came from his kitchen. On cross-examination the court, after objection of the state’s attorney, narrowly limited the scope of inquiry to the night of December 23. The court further excluded testimony of the emotional “state or condition” of Charles Haun when he came to Reverend Harrison’s home at an earlier date as beyond the scope of direct examination.

Further testimony for the State established that the defendant admitted the stabbing on several occasions and that the victim suffered twelve separate wounds.

The defendant then recalled his wife as a defense witness and attempted to show that when he met his wife in July of 1963, she was pregnant by another man. The court, upon objection, refused to allow the testimony. It was held to be immaterial and too remote.

After conferring with his counsel-advisor and after advice from the court that he had a record of prior convictions, the defendant took the stand in his own behalf. He testified, in narrative form, that he had been in a mental institution for eighteen months to two years, at Warren State Hospital, in Pennsylvania. The specific date was not established. Further, he had pleaded guilty to two offenses in the State of Pennsylvania. He came to Decatur to start a new life, obtained a job, and met and married his wife. He further stated that his wife was pregnant by another man before they were married. This portion of the testimony was stricken and the jurors instructed to disregard it on motion by the People. The defendant related that he and his wife lived together and were buying a home when his wife started “running around” with the man who fathered her as yet unborn child. He testified that he made several attempts to convince her to return to him but that she continued to see the other man.

On the night of the stabbing, the defendant claimed he was attacked by his wife with a knife and that he then disarmed her. Thereafter he testified:

“ ‘At that time, and it’s the God’s truth, a sharp pain run across my head right here, just like water, and hot water, it get hot and it get cold, run down the side of my face and, like a lot of needles, everything all runnin’ down the side of my neck all the way down, and my body started vibratin’, and I struck at her, I remember strikin’ at her, but how many times, I don’t know, because I don’t remember how many times I hit her, all I remember was when Rev. Harrison called me.’ ”

On cross-examination, the state’s attorney impeached the defendant with a prior statement wherein he admitted to the police that he took the knife from his own pocket.

The defendant then recalled Reverend Harrison who testified that the defendant appeared normal until the name of his wife’s lover was mentioned and that then a drastic change occurred. The witness then made several remarks and observations concerning the defendant’s mental condition and nervous state. This testimony, too, was stricken. At all of the above proceedings, counsel was present but did not participate other than to confer privately with the defendant and the court.

The defendant raises a question as to the validity of the indictment for failing to comply with c 38, Ill Rev Stats 1963, § 111-3, for failing to set forth time and place of the offense “as definitely as can be done.” This issue has been resolved by our Supreme Court in People v. Blanchett, 33 Ill2d 572, 212 NE2d 97 (1965), wherein it reversed a decision of this Court entertaining the views here advocated by the defendant. (55 Ill App2d 141, 204 NE2d 173 (1965).)

The basic issue in this case, from the standpoint of substantial justice, is the issue of insanity at the time of the offense. The concept of legal insanity is probably one of the most controversial areas in the law. It is an area in which jurists, advocates and laymen are asked to define “conduct” within a statutory rule that is difficult if not incomprehensible to the most experienced forensic psychiatrist. Extreme caution must guide the administration of our system of criminal justice where, as here, we are dealing with a person with a history of mental illness.

The court, upon objection by the State, excluded testimony by the defendant’s wife as to her pregnant condition prior to their marriage. The defendant first attempted to cross-examine his wife after she testified as the State’s complaining witness. This inquiry was ruled beyond the scope of the direct examination. Later the defendant called his wife as a defense witness and such testimony was excluded as irrelevant. The defendant’s informal offer showed that when he met his wife she was pregnant by another man and that, after they married, they experienced considerable difficulty over this situation and the other man, which affected the defendant’s state of mind. The court required that the defendant confine his inquiry to the events of December 23, 1963, the date of the stabbing. Likewise, defendant’s testimony was limited to the date of December 23.

The inquiry was not whether the defendant committed the stabbing, but whether he was insane at the time of the act. To determine insanity, you cannot take an isolated cross section of a single series of acts and myopically examine it within the narrow confines of the date set forth in a formal charge. In order to make a proper determination, there must be more than a cross section; we must examine the person, his history, his relationship with the victim, prior mental illnesses and other intervening factors of causation. 20 Am Jur Evidence, p 324; Committee Comments, SHA ch 38, sec 6-2 (b). Great latitude is normally afforded the defendant in the admission of evidence as to mental condition. (26 Am Jur Homicide, p 385.)

This is especially applicable here, where the defendant represented himself. Illinois has never adopted a restrictive evidentiary rule with respect to the scope of inquiry where mental state or condition is in issue. People v. Moor, 355 Ill 393, 397, 189 NE 318 (1934). People v. Carpenter, 11 Ill2d 60, 75, 142 NE2d 11 (1957). We conclude that the exclusion of this evidence was prejudicial to the defendant.

The defendant objects that the court improperly instructed the jury on the issue of insanity. The state tendered an instruction to the effect that all persons are presumed sane until the contrary is shown. This instruction was given without objection. No instruction was given defining the legal test of insanity. Our Supreme Court has strongly criticized the use of a like instruction.

“While the law presumes that all men are sane, in a criminal case, whenever there is evidence introduced tending to show that the accused was insane at the time of committing the act constituting the alleged crime, the burden then devolves upon the State, regardless of the presumption, to prove, beyond a reasonable doubt, by evidence, that at the time of the commission of such act the accused had sufficient mentality to distinguish between right and wrong as to that particular act, and that he was capable of exercising the power to choose between the right and the wrong, and if the evidence fails to show both such facts beyond a reasonable doubt it is the duty of the jury to acquit the defendant. (People v. Lowhone, 292 Ill 32 [126 NE 620].) An instruction to the jury as to what the presumption of law is, upon a question of disputed fact, is extremely likely to mislead the jury and should not be given. Guardian Mutual Life Ins. Co. v. Hogan, supra; [80 Ill 35]; Garrettson v. Pegg, 64 Ill 111.” (People v. Cochran, 313 Ill 508, 524, 145 NE 207 (1924).)

Such an instruction has been declared to be error.

“This instruction is erroneous. The law does not presume every person accused of a crime to be sane until the contrary is shown. The only effect of the presumption of sanity is to require the introduction of evidence tending to prove insanity. When that is done the presumption no longer prevails. It does not continue until the contrary is shown. The question of sanity or insanity is then to be determined from the whole evidence, without any reference to the presumption. The rule as stated in the instruction in effect imposes the burden of proof on the defendant. It is not essential that insanity should be shown. All that is required of the defendant is evidence sufficient to raise a reasonable doubt of sanity. The presumption of sanity can not be considered by the jury in determining whether the defendant is sane or insane. Whenever evidence is introduced tending to show that the accused was insane at the time of committing the act charged as a crime, the burden devolves upon the State to prove beyond a reasonable doubt, regardless of the presumption, that at the time of the commission of the act the accused was sane. [Citing case.] ” . . . (People v. Saylor, 319 Ill 205, 211, 212, 149 NE 767 (1925)). (Emphasis added.)

The State argues that other later cases have held that there is a presumption of sanity. People v. Wagner, 390 Ill 384, 386, 61 NE2d 354 (1945). People v. Shroyer, 336 Ill 324, 326, 168 NE 336 (1929). People v. Haensel, 293 Ill 33, 37, 38, 127 NE 181 (1920). The question here is not the existence of such a presumption. We find that there is no reason to instruct as to a presumption where there is competent evidence to the contrary. Presumptions are legal fictions, the niceties of which are of little value to a lay jury in determining ultimate facts. See also People v. Bender, 20 Ill2d 45, 169 NE2d 328 (1960), as to pretrial sanity hearing.

In this case, the evidence on the question of insanity or the evidence thereof erroneously stricken by the trial court was sufficient to exclude consideration of any presumption of sanity. In that circumstance, there was no cause to instruct as to that legal fiction.

Once the issue of insanity was raised and evidence introduced, the question of sanity or insanity was then to be determined from all the evidence in the case. The jury should be instructed as to what constitutes insanity under the law of Illinois and an instruction relating to a continuing presumption of sanity is error. See People v. Carpenter, 11 Ill2d 60, 142 NE2d 11 (1957); Committee Comments, SHA ch 38, sec 6-2.

In the delicate area of ascertaining criminal responsibility, the jury should not be left to speculate as to what constitutes a legal defense of insanity under our law. In determining criminal responsibility the jury was guided only by the improper instruction on the presumption of sanity. We cannot sustain a conviction in light of this combination of circumstances.

The defendant argues that the court should have required a hearing to determine competency to stand trial under ch 38, sec 104-2, Ill Rev Stats 1963. This issue need not be determined in view of otir conclusion that the case must be remanded for a new trial. The issue of the defendant’s competence to stand trial may appropriately then be determined if there is, in fact, cause, at that time, for such a determination. See Pate v. Robinson, 383 US 375, 15 L Ed2d 815, 86 S Ct 836.

The judgment of the circuit court of Sangamon County is reversed and this cause is remanded for a new trial.

Reversed and remanded for a new trial.

TRAPP, P. J., concurs.

SMITH, J.,

dissenting.

I do not believe that insanity is the basic issue in this case “from the standpoint of substantial justice,” or for that matter from any standpoint. Neither do I understand its characterization as one of the “mixed issues,” along with “waiver of counsel,” when the latter is not even discussed, and only mentioned in passing as one of the “unique” facts. True, insanity was alluded to in defendant’s opening statement, but the simple fact is that this issue was never developed and I am not persuaded in the least that the testimony so excluded was probative of this or any other developed issue. Counsel’s assurance in opening statement that insanity would be the defense does not create the context for this testimony. The context can only be created by proof, probative of that issue, before the introduction of the evidence now ruled admissible can be permitted.

Let me make my meaning more precise. Standing alone, the excluded evidence was probative of nothing so far as this indictment is concerned. One can thumb the pertinent sections of the Annotated Code on Justifiable Use of Force: Exoneration, and not find a single annotation much less language which justifies or exonerates or excuses the stabbing of wives by husbands because they are pregnant by another — with or without knowledge at the time of marriage. It could become probative of the defense of insanity, but that issue must first be developed, that is, framed, before we can let happenstances such as this intrude on trials as we know them. Were it otherwise, the trial of criminal cases would soon become quagmires of collateral circumstances, remote incidents, and assorted trivia, with the central issues slipping out of sight into the ooze.

There are prescribed and readily available avenues by which this issue can be raised. Although it is not stated as such, I detect the majority looks askance at even the delimitation on cross-examination of the victim when on the stand as a witness for the People. I need only say in passing, that the People are under no duty to negate in chief, the affirmative defense of insanity, and pari passu, the defendant is prohibited from injecting the issue on cross-examination, unless it does relate to direct.

No one would seriously resist the notion that if insanity is in issue, the ambit of inquiry broadens considerably, much as concentric circles radiate from a point where a pebble is dropped onto an otherwise placid pool. But as a precondition for such concentricity, there must be a pebble, or in our context, the establishment or development of such issue. This issue is not raised here, in my opinion, by this somewhat scandalous tidbit. Can it be seriously contended that such rises to the stature of framing the issue that on the night of December 23, defendant was not responsible for his conduct because he lacked “substantial capacity either to appreciate the criminality of his conduct” or to conform the same “to the requirements of law,” “as a result of mental disease or mental defect ?”

While I might concede that insanity is a controversial area, I think it an unwarranted expression, that “jurists, advocates and laymen are asked to define ‘conduct’ within a statutory rule that is difficult if not incomprehensible to the most experienced forensic psychiatrist.” I do not believe this at all and while I would be the first to agree that extreme caution must guide the administration of public justice, I do not think caution dictates digressions of this sort, which can only result in wide misunderstanding and cause the sensible and judicious to grieve. Indeed, only recently the Court of Appeals for the Second Circuit, in adopting Section 4.01 of the Model Penal Code, almost identical to our “statutory rule,” spoke of the same as, “permitting the utilization of meaningful psychiatric testimony”; “couched in sufficiently precise terms to provide the jury with a workable standard,” and that it was “comprehensible to laymen.” United States v. Freeman, 357 F2d 606, 34 US Law Week 2478 (1966).

Had the issue of insanity been raised by the evidence, I would be the first to concur, that what otherwise might be considered remote or collateral, could become germane. Even then, I would be loath in most situations, to make the sweeping “determination” called for in the majority opinion, that “we must examine the person, his history, his relationship with the victim, prior mental illnesses, and other intervening factors of causation.” This statement I consider fraught with the same dangers noted above, for it would seem to give an imprimatur that once somebody mentions insanity, the trial is open for an interminable excursion apropos of the “person,” his “history,” his “relationship with the victim,” “prior mental illnesses,” and “other intervening factors of causation,” whatever that means. I can only assume that they all mean an open sesame for all sorts of irrelevancies and immaterialities and I am sure that they will be latched onto as such by the disingenuous, but ingenious. This, indubitably, is not going to improve the administration of public justice.

I think, too, that it is a mistake to say that “intervening factors of causation” must be examined before a “proper determination” can be made. Does this imply that the sources and causes of crime (imponderables though they be) are now germane in determining whether a crime has been committed? It, of course, can be pertinent, if causation can be equated with motive, but certainly not otherwise, because motive and causation, conceptually, are two different things. For a crime to exist, there must be a voluntary act coupled with the requisite state of mind, by which we mean that one can choose not to do something if he opts. Otherwise, the cause or source of criminal “conduct” while certainly of vast interest to all of us who are interested in the progress of civilization, is of no consequence whatsoever in making a proper determination that a particular person committed a particular offense. At least on this side of the ocean we have rejected the notion of determinism in the ordering of man’s affairs.

Of course, if there was no issue of insanity, as I have concluded, then the refusal of defendant’s tendered instruction on this issue was quite proper. While it might seem, to be consistent, that I should now outlaw the giving of the People’s instruction on the presumption, I can appreciate that the pretense of an issue of insanity could properly engender in the mind of the prosecution the apprehension that such pretense might be accepted as fact unless rebutted, or rather, neutralized. Thus, I think that the defendant opened the door to the giving of this instruction in his opening statement, which is not to say that I approve, simply that I don’t think it was reversible error.

I do not wholly understand the digression that presumptions, while admittedly legal fictions, are of “little value to a lay jury.” Without belaboring the point, I fail to see any “niceties” in, say, the presumption of innocence, nor do I think that presumptions generally, including the presumption of sanity, are of little value to a lay jury. Presumptions, in my opinion, to paraphrase Judge Prettyman, are something more than mere “pious platitudes recited to placate the shades of venerated legal ancients.” See Billeci v. United States, 184 F2d 394.

As I would affirm the judgment, I therefore dissent.


text:
    Leroy M. Fink and Clarence W. Bohm, Plaintiffs-Appellees, v. The Board of Trustees of Southern Illinois University, Defendant-Appellant.
    Gen. No. 65-94.
    Fifth District.
    June 16, 1966.
    Rehearing denied July 26, 1966.

      Donald R. James and Durr & Durr, all of Edwards-ville, for appellant.
    Reed, Armstrong and Gorman, of Edwardsville, for appellees.
   EBERSPACHER, J.

Plaintiffs brought suit to enjoin construction of a dam upstream on an intermittent watercourse which flows past their property. They also sought to enjoin defendant from discharging sewage effluent from their sewer treatment plant into said watercourse. Plaintiffs further sought to have their attorney fee expense taxed as costs. The trial court, after hearing, denied the injunction as to the construction of the dam and denied attorney fees. From this order plaintiff appeals. The trial court did enjoin the discharge of sewage effluent and from this order defendant appeals.

Defendant is in the process of constructing a university campus upstream from plaintiffs’ property. As part of the construction, defendant has placed a dam across one branch of the watercourse to impound a lake. The lake water will be used for heating and cooling and recreation purposes. Below the lake about 900' from plaintiffs’ property a sewer treatment plant has been constructed.

The only complaint concerning the construction of the dam is that it would reduce the flow of water through plaintiffs’ property. The dam will impound water on one of two branches of the watercourse and only such quantities from that source as go over the spillway will henceforth flow past plaintiffs’ land. However, there is evidence that the flow from the other branch of the watercourse will be increased as a result of construction of asphalt parking areas and other construction which increases the runoff.

All testimony shows that flow in the watercourse is intermittent. Plaintiffs do not use the water for drinking or household purposes. The loss, if any, to the plaintiffs by any decrease in the flow is minimal. On the other hand, the benefits to defendant from construction of the dam are substantial. Under these circumstances the refusal to enjoin construction of the dam was proper. Haack v. Lindsay Light & Chemical Co., 393 Ill 367, 66 NE2d 391; Clark v. Lindsay Light & Chemical Co., 341 Ill App 316, 93 NE2d 441.

Allowance of attorney fees is the exception rather than the rule. No special circumstances justifying their allowance was shown and hence denial of attorney fees was proper. Ritter v. Ritter, 381 Ill 549, 46 NE2d 41.

The granting of the injunction against the discharge of sewage effluent presents the serious question involved in this appeal. A review of the evidence in regard to this question is necessary.

Two engineer representatives of the firm which planned the sewer system for defendant testified that two alternatives for the disposition of the sewage effluent from the sewage treatment plant were considered. One was the method which the defendant is presently endeavoring to employ, that is, to spill the effluent into the intermittent watercourse after chlorination treatment, and the other was to construct an outfall sewer line so that the effluent will be carried to Cahokia Creek, thence to the diversionary channel and to the Mississippi River. These engineers had recommended the outfall sewer line and that was still their recommendation at the time of trial.

There was testimony that in the initial phase a maximum of 1,000,000 gallons of effluent per day would be emptied into the stream and, later, in the second phase, 2,000,000 gallons per day. This discharge would not be at a constant rate; there would be peak periods during the day when the volume of flow would be comparable to the discharge from seven fire hoses operating at capacity.

The testimony shows that the effluent will be clear, odorless, of low bacteria content, and within the standards established by the State Sanitary Water Board as long as the sewage treatment plant operates properly. There was testimony that on occasion an operational failure of the plant occurs. Failure of the sewage treatment to operate in a proper manner will cause the quality of the effluent to be such as would not meet the standard. There was other testimony concerning the possibility of a breakdown or not properly operating. Defendant plans to use the treatment plant to train students in the proper operation of such a unit. It is contended that this use would tend to increase the possibility of operational failure.

There was testimony offered by defendant that the activated sludge treatment plant followed by disinfection, which is chlorination, is the highest type of practical and feasible treatment normally accepted in the state of Illinois and that the effluent which will be discharged will not cause pollution as defined by the Sanitary Water Board Act. It was further shown that the Sanitary Water Board had examined the plans and issued a permit for the construction of this system.

Plaintiffs testified that they lived in property adjoining the watercourse and that their property is zoned for residential purposes; that it would bother them and interfere with their use and enjoyment of the property to have the effluent in the watercourse. They testified that, in their opinion, the passage of the effluent through their property would adversely affect its value. While many of their complaints are subjective in nature, they evidenced their sincerity by stating and stipulating to an offer to provide a right-of-way across their property for the outfall sewer without cost to the defendant. The water presently in the watercourse was recently tested and found unfit for drinking purposes.

By agreement of the parties, the trial judge made a personal inspection tour of the premises of plaintiffs and defendant.

The case of Barrington Hills Country Club v. Village of Barrington, 357 Ill 11, 191 NE2d 239, would constitute ample authority for the issuance of this injunction. However, in Haack v. Lindsay Light & Chemical Co., supra, while the Barrington case was not referred to in the opinion, it was overruled in part. Since the evidence in this case shows that there is an available substitute method for defendant to dispose of the effluent, the decision of this case depends upon a question of fact as to whether or not the injury to plaintiffs is substantial and they have no adequate remedy at law. Here the chancellor was particularly well advised; he not only, by agreement of the parties, inspected the premises, but he saw the witnesses and listened to their testimony, and heard the project engineer and another engineer testify that in making their recommendation to use the outfall sewer method they had considered all the factors; he heard their conclusions that although the outfall sewer method would cost more initially, it would be the more economical method, eliminating the cost of chlorination treatment, and that after the recovery of the additional initial cost, there would be a considerable yearly savings because of the lower operating costs. Under such circumstances his findings of fact should not be disturbed by this court unless they are manifestly against the weight of the evidence. Schnepper v. Ashlock, 404 Ill 417, 88 NE2d 853; Evangeloff v. Evangeloff, 403 Ill 118, 85 NE2d 709; Greer v. Carter Oil Co., 373 Ill 168, 25 NE2d 805. The very substantial increase in the flow coupled with the fact that the flow would at times consist solely of sewage effluent would, under the circumstances of this case, justify a finding of substantial injury. Since the injury would be of such a continuing nature there is no adequate remedy at law.

The case of Dunlap Property Owners Ass’n, Inc. v. City of Edwardsville, 22 Ill App2d 95, 159 NE2d 4, relied upon by defendants, involved a different factual situation. The only question involved in the Dunlap case was pollution. Here there are other factors causing the injury whether or not there is pollution in a technical sense.

Defendant further contends that an injunction is not proper since the damages are prospective. In this case the fact that this is now an intermittent watercourse and the fact that defendant proposes to regularly spill large quantities of sewage effluent into said watercourse are not in dispute. While, as a general proposition, an injunction will be granted only to restrain an actual, existing nuisance, a court of equity may enjoin a threatened or anticipated nuisance, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. This is particularly true where the proof shows that the apprehension of material injury is well grounded upon a state of facts from which it appears that the danger is real and immediate. While care should be used in granting injunctions to avoid prospective injuries, there is no requirement that the court must wait until the injury occurs before granting relief.

We find neither error, nor abuse of discretion and the judgment of the circuit court of Madison County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: JUSTICE STOUDER.

text:
    June Parsons, Plaintiff-Appellant, v. George Parsons, Defendant-Appellee.
    Gen. No. 66-5. (Abstract of Decision.)
    Third District.
    June 6, 1966.
    Fred W. Potter, of Princeton, for appellant; Walter D. Boyle and Linn Goldsmith, both of Hennepin, and George S. Skinner, of Princeton, for appellee.
   Opinion by Not to be published in full.

JUSTICE STOUDER.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Allen, Defendant-Appellant.
    Gen. No. 49,950.
    First District, Fourth Division.
    April 7, 1966.
    Harvey B. Bass and Jerold S. Solovy, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from a sentence of 10 to 15 years upon conviction for unlawful sale of narcotic drugs. Ill Rev Stats 1963, ch 38, § 22-3.

The first contention is that the court committed error in refusing to allow defendant’s several motions, made during the course of the trial, that those proceedings be suspended for the purpose of conducting a hearing to determine the competency of defendant to stand trial. Ill Rev Stats 1963, ch 38, § 104-2.

The State’s Attorney confesses the validity of defendant’s contention under the compulsion of People v. Burson, 11 Ill2d 360, 368-370, 143 NE2d 239, and Pate v. Robinson, 86 S Ct 836.

As we pointed out in People v. Kelly, 66 Ill App2d 204, 214 NE2d 290, 293, agreement of the parties does not control the judicial function of this court. We have, however, examined the record and find that on no fewer than 119 times defendant interrupted the trial with ravings and abusive epithets directed at the judge, the State’s Attorney and even at his own counsel. The character of these vituperative remarks by defendant was such as to convince us that a bona fide issue was raised as to defendant’s competency. We therefore agree with the position of the parties that the conviction in this case should be reversed and the cause remanded for a new trial. Such trial should not be commenced, however, until after a hearing is conducted to determine defendant’s competency under the statute.

Reversed and remanded with directions.

DRUCKER, P. J. and MCCORMICK, J., concur.