author: MOEAN, J.

text:
    The People of the State of Illinois, Plaintiffs-Appellees, v. Clarence Rohwedder, Defendant-Appellant.
    Gen. No. 66-9.
    Fifth District.
    January 4, 1967.

      Cohn, Cohn & Eorein, of East St. Louis, for appellant.
    John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (James H. Bandy and John H. O'Connell, Assistant State’s Attorneys, of counsel), for appellees.
   MOEAN, J.

Defendant-appellant, hereinafter referred to as defendant, and one Harry Tippett were tried jointly by a jury in the Circuit Court of St. Clair County, Illinois, for the crime of burglary. Tippett was acquitted. Defendant was convicted and sentenced to a term of not less than three nor more than seven years in prison.

Defendant first contends that the indictment was fatally defective because it was not signed by the foreman of the grand jury as required by Illinois Eevised Statutes, chapter 88, section 111-3 (b). The indictment was signed at the bottom of the first page by the State’s Attorney of St. Clair County, Illinois, and endorsed “a true bill” on the reverse side by the foreman of the grand jury. People v. Faciano, 66 Ill App2d 431, 213 NE2d 587, and People v. Vlcek, 68 Ill App2d 178, 215 NE2d 673, hold that the endorsement on the back of the indictment as “a true bill” with the signature of the grand jury foreman thereto, was entirely proper and sufficient, although the signature of the State’s Attorney, rather than that of the foreman of the grand jury, appeared on the face of the indictment. We agree with these decisions.

Defendant next contends that he is entitled to the benefit of his codefendant’s acquittal and discharge since they were tried jointly. This same contention was made in People v. Rogers, 16 Ill2d 175, 157 NE2d 28, wherein the court at page 183 said:

“Defendant also contends that since he and Biggers were jointly indicted, they must be either jointly convicted or jointly acquitted, and that since the jury found Biggers not guilty and found defendant guilty, there was variance between the indictment and the proof. There is no merit to this contention. The acquittal of one of two jointly indicted defendants is no reason why the other defendant cannot be convicted.”

The defendant also contends that he is entitled to a new trial because the Chief Judge of the Twentieth Circuit, without notice to the defendant or his attorney, summoned the jury into the courtroom during its deliberations and put the jury to inquiry.

This case had been assigned for trial to Judge Trafton Dennis of Harrisburg, Illinois. When the jury retired at about 11:30 a. m., to consider its verdict, the People and the defendants, through their respective counsel, stipulated that the jury should be permitted to deliberate until 9:00 p. m., before being discharged for inability to agree, and that a sealed verdict or verdicts could be received if they reached agreement before that time. After the jury had retired, Judge Dennis left for his home in Harrisburg, Illinois. About 4:30 p. m., the Chief Judge of the Twentieth Circuit caused the jury to be brought before him for inquiry. This was done in the absence of defendants and their attorneys, and without prior consultation with them.

The defendant filed a post-trial motion asking for a new trial because of the communication between the Chief Judge and the jury after the jury had retired to reach a verdict. A hearing was had on the motion for a new trial, wherein the Chief Judge testified that he was Chief Judge on June 11, 1965, when the jury was deliberating in the case of People v. Tippett and Rohwedder; that he was in the courthouse and was aware that the jury was deliberating; that he called the trial judge on the telephone, reaching him at home and said, “This is Judge -, and I understand that the jury is deliberating in the case that you have just concluded; if you want me to receive that verdict when they reach it, I will be very happy to do so.” He said that to the best of his recollection, the trial judge said, “Go ahead, do that. The people are there. It can be announced in open court when it is read.” A short time later he said to the bailiff, “Would you bring the jury down to the courtroom? I want to find out what progress has been made.” The bailiff went up and told the jurors to come down to the courtroom. The Chief Judge was seated on the bench. He said, “I am not the judge that presided at the trial. However, do you need more time to deliberate?” The foreman arose and said, “Yes, we could use more time.” “I said, ‘All right, go back up to your jury room.’ ” He further testified that there was no discussion of the merits of the case and no instructions given concerning any issue of fact or law on the case; that the attorney for the defendant called him up and said, “How is the jury doing?” and he said, “Saul, a short time ago I brought them to the courtroom to find out the progress of the deliberations, whether or not there was any need to continue. I sent them back up there. They are still deliberating.” Rohwedder’s attorney then said, “I will be right up.” “He made no objection to what I had done. When the verdict was reached, everyone was brought into the courtroom. Defendant and Mr. Cohn were there and I read the verdict, and to the best of my recollection, Mr. Cohn either polled the jury or waived it.”

He further testified that he made no effort to call the defendants or their lawyers when he brought the jury into the courtroom; that when he talked to Rohwedder’s attorney some time later, he wasn’t quite sure whether the jurors had been brought down to the courtroom or not; that he asked Mr. Pierce, the bailiff, about it and Mr. Pierce said he did not remember the incident; that he thereupon went to the home of the jury foreman one evening and asked him, and the foreman said, “Yes, you brought us down. The bailiff brought us down in the courtroom. You asked us if we needed more time. I said we did. You then sent us upstairs immediately.”

The bailiff then testified that he did not remember bringing the jury down during the afternoon of the trial, only after they had reached a verdict. He did not recall that the Chief Judge had told him to bring them down in the afternoon. He didn’t think they were brought down. He did not remember saying after the trial that they were brought down, and if they were brought down, he did not remember what the trial judge said to them.

Rohwedder’s attorney testified that he came to the courtroom upon learning that the judge had called the jury into the courtroom; that he chatted with the Chief Judge until 7:00 p. m., when the jury came in; that he made no objection or motion for a mistrial as there was no court reporter present.

In Crabtree v. Hagenbaugh, 23 Ill 349, after the jury had retired to consider their verdict, they sent for the judge who went to their room and talked to them about the subject of the instructions which had been given them. The court pointed out that the action of the judge was obviously without any improper motive and that the most that he did was to decline to explain the meaning of the written instructions which had been given to the jury; that they assumed that what was done by the judge did not influence the jury in their deliberations. The court said that independent of its effect upon the jury, the judgment should be reversed for the simple reason that such an interview did take place, saying:

“. . . If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party has been injured by the interview. Such an inquiry should not be tolerated. The policy of the law requires that all of the proceedings of the court should be open and notorious, and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.”

In People v. Beck, 305 Ill 593, 137 NE 454, a case involving the prohibition laws of the 1920’s, the jury sent a note to the trial judge inquiring as to the right to manufacture liquor for one’s own use, prior to July 1, 1921. The judge, in the absence of the defendant and his counsel, told the jurors he could not instruct them orally, but read to them a written instruction. The Supreme Court held the instruction given was bad, but further ruled that “regardless of the question of the correctness of the instruction, the action of the court was error for which the judgment must be reversed,” saying at page 456:

“The defendant was entitled to a public trial by jury, in every part of which he had a right to participate, to be present at every stage of the proceedings, to know everything that was done, to make objections, and to take such action as he might think best for securing his rights and for his protection. The law is well settled in this State that it is error for which a judgment will be reversed for a trial judge to hold any communication with a jury after their retirement to deliberate upon their verdict, except in open court.”

The State contends that Crabtree v. Hagenbaugh, supra, and People v. Beck, supra, are no longer the law in Illinois ; that the rule in Illinois regarding communications between jury and judge or jury and third persons is stated in People v. Brothers, 847 Ill 530, 180 NE 442, and in People v. Tilley, 411 Ill 473, 104 NE2d 499, wherein the court said at page 478:

“. . . (J)udgments will not be reversed when it is apparent that no injury has resulted from a communication to the jury, either by the court or by third persons.”

Assuming that the law is as the State contends, we are not convinced that no injury resulted from the communication between the judge and jury in this case. The Chief Judge testified that he called the jury down and asked them if they needed more time to deliberate. We believe that the jury would probably interpret this to mean that the judge thought it was about time that they brought in a verdict. Even though our Supreme Court has held it is not always reversible error for the court to communicate with the jury out of the presence of the defendant, it has always severely condemned the practice.

The jury is isolated so it can conduct its deliberations in secret with fairness and justice to all parties. The trial courts must clearly understand that the rights of the State and the rights of the persons charged with crime can best be protected when the jury are left alone to deliberate without coercion from anyone. We believe that the communication between the court and the jury in the present case deprived defendant Eohwedder of the fair and orderly trial that he was entitled to under our system of jurisprudence.

Then, too, in People v. Mallett, 30 Ill2d 136, 195 NE2d 687, the court said at pages 141-142:

“. . . A defendant in a criminal case has an absolute right to be personally present at all stages of his trial. (People v. Nelson, 18 Ill2d 313.) This right may be waived by the defendant but the attorney for the defendant has no power to waive this right on behalf of the defendant. (People v. Smith, 6 Ill2d 414.)”

We hold that the defendant, Clarence Eohwedder, had a right to be present when the court summoned the jury before it for inquiry, as this was a stage of his trial.

For the foregoing reasons the judgment of the Circuit Court of St. Clair County is reversed and this cause is remanded for a new trial.

Eeversed and remanded.

EBEESPACHEE and GOLDENHEESH, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Cook, Defendant-Appellant.
    Gen. No. 50,446.
    First District, Fourth Division.
    December 2, 1966.

      William B. Smith, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged in the Indictment

Armed Robbery.

Judgment

After a jury verdict finding defendant guilty, he was sentenced tó a term of ten to twenty-five years.

Points Raised on Appeal

Defendant was denied a fair trial in that:

(1) His confession was erroneously admitted into evidence.
(a) He had not been advised of his constitutional right to counsel.
(b) The State failed to establish that is was voluntary.
(2) He was denied access to police reports subpoenaed prior to trial.
(3) Cross-examination of a State’s witness was unreasonably restricted.
(4) The trial judge made prejudicial statements in the presence of the jury.

Evidence

Since defendant makes no point requiring consideration of the facts in this case, they will not be set forth in this opinion. They may be found in the opinion, filed today, affirming the conviction of codefendant Carver. 77 Ill App2d 247, 222 NE2d 17.

Opinion

(l)(a). Defendant made no request for an opportunity to consult counsel during his interrogation, but contends that he was denied a constitutional right in not being advised of his right to counsel prior to confession (and that such denial rendered the confession inadmissible). This contention has been answered adversely by the United States Supreme Court in opinions filed subsequent to defendant’s brief. Defendant relies on rights established in Escobedo v. Illinois, 378 US 478, but even as later clarified and expanded in Miranda v. Arizona, 384 US 436, the point was rendered unavailable to this defendant in Johnson v. New Jersey, 384 US 719. There it was held that the standards laid down in Escobedo and Miranda are not applicable retroactively, and those decisions are therefore controlling only as to trials begun after June 22, 1964 (Escobedo) and June 13, 1966 (Miranda), respectively.

Trial in the instant case commenced on November 9, 1964, so Escobedo is applicable but Miranda is not. The essence of defendant’s point (that he had not been advised of his right to counsel) finds no support in Escobedo, however, but only in Miranda, since defendant had not requested an opportunity to consult counsel. The contention must fall, therefore, on the authority of People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33, which still governs in this situation.

(1) (b). We must, nevertheless, consider the absence of counsel, and the failure of the police to advise defendant of his right to counsel, as significant factors in determining whether or not the confession was given voluntarily. Davis v. North Carolina, 384 US 737; People v. Heise, 35 Ill2d 214, 216-217, 220 NE2d 438. On the other hand, another “significant factor” to be considered with all other evidence on the subject, in accordance with Davis, is the fact that the police did specifically warn defendant of his right to remain silent.

Defendant correctly argues that the State has the burden of proving the voluntariness of a confession when it is questioned on the ground of coercion. And to meet this burden it must produce all witnesses material to the issue. People v. Wright, 24 Ill2d 88, 180 NE2d 689. It is also true that if a first, oral confession is coerced, then a later otherwise voluntary written confession would be inadmissible as being “inextricably interwoven” with the constraint of the former confession. People v. Taylor, 33 Ill2d 417, 421, 211 NE2d 673.

The facts which defendant claims rendered his confession involuntary are (1) that he was unreasonably detained for seven hours after his arrest and before his written confession, and (2) that during that period he was subjected to brutality by the police.

Defendant was arrested at 12:30 p. m. and taken to the police station. There he was put into a small interrogation room (not a cell) and, after half to three-quarters of an hour of questioning by the police, he confessed to the crime. In separate rooms the questioning of his codefendant and a third suspect continued, however, until they were all brought to the same room where the written confession was prepared and was then signed by defendant at approximately 7:30 p. m.

It has frequently and recently been held in this State that unnecessary or unreasonable delay in taking an accused before a magistrate — even illegal detention (which is not claimed here) — does not, of itself, require suppression of a confession, but is only one of the factors to be considered on the issue of voluntariness. The statute provides that a person arrested without a warrant be taken before a magistrate “without unnecessary delay.” Ill Rev Stats (1963), c 38, § 109-1 (a). In reviewing a similar provision of an older statute, the Supreme Court held in People v. Taylor, 33 Ill2d 417, 422-423, 211 NE2d 673:

Defendant was arrested at 9:30 a. m. on Saturday and was not taken before a magistrate until after the written statement was given on Monday. The oral confession, however, was obtained approximately 2 hours after his arrest, and although the statute in force at the time of defendant’s arrest (Ill Rev Stats 1959, chap 38, par 660) required that he be taken before a magistrate “without unnecessary delay”, noncompliance therewith does not necessarily obviate a conviction nor render an otherwise voluntary confession inadmissible at the trial. (See People v. Hall, 413 Ill 615.) The McNabb-Mallory rule (McNabb v. United States, 318 US 332, 87 L Ed 819, 63 S Ct 608; Mallory v. United States, 354 US 449, 1 L Ed2d 1479, 77 S Ct 1356) holding confessions per se inadmissible if obtained during illegal detention, has never been the law of Illinois. (See People v. Kees, 32 Ill2d 299; People v. Stacey, 25 Ill2d 258; People v. Jackson, 23 Ill2d 274.) Any delay, however, should be considered on the question of voluntariness of the confessions. People v. Hall, at p 624.

In Kees, the court had declared (page 302) that the McNabb rule was one of Federal procedure only which it had consistently refused to adopt for Illinois, and which, in Gallegos v. Nebraska, 342 US 55, 63-64, had been held not to extend to State prosecutions as a requirement of the Fourteenth Amendment.

Because of the attention given to this question in recent years, the Illinois Supreme Court has frequently been required to pass on the point, and just as frequently has resolved the issue as stated above. See, among other decisions, People v. Miller, 33 Ill2d 439, 211 NE2d 708; People v. Novak, 33 Ill2d 343, 348, 211 NE2d 235; People v. Davis, 35 Ill2d 202, 206, 220 NE2d 222; People v. Bernatowicz, 35 Ill2d 192, 220 NE2d 745, where the defendant’s detention was for nine days; and People v. Wallace, 35 Ill2d 251, 254, 220 NE2d 198.

Defendant’s argument as to brutality is derived from the fact that during the hours of his questioning he was handcuffed to a screen (first in the interrogation room and then in the room where his confession was taken by a stenographer). He also claims that he was beaten by the police prior to his oral confession.

As to the handcuffing, we consider it merely a reasonable security precaution in view of the fact that defendant had been arrested with a gun in his hand at the scene of an armed robbery. Since the police were also questioning two other suspects during this time, and since they wanted to obtain a written confession from defendant, it appears to have been reasonable procedure for them not to have placed defendant in a cell immediately after his oral confession.

As to the alleged beating of defendant, his claim in this regard is totally uncorroborated and totally contradicted by all those who were present at the time in question. Also, as distinguished from People v. Davis, 35 Ill2d 202, 206, 220 NE2d 222, defendant here failed to produce any evidence that the customary physical examination given upon admission to the County Jail (as in Davis) had given any indication of a beating sustained by defendant. All persons alleged by defendant to have been present at the time he claims to have been beaten, were called and testified at the hearing on defendant’s motion to suppress his confession. There is no merit to defendant’s argument that the third accused, one Smith, should also have been produced by the State as a witness on the issue of voluntariness, because Smith was not alleged to have been present at the time the beating was supposedly administered (but only when the confession was taken in writing), Smith was not charged with the crime, and the police had made a reasonable attempt to locate Smith for the hearing but were unable to do so.

Our conclusion as to points (1) (a) and (1) (b) is that defendant’s confession was properly admitted as to him, and his motion to suppress was properly denied. As was stated in People v. Wallace, 35 Ill2d 251, 254, 220 NE2d 198, the rule is well established “that the determination of the circuit court on the question of voluntariness of a confession will not be disturbed unless manifestly against the weight of the evidence (People v. Hartgraves, 31 Ill2d 375; People v. DiGerlando, 30 Ill2d 544).” See also People v. Spencer, 27 Ill2d 320, 325-326, 189 NE2d 270; and People v. Sims, 21 Ill2d 425, 433, 173 NE2d 494. Under the circumstances here present, we believe the circuit court’s determination was more than amply supported by the evidence.

(2) Citing People v. Moses, 11 Ill2d 84, 89, 142 NE2d 1, and People v. Wolff, 19 Ill2d 318, 327, 167 NE2d 197, defendant argues that he was not given a fair trial because he did not have the benefit of certain police reports which he had subpoenaed for use at the trial. The record discloses that the entire police file was made available to defense counsel and was then turned over to the court to be kept until needed. Through some inadvertence (for which defendant does not blame the court, the State’s Attorney, nor the police), the file was lost and was not used in the trial. We see in this situation no ground for reversal. People v. Wolff, 19 Ill 2d 318, 329, 167 NE2d 197.

(3) It was shown by the evidence that Perkins, the victim of the robbery, had won $1,500 at gambling the night before. Defendant claims that his cross-examination of Perkins was unduly restricted when he was prevented from inquiring as to the location and type of gambling at which the money had been won.

We consider this restriction to have been properly within the discretion of the court. People v. Dukes, 12 Ill2d 334, 343, 146 NE2d 14. The line of inquiry sought by defendant was irrelevant and immaterial. Furthermore, we see no prejudicie to defendant in this regard. People v. Jones, 343 Ill 291, 295, 175 NE 414.

(4) Finally, defendant complains about a rather harsh comment made to defense counsel in the presence of the jury. The incident occurred on persistent repetition of an objection which had been overruled. We find no error here.

Decision

The judgment and sentence of the circuit court are affirmed.

Affirmed.

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

       The trial in People v. Styles, 75 Ill App2d 481, 220 NE2d 885 was also post-Escobedo and pre-Miranda. The opinion appears to reach an opposite conclusion as to the self-sufficiency of proof of coercion by proof of the defendant’s detention for questioning without counsel and without advice as to his right to counsel. Insofar as it does, we do not agree with it.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    A. C. Allyn & Co., Plaintiff-Appellee, v. A. Henry Tager, Defendant-Appellant.
    Gen. No. 50,719.
    First District, Third Division.
    December 8, 1966.

      Harry P. Hutul, of Chicago, for appellant.
    Gabriel E. Gedvila, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from an order denying his motion to vacate a judgment entered by confession on a note.

Plaintiff filed a complaint on a judgment note on July 16, 1964. Plaintiff is a limited partnership and owner and holder of a note executed by defendant. The note was dated June 25, 1962, and was in the amount of $60,000. Judgment was entered on July 17, 1964. On August 17, 1964, more than thirty days after the entry of the judgment, a motion was made by the defendant to vacate the judgment entered on July 17, 1964. The motion was supported by an affidavit of the defendant which stated that the plaintiff had induced the defendant to sign the note when no indebtedness was ever due the plaintiff by the defendant. The plaintiff advised the defendant that if he signed the note for $60,000 it would satisfy the requirements of examiners and auditors, and thus would not force the plaintiff to take action against the Salem Investment Company, Inc., which company was indebted to plaintiff for that amount, and that the note was purely for the purpose of satisfying such examiners and auditors, and would never be used against the defendant personally; that the instrument was only an auditing procedure, and was not to be construed as an indebtedness on the part of the defendant; that the defendant relied upon this representation; that neither of the parties ever intended for the defendant to be a co-maker, guarantor or indemnifier of the plaintiff for the indebtedness of the Salem Investment Company, Inc.

The defendant filed an additional affidavit which he labeled “Affidavit in Support of Petition to Vacate,” in which he stated he first learned of the entry of the judgment on the 22nd day of July, 1964; that the note upon which judgment was confessed was executed merely as collateral security for the Salem Investment Company secured with plaintiff, and which defendant was induced to sign by false representations, and that defendant received no funds whatsoever; that plaintiff has not joined the Salem Investment Company which is the debtor of the plaintiff herein; that plaintiff is not a bona fide holder of said note and that no consideration was given or passed by and between the parties for the execution of said instrument. The affidavit further states that the allegations contained therein and in the petition to vacate said judgment by confession should be considered as a defense to plaintiff’s claim.

The plaintiff filed a counteraffidavit of Gordon L. Teach. In this counteraffidavit Teach stated that during the years 1961 through 1964 he was a general partner of the plaintiff; that Salem Investment Company, Inc. had purchased certain securities through the plaintiff and had not paid for the same despite repeated demands therefor, and that the securities had depreciated in value by June 25, 1962. The defendant authorized the sale of such securities and stated that he would be responsible for any loss which might arise from the sale thereof, which statements appear in the letter of June 25,1962, signed by the defendant. The letter referred to is as follows:

“A. C. Allyn & Co.
122 South La Salle Street
Chicago 3, Illinois
Attention: Mr. Gordon L. Teach, General Partner
Gentlemen:
I hereby authorize A. C. Allyn & Co. to sell the securities (list attached hereto) for the Salem Investment Company, Incorporated of which I am the President and principal shareholder.
On this date I am executing a note to cover any loss which may arise from the sale of these securities and that I intend to personally satisfy any such loss.
Very truly yours,
(signed) A. HENRY TAGER
A. Henry Tager
Salem Investment Company, Incorporated
By: (signed) A. HENRY TAGER
A. Henry Tager, President”

The counteraffidavit of Teach further stated that to secure the payment of the promissory note defendant delivered to the plaintiff two series of postdated checks, copies of which were attached to the affidavit. The checks, most of which bear the printed name of the defendant, indicate that he is an attorney-at-law at Kansas City, Missouri. Fifteen of these checks are payable to the order of A. C. Allyn and Company, in the amount of $2,000 each, and are drawn on the Commerce Trust Company, Kansas City, Missouri. They are signed by the defendant and the first check bears date April 30, 1963, and the last of said fifteen checks for $2,000 each is dated June 30, 1964. One of the $2,000 checks is marked “Payment Stopped” and “Protested for Non-Payment 5/21/63, Ruth L. Berry, Notary Public.” It was after payment had been stopped on this check that judgment was confessed on the note. Also attached were copies of seven checks drawn by the defendant on the Commerce Trust Company, payable to A. C. Allyn and Company, in the sum of $500 each, the first one bearing date June 20, 1963, and one for each successive month to December 20, 1963. The affiant Teach further stated that neither he nor, to the best of his knowledge or belief, any other employee or agent of the plaintiff ever stated that if the defendant signed the note for the plaintiff in the original sum of $60,000, it would satisfy the requirements of examiners and auditors, and thus would not force the plaintiff to take action against the Salem Investment Company. He denied that the note was purely for satisfying such requirements of examiners and auditors, and that any promise was made that the note would never be sued upon. He also stated that he and the plaintiff relied upon the promissory note and the checks attached thereto, as well as the letter of June 25, 1962, and postponed taking legal action against the defendant to the detriment of the plaintiff.

An affidavit of B. S. Warren, Jr., General Counsel for the plaintiff, set forth that on July 15, 1964, the defendant came to Warren’s office and requested Warren not to take any legal action on behalf of the plaintiff, or in the alternative that judgment against the defendant be taken by the plaintiff herein within the State of Illinois, since a judgment against the defendant in the State of Missouri would financially embarrass the defendant and thus jeopardize possibility of repayment. Because of the failure of the defendant at any time to deny his liability before the execution of the supplementary affidavit of the defendant in this action, the plaintiff was misled and failed to take earlier legal action against the defendant.

The trial judge treated the motion of the defendant to vacate the judgment, supported by affidavits and the counteraffidavits filed on behalf of the plaintiff, as a hearing on a petition to vacate the judgment under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72).

The only point raised by the defendant is that the affidavits in support of his motion to vacate the judgment showed a meritorious defense or equitable reason for vacating the judgment.

Under section 72 of the Civil Practice Act the petitioner is required to prove his right to the relief sought. Ordinarily he must do so by competent evidence. The petition, even though it is supported by affidavits, is only in lieu of a complaint, and serves only to invoke the judicial power. It is not in itself evidence. Topel v. Personal Loan & Savings Bank, 290 Ill App 558, 9 NE2d 75; Mitchell v. Eareckson, 250 Ill App 508.

While the defendant in this case filed a motion to vacate, which does not literally comply with section 72 of the Civil Practice Act, nevertheless, since the trial court treated it as a petition to vacate the judgment supported by affidavits to which counteraffidavits were filed, it will be treated in the same manner by this court. Paragraph 2 of section 72 of the Civil Practice Act provides that the petition be supported “by affidavit or other appropriate showing” in order to bring in matters not of record. This paragraph 2 of section 72 when considered with section 69(2) of the Civil Practice Act indicates that the issues may be tried and established by affidavit. Wilson v. Wilson, 56 Ill App2d 187, 205 NE2d 636; Isaacs v. The Shoreland Hotel, 40 Ill App2d 108, 188 NE2d 776; Bell Auto Repair & Painting Corp. v. Henderson, 73 Ill App2d 234, 219 NE2d 642.

■ The defendant contends that the court should not have considered the counteraffidavit of the plaintiff, but since the defendant sought to vacate the judgment, and the matter was treated by the trial court as a petition under section 72 because the motion to vacate was filed more than thirty days after the entry of the judgment, we necessarily conclude that the court had the right to try the case by affidavit. Of course, if the affidavits were contradictory in all respects, the court would have had to hear the evidence to justify a vacation of the judgment, or even to deny the motion to vacate the judgment. However, we feel the trial court was justified in denying a motion to vacate in this case.

The defendant in his affidavit admitted that the plaintiff threatened to sue Salem Investment Company, Inc., but he expected the court to believe that the only interest plaintiff had was to keep its examiners and auditors happy. The defendant was the President and prinicipal shareholder of Salem Investment Company, Inc., and he voluntarily submitted the letter, the checks and the note. In the letter of June 25, 1962, signed by the defendant, as well as by Salem Investment Company, Inc., the defendant said that he intended to personally satisfy any such loss after authorizing the plaintiff to sell the securities which he listed. It is incredible that defendant could have induced the plaintiff to forbear from bringing action earlier except for the assumption of the obligation by the defendant. It is also incredible to us that a lawyer in defense of an action against him on a note executed by him would set up a defense to the effect that he had joined in a conspiracy to perpetrate fraud and deceit on the examiners and auditors, and seek thereby to avoid liability on the theory that his note was never to be used against him. The letter of June 25, 1962, belies any such understanding when the defendant stated “that I intend to personally satisfy any such loss.” By giving the note and the postdated checks the defendant induced the plaintiff to forbear bringing an action against Salem. The defendant did not by affidavit refute or attempt to answer or explain his letter of June 25, 1962.

In 17 Am Jur2d, § 115, p 461, it is stated:

“Inasmuch as a promise may be a sufficient consideration for a promise, a promise to extend the time of performance or payment of an obligation or to forbear from exercising a right or doing an act may, generally speaking, constitute consideration for a contract. There seems to be no dissent from the proposition that a promise to forbear from suit is a sufficient consideration for the promise of the debtor or of a third person.”

We conclude that the trial court, upon the motion and affidavits and counter-affidavits, had no alternative but to deny the motion to vacate the judgment in this case.

Order affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    Mary L. Quinn, Plaintiff-Appellant, v. Hazel Cashel, Defendant-Appellee.
    Gen. No. 51,523.
    First District, Third Division.
    December 8, 1966.
    Daniel A. Costigan, of Chicago (James B. Martin, of counsel), for appellant; Michael J. Hennessy, A. E. Peterson and Lawrence Sulzbacher, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: JUSTICE McCORMICK.

text:
    Oak Park National Bank, a National Banking Association, Plaintiff-Appellee, v. William J. Kiley, Defendant-Appellant.
    Gen. No. 51,511.
    First District, Fourth Division.
    December 8, 1966.
    Robert E. Cleveland, of Chicago, for appellant; Leonard M. Cohen and Melvin Cohen, of Chicago, for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: JUSTICE MCCORMICK.

text:
    Raymond Lazarich, Plaintiff-Appellant, v. Della Zadeika, Defendant-Appellee.
    Gen. No. 51,685.
    First District, Fourth Division.
    December 8, 1966.

      Hanley and Land, of Lansing, for appellant; no appearance made for appellee.
   Opinion by

JUSTICE MCCORMICK.

Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    Peter Crotty, Plaintiff-Appellee, v. The High-Low Foods, Inc., a Corporation; David A. Alberts and Gunnar G. Alberts, d/b/a Alberts Brothers Construction Company; Will Pechota; Oak Park National Bank, a Corporation, as Trustee Under Trust No. 3355; Richard H. Thomas and Mary S. Thomas, Defendants. Appeal of David A. Alberts, d/b/a Alberts Brothers Construction Company, Defendant-Appellant.
    Gen. No. 50,823.
    First District, First Division.
    December 12, 1966.

      Kirkland, Ellis, Hodson, Chaffetz & Masters and Levin & Upton, of Chicago (David Jacker, Thomas D. Allen, John M. O’Connor, Jr., and Jon R. Waltz, of counsel), for appellant.
    Philip E. Howard and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal arises from an action brought under the Illinois Structural Work Act (Ill Rev Stats 1957, c 48, §§ 60-69), commonly known as the Scaffold Act, to recover for personal injuries suffered by plaintiff, Peter Crotty, when he' fell from a scaffold during construction of a High-Low store. Defendant David A. Alberts, one of the contractors, moved for a directed verdict at the close of the plaintiff’s case and at the close of all the evidence, which was denied. Only plaintiff’s claims against Will Pechota, the architect, and Alberts, were submitted to the jury. The jury returned a verdict of $25,000 against Alberts and Pechota and judgment was entered against them.

Alberts appeals from the judgment contending that his motions for a directed verdict should have been granted as the evidence showed that he was not “in charge of” the work in question within the meaning of the Scaffold Act. In the alternative, he asks for a new trial contending that the court erred in instructing the jury, over his objection, that as a matter of law Alberts was “in charge of” the work in question.

The records indicates that Alberts had contracted to do the excavation, foundation, floor, sidewalk and masonry work incident to construction of a High-Low grocery store at 5200 Halsted Street. He received instructions, plans and specifications from codefendant Pechota, the architect, with whom he had worked in building other High-Low stores. He hired August Sievers to make the excavation, put in the foundation, floors and sidewalk himself, and the masonry work was subcontracted to the Dan Heinz Construction Company. Alberts had only an oral agreement with Heinz and gave him copies of the plans and specifications. The plaintiff was employed by Heinz when he fell from the scaffold which had been constructed by other employees of Heinz.

Defendant first contends that the trial court erred in denying his motions for a directed verdict, and for judgment notwithstanding the verdict, since the evidence demonstrated nothing more than sporadic inspection by him, which is insufficient to support an inference that he was “in charge of” the particular work, within the meaning of the Scaffold Act.

It is now clear in Illinois that under the Scaffold Act more than one person or firm may be in charge of a construction job from which an injury may occur as a result of a violation of the Act. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785. It is established in the instant case that the employees of Heinz constructed and used the scaffold in question, but the resulting argument that only the persons who actually erect and use the scaffold for work to be performed by them are the only persons who have charge of the work, was rejected in principle in Gannon and specifically in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247. The Act is not limited to allowing recovery for violation only against those erecting and using the scaffold, as its purpose is to place a duty upon all persons “having charge of” construction to protect those engaged in a particularly hazardous occupation. Korbus v. The Formit Co., 35 Ill2d 533, 221 NE2d 633.

In the instant case Alberts testified that he gave copies of the plans and specifications to Heinz and periodically went to the work site to check the progress of the work to see if it was being performed to his satisfaction and according to the specifications. He testified further that he did not exercise the right to hire or fire Heinz’s workers. He said he noticed that a scaffold was being used, but he had nothing to do with it nor did he check it or make any effort to determine whether the scaffold flooring was secure or loose. He was asked:

Q. And when you hired Mr. Hines [Heinz] to do the work for you, he was doing it under your direction, wasn’t he?
A.. That’s right.
Q. And you were in charge of his work and the work Mr. Hines [Heinz] was doing?
A. I was the work but not in charge of the scaffold.
Q. You were in charge of the work. You were in charge of the phase of the work he was performing, the mason work?
A. That’s right. Mason work.

In the present case the evidence and the reasonable inferences drawn from the evidence supports the plaintiff’s case against Alberts and the trial court correctly overruled Alberts’ motions for a directed verdict and the motion for judgment notwithstanding the verdict.

The remaining question is whether the court erred in charging the jury that as a matter of law Alberts was “in charge of” the work. A trial judge may only give such a peremptory instruction where there is a total absence of evidence or legitimate inference in favor of the opposed party. Here Alberts denied he was the general contractor on the job; he had no workmen at the job site at the time in question; Crotty was not employed by him; he did not prepare the specifications; never gave any orders or instructions to any of Heinz’s employees and had not supplied, constructed, erected, maintained or used the scaffold in question.

The prerogative of weighing the evidence is not a question of law, but a question of fact for the jury. Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249. In our opinion there is a genuine issue of fact as to whether Alberts was “in charge of” the masonry work being performed by Heinz. Even assuming that the greater weight of the evidence may seem to the court to be on the side of the plaintiff, still the question of who besides Heinz is “in charge of” the construction under the facts and circumstances in this case must be submitted as a fact question to the jury under proper instructions of the court. Mesich v. Austin, 70 Ill App2d 334, 217 NE2d 574.

For the error in giving the peremptory instruction referred to, the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

MURPHY, P. J. and KLUCZYNSKI, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur Freeman, Defendant-Appellant.
    Gen. No. 51,050.
    First District, First Division.
    December 12, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and James A. Stamos, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

After a jury, trial, defendant was found guilty of murder. He was sentenced to the penitentiary for 40 to 75 years. On appeal, defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and (2) that the trial court (a) misstated the evidence to the jury, (b) discredited the defense attorney and deprived defendant of a fair trial, and (c) committed prejudicial errors in the conduct of the trial and in the giving and refusing of instructions.

On March 1, 1964, the body of Cola Taylor, with multiple bruises and abrasions and naked except for a brassiere and a garter belt, was found under a porch in the vicinity of South Lawndale Avenue, Chicago. The defendant, Arthur Freeman (24 years), and William Bryant (18 years) were jointly indicted for her murder. The indictment charged that they intentionally and knowingly killed Cola V. Taylor by striking her with their fists, without lawful justification, in violation of chapter 38, section 9-1 of the Illinois Revised Statutes, 1963. Subsequently, Freeman was granted a trial severance from Bryant.

At the trial of defendant Freeman, a coroner’s pathologist, Dr. Eugene Tapia, testified he performed an autopsy on the body on March 1, 1964, and made both an internal and external examination. Death was caused by multiple internal injuries. There were multiple contusions and abrasions on the face and body, and three stab wounds, one in the right lobe, one in the left superior forearm, and one in the left lobar quarter above the left groin. In Ms opinion, the various abrasions on the body were caused “by blows, by fist or stabbing in the abdomen.”

On cross-examination, Dr. Tapia said, “In my opinion, death was caused by multiple internal injuries. I can say nothing more specific. Death was caused by a trauma. A trauma is a force applied to the body that causes a hemorrhage, laceration, abrasion, contusion, rupture of the viscera. In layman’s language, it is a wound or injury. I feel that death was caused by a beating that could have been done by a human hand. The puncture and stab wound was unlikely to have caused death by the bleeding. She maybe would have died of infection. The stab wound hadn’t lacerated any major blood vessel, just the bowels. The puncture lacerated the abdomen wall, the skin of the abdomen, of the belly. In my report, I reflect that the belly, also known as the peritoneal cavity, was filled with fifteen centimeters of liquid. That liquid was blood. That blood got in the belly from the laceration of the right peritoneal space. It is a rupture. The type of instrument that caused that rupture in my opinion is a stabbing, a kicking, or by fists. . . . That injury that I have just described, could not have been caused by a sharp instrument such as a knife. Nor could that injury have been caused by a can opener. The breaking of a blood vessel would occur before a body expired. In my opinion, I cannot tell the time of death. ... I would include the injury in the area of the mouth would be the cause of death. The injury in the area of the mouth was a laceration. It didn’t cause the death per se.”

Arthur Flynn, testifying for the State, related that on February 29, 1964, at 2:00 a. m., he and the decedent were standing on the corner of Central Park and 16th Street, when two men with knives approached them. One of these men forced the decedent around the corner at knife point, while the other man knocked Flynn down and threatened him. Flynn, on parole for armed robbery, did not report the incident to the police. The next day, Flynn was taken to a police station and questioned about the murder of Cola Taylor. He remained in custody for two or three days, during which time he picked out photographs of the two attackers. Subsequently, Flynn identified both men from a police lineup. One was Arthur Freeman. Objections to the disclosure of the identity of the second man were sustained throughout the trial.

William Bryant, also under indictment for the murder of the decedent, testified for the State and against Freeman. He stated he expected to receive consideration for his testimony. Bryant related that he and Freeman had shared an apartment at 1423 South Lawndale Avenue, and on February 29, 1964, at 3:00 a. m., while he was asleep in the apartment, he heard a commotion in the bed with him. When he woke up, “I seen Freeman having intercourse with this woman and he was beating her in the stomach with his fist. He kept repeating, ‘You got me stabbed, you got me stabbed.’ I got up and I went to the kitchen to get a cigarette. When I went to the kitchen I seen this fellow Otto sitting there with a knife in his hand. The man’s full name is Otto Dean. I then turned around and went back into the bedroom and asked Freeman what was happening. I started pulling at his arm, and asked him what was going on. He jumped up, said, ‘Man, she got me stabbed, she got me stabbed.’ He had a stab wound in his chest in the right side. At the time both Freeman and the lady were naked. I think the lady was Cola Taylor. Freeman was sweating and breathing hard. He had his fist clenched. He kept looking at me, and said, T am going to kill the bitch.’ He jumped back in bed and started beating her again. He was beating her with his fist in her stomach and side. He hit her quite a few times. As I was trying to get Freeman off her, he asked, ‘Where is that money?’ She said she didn’t have any at first. Then she said it was in her brassiere. So then, about this time, this other fellow, Otto, came in and ran into the bedroom with a knife in his hand. He said, T heard that.’ He put the knife to her throat, ‘Where is that money?’ She said it was in the bed. Otto pushed me out of the bed, snatched the covers and sheets off the bed, started shaking them off. They didn’t find any money. Freeman ran into the kitchen, and was looking into a cabinet where we keep beer bottles. . . . Well, he grabbed an opener, a can opener, and ran back into the bedroom with it. This guy, Otto, told me to sit down, and I could hear Cola screaming; I could hear Freeman hitting her as she was screaming and hollering. ... So then Otto and I both got up and looked into the bedroom. Freeman was stomping on her with his bare foot in the head. She was on the floor. He sat down in the chair, reached in the bed, grabbed one of his shoes and started hitting her in the head with the heel of it. And then this other fellow, Otto, he said, ‘Well, I am cutting out of here,’ and he left. Then I went back in the room and Freeman was still beating her with the shoe. He then said he was going to let her rest for awhile and then he was going to take her home. Then Freeman laid down on the bed, and then I got into bed and I got to sleep. At this time Cola Taylor was lying on the floor at the foot of the bed.”

The next morning Bryant found the decedent in the same position and ascertained that she was dead. He awakened Freeman, and “I told him his girl friend was dead. At first he didn’t believe me. He went over to her and tried to get her up. He started crying, bouncing his fist on the dresser, ‘Why does she have to die on me, why does she have to die on me ?’ I told him I was going to call the police. He said I couldn’t call the police. He said since I was going to play the hero, he would rather go to jail for two murders instead of one. He also said, ‘If you try to sneak off I will tell them you helped me.’ ” They put the body in a closet and left. Later, they returned to the apartment and carried the body into an alley and placed it under a porch. They put her clothing into a garbage disposal.

On cross-examination, Bryant described his activities during the evening and said that Otto was not present when he arrived home, and when he first saw Otto in the apartment he did not ask any questions of him. He did not learn the full name of Otto Dean until he met him in the County Jail. He also said that to the best of his knowledge he had never seen Cola Taylor before he saw her in the apartment. The court sustained objections to questions as to whether he was present in a lineup in the police station with Freeman, “when Arthur Flynn accused the two of you as taking her off the street at knife point.”

For the defense, Otto Dean, then in the County Jail under a sentence of 40 to 60 years for rape, denied ever having been in the apartment at 1423 South Lawndale. He also denied knowing Freeman, and met Bryant for the first time while they were both in the County Jail. Lee Bertha Taylor, the 12-year-old daughter of the decedent, testified that on the night of the murder, Arthur Flynn had come over to their home and had left with her mother. Flynn had a long knife, and he told Cola Taylor to “get going.” Geneva Bolden, then 17 years old, testified that she had a date with the defendant for the evening of February 28 at the Indigo Lounge. She arrived late, and they had a slight argument. She left the club at 2:15 a. m. and did not see Freeman after-wards. Leon Bell saw Freeman between 2:00 and 2:30 on Saturday morning at 15th and Lawndale. Freeman had a cut over the heart and told Bell he “got cut in a lounge.” Freeman entered Dolly’s Restaurant, and Bell went home. Roosevelt Williams saw Freeman in Dolly’s on February 29, 1964, between the hours of 1:00 and 2:00 a. m. Freeman had been “cut,” and when he left, Freeman was still there.

The defendant, Arthur Freeman, testified he had been in the penitentiary from 1957 to 1960 for armed robbery and again from 1961 to 1963 for statutory rape. He described at length his activities during the evening of February 28 and the early morning of February 29. He told of being attacked on the street by two unknown men. Both had knives and cut him in the chest. He went to Dolly’s Restaurant, put vinegar on the cut, and met Bell. Dolly and Roosevelt Williams walked him home about 2:00 a. m., and Bryant was not there. After some time, he left the house “about 4:00 in the morning” to find Bryant to go to the hospital with him, as he was worried about his knife wound. On the street he met the decedent, whom he had seen around the neighborhood. She told him that “some chump” had “jumped on her,” and he showed her his wound. She expressed concern for him, and he asked her to keep him company until Bryant came home. They arrived at the apartment at “about 3:00 a. m.,” and Bryant was there.

The decedent went into the bedroom, and “Cola called me and I went in there and we had sex. Then she started complaining about her stomach, and she had my hand and she asked me, ‘What about rubbing it?’ ” Subsequently the decedent fell into a deep sleep, and defendant unsuccessfully tried to awaken her, but she appeared groggy and fell on the floor. Defendant then applied a cold towel to the decedent in an attempt to revive her and noticed a scratch on her stomach, to which he applied salt. Because the decedent was heavy and he was weak from his wound, he let her lay on the floor, figuring the hardness of it would eventually awaken her. Later, Bryant awakened him and told him, “Your girl friend is dead.” His description of the disposition of the body was similar to that of Bryant.

Defendant further testified that at a police lineup of four men, Flynn identified Bryant as the man who hit him, and after some hesitation, Flynn identified defendant as “the one that had the knife.” Defendant denied knowing Otto Dean — “there was no one else in the apartment but Corky (Bryant) and myself and Cola.”

On cross-examination, defendant stated that the decedent had not told him that she had been stabbed; that she had never been to his apartment before; and that he never had intercourse with her prior to the night of her death. He denied having ever struck her, although he saw her fall and strike something and hit the floor very hard. He also denied that he was present at the time Bryant gave a written statement to the police.

Another witness offered on behalf of defendant was Dr. Harold Wagner, a pathologist who had been in the coroner’s office for nine years. After informing the witness, “I have a hypothetical question for you,” defendant’s counsel asked the State’s Attorney to stipulate “to the pathological report and protocol that contains the name of Dr. Tapia who conducted the examination and testified here yesterday.” At this point, a discussion was held in the chambers and out of the presence of the jury. On inquiry by the court, counsel for defendant stated he had not framed his hypothetical question and intended to use the protocol of the doctor who conducted the examination “as the basis for my hypothetical question,” and “I’ll ask the man whether or not he has an opinion . . . as to these facts, as to the cause of death, and I will ask him to state his opinion.” The court stated, “It’s all based on him never having seen this body. In other words, he’s going to read another man’s report and he’s going to give medical opinions as to the cause of death of this person, is that right?” Defendant’s counsel replied that the report of the examining doctor and his testimony did not jibe. In the testimony and the protocol there was an inconsistency, “so the doctor who testified yesterday could have made an error in testimony, with respect to his findings, and we are asking this man to examine the report, the recorded findings, to determine, from the interpretation of these facts, what his medical opinion is as to the cause of her death.” As a basis for objecting, the State pointed out that if there was any discrepancy between the testimony and the written report, the pathologist could have been impeached at the time he testified.

After extended discussion between court and counsel, the court denied any hypothetical questions based on the protocol or on the testimony of Dr. Tapia and said, “I don’t think we need an interpretation from this witness as to Dr. Tapia’s testimony. I’m not going to permit this doctor to comment on Dr. Tapia’s questions and answers.”

The discussion, still out of the presence of the jury, then proceeded to the form of an offer of proof for the record. After outlining the facts proposed to be included in several hypothetical questions, defendant’s counsel continued that Dr. Wagner would say that “it’s his opinion that the cause of this hemorrhage leading to the blood filling the belly would be from the puncture in the abdominal area which, again, punctured the bowel and the blood vessels, in and about that région, which would be the causé of death; and that the cause of death under no circumstances could have been brought about by the beating that this body sustained.” This concluded the offer of proof, and the court denied it.

On rebuttal, Bryant testified that he gave a written statement to the police, and that Freeman was present when Bryant signed it. He related a conversation with Otto Dean while in jail — “I asked Otto if he knew the nature of the charge for which I was being held, and he said, T do.’ And I asked him did he realize I was being held in his place and he didn’t respond. . . . And I told him that ... I had intended in testifying in Freeman’s case and I asked him was he going to testify and was he going to tell the truth about the matter. And he told me at that time that he was already pending trial on a similar case and that he couldn’t afford to exonerate me at all and that he and Freeman wanted to go to the streets just as bad as I did.” He further said that he hadn’t seen Otto Dean from February, 1964, to February, 1965.

William Boyd, also a State rebuttal witness, testified that he was a police officer present at the interrogation of Bryant on March 2, 1964. Detective Brodersen did the questioning, and “Arthur Freeman was present at all times during the taking of this statement.” He identified People’s Exhibit 5 for identification as the statement and said that it accurately reflected the questions asked and the answers given at that time.

Defense surrebuttal witnesses included Wesley Brodersen, a police officer, who stated that Bryant gave him a description of a man whose first name was “Otto,” and Bryant said he didn’t know his last name. He further said that Freeman knew a man named “Otto,” but did not say that Otto was in his room on the night in question. Defendant denied telling any police officer that he knew anyone by the name of “Otto.”

It is defendant’s theory and primary defense that Flynn killed Cola Taylor. Defendant concedes that he was with Cola Taylor in the morning hours of February 29, 1964, and that he had intercourse with her in the bed he shared with Bryant; also, that decedent died in his apartment, and that he and Bryant disposed of the body, but asserts that he did not “beat Cola Taylor to death.”

Defendant argues that as Flynn forced decedent to leave her home at knife point, it is reasonable to infer that Flynn inflicted the fatal wounds, and that “with blood seeping from her veins, Mrs. Taylor was ambulatory enough to meet Freeman, go to his apartment, to finally expire there an hour or so after the infliction of the fatal wounds.” Further, that Flynn, after learning Freeman and Bryant were also suspects, fabricated “what on the surface is a plausible story, implicating Bryant and Freeman and absolving himself.”

Defendant’s theory was fully argued to the jury by both sides during final argument, and the evidence fully supports the verdict of the jury, which found defendant “guilty of murder in manner and form as charged in the indictment.” We find no merit to the contention of defendant that the State failed to prove him guilty beyond a reasonable doubt. Also, we find no merit to defendant’s contention that the evidence shows that the death of Cola Taylor was the result of a stabbing and not a beating, and thus a material variation from the allegation of the indictment.

We consider next the important and serious issue of whether defendant received a fair and impartial trial and if prejudicial trial errors were committed. As to the cause of death, defendant contends that the testimony of Dr. Tapia was uncertain and ambiguous, and defendant was thwarted by the court and the State from obtaining a clear opinion as to the ultimate cause of death; that the court should have permitted Dr. Wagner “to testify as to his opinion regarding the cause of death based upon a hypothetical question.” Defendant argues that there is no requirement that a medical expert responding to a hypothetical question make his own examination. City of Decatur v. Fisher, 63 Ill 241 (1872); Chicago Union Traction Co. v. Roberts, 229 Ill 481, 82 NE 401 (1907).

The State contends that the protocol was never in evidence, and the opinion of an expert is to be allowed only if it is based on and supported by facts in evidence. We agree. Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 530, 34 NE2d 732 (1941).

Defendant’s offer of proof, made out of the presence of the jury, as to the hypothetical question to be asked his expert witness, did not include all of the findings of the internal and external examination of the body as related by Dr. Tapia. As there was no conflict as to the examination findings of Dr. Tapia, this entire testimony should have been included in defendant’s proposed hypothetical question. “A hypothetical question must not ignore material facts which affect the opinion.” (Sanitary Dist. of Chicago v. Industrial Commission, 343 Ill 236, 243, 175 NE 372 (1931).) The protocol was not in evidence, so any hypothetical question based on it would have been improper, and the offer of proof, based on the testimony of Dr. Tapia, did not include all of the material findings. The court’s ultimate ruling here was correct.

Defendant further contends that the court unduly limited cross-examination of the State’s pathologist and argues that great latitude should be given in the cross-examination of a medical expert. (Muscarello v. Peterson, 20 Ill2d 548, 554, 170 NE2d 564 (1960).) The record shows that although the court sustained numerous objections to defendant’s questions, a reasonable degree of latitude was afforded in the cross-examination of this witness. Defendant had full opportunity to explore his theory that the stab wounds caused the death. In sustaining objections to questions which the court considered repetitious, the court repeatedly gave reasons for its rulings, which were not complimentary to defendant’s counsel, and also repeated at length the court’s recollection of the testimony sought to be again explored. We find no prejudicial error here, even though the remarks of the court indicate impatience.

Defendant also complains that the cross-examination of Flynn and of Bryant was unduly restricted and suppressed evidence favorable to defendant. As to Flynn, the trial court sustained objections to defendant’s questions as to the identity of the second man present when defendant took Cola Taylor away at knife point. Defendant argues that if Bryant were telling the truth in his account of what occurred at the apartment, Otto Dean would have been identified as the one who assaulted Flynn. If Bryant was identified as the second man, this would have discredited Bryant’s testimony. The State argues that the identification of the second man was hot material to the guilt of punishment of the defendant, and the identification would have been superfluous. Also, no essential fact was concealed from the jury — defendant admits Bryant was present at the apartment when decedent died, and he does not accuse Bryant of the crime.

As to Bryant, the court sustained objections to questions as to what happened at the police lineup, which defendant asserts were designed to test the credibility of Bryant and Flynn and to show that their testimony was contradictory. The State argues that defendant’s cross-examination of Bryant went beyond the scope of the direct examination, as there was nothing in the direct examination of Bryant concerning the abduction of the decedent or of his participation in the police lineup. The State asserts that the inquiry raised collateral and immaterial issues and would have only served to confuse the jury and, therefore, the court did not abuse its discretion in sustaining the State’s objections.

While we believe that considerable latitude should have been given defendant in the cross-examination of these witnesses, it was largely a matter of the trial court’s discretion, and we find no prejudicial error here. The question of whether the second man was Otto Dean or Bryant at the time the decedent left Flynn with defendant was not material to defendant’s defense. The defendant was present at the lineup at the police station, and his version of what took place was before the jury. The questions in issue were designed to test the credibility of these witnesses, and as the background of both Flynn and Bryant was fully exposed to the jury, it was a matter for the sound discretion of the court. We find no error here.

Defendant next contends that “the court, in the presence of the jury, misstated the evidence, indicated disapproval of the defense attorneys, discredited the defense attorney and the defense, invaded the province of the jury, and deprived the defendant of his defense and a fair trial.”

The record, as stated by defendant, shows that “much of the testimony was of a technical nature, and the trial was a relatively long and hotly contested affair.” We agree that “it is the duty of a court to see that every defendant guilty or innocent, receives a fair trial,” and that “a court must not directly or indirectly convey its opinion to a jury.” However, it is equally the duty of the court to see that the State also receives a fair trial. Although this record indicates some irritation on the part of the court with counsel for defendant, we have noted a number of instances which indicate provocation by defense counsel. The remarks made in People v. Smith, 63 Ill App2d 369, 211 NE2d 456 (1965), are pertinent here (p 377):

“While the trial judge must be cautious to conceal his impressions or feelings, ... it would be a dangerous precedent to permit counsel to take advantage of statements of the trial court which were either invited or provoked by such counsel. . . . We do not believe that the court’s comments were such as to convey to the jury a feeling of hostility or prejudice toward the defendant and thereby deny to him a fair trial, or to render unavailing the subsequent instruction that the court had not expressed an opinion on the facts of the case or the credibility of the witnesses.”

Defendant further asserts that it was prejudicial error on rebuttal to permit Bryant to identify the written statement made by him at the police station on March 2, 1964, and to read from the document the names of the persons present. This questioning was to refute the testimony of defendant that he was not present at the time Bryant gave his statement. Defendant did not object to the questioning, and the document was not offered in evidence. While we do not think the method used was necessary to achieve the impeachment intended, we find no prejudicial error.

Finally, we consider defendant’s contention that the court committed reversible error in the giving and refusing of instructions. Specifically, defendant argues that the court should have given the jury instructions defining involuntary manslaughter; that the court should have given the instruction tendered by the defense regarding the accomplice witness; and that it was error to give an instruction defining circumstantial evidence.

We have examined the instructions given and refused and find the jury was adequately instructed on the issues presented and the evidence offered by both sides. A manslaughter instruction was not proper here. The testimony of Bryant, accepted by the jury, evidenced malicious conduct on behalf of defendant, actuated by wanton and reckless disregard for human life. (People v. Tillman, 26 Ill2d 552, 187 NE2d 731 (1963).) The accomplice witness instruction given by the court fully and fairly instructed the jury as to the character of this type of testimony and was sufficient for the purpose intended. The inclusion of “the law demands a conviction” in the instruction given on circumstantial evidence has been criticized (People v. Ciucci, 8 Ill2d 619, 628, 137 NE2d 40 (1956)), and has been found proper (People v. Guido, 321 Ill 397, 414, 415, 152 NE 149 (1926)). We find no error here.

In conclusion, this record calls for the repetition of the statement, “the object of review by this court is not to determine whether the record is completely free of error but to ascertain whether upon the trial there has been such error as might prejudice the rights of a party.” (Moore & Co. v. Champaign Nat. Bank, 13 Ill App2d 232, 246, 141 NE2d 97 (1957).) The trial court was called upon to rule upon numerous objections made by both sides on technical questions, with an unusual array of witnesses, and it is the opinion of this court that both sides received a fair and impartial trial. No material evidence was kept from the jury, and it was fully informed as to the character of all of the witnesses and of facts which might have affected their credibility.

For the reasons given, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and KLUCZYNSKI, JJ., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    General Bumper Company and Robert Manewitz, Plaintiffs-Appellees, Cross-Appellants, v. Action Bumper Co., Daniel Gilbert, et al., Defendants-Appellants, Cross-Appellees.
    Gen. No. 51,450.
    First District, First Division.
    December 12, 1966.
    Rehearing denied January 4, 1967.

      Rosenthal and Schanfield, Norman L. Rothenbaum and Henry M. Morris, of Chicago, for defendants-appellants.
    Richard L. Mandel, of Chicago, for plaintiffs-appellees.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

This is an interlocutory appeal from a temporary restraining order. The sequence of events is as follows. On December 23, 1964 defendants, Daniel Gilbert, William Shlifka and Joseph Ciavirelli formed the plaintiff General Bumper Company whose business consisted of buying damaged automobile bumpers, repairing and re-plating them and selling them to garages and repair shops in the Chicagoland area.

The record before us indicates that each made a capital contribution of approximately $500. Subsequently thereto defendant Faulisi acquired an interest in the shares of Shlifka and Ciavirelli. Gilbert was made president and the others directors and were employed by General as driver salesmen. The duties of the driver salesmen consisted of soliciting business from garages and repair shops, picking up the bumpers, having them replated and selling them to customers.

Gilbert also owned other similar companies one of which was defendant Action Bumper Company, a direct competitor to General. Plaintiff Robert Manewitz managed Platelease Inc., one of Gilbert’s other companies. Some time in early 1965 Shlifka, Ciavirelli and Faulisi indicated that they desired to sell their interest in General. Manewitz, originally representing Gilbert in negotiations for the sale, subsequently, on April 30, 1965, with Gilbert’s acquiescence purchased the shares of Shlifka, Ciavirelli and Faulisi for himself for the sum of $7,000.

The agreement by which Shlifka, Caivirelli and Faulisi sold all their right, title and interest in General to Manewitz contained the following covenant:

“As a material part of the consideration for the payment by me to you of the purchase price of the shares of General, you and each of you agree that you will not directly or indirectly, enter into any business activity whatsoever, as a stockholder, director, officer, employee, independent contractor, consultant, partner, sole proprietor or in any other capacity whatsoever, which competes with the business of General in the sale of new, used or replated automobile bumper parts within the Chicago metropolitan area for a period of one year commencing from the date of the termination of your employment with General. It is understood and agreed that monetary damages for the breach of this covenant on your part would be difficult if not impossible to ascertain, and that, therefore, in the event of breach or a threatened breach of this covenant, I shall, in addition to all other usual remedies, have the right to apply to a court of equity to enjoin you from any threatened or actual competing activities.”

Shlifka, Ciavirelli and Faulisi remained as driver salesmen employed by General. Gilbert continued as shareholder of General with Manewitz for a few months and in May 1965 Manewitz exercised an option and purchased Gilbert’s interest for $2,500. Although at Gilbert’s suggestion the restrictive covenant was inserted in the prior sales agreement, no such restraint or covenant was included in the sale of Gilbert’s interest.

In April 1966 difficulties arose with regard to the terms and arrangements of employment and Shlifka, Ciavirelli and Faulisi began negotiations with Gilbert to work as driver salesmen for Action. They severed their connection with General on April 29, 1966 and were employed by Action.

Plaintiffs brought the instant suit against all of the defendants charging that Shlifka, Ciavirelli and Faulisi, in violation of the restrictive covenant, were working for and attempting to divert plaintiffs’ business to Action, a competitor, and were in a position to appropriate a large portion of plaintiffs’ business, thereby greatly diminishing the business; that Gilbert engaged in a competing company and with knowledge of the facts approached and persuaded Shlifka, Ciavirelli and Faulisi to breach said contractual obligations; that all of the defendants entered into a conspiracy to attempt to acquire customers and business from plaintiffs and in furtherance thereof Action and Gilbert did aid, abet and instruct Shlifka, Ciavirelli and Faulisi to appropriate plaintiffs’ customers. Plaintiffs prayed that Shlifka, Ciavirelli and Faulisi be temporarily and permanently restrained from soliciting business of plaintiffs’ customers; engaging in the sale of new, used or replated bumpers in the Chicago Metropolitan area for a period of one year commencing April 29,1966 (the date alleged that they severed relationship with General); and that they be enjoined from entering into any business activity in competition with General for one year. The complaint contained a general prayer that the court restrain defendants from soliciting any business from any of plaintiffs’ customers.

At the hearing on the motion for temporary injunction evidence was introduced indicating that General presently serviced 98 accounts while Action serviced over 700; that of General’s 98 accounts, Action had made sales to 83 of them prior to the driver salesmen leaving General’s employment; that of these latter 83 accounts Action had made substantial sales to 40 of them and had actually shared in the business of at least 10 of these accounts.

Gilbert testified that it was a common practice in the bumper rebuilding industry for customers to split accounts and it was also a common practice for driver salesmen “to go from one company to another seeking employment”; that neither he nor Action induced the driver salesmen to terminate their employment with General and to seek employment from Action.

Manewitz testified that he had reason to believe that Gilbert lured the driver salesmen from his employ and although a customer might make an isolated purchase from a bumper company with whom he was not primarily dealing, when his primary source would not supply a particular bumper, it was unusual practice in the industry to “split” his account. He further testified that the driver salesmen were responsible for 80 to 90% of General’s business; that only one other driver salesman was employed by General; that subsequent to the driver salesmen’s departure the business had declined due to their efforts on behalf of Action and that he did not believe there were approximately 40 companies to whom both Action and General sold bumpers. The court issued the temporary injunction order as follows:

1. Defendants William Shlifka, Robert R. Faulisi and Joseph Ciavirelli, their agents, employees, attorneys, companies, partners, corporations or any parties acting on their behalf be and they are hereby enjoined until April 29, 1967 from directly or indirectly, selling, soliciting, attempting to sell, calling on or aiding the solicitation or sale of new, used or replated automobile bumpers or bumper parts to any of the individuals or companies or employees or agents of said companies to whom they sold or upon whom they called during their employment by General.
2. Action Bumper Co. and Daniel Gilbert be and the same are hereby enjoined until April 29, 1967 from selling, soliciting, attempting to sell, calling on or aiding the solicitation or sale of new, used or replated automobile bumpers or bumper parts to accounts to whom the defendants Shlifka, Faulisi or Ciavirelli sold or upon whom they called during their employment by General.

It is the contention of Shlifka, Ciavirelli and Faulisi that the restrictive covenant was ancillary to a contract of employment and its validity “must necessarily be tested by the precepts of law applicable in an employer-employee relationship.”

We do not agree. The covenant was part of an agreement for the sale of all their right, title and interest in the business and although it referred to “termination of employment” it set out no terms, conditions of details of such employment. Considering the entire agreement and its purpose, it is clearly indicated that the parties contemplated that the drivers would remain some time with General and upon termination of that connection or relationship they would not enter into any competitive activity within a definite area or for a definite period. This covenant was ancillary to the sale of their interest in the business. It was held in McCook Window Co. v. Hardwood Door Corp., 52 Ill App2d 278, 202 NE2d 36, p 289 that:

Since a difference exists in the nature of the interests sought to be protected in the case of an employer and that of a purchaser, decisions in one area cannot be of significant value or weight in the other. Northwest Side Lumber Company v. Layton, 239 Ill App 82 (1925); Restatement, Contracts § 515, comment b (1932).

In McCook it was also held that:

The enforceability of a restraint ancillary to the sale of a business or property depends on the reasonableness of the restraint as to time and as to the extent of the territory; neither one is conclusive but both are important factors in the determination of the reasonableness of the restraint.

We find that in applying these tests the restraining covenant was reasonable and not against public policy and, therefore, was valid and enforceable. The No. 1 paragraph of the injunction order is affirmed.

With regard to the No. 2 paragraph, Action and Gilbert contend that it deprived them of effectively competing with General; that it has thrown a protective shroud over General’s customers by enjoining Gilbert and Action from selling or soliciting accounts to whom the employees sold or upon whom they called while employed by General; that the order thus reserves certain customers to General on an exclusive basis, and prevents Action and Gilbert from continuing to sell to many customers of Action obtained long before Action hired employees; that this improperly gave General the right to monopolize customers who were previously served by both Action and General. We agree.

There is no basis in law or in fact in this cause whereby the broad restraining order against Action and Gilbert can be justified.

While the evidence regarding the number of General’s customers with whom Action had prior dealings is vague, it is admitted that Action had very substantial business dealings with at least 10 such customers prior to the salesmen quitting employment with General. The effect of the injunction order against Gilbert and Action prevents them from selling to these so-called common customers and gives General a competitive advantage by allowing it to monopolize customers formerly serviced by both Action and General.

This type of competitive advantage was passed upon in Corica v. Ragen, 140 F2d 496 (7th Cir 1944), wherein it cautioned at page 499 that:

A court of equity must exercise its discretion in such manner as to safeguard the interests of both parties, and, in certain circumstances ... it is an abuse of judicial discretion to issue an injunction which permits one party to obtain an advantage by acting, while the hands of the adverse party are tied by the writ.

There is no adequate basis for enjoining Gilbert and Action from selling to customers with whom the salesmen had contact when they worked for General. Neither Gilbert nor Action was a party to the agreement containing the restrictive covenant and there is no contractual basis to support the injunction order. We further find no credible evidence of any conspiracy by Gilbert and/or Action to induce the salesmen from General’s employ or to otherwise deprive General of its business.

There being no basis in law or in fact for upholding the injunction order against Gilbert and Action, that part of the restraining order is reversed.

Judgment affirmed in part; reversed in part.

MURPHY and BURMAN, JJ., concur.