author: Mr. PRESIDING JUSTICE BURKE

text:
    Carol Gaffney, Plaintiff-Appellant, v. William J. Burns Detective Agency International, Inc., Defendant-Appellee.
    (No. 56541;
    First District (1st Division)
    June 25, 1973,
    Roger J. Boylan, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, (D. Kendall Griffith and Paul L. Pawlowski, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This is an appeal from an order granting summary judgment in favor of defendant, William J. Bums Detective Agency International, Inc. (hereinafter referred to as “Bums”) and against plaintiff, Carol Gaffney. Plaintiff appeals.

On May 14, 1969, plaintiff was assaulted by two unknown persons in the parking lot of her employer, National Biscuit Co., located at 7300 S. Kedzie Avenue, Chicago, Illinois.

Plaintiff subsequently commenced an action against both defendant, Bums and her employer, National Biscuit Co., seeking to recover for the injuries she sustained as a result of the assault. Plaintiff alleged in her complaint that defendant Bums was hable by reason of its alleged negligent failure to adequately perform its guard service under a contract with plaintiff’s employer, National Biscuit Co.

The contract between defendant Bums and plaintiff’s employer, National Biscuit Co., provided in pertinent part:

“Whereas, Agency (Bums) maintains a plant protection service and has facilities for the surveillance and protection of property against fire, theft, pilferage, malicious injury and destruction, and Whereas, National desires Agency to supply such protection services to National’s Bakery at 7300 S. Kedzie Ave., Chicago, Illinois property;
Now, therefore, National and Agency do mutually agree as follows:
1) The Agency will furnish uniformed guard plant protection (armed, if necessary) service for the proper protection of National’s Bakery at 7300 S. Kedzie Ave., Chicago, Ill. property; the specific number, principal posts and hours of duty of guard personnel to be agreed upon between the parties hereto from time to time.
2) The Agency will furnish the guard personnel to provide such protection, complete with uniforms and necessary equipment. The guard personnel shall perform the following duties:
(a) Protect the property from fire, accident, theft, damage and trespass.
(b) Permit only duly authorized persons to enter the premises.
(c) Make regularly scheduled tours of the premises, checking all gates, doors, windows, lights and registering such tours on Detex or such other watch clock stations as may be provided by National.
(d) Report any unusual incidents or hazardous conditions as soon as practicable to representatives designated by National.
(e) Submit a written report covering all incidents or hazardous conditions at the conclusion of each tour.
(f) When requested, other miscellaneous duties under the direction of National’s local plant management.
# # #
4) Agency shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever (including death resulting therefrom) to all persons, whether employees of Agency or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in con-, nection with either (1) the performance of this Agreement or (2) the presence of any persons, except an employee of National in the performance of his duties, in, on or about any part of. National’s premises, at or with the invitation, express or implied, of Agency, its agents, servants or employees; and if any person, including damage or injury (including death resulting therefrom) as hereinabove described, whether such claim be based upon National’s alleged active or passive negligence, or participation in the wrong, or upon any alleged breach of, any statutory duty or obligation on the part of National, Agency agrees to indemnify and save harmless, National, its agents, servants and employees from and against any and all loss, expense, damage or injury that National may sustain as a result of any such claim and Agency agrees to assume, on behalf of National and at its demand, the defense of any action at law or in equity which may be brought against National upon such claim and to pay on behalf of National, upon its demand, the amount of any judgment that may be entered against National in any such action.
# # #
6) Without limiting responsibility of the Agency for the proper conduct of the guards and the protection of the Protected Property the conduct of the guards is to be guided by a set of standard rules agreed upon between National and the Agency * °
7) The Agency is responsible for the direct supervision of the guards * * *.
8) The Agency agrees that the plant protection services covered by this contract shall be performed by qualified, careful and efficient employees in strictest conformity with the best practices and such standards as may be prescribed by National from time to time * ”

On July 23, 1971, defendant Bums filed a motion for summary judgment and attached thereto a copy of the agreement between Bums and National and also an affidavit of an administrative assistant of Burns, Donald J. Kundrot. In its motion for summary judgment defendant Bums stated that under the terms of the contract, it had no duty to protect users of the parking lot and that its obligation to furnish protection under the agreement extended only to the property of National Biscuit Co. The affidavit of Mr. Kundrot further stated that the guards provided by Burns pursuant to the agreement had no duties, instructions or orders relative to the protection of persons using the parking lot.

On August 6, 1971, the trial judge entered an order granting leave to plaintiff to file a second amended complaint and also providing that defendant Burns’ motion for summary judgment would stand as to plaintiff’s second amended complaint.

The plaintiff’s second amended complaint also relied upon the contract between Bums and National and alleged that under this agreement Bums had a duty to protect persons lawfully on the premises of National, as well as the physical property, from unlawful conduct including assaults by unknown persons in the parking lot; that under the agreement Bums was obliged to properly perform the guard service despite the absence of any special instructions from National; that the plaintiff as an employee of National was a person whom Bums could reasonably have foreseen would be endangered by the careless performance of its guard service agreement and that she relied on Burns to properly perform its guard service. This complaint further alleged that Bums had a duty to exercise care in the performance of the agreement so as not to cause injury to persons for whose safety the agreement was made, including the plaintiff; that Burns in disregard of this duty, failed to furnish guards for the parking lot, failed to maintain a sufficient number of competent guards in the area and failed to maintain a closed circuit television surveillance in the parking lot area and as a result of which, plaintiff was injured.

Plaintiff also filed on August 6, 1971, an answer to defendant Bums’ motion for summary judgment. Plaintiff asserted, inter alia, that there were genuine issues of fact as to the scope and extent of the duties of Bums with respect to the protection of persons on the premises of National. Plaintiff maintained that by virtue of the provisions of the agreement between Burns and National, considering the customary meaning of the terms used in the contract and general practices in the trade, there existed genuine issues of fact and therefore summary judgment was not warranted.

The plaintiff’s answer to defendant Burns’ motion for summary judgment also attached an affidavit of plaintiff’s attorney reciting information obtained from one James O’Hara, whom plaintiff’s attorney stated was “a long time executive in watch service companies, whose personal affidavit could not be secured because of the shortness of time." This affidavit asserted that the term “plant protection service” as used in the contract between defendant Bums and National Biscuit Company means protection of a plant by guards and other means. The term “plant” includes not only the buildings and the physical contents, but also persons lawfully on the premises. It was also asserted' that a recognized function of a plant protection service is to guard against wrongful acts or conduct by or involving persons who occupy the premises which are being guarded and that this includes acts committed by trespassers. The affidavit further asserted that a watch service company which includes in its agreement with the owner a “hold harmless" agreement by which it agrees to hold harmless the owner from injury of losses which occur by reason of the performance or lack of performance of the plant protection agreement does so only if it retains the overall responsibility for the performance of the duties under the contract.

On August 13, 1971, the trial court, after having heard the arguments of counsel, granted summary judgment in favor of defendant Bums and against plaintiff. The Court also entered an express finding under Supreme Court Rule 304 (Ill. Rev. Stat. 1971, ch. 110A par. 304) that there was no just reason for delaying enforcement or appeal. Plaintiff appeals.

Plaintiff argues that the law is well established in Illinois and elsewhere that a person who is injured by reason of the negligent performance of a “duty assumed" under a contract with a third person has a right of action against the contractor where the injured person is one whom the contractor could have reasonably foreseen would be endangered by his negligent performance.

In our opinion, the paramount question which we must decide is whether, under the terms of the contract, Burns assumed the duty to protect persons lawfully on National’s property from assaults by third persons.

An examination of the contract reveals that Bums’ duty is set forth in clear, simple language. The contract states that because Burns “* ° * maintains a plant protection service and has facilities for the surveillance and protection of property against fire, theft, pilferage, malicious injury and destruction * * *” and because National desired Bums to “* # * supply such protection services to National’s property * # *” the parties mutually agree that Bums “* * * will furnish uniformed, guard plant protection (armed, if necessary) service for the proper protection of National’s * * * property * *

The issue of whether an ambiguity exists in a contract is a question of law. Bertlee Co., Inc. v. Illinois Publishing & Printing Co., 320 Ill.App. 490, 52 N.E.2d 47; Coney v. Rockford Life Insurance Co., 67 Ill.App.2d 395, 214 N.E.2d 1.

In the present case, Bums agreed to protect National’s property against certain specified hazards. The contract refers exclusively to “protection of property” and “such protection.” We are of the opinion that in the absence of any language referring to the protection of the safety of individuals, the trial court properly held that the contract was unambiguous and found that the duty it imposed on Burns was for the property only.

As the Illinois Supreme Court stated in Schek v. Chicago Transit Authority, 42 Ill.2d 362, 364, 247 N.E.2d 886, 888:

“The primary object in construing a contract is to give effect to the intention of the parties involved. Their intent must be determined solely from the language used when no ambiguity in its terms exist, and a strict construction of that language which reaches a different result from that intended by the parties should not be adopted. Schiro v. Gould & Co., 18 Ill.2d 538.”

See also Wm. O'Donell, Inc. v. Bowfund Corp., 114 Ill.App.2d 107, 252 N.E.2d 53.

In the present case, the contract between Bums and National is unambiguous and therefore the parties’ intent must be determined solely from the language used. Plaintiff in the course of her argument relies on the itemization of duties to be performed by guard personnel as delineated in paragraph 2 of the contract. Paragraph 2, however, does not define the service which Bums contracted to perform. Instead it itemizes the methods by which that service will be performed. The preamble and paragraph 1 of the contract define the service which Bums is to perform, namely, the protection of National’s property.

Paragraph 2 of the contract provides that Bums “* * * will furnish the guard personnel to provide such protection * * *” and that the guard personnel shall perform certain itemized duties. In our opinion the phrase “such protection” refers to the protection described in the preamble and paragraph 1 — the protection of National’s property. The itemized list represents the method by which “such protection” is to be accomplished.

Moreover, the itemized list of duties indicates that the ultimate duty of Bums is to protect property. For instance paragraph 2(a) states “protect the property from fire, accident, theft, damage and trespass.” The fact that some of the items listed in paragraph 2 are consistent with both protecting property and protecting individuals does not indicate that Bums contracted to protect individuals.

Plaintiff also in her argument refers to the hold harmless clause contained in paragraph 4. In our opinion that clause, however, does not define the service Burns contracted to perform. It concerns only the circumstances under which Bums is required to indemnify National. By its nature it concerns only Burns and National and cannot create third party rights.

Plaintiff also argues that in the watch service industry, according to plaintiff’s counter affidavit, the term “plant protection service” includes not only protection of physical property from damage or injury but the persons who are lawfully within the premises of the plant.

However, in the present case, National and defendant Burns did not rely on the usage and custom of the watch service industry in defining their mutual obligations. They reduced their agreement to writing and in our opinion the resulting contract is plain and complete. The contract specifically defines the mutual duties and limits Burns’ duty to the protection of property against fire, theft, pilferage, malicious injury and destruction. We are of the opinion that plaintiff’s argument is without merit because, as this court stated in Sturgeon v. Jacobs, 343 Ill.App. 460, 99 N.E.2d 635 (abstract) where “* # ” [T]he written contract between plaintiff and defendants is plain and complete in its terms, * * * the alleged custom or usage cannot be set up to vary or control the express terms of the contract.”

Plaintiff also questions the reasonableness and wisdom of National’s contracting to protect its property and not the safety of individuals. However, in construing the contracts of competent parties, the court is not concerned with the wisdom of the contract. As the Illinois Supreme Court stated in Green v. Ashland State Bank, 346 Ill. 174, 183, 178 N.E. 468, 472:

“If the words of a contract are plain and unambiguous the contract must be so construed as to give effect to the plain and obvious import of the language used. (Bearss v. Ford, 108 Ill. 16.) When the parties are competent to contract, with the wisdom or folly of their contracts, made for a consideration and without fraud, courts of law have no concern. (Florida Ass’n v. Stevens, 61 Fla. 508; Mizell Live Stock Co. v. McCaskill Co. 59 id. 322.)”

We are of the opinion that the trial court was correct in holding the contract between Bums and National is not ambiguous and only imposed on Bums the duty to protect National’s property. As a consequence, Bums was under no duty to protect plaintiff from harm by unknown third persons. In the present case, there are no genuine issues with respect to any of the material facts and therefore the trial judge properly entered summary judgment in favor of defendant Bums. (Novak v. Equitable Life Assur. Society, 101 Ill.App.2d 392, 243 N.E.2d 269.) The judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE EGAN

license: Public Domain

text:
    Lucille Malloy, Plaintiff-Appellant, v. The Illinois Bell Telephone Company, Defendant-Appellee.
    (No. 57420;
    First District (1st Division)
    June 25, 1973.

      Patrick E. Mahoney, of Chicago, for appellant.
    Robert V. R. Dalenberg, L. Bow Pritchett, and Alan R. Baker, all of Chicago, for appellee.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Lucille Malloy, filed a complaint against the defendant, Illinois Bell Telephone Company, alleging that she and the class she represented were subscribers of the defendant in Lake and Kendall Counties; that they were deprived of telephone service from July 15,1971 to July 20, 1971, as a result of disruptions in telephone service caused by acts of vandalism. The plaintiff claimed that, since they had paid for uninterrupted service in advance, they were entitled to a refund for the six-day period in which their service was interrupted. The trial court dismissed the complaint, holding that the Illinois Commerce Commission had sole and exclusive jurisdiction to determine the plaintiff*s claim.

Section 72 of the Public Utilities Act (Ill. Rev. Stat. 1971, ch. 111%, par. 76) provides in pertinent part:

“§ 72. When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount.”

Beginning with Terminal R. R. Association of St. Louis v. Public Utilities Com., 304 Ill. 312, 136 N.E. 797, the Illinois decisions have uniformly held that the intent and purpose of the Public Utilities Act in providing a method for recovery of reparations was to preclude any judicial action until the Commission had heard the claim. (Adler v. Northern Illinois Gas Co., 57 Ill.App.2d 210, 206 N.E.2d 816; Colton v. Commonwealth Edison Co., 349 Ill.App. 490, 111 N.E.2d 363; Medusa Portland Cement Co. v. Illinois Centred R.R. Co., 287 Ill.App. 549, 5 N.E.2d 782.) The plaintiff contends, however, that the cases are inapplicable and the dismissal can be justified only if the court concluded that the complaint sought redress for an excessive or discriminatory rate; and that this is not such a claim.

Initially, we note that section 72 is not restricted to complaints concerning rates but speaks of “other charge,” as well. Further, similar arguments have been advanced and rejected in Burke v. Illinois Bell Telephone Co., 348 Ill.App. 529, 109 N.E.2d 358 and Cummings v. Commonwealth Edison Co., 64 Ill.App.2d 320, 213 N.E.2d 18. In Burke, a Commerce Commission rule required that telephone directories be distributed at least once a year; and the Commission authorized the utility to charge certain rates in consideration of its compliance with that rule. The utility failed to comply; and a class action was brought to recover a refund of two dollars for each subscriber, allegedly representing the value of the services, i.e., the use of the directories, of which the class was deprived. The trial court found in dismissing the cause for lack of jurisdiction, and the Appellate Court agreed, that the claim was for a refund of part of the rates paid for directories not received and consequently a claim for reparations within the meaning of section 72. In Cummings, the utility had purchased electrical equipment from various companies which had conspired to fix the prices of the equipment in violation of the federal anti-trust laws. The plaintiff filed a class action alleging that the utility had paid excessive prices over the years for the equipment and that the overcharges had been included in its property and plant accounts, which constituted one of the principal factors upon which the “rates and charges” paid by the plaintiff were determined. Consequently, the plaintiff claimed, she was entitled to a refund out of money paid to the utility by the electrical companies as a result of civil litigation. The plaintiff appealed a dismissal on the “grounds that her complaint [did] not involve the Commission’s rate making functions.” (p. 323.) The Appellate Court said:

“It is well established that the common law right to recover reparations for unreasonable charges by public utilities has been superseded by the Public Utilities Act. [Citation.] The question remains whether plaintiff is, in effect, bringing such an action.
* # *
It is apparent that the sole basis for plaintiff’s claim, irrespective of the label she chooses to employ, is that she and other customers were charged excessive rates for which she wants reparations. The fact that the plaintiff does not seek to upset a rate schedule or fix utility rates for the future does not bring this matter within the powers of a court of equity and outside the exclusive jurisdiction of the Illinois Commerce Commission.” (pp. 323-324.)

We find Burke and Cummings applicable and controlling here. Whatever the plaintiff may seek to term the amount paid the defendant, that amount constituted a “charge” or “rate” within the meaning of section 72 and her claim is for reparations within its meaning as well.

The plaintiff relies on section 74 of the Act (Ill. Rev. Stat. 1971, ch. 111%, par. 78) as proof that the legislature intended that claims such as hers are not controlled by section 72. That section in pertinent part reads as follows:

“§ 74. This Act shall not have the effect to release or waive any right of action by the State, the Commission, or by any body politic, municipal coiporation, person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under any law of this State.
All penalties accruing under this Act shall be cumulative of each other, and suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution against any public utility, or any officer, director, agent or employee thereof, or any other corporation or person.”

In support of her position the plaintiff cites Barry v. Commonwealth Edison Co., 374 Ill. 473, 29 N.E.2d 1014. In that case the plaintiff had filed a petition before the Commerce Commission for reparations alleging that the utility had cut off his electric service; that he had been wrongfully accused of unlawfully taking electric service; and that the utility would not resume service until he had paid a specific amount, which he paid. His petition asked that the Commission exonerate him of the charge made against him and to order the return of the money he had paid. The Commission dismissed the petition after finding that the utility had not acted without probable cause in terminating the service and left the parties to their respective remedies at law. The plaintiff filed a three-count complaint in the superior court. The first two counts alleged that he had been damaged personally and in his business by the wrongful disconnection; and the third alleged that the utility had slandered him by charging that he had stolen the electricity. The trial court dismissed the suit on the ground that the order of the Commerce Commission was res judicata of the claim asserted in the superior court. The supreme court reversed, holding that the claim for reparations for the amount of money paid under protest, which the Commission had passed on, was not the same as the claim for damages for improper disconnection. By way of dictum the court also held that the claim for damages came under section 74 and was beyond the Commission’s jurisdiction. In view of the tacit concession of the parties and the Supreme Court that the claim for reparations for the amount paid was properly before the Commission, the Barry case provides no authority for the position urged here by the plaintiff.

The later case of Burke v. Illinois Bell Telephone Co., 348 Ill.App. 529, 109 N.E.2d 358, casts more light on the difference between a claim for reparations and a claim for consequential damages. Section 73 (Ill. Rev. Stat. 1971, ch. 111-2/3, par. 77) reads as follows:

“§73. In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.
In every case of a recovery of damages by any person or corporation under the provision of this section, the plaintiff shall be entitled to a reasonable counsel’s or attorney’s fee to be fixed by the court', which fee shall be taxed and collected as part of the costs in the case.
No recovery as in this section provided shall in any manner affect a recovery by the State of the penalties in this Act provided.” (Emphasis added.)

The Burke case specifically held that the claim, previously summarized in this opinion, came under section 72 and not under section 73. In Barry, the court held that a wrongful disconnection is a violation of section 38 (Ill. Rev. Stat. 1971, ch. 111-2/3, par. 38), which requires a utility to furnish suitable facilities without discrimination and without delay to all persons reasonably entitled thereto. It is apparent that damages accruing from a violation of section 38 would arise from a violation of the Act and, therefore, would be subject to be awarded by a court only as specified in section 73. The plaintiff here has made no such claim for consequential damages, if indeed she could as a class action.

For these reasons we conclude that the trial court properly held that the claim asserted was for reparations under section 72 of the Act and that the Illinois Commerce Commission had exclusive jurisdiction. The judgment of the circuit court is affirmed.

Judgment affirmed.

GOLDRERG and HALLETT, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leon Smith, Defendant-Appellant.
    (No. 57459;
    First District (1st Division)
    June 25, 1973.
    James J. Doherty, Public Defender, of Chicago, (Saul H. Brauner, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, James Carlson, and Terrence McQuigg, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

GOLDBERG, J., took no part.


text:
      In re Interest of Jeffery Mayfield et al., Minors—(The People of the State of Illinois, Plaintiff-Appellee, v. Jeffery Mayfield et al., Minors, Defendants-Appellants.)
    (Nos. 57785-57786 cons.;
    First District (1st Division)
    June 25, 1973.
    Kenneth L. Jones and Reginald D. Taylor, both of Defender Project, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

EGAN, J., took no part.


author: Mr. JUSTICE JOHNSON

text:
    The City of Chicago, Plaintiff-Appellee, v. Jerry Ikin, Defendant-Appellant.
    (No. 55896;
    First District (4th Division)
    June 27, 1973.

      Irving Birnbaum, of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from a judgment entered in an action brought by the City of Chicago for violation of the Disorderly Conduct Ordinance, chapter 193, section 1(b) of the Municipal Code of Chicago. The court, without a jury, found the defendant guilty of the charge and fined him $250.

The Municipal Code of Chicago, chapter 193, section 1 provides as follows:

“A person commits disorderly conduct when he knowingly:
* # #
(b) Does or makes any unreasonable or offensive act, utterance, gesture or display which, under the circumstances, creates a clear and present danger of a breach of peace or imminent threat of violence; * * V The issues presented for review:
1. Whether there was sufficient evidence to sustain a finding of guilty under the disorderly conduct ordinance.
2. Whether the facts complained of constitute a violation of Section 193 — 1(b) of the Municipal Code of Chicago.
3. Whether a fine of $250 was excessive under the circumstances of this case.

At approximately 11:00 A.M., on February 2, 1970, the defendant, Jerry Ikin, rang the doorbell of the complainant, Anita Gordon. Mrs. Gordon answered the doorbell and the defendant informed her that he was a neighbor and he was warning people in the neighborhood that there was a “peeping tom” in the vicinity. Mrs. Gordon thanked him and began closing the door, but the defendant stopped her and began describing the “peeping tom.” During this description, he started taking out a cigarette, but did not have a match. Mrs. Gordon left the door to get him a match and at that time defendant entered the apartment uninvited.

The defendant took off his coat, sat down and proceeded to tell Mrs. Gordon about his observations in the neighborhood. It was his practice to use binoculars. During the course of his narration of neighborhood activity, the complainant was unable to get defendant to leave. The defendant asked Mrs. Gordon if he could kiss her and she refused. He took the liberty of pinching her cheek. On three separate occasions she asked the defendant to leave but he ignored her requests. Finally, complainant heard the milkman and she opened the door and started talking with the milkman. The defendant then left immediately. Mrs. Gordon called the police. Defendant was arrested and charged with a violation of the City’s disorderly conduct ordinance, Municipal Code of Chicago, chapter 193, section 1(b). The defendant was found guilty and fined $250 after a bench trial on June 15, 1970.

The record contains ample evidence to support the judgment of the trial court. The defendant’s conduct was so outrageous that it would reasonably produce a threat of violence.

Defendant-Appellant claims he was in complainant’s apartment at her invitation and that she failed to call for assistance. Under the circumstances of the case as they appeared to complainant at that time, it would not have been prudent or feasible, since she knew no one was around at that hour of the day.

Neither common sense nor any rule of law requires complaining witness to place herself in jeopardy. The trial judge pointed out that this course of action might very well have rendered her susceptible to other criminal acts being perpetrated upon her. There is ample justification, indeed wisdom, behind her failure to call out for help.

In the case of City of Chicago v. Wender (1970), 46 Ill.2d 20, 262 ,N.E.2d 470, which arose out of the 1968 convention disturbance, the Supreme Court reversed a disorderly conduct conviction. There the defendants were all arrested for a traffic offense, were all searched and objected loudly, and asked for the names and badge numbers of the arresting officers.

The court in the Wender case (46 Ill.2d at p. 24), stated that “[w]hat is reasonable must always depend upon the particular case and therefore must be left to determination on the facts and circumstances of each situation as it arises.” Therefore, conduct that is reasonable in one set of circumstances may be quite unreasonable in other circumstances. Even if pinching a cheek is reasonable conduct in one situation, that same action might be unreasonable in an apartment where one has entered without invitation and carried on in an offensive manner. Under the circumstances of this case, the evidence strongly shows that the action of the defendant was unreasonable.

Defendant cites City of Chicago v. Perez (1970), 45 Ill.2d 258, 259 N.E.2d 4, and argues that he was convicted under the wrong provision and may have been guilty of a provision regulating “peeping toms.” The defendant was convicted on evidence relating to his behavior while in the complainant’s apartment. His prior conduct was not an issue in the lower court. City of Chicago v. Perez was a sitdown strike by welfare recipients in a Cook County public aid office. This was passive conduct which did not tend to provoke a breach of the peace or imminent threat of violence.

In this case, it was only through the prudent action of the complainant that she managed to take advantage of the fortuitous arrival of the milkman on the scene to get the defendant out of the apartment without violence.

The conduct of the defendant in entering the house of a young married woman uninvited and, once inside, trying to force his affections on her, asking for a kiss and pinching her cheek, and refusing to leave when asked several times was an unreasonable and offensive act which, under the circumstances, created a clear and present danger of a breach of the peace or imminent threat of violence.

The maximum sentence permissible under the Ordinance is a fine of $500. Defendant received a fine of $250, which, as he admits, “is not a severe punishment as punishments go.”

Employing the standard set forth in People v. Hicks (1966), 35 Ill.2d 390, 397-98, 220 N.E.2d 461, 465, the Supreme Court of Illinois enunciated the requirements for granting a reduction in sentence:

“It has been observed frequently that where the punishment imposed is within the limits prescribed by the legislature, this court should not disturb it unless it is clear that the sentence constitutes a great departure from the spirit and purpose of the law or it is manifestly violative of the constitutional mandate requiring that all penalties must be proportioned to the nature of the offense.” See also, People v. Henderson (1970), 119 Ill.App.2d 403, 411 and People v. Zito (1970), 120 Ill.App.2d 68, where sen-fences were held proper under the same standard. Illinois Supreme Court Rule 615(b)(4).

The judgment of the circuit court is affirmed.

Affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Merriweather et al., Defendants-Appellants.
    (No. 56510;
    First District (4th Division)
    June 27, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James E. Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendants, Robert L. Merriweather and Anthony Carr, were indicted for burglary. Following a jury trial in the Circuit Court of Cook County, they were found guilty of burglary. Defendant Merriweather was sentenced to a term of two to ten years in the Illinois State Penitentiary, and defendant Carr was sentenced to a term of five to fifteen years. Both defendants herein appeal from that conviction.

The issues presented for review are: (1) whether the prosecutor violated the defendants’ constitutional privilege against self-incrimination; (2) whether the defendants were proven guilty of burglary beyond a reasonable doubt; and (3) whether the trial court committed prejudicial error by submitting an instruction to the jury as to motive.

On the evening of December 9, 1970, a burglar alarm was sounded for the Disabled American Veterans Store at 3514 South Michigan Avenue, Chicago. The Chicago Police Department was alerted and officers arrived at the premises soon thereafter. When the police arrived they found the front door ajar and lights on in the store. During a subsequent search of the premises, Chicago Police Officers Robert Mantia and Jerome Domagalski found three men on the first floor of the building crouching beneath some clothing racks. Two of the three men the police officers found are the defendants, Robert L. Merriweather and Anthony Can-.

Defendants Merriweather and Carr were subsequently indicted for burglary. Both men pleaded not guilty and were tried before a jury in the Circuit Court of Cook County. During the trial, Police Officers Mantia and Domagalski testified to arriving at the store, seeing the door ajar, and thereafter finding the defendants crouching beneath the clothing racks. The police officers further testified a search of the defendants revealed nothing; however, there were three boxes lying by the door.

Aaron Vine, an employee of the store, testified that on the morning of December 10, 1970, he arrived at the store and found the lock on the front door to the store had been “torn off.” He further testified there were three boxes lying near the door.

James Brown, the store manager, testified that on the morning of December 10, 1970, he arrived at the store and found one of the front doors damaged; however, he found nothing missing from the store.

Homer Stinson, a detective for the Chicago Police Department, testified he advised the defendants of their rights when they were placed under arrest. The defendants, however, admitted to Detective Stinson to being in the store.

Following this testimony, the State rested its case against the defendants. The defense chose not to present any evidence whatsoever. The jury thereafter returned a verdict finding the defendants guilty of burglary and the trial court sentenced both men. This appeal arises from those proceedings.

The first issue presented for review is whether the prosecutor violated the defendants’ constitutional privilege against self-incrimination. The defendants contend the prosecutor’s repeated comment during closing arguments that the State’s evidence stands “uncontradicted” violated their constitutional right against self-incrimination. In support of this contention, the defendants rely on the decision in People v. Burton (1969), 44 Ill.2d 53, which the Illinois Supreme Court decided subsequent to the landmark decision of the United States Supreme Court in Griffin v. California (1965), 380 U.S. 609. Both courts in effect stated the fifth-amendment privilege against self-incrimination prohibits comment by a prosecutor as to a defendant’s failure to testify in his own behalf. The defendants also rely on that section of the Illinois Criminal Code which forbids reference or comment that a defendant neglected to testify, namely, Illinois Revised Statutes, chapter 38, § 155 — 1.

The cases are legion that the prosecutor may refer in his closing argument to the testimony of the State’s own witnesses and point out their testimony has not been contradicted, as long as such comment is not intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his right to testify. (People v. Burton (1969), 44 Ill.2d 53; People v. Mentola (1971), 47 Ill.2d 579; People v. Palmer (1970), 47 Ill.2d 289; People v. Hopkins (1972), 52 Ill.2d 1.) A review of the closing arguments in the instant record reflects the prosecutor was merely referring to the fact the testimony of the State’s witnesses was uncontradicted. There is nothing in the record to indicate any intent on the part of the prosecutor to direct the attention of the jury to the defendants’ neglect to avail themselves of their right to testify. We therefore reject the defendants’ contention that their constitutional privilege against self-incrimination was violated.

The second issue presented for review is whether fire defendants were proven guilty beyond a reasonable doubt. The defendants contend the prosecution failed to prove them guilty of burglary beyond a reasonable doubt in that the evidence which was presented to the jury merely pointed to the fact that the defendants were in the store when the police arrived upon answering the burglary call. This, the defendants contend, falls far short of proving intent to steal, an essential element for sustaining a conviction for burglary.

It is uncontroverted the lock on the front door of the store was “torn off” and the defendants were in the store without authority when the police answered the burglary call. Moreover, the defendants were found hiding beneath some clothing racks in an attempt to conceal their presence from the police who were searching the premises. Evidence which indicates defendants were found in a building attempting to conceal their presence from police has long been sufficient to establish the intent to steal. (People v. Panczko (1943), 381 Ill. 625.) As stated previously, the evidence which proved the defendants were acting in just this manner stands uncontradicted and, as such, this court can only reach the conclusion the intent to steal was proven by the prosecution beyond a reasonable doubt. We therefore reject the defendants’ contention they were not proven guilty of burglary beyond a reasonable doubt.

The final issue presented for review is whether the trial court committed prejudicial error by submitting an instruction to the jury as to motive. The defendants contend the giving of instruction No. 8 over the objection of defense counsel was error. Instruction No. 8 read as follows:

“Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crime charged.”

The basis for the defendants’ contention that the tender of the motive instruction amounted to prejudicial error by the trial court is such an instruction may have misled the jury to believe intent for the unauthorized entry into the store was not a necessary element to be considered in their deliberations.

The record reveals the defendants did object to the tender of the motive instruction; however, the objection does not reflect upon what grounds it was raised. Objections to instructions which are general and lack specificity are not reviewable. (People v. Neukom (1959), 16 Ill.2d 340.) We therefore reject the defendants’ contention the trial court committed prejudicial error in tendering an instruction as to motive.

For the reasons stated herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Preston R. Davis, Petitioner-Appellant.
    (No. 56925;
    First District (4th Division)
    June 27, 1973.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Ricky Petrone, and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The petitioner, Preston R. Davis, appeals from an order entered in the Circuit Court of Cook County dismissing a post-conviction petition.

Petitioner Davis was indicted in two counts for the offense of murder. On April 29, 1969, Davis pleaded guilty to the charge of murder and was sentenced to a term of not less than 14 years nor more than 14 years and one day in the Illinois State Penitentiary.

Pursuant to the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, § 122), Davis, on October 6, 1970, filed a pro se post-conviction petition in which he alleged his guilty plea was neither willingly nor intelligently made, in that he thought he was entering a guilty plea to a charge of voluntary manslaughter rather than murder. The post-conviction petition also contained an allegation that the sentence the petitioner received was contrary to the sentence his privately retained defense counsel had assured him he would receive, namely, five to ten years in the penitentiary, for entering a guilty plea.

Following appointment of counsel for the petitioner, the trial court on July 21, 1971, held a hearing to determine whether the post-conviction petition raised any issue which would merit holding an evidentiary hearing. At this hearing, the State moved to dismiss the post-conviction petition filed by Davis for failure to raise a constitutional question as required by the Illinois Post-Conviction Hearing Act, and for failure to adequately support the claims presented therein. Following an argument presented by the petitioner’s counsel, the trial court continued the hearing in order for counsel to secure an affidavit from the petitioner’s privately retained trial counsel or to present such counsel’s testimony at the subsequent hearing as to any assurances he made to the petitioner at the time the petitioner’s guilty plea was entered. The trial court also continued the State’s motion to dismiss the petition by allowing the motion to stand as the State’s answer to the post-conviction petition.

On October 18, 1971, the trial court held a hearing at which time counsel representing the petitioner advised the court he had discussed the petitioner’s guilty plea with the petitioner’s privately retained trial counsel. The petitioner’s counsel further advised the court he did not have an affidavit from the trial counsel but the trial counsel, if present, would testify to the effect he had not assured the petitioner he would receive a lesser sentence than the one which he did receive upon entering a guilty plea. Following this representation by petitioner’s counsel, the trial court dismissed the petitioner’s post-conviction petition. This appeal arises from that dismissal.

The issues presented for review are (1) whether the trial court properly dismissed the post-conviction petition prior to holding an evi-dentiary hearing based solely on the out-of-court statement of one witness; and (2) whether the petitioner was adequately represented by counsel at and prior to the hearing held pursuant to his petition for post-conviction relief.

The petitioner’s initial contention arises from the petitioner’s unsupported allegation in his post-conviction petition where he states his privately retained trial counsel assured him he would receive a sentence of five to 10 years for his guilty plea to a charge of voluntary manslaughter rather than the sentence of from 14 years to 14 years and one day which the trial court gave him following his guilty plea to the charge of murder.

We do not accept the petitioner’s contention the trial court erred in refusing to grant him an evidentiary hearing as to the allegation in his post-conviction petition as valid. The petition is totally devoid of any factual allegations concerning the promise which the petitioner contends led to his plea of guilty. Since there is no factual information presented either in the petition or in the record before us, the petitioner’s allegation amounts to an unsupported conclusion. The law in Illinois is well settled that allegations which amount to mere conclusions are not sufficient to require an evidentiary hearing. (People v. Heaven (1970), 44 Ill.2d 249; People v. Fuller (1972), 7 Ill.App.3d 931.) We therefore reject the petitioner’s contention that the trial court should have granted him a full evidentiary hearing.

The petitioner’s second contention is he was denied effective representation by counsel at and prior to the hearing for post-conviction relief. The petitioner bases this contention on the grounds that his court appointed counsel not only failed to amend the petitioner’s post-conviction petition, but also neither sufficiently communicated with the petitioner prior to the presentation of his case to the trial court nor attempted to bring the petitioner to court to testify about the disputed facts.

In accord with our rejection of the petitioner’s previous contention, we also reject this contention. The Illinois Supreme Court has consistently held that where there is not a showing that sufficient facts or evidence exists, inadequate representation will not be found because an attorney failed to amend a petition or, when amended, failed to make the petitions allegations factually sufficient to require the granting of relief. (People v. Stovall (1970), 47 Ill.2d 42; People v. Fuller (1972), 7 Ill.App.3d 931.) Moreover, the record reflects the petitioner’s court appointed counsel was in communication with the petitioner and offered to tender to the trial court a 37-question interview sheet which had been sent to the petitioner, answered, been notarized and returned to counsel to aid him in preparing for the hearing held in relation to the petitioner’s post-conviction petition.

For the reasons stated herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Patrick Lewis, Defendant-Appellant.
    (No. 57320;
    First District (4th Division)
    June 27, 1973.

      James J. Doherty, Public Defender, of Chicago, (Stanley Sacks, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Sharon Grossman, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Patrick Lewis, was charged with battery and theft, and at a bench trial in the Circuit Court of Cook County he was found guilty on both charges and sentenced to ninety days in the House of Correction on each charge, the sentences to run concurrently.

The issues ón appeal are whether the State failed to prove the defendant guilty beyond a reasonable doubt; whether the State presented sufficient evidence to establish bodily harm under the battery complaint; and whether the convictions and sentences for the separate offenses of theft and battery were proper.

The complaining witness, Reva Binder, testified that on February 27, 1972, at 5:30 P.M., she was in front of 2742 West Devon while walking to her son’s car. She was approached by two persons, one of whom grabbed her purse. She struggled with him for several minutes before she was dragged to the ground and her purse was ripped out of her hands. She screamed, and her son ran from his car in pursuit of the assailant. She saw them turn a comer, and upon following, discovered her purse on the ground. Her son came back about five or ten minutes later with the defendant. They flagged a passing police car, and all of them went to the police station where she identified the defendant as her assailant.

The defendant testified in his own behalf that he never saw Reva Binder, did not steal her purse, and was waiting for someone on the street when confronted by her son.

The defendant first complains he was not proven guilty beyond a reasonable doubt, because the conditions surrounding the incident were not conducive to good observation, and the complaining witness was mistaken in her identification.

Reva Binder testified she saw the defendant approach and then struggled with him for several minutes before he was able to drag her to the ground and wrest the purse from her grasp. That was ample time for her to observe the attacker, and her identification was sure and unwavering. It is well settled in Illinois that the positive identification of one credible witness is sufficient to sustain a conviction, even though contradicted by the accused (People v. Hampton (1970), 121 Ill.App.2d 76), and the credibility of the witnesses is for the trier of fact to determine, and its finding of guilty will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt of defendant’s guilt. (People v. Glover (1971), 49 Ill.2d 78.) We find the evidence adduced at trial was sufficient to sustain the judgment.

The defendant also complains the conviction and sentencing for both theft and battery was improper because both were based on the same transaction and the same conduct with no independent motivation. Section 1 — 7(m) of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, § 1 — 7(m)) provides:

“When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

The Committee Comments to that section provide:

“Subsection (m) is intended to codify the holding in People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316 (1958), by the implicit converse of the provision stated, i.e., if the offenses resulted from the same conduct, the defendant may not be sentenced on both, either concurrently or consecutively. ‘Conduct’ is defined in section 2 — 4 and is used in the sense of ‘the same transaction discussed in Schlenger, supra.”

In the case of People v. Stewart (1970), 45 Ill.2d 310, the defendant was convicted of both aggravated battery and attempt to commit robbery on evidence that he grabbed the complaining witness around the neck, threw him down, and struck him a blow that knocked out several teeth. The Supreme Court reversed the judgment for aggravated battery and affirmed the judgment for attempted robbery after citing subsection (m) quoted above and noting that there was nothing to suggest the acts were independently motivated from the conduct which constituted the offense of attempted robbery. Also, see People v. Prim (1972), 53 Ill.2d 62. In the instant case the battery occurred as the defendant struggled with the complaining witness for possession of her purse, and there appeared to be no independent motivation to inflict bodily harm. We hold the judgment on the charge of battery must be reversed, and we need not reach the issue regarding the sufficiency of the evidence on the battery charge.

For these reasons the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

BURMAN, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Coleman, Defendant-Appellant.
    (No. 57106;
    First District (4th Division)
    June 27, 1973.

      James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen, Stanton Bloom, and Shelvin Singer, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Nicholas J. Motherway, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

After a hearing, the defendant was found guilty of violation of probation and sentenced to not less than six nor more than ten years in the Illinois State Penitentiary to run concurrently with the sentence imposed in another robbery conviction. The defendant appeals, contending that at his hearing on probation violation he was not accorded due process of law when he was denied a continuance for time to bring in a witness to prove an alibi defense.

The defendant was granted probation for five years for the crime of armed robbery on July 29, 1968. On January 8, 1971, he was convicted of robbery and on December 9, 1971, defendant was found guilty of violation of probation. At that hearing, the State introduced into evidence the certified copy of conviction of January 8, 1971.

Mr. William McMurtry testified that on March 1, 1970, he met the defendant at the American Legion Post in Phoenix, Illinois. Defendant offered to help McMurtry to find an address and they left in McMurtry’s car. They were together for about 30 or 40 minutes, and upon reaching the address in question, defendant robbed McMurtry at gun point and threatened to kill him.

After the State rested, the court asked the defendant’s attorney if he had any evidence to put on. Defense counsel answered that there was a witness, Mr. Lush Tucker, who would testify that the defendant was not at the American Legion Hall on the night in question, but that he was not available at the present time. The court said that to allow this man to testify would be to re-litigate the issues and to test the sufficiency of the evidence at the prior trial. The record does not indicate any exact request for a continuance. The trial judge then found the defendant guilty of violation of probation.

It is the defendant’s contentions that he was not accorded due process of law because he was denied a continuance for the purpose of bringing in an alibi witness. The rights of a defendant at a probation revocation hearing were spelled out in People v. Bacon (1970), 124 Ill. App.2d 262, 264, 260 N.E.2d 357, where the court said:

“The procedures required at such a [probation revocation] hearing are set forth in chapter 38, section 117 — 3 of the Ill. Rev. Stat. (1969). According to the case of People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528 (1960), the procedural rights to be accorded a defendant in a revocation of probation are notice to the defendant and an opportunity to be heard, as fundamental requirements of due process. Further, the Price case established- that a defendant is entitled to a conscientious judicial determination according to proper procedural methods upon whether the conditions of probation have been violated, which necessitates that the defendant knows of the nature of the charge and is given sufficient opportunity to answer that charge."

The only possible question here is whether defendant was given a conscientious judicial determination according to proper procedural methods. We think he was.

A motion for a continuance is within the discretion of the trial court and this discretion will not be disturbed on review except for manifest abuse. (People v. Parks (1969), 110 Ill.App.2d 455, 461, 249 N.E.2d 720; People v. Williams (1970), 130 Ill.App.2d 192, 198, 264 N.E.2d 589.) As the State’s brief points out, there was no actual request by defendant’s attorney for a continuance. Nevertheless, if there had been, it would have properly been denied. When asked by the court what the witness would testify to, the defendant’s counsel said that he would offer evidence that Mr. Coleman was not at the American Legion Hall on this particular night.

The granting or denial of probation is a matter of discretion vested in the trial court and may not be disturbed on review unless the abuse of that discretion is manifest. (People v. Collins (1972), 7 Ill.App. 3d 947, 288 N.E.2d 629); and “[t]he law is well settled, and there is no dispute here, that where the vital question in a proceeding for violation of probation concerns the commission of a crime by the probationer, the violation must be proved by a preponderance of the evidence.” (People v. Johnson (1973), 10 Ill.App.3d 537, 538, 294 N.E.2d 700.) In People v. Latham (1971), 132 Ill.App.2d 823, 824, 270 N.E.2d 563, the court said:

“Considering that the conviction of a crime requires proof of guilt beyond a reasonable doubt the court in a probation proceeding should attach great weight to the proof of conviction as establishing that the defendant had in fact committed a crime and thereby violated a condition of his probation.”

Here the trial court was justified in revoking defendant’s probation by giving great weight to the conviction. There was no abuse of discretion by the trial court.

This court said in People v. Williams (1970), 130 Ill.App.2d 192, 198, 264 N.E.2d 589:

“[1] * * * [T]he termination of probation is a question resting within the sound discretion of the trial court. (People v, Tomaszek, 54 Ill.App.2d 254, 204 N.E.2d 30 (1964).) The standard of proof at a hearing to determine whether probation should be terminated is one of the preponderance of the evidence, not the fixed standard of reasonable doubt applied to a finding of guilty in an actual criminal trial. People v. Smith, 105 Ill.App.2d 14, 18, 245 N.E.2d 13 (1969).
[2, 3] The granting of a continuance is also a matter within the sound discretion of the trial court, and this discretion will not be interfered with on review unless it has been clearly abused. (People v. Parks, 110 Ill.App.2d 455, 249 N.E.2d 720 (1969).) The termination of the probation of Williams was based on the subsequent theft conviction alone, and the investigation of other allegations in the rule to show cause was not necessary. The denial of a continuance to defendant in no way cut him off from presenting other proof at the hearing.
[4] When a defendant is made aware of the charges out of which the rule to show cause for termination of probation arises and where the proof shows that the defendant had been convicted of a subsequent offense, the State has fulfilled its burden of proof. (Ill. Rev. Stats, c. 38, § 117 — 3; People v. Price, 24 Ill.App. 2d 364, 164 N.E.2d 528; People v. Stepnewski, 121 Ill.App.2d 249, 257 N.E.2d 570 (1970).)”

We conclude that the trial judge did not abuse his discretion either in denying defendant’s request for a continuance of the hearing on the issue of defendant’s probation violation or in terminating defendant’s probation in accordance with applicable statutory provisions.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sam Smith, Defendant-Appellant.
    (No. 57241;
    First District (4th Division)
    June 27, 1973.

      James J. Doherty, Public Defender, of Chicago, (Judith Smith Leland, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Sharon Grossman, and Frank Deboni, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, the defendant was found guilty of murder of James Booker and armed robberies of Hiram Booker and Sam Booker. He was sentenced from 20 to 40 years for murder and from two to five years for each armed robbery, aU sentences to run concurrently.

The defendant appeals, contending that the conviction and sentencing for three separate offenses of armed robberies and murder which occurred at the exact same time and place and arising out of a series of acts in the same transaction and the same conduct is improper. In a supplemental and pro se brief, defendant further contends that he was not proven guilty beyond a reasonable doubt and that the trial testimony was not of clear and convincing quality.

The State’s witnesses testified that on July 25, 1970, at about 12:00 or 12:30 A.M., the defendant and others entered the premises at 1620 South Ridgeway for the purpose of gambling. The defendant left and returned with a shotgun, and announced a “stickup.” He took money from Sam Booker and shot James Booker. He then got into a fight with Hiram Booker and took money from him.

The defendant’s witnesses testified that the defendant was on the premises at the time of the shooting; that the deceased had a pistol; that the deceased and defendant had an argument, and that defendant did not have a shotgun.

The defendant testified in his own behalf that he did not shoot the deceased; that he got into an argument over some money the deceased owed him; that the deceased went for a pistol and then one Larry Rutledge entered with a shotgun and announced a “stickup.”

The defendant’s contention is that the convictions for the murder of James Booker and the armed robberies of Hiram Booker and Sam Booker are improper because all three offenses occurred from the same series of acts in the same transaction and same conduct. All of the cases the defendant cites in his brief echo this theme, and rightly so, for each of the cases involved a fact situation in which the conduct constituting the first offense was not separable from that which constituted the second or third offense.

The case at bar is distinguishable. Here the defendant first shot James Booker, then, in turn, robbed Hiram and Sam Booker. Each offense involved separate conduct and accompanying mental state. In People v. Wilson (1972), 51 Ill.2d 302, 281 N.E.2d 626, the court said at pages 310-11:

“The facts in the instant case make it easily distinguishable from the circumstances in the cited cases. Here the acts and mental state which constituted attempted burglary and murder were independent and the conduct which constituted each offense was separable.
Consequently, the separate and consecutive sentences were proper. The two offenses, independently motivated or otherwise separable, formed the converse of the situation found in People v. Whittington, 46 Ill.2d 405. Obviously, the offenses of attempting to commit the burglary and of murder, of which the defendant was convicted, did not result from the same conduct or mental state. See: Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m).”

In Wilson, the defendant was attempting to enter a supermarket to burglarize it. A police officer came on the scene and Wilson fatally shot him. He was convicted of murder and attempted burglary, with consecutive sentences. Here the defendant was convicted of murder and armed robbery of two people other than the one he shot; he was given concurrent sentences. The important fact remains that in both cases the conduct of the defendant was not the same conduct as defined in Ill. Rev. Stat. 1969, ch. 38, sec. 1 — 7(m). The acts and their accompanying mental state were separate and apart although close in time. (People v. Baker (1969), 114 Ill.App.2d 450, 456, 252 N.E.2d 693; People v. Holt (1972), 7 Ill.App.3d 646, 655, 288 N.E.2d 245.) In affirming con-victims for two different crimes, we do not mean to imply that defendant’s acts of murder and robbery were wholly unrelated in time and fact; the evidence clearly indicates that there was a connection. However, the “conduct” in perpetrating the two offenses was not the same conduct as it is defined in the statute; the acts, and especially their accompanying mental state, were different, even though closely joined in time. The convictions of murder and armed robberies with, concurrent sentences were proper.

The defendant in a pro se supplemental brief also contends that he was not proven guilty beyond a reasonable doubt in that the testimony was not clear and convincing and was inconsistent. The defendant cites People v. Coulson (1958), 13 Ill.2d 290, 149 N.E.2d 96. There the court reversed a conviction of armed robbery because the testimony was in direct conflict and the conviction was based primarily upon the testimony of one Bailey, the complaining witness and the sole witness to the alleged crime. Here .there were three State’s witnesses who testified that the defendant fired the shotgun. The Illinois Supreme Court in People v. Hairston (1970), 46 Ill.2d 348, 366, 263 N.E.2d 840, said: “If the testimony of the witnesses is positive and credible it is sufficient to convict, and this is so even though such testimony is contradicted by the. accused.”

Here the record discloses no material contradictions or inconsistencies in the testimony of the State’s witnesses. It is also the function of the jury or the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and on review, this court will not substitute its judgment for that of the jury or trial court unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of guilt. People v. Coulson (1958), 13 Ill.2d 290, 149 N.E.2d 96.

For the reasons set forth, the judgments and sentences of the circuit court of Cook County are hereby affirmed.

Affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Excele Johnson (Impleaded), Defendant-Appellant.
    (No. 57730;
    First District (4th Division)
    June 27, 1973.
    James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Excele Johnson, was indicted on charges of aggravated battery and armed robbery. After a bench trial, he was found guilty of robbery and sentenced to five years probation, with the first six months to be served in the Cook County Jail. Defendant’s probation was subsequently revoked, and he was sentenced to tire penitentiary for a term of five to ten years. Defendant appeals from the revocation of his probation.

On appeal, defendant contends (1) that he was denied the equal protection of the laws by being prosecuted, at age 17, as an adult offender rather than under the Juvenile Court Act, Ill. Rev. Stat. 1987, ch. 37, pars. 701 — 1 et seq., and (2) that the evidence was insufficient to revoke his probation.

The record reveals that at the date of his arrest as well as at trial, the defendant was 17 years old. He was tried and convicted as an adult in the Criminal Court. Defendant contends that the Juvenile Court Act, which classifies 17 year old males as adults for purposes of criminal prosecution while it protects females as “delinquent minors” until age 18, constitutes a violation of the equal protection of the laws.

We find that this argument has been waived. The defendant was tried and convicted in 1967, but he did not raise the equal protection contention until after his probation was revoked in December, 1971. Supreme Court Rule 606(b) (Ill. Rev. Stat. 1967, ch. 110A, par. 606 (b)), provides that an appeal shall be taken within 30 days of the entry of judgment, and if one applies for probation, the appeal shall be perfected within 30 days of the ruling on the petition for probation. Since the defendant failed to raise the equal protection argument within 30 days of the granting of probation, the issue has been waived.

In People v. Nordstrom, 73 Ill.App.2d 168, 219 N.E.2d 151, the defendant was convicted of the crime of misbranding drugs and was admitted to probation. Subsequently, his probation was revoked. On appeal, the Appellate Court held that since the defendant had not appealed from his conviction within 30 days after he was granted probation, the conviction could not be reviewed on a subsequent appeal after probation was revoked. The court stated,

“We hold that the judgment of guilty is a final judgment and the time within which to perfect an appeal therefrom is not extended to such time as when the probation may be revoked. (73 Ill.App. 2d 168, 219 N.E.2d at 156.)”

In the instant case, the defendant should have raised the equal protection issue within 30 days of the granting of his probation. Having not done so, he cannot now argue it on this appeal.

The defendant next contends that the evidence was insufficient to justify the revocation of his probation. He argues that although the prosecutor referred to a certified copy of defendants conviction for criminal damage to property, no such copy was found in the record.

The rule to show cause why probation should not be revoked, which was read into the record at the revocation hearing, alleged that the defendant had been convicted of criminal damage to property and was under indictment for rape. At the hearing, the prosecutor stated that the State had filed with the court a certified copy of defendant’s conviction for criminal damage to property. He also indicated that the hearing had included testimony by the arresting officer on the criminal damage charge. Moreover, defendant’s own counsel referred to the officer’s testimony. In addition, the complaining witness in the rape case, testified at the hearing and identified the defendant as her attacker. This testimony alone would have been sufficient to justify the revocation of defendant’s probation.

To sustain a conviction for a criminal offense, guilt must be proved beyond a reasonable doubt. To revoke probation, however, guilt need merely be shown by a preponderance of the evidence. (People v. Smith, 105 Ill.App.2d 14, 18, 245 N.E.2d 13, 15.) A defendant need not be indicted, prosecuted or convicted of the offense which is the basis for the revocation of his probation. (People v. Sluder, 107 Ill.App.2d 177, 246 N.E.2d 35.) In the instant case, there was ample evidence to justify the revocation of defendant’s probation.

For the reasons stated, the judgment of the circuit court will be affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    Bernard A. Smith, Counterplaintiff-Appellee, v. Floyd A. Bliss, Counterdefendant-Appellant.
    (No. 55256;
    First District (3rd Division)
    June 28, 1973.
    Tom L. Yates, of Chicago, (Carl E. Abrahamson, of counsel,) for appellant.
    Neil Quinn and Joseph B. Lederleitner, both of Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Floyd A. Bliss brought an action in the circuit court of Cook County against Bernard A. Smith for personal injuries resulting from an accident involving tractor-trailer trucks. Smith filed a counterclaim against Bliss for property damage to his truck resulting from the same accident. The original personal injury action was settled and dismissed; however the parties proceeded to trial on the property damage counterclaim. The jury returned a verdict for Smith (hereinafter plaintiff) against Bliss (hereinafter defendant), and assessed damages at $6,917.63. The trial court entered judgment on the verdict and denied defendant’s post-trial motion. Defendant appeals.

On appeal, defendant initially contends that the judgment must be reversed because the evidence was insufficient to support the verdict. Should this court find the evidence sufficient, he argues, in the alternative, that the judgment should be reversed and remanded because of the following trial errors: (1) the trial court permitted plaintiff’s counsel to improperly interrogate plaintiff; (2) the court improperly permitted plaintiff’s counsel to read excerpts from the original complaint to the jury; (3) the court improperly refused to give the jury a special interrogatory tendered by defendant; and (4) the court improperly permitted plaintiff’s counsel to ask prejudicial questions in order to draw objections.

The accident in question occurred on Route 66 somewhere west of County Line Road at approximately 2:00 A.M. on July 9, 1962. The night was clear and dry. At the place of the collision, Route 66 had three lanes of traffic in each direction, separated by a median strip and governed by a speed limit of fifty miles per hour. Each lane was ten to twelve feet wide. A tractor-trailer, owned by plaintiff and driven by Clyde Freeman, who died as a result of injuries sustained in the accident, collided with a tractor-trailer operated by defendant as the latter was pulling onto the highway from the paved shoulder of tire road. Another tractor-trailer, operated by Robert Braden, had just pulled onto the outer lane of the highway from the shoulder in front of defendant. The front of plaintiff’s truck struck the rear of defendant’s truck, and the force of the collision propelled defendant’s truck into the rear of Braden’s truck. As a result of the impact, defendant’s trailer was completely disengaged from the tractor and the king pin was sheared off. The cables which were part of the lighting system on defendant’s truck were torn off. Both the front and rear of defendant’s truck sustained damage. The cab of defendant’s truck was severely damaged, and the rear part of the cab was crushed and partially torn from the frame. Defendant was thrown to the ground and sustained head injuries. Plaintiff’s tractor also was severely damaged. The police were unable to find any skid marks at the scene.

Defendant and Braden were driving cattle to the Chicago stockyards in trucks owned by Braden’s father. Defendant was having trouble with his truck so he stopped near a Shell Gas Station located near the highway to have it repaired. Braden continued to the stockyards and returned several hours later, loaded the cattle from defendant’s truck to his truck and delivered them to the stockyards.

Defendant testified as an adverse witness and stated that he was having trouble with the ignition system in his truck. He was towed to the nearby Shell station where they fixed the points and charged the battery. When Braden returned the second time, defendant had started home and was standing at a stop light just beyond the gas station. The two men pulled their trucks off the road, had a conversation and proceeded west on Route 66. A short time later, defendant again pulled off the highway and Braden did the same. Defendant pulled up behind Braden on the shoulder of the road and several minutes later they returned to their trucks. The back of defendant’s trailer had ten lights, five across the top and five across the bottom, as well as reflectors. The lights were functioning. Braden and defendant had their turn signals on as they proceeded. Defendant also testified that Braden pulled onto the highway at a slight angle and entered the outer lane. Defendant followed and, when the front part of his unit was on the highway and the rear part was on the paved shoulder, defendant’s truck was struck in the rear by plaintiff’s employee. Defendant stated that he was going three to four miles per hour at the time of impact. He also testified that he did not see any lights approaching prior to the accident.

Defendant was asked by plaintiff’s counsel whether his trailer lights were operating when he left the gas station and whether he had filed a lawsuit against the Shell Oil Company charging that Shell had failed to properly repair his lights and ignition system. Defendant answered that his lights were working, and denied that he had charged Shell Oil with such negligence. Counsel for plaintiff then read a portion of a complaint filed by defendant charging Shell with such failure.

Richard Steinhouse testified for the plaintiff that he was in auto repair work. On the morning in question, he was .called to the scene of the accident. He towed defendant’s truck back to his garage. About six hours later, he tested the battery in defendant’s truck and found it dead. The witness also testified that Clyde Freeman’s body had to be pried from the cab of plaintiff’s truck.

Johanna Freeman, the widow of the driver of plaintiff’s truck, testified as to her husband’s condition at the time of the accident and as to his careful habits.

Robert Braden testified for the defendant and described the circumstances of the accident in much the same way that defendant did. When Braden returned the second time and found defendant stopped at the stop light on Route 66, he noticed that all the lights on the rear of defendant’s trailer were functioning. Prior to the second stop, Braden, through his rear view mirror, noticed that defendant had pulled off the highway so Braden did the same. When they started to return to the highway, Braden did not see any lights behind them, and there was no other traffic. At the time of the collision, Braden’s truck was entirely on the outer lane of the highway, and he was travelling from twenty to twenty-five miles per hour. Braden also testified that his trailer had five lights across the top, three in the center and one in each corner and that they were working. Both trucks had red reflectors. Braden also testified that the truck operated by defendant had been damaged beyond repair.

On cross-examination, Braden was referred to a statement he had given to a court reporter at the hospital where defendant and plaintiff’s employee were taken after the accident. In that statement Braden said that defendant had pulled off the highway because he was having trouble with the carburetor and was losing power. He also stated that he saw lights from another vehicle about two blocks behind him when he pulled onto the highway, and that he was going from fifteen to twenty miles per hour at the time of the collision. Braden testified that he did not remember giving these statements. The court reporter subsequently testified that had taken these statements from Braden.

John G. Phillips, an attorney, testified that he had filed a complaint on behalf of defendant which charged the operator of a Shell station on Route 66 and his employee with the negligent repair of the lights and ignition system oí defendant’s truck. In the second count, plaintiff and his driver, Clyde Freeman, were charged with negligence, and the third count charged Shell Oil Company with negligence. Phillips also testified that he had never talked with defendant before filing the pleading, but rather that he had been given the information by a referring attorney who was deceased. The counts against Shell, the gas station operator and his employee had been dismissed.

Defendant, while testifying on his own behalf, stated that he had never told either attorney that the lights and ignition system on his truck had been defectively repaired.

Defendant’s first contention concerns the sufficiency of the evidence in the trial court. He maintains that the evidence adduced at trial did not affirmatively show that plaintiffs damage was caused by defendant’s negligence nor did the evidence show that plaintiff’s decedent was free from contributory negligence.

Parties are entitled to a jury trial upon an issue where the evidence discloses a substantial factual dispute, but verdicts ought to be directed and judgments n.o.v. ought to be entered by the trial court in those cases in which all of the evidence, viewed in the aspects most favorable to the party against whom the motion is directed, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

Applying that rule to the facts of the instant case, we hold that the trial court erred in not directing a verdict for defendant or in not allowing defendant’s post-trial motion. Under the facts of this case, plaintiff failed to establish that his employee was free from contributory negligence and in the exercise of ordinary care for the safety of plaintiff’s property.

The evidence established that defendant’s truck was preceded by Braden’s truck as they returned to the highway. In addition to red reflectors, each truck was equipped with at least ten lights on the rear of the trailers. Defendant and Braden both testified that those lights, along with their turn-signals, were functioning and that their headlights were on. Prior to impact, Braden’s truck had entered the highway, and he was already proceeding west in the outer lane. The night was clear and dry, and no other traffic was in the immediate vicinity of the open highway. At least two lanes of traffic in that direction were clear and unobstructed. Despite these circumstances, as defendant slowly pulled onto the highway, his buck was struck in the rear by the truck operated by plaintiff’s employee. The violence and severity of the impact was clearly demonstrated: defendant’s truck was propelled into the rear of Braden’s moving truck;' defendant’s truck was beyond repair; its king pin was sheared off, and the trailer became disengaged from the tractor; the wiring system was torn apart; the rear part of the cab of defendant’s truck was crushed and partly tom from its frame; and the defendant was thrown from the buck to the ground. All of the foregoing evidence, plus the photographic exhibits, clearly established that the plaintiff’s employee was bavelling at an excessive rate of speed and not keeping a proper lookout. Since no skid marks were found and two westbound lanes were open, plaintiff’s employee apparently made no effort to apply his brakes or turn from the outer lane. A motorist driving on a preferential highway does not have an absolute right of way, but must exercise reasonable care to keep a lookout for vehicles entering the highway. (Conner v. McGrew (1961), 32 Ill.App.2d 214, 177 N.E.2d 417. Also see Fina v. Richardson (1937), 293 Ill.App. 133, 11 N.E.2d 842; Sullivan v. Ohlhaver Co. (1920), 291 Ill. 359, 126 N.E. 191.) And even if, as a result of impeachment, the testimony of defendant and Braden as to the functioning of defendant’s truck lights is disregarded, it was undisputed that Braden’s truck, fuUy Hluminated, was travelling on the highway in full view prior to the coUision.

In Waldron v. Hardwick (1988), 99 Ill.App.2d 36, 240 N.E.2d 772, this court reversed a judgment for damages which had been entered in favor of plaintiff. In that case, defendant had pulled off the highway to determine her direction. Before resuming travel, she looked to see whether there were any vehicles approaching from the rear. She did not look back again nor did she signal as she returned to the highway. Plaintiff testified that she did not see any vehicle in front of her until the collision and did nothing to avoid the impact. In Waldron this court held that, although there was evidence that defendant negligently started her standing vehicle, the plaintiff did not exercise due care where the evidence showed that plaintiff had run into defendant on an open highway without attempting to avoid the accident. Similarly, in the present case, we conclude that plaintiff’s employee was not in the exercise of due care when he, while proceeding on an open highway, violently crashed into the rear of defendant’s truck.

Since we have determined that the judgment must be reversed, it is inappropriate to consider defendant’s other assignments of error.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

DEMPSEY, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE McGLOON

text:
    Richard S. Wegren et al., Plaintiffs-Appellants, v. Edward J. Barrett, County Clerk of Cook County, et al., Defendants-Appellees.
    (No. 56889;
    First District (3rd Division)
    June 28, 1973.

      Schippers, Betar, Lamendella & O’Brien, of Chicago, (David P. Schip-pers, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Vincent Bentivenga, Jr. and James A. Rooney, Assistant State’s Attorneys, of counsel,) for appellees.
   Mr. JUSTICE McGLOON

delivered die opinion of the court:

This is a class action brought by the plaintiffs in their own behalf and on the behalf of all other persons similarly situated for declaratory judgment and to enjoin the County Clerk of Cook County and others from imposing and collecting a fee for the issuance of marriage licenses in Cook County. The plaintiffs also sought an order of court directing the defendants to refund allegedly illegally collected monies for the issuance of marriage licenses during the period between September 22, 1969, through April 27, 1971. The trial court granted the defendants’ motion to strike and dismiss the complaint, and the plaintiffs appeal from that order. In this appeal the plaintiffs contend that because the County Clerk had no statutory authority to collect a fee for the issuance of marriage licenses between September 22, 1969, and April 27, 1971, their class action seeking to recover the fees collected by the County Clerk during this period constituted a good cause of action and was improperly dismissed by the trial court.

We affirm.

The action arises out of an oversight on the part of the Illinois General Assembly in amending certain sections of the Illinois Revised Statutes. Prior to September 22, 1969, the County Clerk of Cook County was specifically authorized to collect a $10 fee for the issuance of marriage licenses. That authority was found in two specific provisions of Illinois law, Ill. Rev. Stat. 1967, ch. 89, par. 11(a), and Ill. Rev. Stat. 1967, ch. 53, par. 73. Both of these sections authorized the clerks of counties of the third class to impose and collect a $10 fee for every marriage license issued by them. Complicating this duplication of authority was the fact that the Illinois Constitution was amended, effective January 1, 1964, and as a result of this amendment the offices of fee officers and masters in chancery were abolished as part of our judicial structure.

In order to implement the new Judicial Article by removing all reference to the' abolished judicial offices then contained in the Illinois Revised Statutes and at the same time to remove the redundant authority given to the County Clerk to collect fees for the issuance of marriage licenses, the General Assembly approved a number of amendments to the Revised Statutes on September 22, 1969. Among these measures was Senate Bill No. 479 which, when signed by the governor, became P.A. 76-1414. This Act amended Chapter 53, Section 73 to conform that section to the new Judicial Article. However, that measure also deleted, among other things, the clause which authorized the County Clerk of Cook County to collect marriage license fees. Also approved on September 22, was House Bill No. 2103, which became P.A. 76-1519 and completely repealed Chapter 89, Section 11(a).

As a result of this legislative action, the plaintiff alleges the County Clerk of Cook County was without any authority whatsoever to collect fees for the issuance of marriage licenses from September 22, 1969, until April 27, 1971, the date House Bill No. 1340 was approved rein-stituting the statutory authority of the Clerk to collect the marriage license fee. The Clerk did collect a $10 fee for every license he issued during that period, a sum the plaintiff is seeking to recover in this suit. The defendants argue that the Clerk validly charged the plaintiffs a $10 fee for every marriage license issued in Cook County after September 22, 1969, because it was never the legislative intent of the General Assembly to remove the Clerk’s authority to collect such fees.

The case of Carey v. Elrod (1971), 49 Ill.2d 464, 275 N.E.2d 367, is dispositive of the issue presented in the instant case, and we will follow that holding and affirm the decision of the trial court. In Carey the plaintiff brought an action to contest the election of tire successful candidate for the office of sheriff of Cook County. As a condition to hearing the election contest, the trial court ordered the plaintiff to deposit with the court the estimated costs that would be incurred in a recount. The plaintiff failed to do so, and the action was dismissed. On appeal the plaintiff contended that there was no statutory provision permitting the court to order such a deposit. In its opinion the Supreme Court pointed out that prior to September, 1969, Ill. Rev. Stat. 1967, ch. 46, par. 23-23, did give the trial court the authority to require such a deposit but, in that month, due to an oversight, the General Assembly amended that section of the election code and deleted the paragraph requiring the deposit of costs in an election contest. Recognizing the fact that a portion of the statute was deleted in 1969, the Supreme Court, nevertheless, affirmed the dismissal order saying:

“We cannot find any intent on the part of the legislature to abolish these procedural provisions which are so necessary and important in the conduct of an election contest. Rather, we agree that under the circumstances in which the bill amending section 23-23 was submitted, the intent of the legislature was only to eliminate the reference to masters in chancery — a housekeeping procedure to cause the section to conform to the new Judicial Article.
Under these circumstances, we interpret the statute to still include the paragraph specifically deleted by the legislature, except for the reference to masters in chancery. We have authority to read into statutes language omitted by oversight. People v. Hudson, 46 Ill.2d 177, 181; People ex rel. Cason v. Ring, 41 Ill.2d 305, 310-316 inch” 49 Ill.2d 464, 470.

The court further noted that the traditional rules of statutory construction are employed for the purpose of determining legislative intent, and that those rules which lead to a result contrary to the legislative intent otherwise evidenced, must yield to that intent. The court also pointed to its prior decision recognizing that “if the intention of the legislature can be determined with certainty, words of a statute may be added, deleted or changed if necessary to achieve that intent. * * *. The object of construing a statute is to ascertain and give effect to the intention of the legislature. The intention of the lawmakers is the law.” 49 Ill.2d 464, 472.

The controversy in the Carey case arose from the approval of a package of bills drafted by the Director of the Administrative Office of the Illinois Courts. That package of proposed legislation also included Senate Bill 479, which is the cause of controversy in this case. When this proposed legislation was sent to the Judicial Advisory Council, the Director of the Administrative Office of the Illinois Courts assured the Council that the bills were necessary to amend the statutes to conform to the new Judicial Article of the Illinois Constitution and that “these bills made no substantive changes in the law.” Upon the assurance that it was only a housekeeping bill, Senate Bill 479 was approved and became law as P.A. 76-1414.

The true legislative intent in the instant case is further evidenced by the fact that the legislature, when made aware of the substantive change caused by the amendment to Chapter 53, Section 73, restored the pertinent deleted language of the section by approving House Bill 1340, which became P.A. 77-24 (Ill. Rev. Stat. 1971, ch. 53, par. 73) on April 27, 1971. On the question of prior intent of the legislature, it is appropriate for us to consider this recent legislative action. People v. Hudson (1971), 46 Ill.2d 177, 263 N.E.2d 473.

All of the circumstances taken into account by the Supreme Court in Carey apply as well to the controversy in this case, and for these reasons we conclude that the legislature intended only to delete from Ill. Rev. Stat. 1967, ch. 53, par. 73, the references to masters in chancery, and to retain that portion of the statute allowing the County Clerk to collect fees for the issuance of marriage licenses.

The order of the trial court dismissing the complaint is affirmed.

Order affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond Williams, a/k/a Curtis Smith, Defendant-Appellant.
    (No. 57476;
    First District (3rd Division)
    June 28, 1973.
    Leonard Karlin, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Hoy, Defendant-Appellant.
    (No. 57551;
    First District (3rd Division)
    June 28, 1973.
    James J. Doherty, Public Defender, of Chicago, (Jean Essary and Suzanne Xinos, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Mark R. Harms, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Neal, Defendant-Appellant.
    (No. 58137;
    First District (3rd Division)
    June 28, 1973.
    Edward M. Genson, Sam Adam, and Arnette R. Hubbard, all of Chicago, for appellant.
    Remard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Frederick I. Chaimson, and John Adams, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.