author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Connie A. Brown, Defendant-Appellant.
    Gen. No. 52,569.
    First District, Second Division.
    July 30, 1968.

      Edward J. Bieg, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the defendant, Connie A. Brown, from his conviction for a traffic violation. On March 26, 1967, the defendant was stopped by Officer D. Jones of the Elk Grove Village Police Department and, on the officer’s complaint, issued a notice to appear for his operation of a motor vehicle at an excessive rate of speed. The complaint, as issued, recited that defendant had driven his vehicle at a speed of 57 miles per hour in a posted 45 mile per hour sector on Devon Avenue at Salt Creek Road (east of Arlington Heights Road) in Elk Grove Village, Illinois, and charged defendant with a violation of section 49 (a) (2) of the Uniform Act Regulating Traffic. Ill Rev Stats (1965) c 95%, par 146.

Defendant subsequently made his appearance on May 5, 1967, in the Third Municipal District of the Circuit Court of Cook County to answer to the charge. He was without legal counsel. There is no factual dispute that defendant was first duly arraigned and informed of the nature and possible consequences of the charge brought against him. Having been so advised, defendant entered a plea of not guilty to the charge and was thereupon apprised by the court of his right to be tried by a jury. Defendant elected to waive the jury trial and submitted his cause to be heard by the magistrate.

The case then proceeded to trial on the testimony of Police Officer Jones and that of defendant himself. At the close of all the evidence, the court returned a finding of guilt on the charge of speeding and imposed a fine upon defendant of $10 together with $5 in costs pursuant to Ill Rev Stats (1965) c 951/2, par 234. The court thereafter entered judgment on its finding. It is from the court’s denial of defendant’s subsequent motion on May 25, 1967, to vacate the judgment and order a new trial that he prosecutes this appeal.

No questions are raised relative to defects in the complaint which serves here in lieu of an indictment or information (Ill Rev Stats (1967) c 38, pars 111-1, 111-2); or are otherwise directed to improprieties or insufficiencies in the State’s evidence to support defendant’s conviction on the charge.

The sole and limited issue presented for determination by this appeal is whether by virtue of Article II, Section 9 of the Illinois Constitution, and Supreme Court Rule 401(b) (formerly Supreme Court Rule 26(3) without modification or change), the trial court was charged with a duty to effectively advise the accused of his right to assistance of counsel at the onset of these proceedings. We do not understand the State to argue that defendant had, in some manner, been so advised, or that having been advised, the defendant knowingly and understandingly waived his right to have been represented by counsel.

Considered accordingly, the espoused proposition is one said to fall within the direct realm of application of Supreme Court Rule 401(b) which became effective on January 1, 1967, and was in force on the date of defendant’s hearing. That rule provides:

“The court shall not permit a plea of guilty or waiver of indictment or of counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitential ry, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. . . .”

(Ill Rev Stats (1967) . c 110A, par 401(b)). (Emphasis supplied.)

Followed to its logical conclusion, it becomes apparent that the charge asserted against defendant, irrespective of the lower court’s eventual disposition on the matter, could have, under no circumstances, authorized a cornmitment of imprisonment to the penitentiary, as is contemplated by the above rule.

A felony denotes only those offenses punishable with death or by imprisonment in the penitentiary, whereas a misdemeanor is defined as any offense, other than a felony, including conduct prohibited by a statute which makes no provision for penalty for its violation. Ill Rev Stats (1967) c 38, pars 2-7, 2-11. Here, section 49 (a) (2) of the Uniform Act Regulating Traffic, which is advanced as the basis of the charge against defendant, sets forth no penalty for the conduct it prohibits. Accordingly, section 137 of that same Act becomes controlling in this respect. It states:

“(a) It is a misdemeanor for any person to violate any of the provisions of this Act unless such violation is by this Act or other law of this State declared to be a felony.
“(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this Act for which another penalty is not provided shall for first conviction thereof be punished by a fine of not less than $1.00 nor more than $100.00; for a second such conviction within the 1 year thereafter such person shall be punished by a fine of not less than $25.00 nor more than $200.00; upon a third or subsequent conviction within 1 year after the first conviction such person shall be punished by a fine of not less than $100.00 nor more than $300.00.”
(Ill Rev Stats (1965) c 95%, par 234.)

It is thus self-evident from the foregoing provision for penalty that the offense under consideration involves a misdemeanor punishable by the imposition of a fine only. We furthermore do not take our statutory provisions for the working out of unsatisfied fines to frustrate the conclusion that, under no circumstances, could confinement in the penitentiary result from a conviction on the instant charge. Ill Rev Stats (1967) c 38, par 1-7 (k). It is moreover an accepted rule of statutory construction that the omission of a place of confinement in a penal statute raises a conclusive presumption that the confinement shall be in the county jail. People v. O’Connor, 4 Ill2d 403, 122 NE2d 806 (1954). See Ill Rev Stats (1967) c 38, par 1-7(1).

With this background, we consider the cases of People v. DuPree, 97 Ill App2d 327, 240 NE2d 414 (1968) (battery) ; People v. Garrett, 43 Ill App2d 183, 193 NE2d 229 (1963) (resisting arrest and aggravated assault); People v. Howard, 41 Ill App2d 128, 190 NE2d 3 (1963) (petty theft); and People v. Bill, 33 Ill App2d 432, 179 NE2d 429 (1961) (driving while intoxicated), all involving misdemeanor offenses wherein there existed the possibility of imprisonment in other than the penitentiary, as dispositive of the point urged by this appeal.

By our interpretation of the above cited authorities in relation to the requirements of Supreme Court Rule 401 (b), we can find no constraint by which this court on review could, with justification, charge the lower tribunal with the duty to inform defendant of his right to counsel pursuant to that rule. Clearly, the offense involved is a misdemeanor which makes neither a mandatory nor discretionary provision for imprisonment under the statute within the normal course of events. Under no circumstances could confinement in the penitentiary result. Viewed moreover from an ad hoc standpoint, defendant has demonstrated no peculiar circumstances suggestive of the conclusion that he has been denied due process of law.

Defendant’s relied upon authority of People v. Long, 77 Ill App2d 124, 221 NE2d 507 (1966) and the subsequent case of People v. Manikas, 87 Ill App2d 227, 230 NE2d 577 (1967), both coining from the Second District Appellate Court, are factually inapposite on the instant case. Both cases involved vehicular violations whereby provisions were made for imprisonment. In Long, the defendant had not been advised of his right to counsel. Unlike the case before us however, there the record showed the accused to be an illiterate who had not been advised of the possible consequences of a conviction on the charge brought against him. In Manikas, by the vehicular statute involved, imprisonment upon a conviction was mandatory. Expanding upon its earlier decision in Long, the court held:

“. . . in all criminal cases where the penalty for the offense imposes confinement, the court must advise the defendant that he has a right to have counsel present before proceeding with the case. . . (Emphasis supplied.)

In the case at bar, no punishment other than a fine is prescribed by the statute, nor could imprisonment in the penitentiary result from defendant’s failure to pay the fine imposed. Consequently, we cannot say that the lower court was bound by a duty to effectively advise defendant of his right to assistance of counsel. People v. DuPree, supra.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.

       Since twice amended by HB 370 (Act 495), approved July 7, 1967; and HB 1582 (Act 669), approved July 24, 1967.

       Since amended by HB 1606 (Act 1221), approved August 17, 1967.


source: Caselaw Access Project

author: MR. JUSTICE DRUCKER

license: Public Domain

text:
    Western Pride Builders, Inc., Plaintiff-Appellee, v. City of Berwyn, a Municipal Corporation, Defendant-Appellant.
    Gen, No. 52,671.
    First District, Fourth Division.
    July 24, 1968.
    Alan S. Ganz, of Chicago, for appellant.
    Mitchell Edelson, Sr., Morton C. Kaplan, and Barry B. Nekritz, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from the issuance of a writ of mandamus by the Circuit Court commanding that it approve the application of plaintiff for a building permit. On appeal defendant contends (1) that plaintiff did not have a sufficient interest in the property to apply for a building permit nor to appeal the denial of its application to the Zoning Board of Appeals and (2) that plaintiff failed to submit plats or plans with its permit application as required by ordinance.

On April 14, 1966, plaintiff entered into an agreement calling for purchase of the land for which the building permit is sought. The contract provided for the closing of the sale within ninety days. On April 15, with the concurrence of the seller, plaintiff applied to the Berwyn Commissioner of Public Works, Marino De Vito, for a building permit to erect a two-flat building. The Commissioner denied the permit and plaintiff exercised its right to appeal the decision to the Zoning Board of Appeals. The hearing was held on June 21. On July 19 the sale was closed and title transferred to a trust of which plaintiff is sole beneficiary. On August 4 the subject property was rezoned to allow only single family residences. The Zoning Board rendered its decision on September 20, finding that construction of a two flat residence on plaintiff’s property was permissible under the zoning laws. No appeal was taken by the defendant from the decision of the Zoning Board of Appeals. Upon defendant’s refusal to issue the permit plaintiff filed its complaint for a writ of mandamus. On plaintiff’s motion for summary judgment, the writ of mandamus was issued. Defendant appeals from that judgment.

Defendant first argues that plaintiff did not have a sufficient interest in the property to apply for a building permit nor to appeal the denial of its application because it was only a contract purchaser and did not have legal title nor the right to control the title holder. It relies on Malone v. Mayor and Aldermen of Jersey City, 7 NJ Misc 955,147 A 571 (1929), where a contract for the purchase of land was held to be an insufficient interest for obtaining a building permit. However, in Cox v. Township of Wall, 39 NJ Super 243, 120 A2d 779 (1956), in which plaintiffs, who were contract purchasers, applied for a building permit and defendants contended that they had no standing to maintain their action to order the issuance of the permit, the court stated at page 249:

Such a contractual interest in the property gave them a sufficient standing not only to apply for a building permit, but also to enforce their right to the permit by an action such as this. Brown v. Terhune, 125 NJL 618 (Sup Ct 1941), appeal dismissed 127 NJL 554 (E & A 1942); Jersey Triangle Corp. v. Board of Adjustment, 127 NJL 194, 195 (Sup Ct 1941); Sigretto v. Board of Adjustment, 134 NJL 587 (Sup Ct 1946); cf. Reimer v. Dallas (not officially reported), 129 A 390, 392 (NJ Sup Ct 1925); Slamowitz v. Jelleme, 3 NJ Misc 1169 (Sup Ct 1925); Wilson v. Township Committee of Union Township, 123 NJL 474 (Sup Ct 1939); Finn v. Municipal Council of City of Clifton, 136 NJL 34 (E & A 1947); Protomastro v. Board of Adjustment, 3 NJ Super 539, 545 (Law Div 1949), reversed on other grounds 3 NJ 494 (1950). Contra, Malone v. Mayor and Aldermen of Jersey City, 7 NJ Misc 955 (Sup Ct 1929); but see Adams v. Mayor and Aldermen of Jersey City, 107 NJL 149, 150 (E & A 1930). Cf. Krieger v. Scott, 4 NJ Misc 942 (Sup Ct 1926), where the relators did not have (so far as appears) even a contractual interest in the property.

In Schultze v. Wilson, 148 A2d 852, 54 NJ Super 309 (1959), it was held that a riparian landowner had a sufficient interest in riparian lands to obtain a building permit since he had a “preemptive right” to acquire those lands.

In the instant case plaintiff applied for the permit not only on the basis of his contract rights to give him standing, but also with the approval of the seller of the land. We believe that under these circumstances plaintiff had a sufficient interest to obtain a permit and to appeal the Commissioner’s denial.

Defendant next contends that it should not have been ordered to grant plaintiff a permit because a city ordinance required the filing of plats or plans with a building permit application and plaintiff failed to file either plats or plans with its application. This contention was raised for the first time in defendant’s answer to the mandamus complaint. At the hearing before the Zoning Board of Appeals the board secretary said:

Mr. DeVito [the Berwyn Commissioner of Public Works] has not transmitted any file in this matter. He has stated to us that the only matters involved here are a request for a permit and the denial of the permit based on the zoning. Consequently, the only issue that we would be concerned with here would be whether or not the property in question is zoned as you allege it to be and not the entire contents of his file.

Plaintiff’s lawyer testified at the Zoning Board hearing that the Commissioner had informed him that zoning was the sole reason for the denial of the permit. At that hearing Mr. Peter J. Fiflis, plaintiff’s president, testified that he did submit a copy of the plans with the application. Furthermore, the record there included a copy of a letter which accompanied the permit application and which stated that the plans had been attached. In the instant case the Commissioner’s affidavit stated that “no plats or plans accompanied Mr. Peter Fiflis’ letter of April 15, 1966.” However, he failed to appear at the hearing of the Zoning Board and failed to comply with an ordinance requiring him to transmit to it “the papers constituting the record upon which the action appealed from was taken.” Therefore, under the circumstances his conclusion that no plans were filed does not raise a genuine issue of fact. (Ill Rev Stats (1965) c 110, § 57 (3).)

We find no error in the issuance of the Writ of Mandamus. The judgment of the Circuit Court is therefore affirmed.

Affirmed.

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


author: MR. JUSTICE DAVIS

text:
    George Wickstrom, Sr., Plaintiff-Appellee, v. Vern E. Alden Company, Defendant-Appellant.
    Gen. No. 52,695.
    First District.
    August 28, 1968.

      James A. Dunkin, Edwin R. Dunn, and Baker & McKenzie, of Chicago, for appellant.
    Leonard E. Newman, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is a contract action wherein the plaintiff sought to recover certain amounts by virtue of the defendant’s failure to make retirement payments pursuant to contract between the parties. The case was tried on an agreed statement of facts and briefs. The court entered judgment on the complaint against the defendant and in favor of the plaintiff in the sum of $6,105.13 and costs of suit, and entered judgment on the counterclaim in favor of the defendant-counterclaimant and against the plaintiff in the sum of $730.44 and costs of suit, and ordered said sum set off against the plaintiff’s judgment, thereby reducing the same to $5,374.69 and costs of the suit. The defendant appealed.

The plaintiff, a partner in the defendant partnership, served as Chief of Mechanical Design for approximately eleven years prior to his retirement. Paragraph 6.05 of the Partnership Agreement provided that “in the event a Partner resigns, the Senior Partners will work out an agreement on the basis of which the current balance in his capital account will be returned to him.” The amount of cash paid to any Partner upon resignation would not exceed 20% of the balance in his capital account, and the remaining balance thereof could be paid in participation certificates or promissory notes, which notes would bear interest at the rate of 6 percent per annum.

Paragraph 12.03 of the Partnership Agreement provided :

“Involuntary Resignation. Nothing in this agreement shall prevent a majority of the Partners from terminating the relationship between the Partnership and a Partner; that is to say, that if in the judgment of a majority of the Senior Partners, it becomes necessary to sever the relationship between the Partnership and any Partner, it is agreed that the Partners, acting by a majority, may request the resignation of such a Partner.”

Vern E. Alden, a Senior Partner, apparently acting on behalf of the majority of the partners, sought the plaintiff’s resignation. To secure that end, he drafted and submitted to the plaintiff a certain contract dated September 12, 1958. It stated that in the judgment of the Senior Partners, the plaintiff could not continue to discharge the responsibilities as Chief of Mechanical Design in an acceptable manner; that the Senior Partners believed it best that the plaintiff retire and they agreed to certain conditions which would make it easier for him to retire, among which were:

“(1) Beginning September 15 you will receive retirement pay at the rate of $300 per month . . . for a period of ten years. In the event of your death during this period . . . , Vern E. Alden Company would continue to pay $300 per month to your wife, Vera, for the balance of the ten year period. In the event of your death, followed up by the death of Vera, then the retirement pay would stop one month after Vera’s death.
“(2) There is a balance of approximately $31,000 in your capital account. We are willing that you withdraw, if you care to do so, $1,000 on October 15, $1,000 on February 1, 1959, and $1,000 on April 1, 1959. The remaining $28,000 will be converted into 10-Year 12% Participation Certificates which will mature December 31, 1967. ... You will receive interest at an annual rate of 8% on any cash balance in your capital account and you will, beginning September 15, receive interest at the annual rate of 12% on the $28,000 invested in Participation Certificates. . . .
“(3) Virginia will arrange for you to take over and pay the premiums on the amount of group life insurance which is now carried in your name.
“(4) You will have the right to seek other employment. . . . We ask, however, that for each $1000 that you receive from other employment you permit us to shrink by 20% or $200 — the $3600 per year of retirement pay which we have agreed to pay you for ten years’ time. We think you will accept this condition as being reasonable. . . .
“(5) . . . you will accept the one other condition that in the years which lie ahead you will not say or do anything which will hurt Vern E. Alden Company and you will not reveal any confidential information which you have which bears on the operations of any one of the clients of Vern E. Alden Company.”

The threshold factual question of whether the plaintiff’s resignation was voluntary is presented, and must be determined in that the doctrine of promissory estoppel invoked by the plaintiff cannot aid his cause unless such circumstance is present. The pertinent portions of the partnership agreement heretofore mentioned, the agreed statement of facts, and the contract, are the only evidence on this issue. The plaintiff contends and the defendant denies that the resignation was voluntary. The contract, prepared by the defendant, stated that the “Senior Partners have agreed to certain conditions which will make it easier for you to retire.” The second condition of retirement set forth therein was the provision for the repayment of the plaintiff’s capital account. Such repayment appears to be predicated on the provision of Paragraph 6.05 of the Partnership Agreement that “in the event a Partner resigns, the Senior Partners will work out an agreement on the basis of which the current balance in his capital account will be returned to him.” We thus conclude that the plaintiff’s resignation was voluntary.

The plaintiff accepted the provisions and conditions of this contract and submitted his resignation. It was admitted by the defendant that the plaintiff performed the terms and conditions of the contract, and it is undisputed that the defendant repaid to him the entire amount of his capital account, plus interest, as provided for in the foregoing contract.

The defendant’s answer to the complaint contained an affirmative defense that the agreement between the parties was not supported by consideration so as to constitute a legal and enforceable contract. The defendant also filed a counterclaim for insurance premiums which it advanced on behalf of the plaintiff. The agreed statement of facts specified the amount of said sum and the amounts paid to the plaintiff as retirement pay during the years in question, the respective earned income credits arising by virtue of the plaintiff’s employment in certain years, and the balance claimed due by the plaintiff pursuant to such computation.

The main issue presented for review is whether the agreement of September 12, 1958, is supported by consideration so as to constitute a legal and enforceable contract. The defendant contends: (1) that there was no consideration for the promise to make retirement payments to the plaintiff and that such promise was gratuitous and unenforceable, and (2) that consideration must be that promise, act, or forbearance which one party specifically seeks and requests from the other party in exchange for a promise, act or forbearance on his part.

These contentions find support in both case law and treatises. Corbett v. Cronkhite, 239 Ill 9, 15, 16, 87 NE 874 (1909); Bartlett v. Lauff, 271 Ill App 551, 555, 556 (1933); Restatement of the Law, Contracts, § 75, Comments : (b) and (c); 1 Williston on Contracts (3rd ed) § 139.

The plaintiff urges that consideration may be an act or forbearance either bargained for or induced; and that it consists of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment or loss suffered or undertaken by the other. Such principle of law is likewise supported by case law and treatises. Rosenberg, Inc. v. Carson Pirie Scott Co., 28 Ill2d 573, 584, 192 NE2d 823 (1963); Lipkin v. Koren, 392 Ill 400, 406, 64 NE2d 890 (1946); Bredemann v. Vaughan Mfg. Co., 40 Ill App2d 232, 242, 188 NE2d 746 (1963) ; 1 Williston on Contracts (3rd ed) § 140; 1 Corbin on Contracts, § 194.

Consideration for a promise has been defined in the Restatement of the Law of Contracts, § 75, as:

“ (1) Consideration for a promise is
“ (a) an act other than a promise, or “ (b) a forbearance, or
“(c) the creation, modification or destruction of a legal relation, or “(d) a return promise,
bargained for and given in exchange for the promise.”

It is well settled, as a general rule, that consideration is an essential element of, and is necessary to the enforceability or validity of a contract. 17 Am Jur 2d, § 86, and cases there cited. However, the doctrine of consideration embraces many theories, beliefs and definitions. As articulately stated by Professor Corbin in 1 Corbin on Contracts, § 109:

“Knowledge of what the early law and custom were has much lively historical interest and would have some practical value, also, to courts and lawyers and clients. We must be content, however, without this knowledge, and must discover our contract law and our doctrine of ‘consideration’ from the reports and records of recent times, containing as they do the customs, the decisions, the doctrines, and the reasoning of the men who have been the ministers of justice.
“The reports and records of recent times! . . . Who can now read all the reports of cases dealing with the law of consideration for informal promises, stating the reasons deemed sufficient for enforcing such promises, laying down the doctrines and constructing the definitions ? Certainly not the writer of this volume. He has merely read enough of them to feel well assured that the reasons for enforcing informal promises are many, that the doctrine of consideration is many doctrines, that no definition can rightly be set up as the one and only correct definition, and that the law of contract is an evolutionary product that has changed with time and circumstance and that must ever continue so to change.”

It appears that courts have required consideration for the enforcement of a contract in order to prevent the enforcement of gratuitous promises. Such reason loses much of its force in that courts do not ordinarily inquire into the adequacy of the consideration, and any consideration, however slight, is legally sufficient to support a promise, except where the disparity is so gross as to raise a presumption of fraud. Bredemann v. Vaughan Mfg. Co., supra, 247; 17 Am Jur 2nd, § 102, and cases therein cited; Restatement of the Law, § 81; 1 Williston on Contracts (3rd ed) §§ 102A and 115.

In view of the failure of courts to inquire into the adequacy of the consideration for a contract, Mr. Justice Holmes, while sitting on the Supreme Judicial Court of Massachusetts, held that consideration is as much a form as a seal. Krell v. Codman, 154 Mass 454, 28 NE 578 (1891). Lord Mansfield and other English judges favored the recognition of a written agreement as a kind of formal contract for the enforcement of which no consideration was necessary. 17 Am Jur 2nd, § 87.

The contract in the case at bar set forth certain conditions heretofore listed under which the Senior Partners of the defendant partnership requested that the plaintiff retire. The basic issue here seems to be reduced to the question of whether consideration can be identified with the happening of these conditions, either as a benefit to the defendant, as promisor, or as a detriment to the plaintiff, as promisee. If so, it is a logical inference that the happening was requested as consideration. It would seem immaterial whether we consider that the defendant’s promises ripened into a bilateral or unilateral contract. There was either sufficient reply on the part of the plaintiff to make it a bilateral contract, or it was a unilateral contract, the acceptance of which was evidenced by the plaintiff’s resignation.

In Allegheny College v. National Chautauqua County Bank, 246 NY 369, 159 NE 173 (1927), at pages 174 and 175, Chief Justice Cardozo, then sitting on the Court of Appeals of New York, in discussing the subject of consideration stated:

“A classic form of statement identifies consideration with detriment to the promisee sustained by virtue of the promise. (Citations.) So compendious a formula is little more than a half truth. There is need of many a supplementary gloss before the outline can be so filled in as to depict the classic doctrine. ‘The promise and the consideration must purport to be the motive each for the other, in whole or at least in part. It is not enough that the promise induces the detriment or that the detriment induces the promise if the other half is wanting.’ (Citations.) If A promises B to make him a gift, consideration may be lacking, though B has renounced other opportunities for betterment in the faith that the promise will be kept.
“The half truths of one generation tend at times to perpetuate themselves in the law as the whole truth of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten. The doctrine of consideration has not escaped the common lot. As far back as 1881, Judge Holmes in his lectures on the Common Law (page 292), separated the detriment, which is merely a consequence of the promise from the detriment, which is in truth the motive or inducement, and yet added that the courts ‘have gone far in obliterating his distinction.’ The tendency toward effacement has not lessened with the years. On the contrary, there has grown up of recent days a doctrine that a substitute for consideration or an exception to its ordinary requirements can be found in what is styled ‘a promissory gestoppel.’ Williston, Contracts, §§ 139,116. . . .”

In Porter v. Commissioner of Internal Revenue, 60 F 673 (1932), at page 675, Judge Learned Hand stated that promissory estoppel is now a recognized species of consideration and cited the Restatement of the Law, Contracts, § 90, which provides:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
“Illustrations:
“1. A promises B not to foreclose for a specified time, a mortgage which A holds on B’s land. B thereafter makes improvements on the land. A’s promise is binding.
“2. A promises B to pay him an annuity during B’s life. B thereupon resigns a profitable employment, as A expected that he might. B receives the annuity for some years, in the meantime becoming disqualified from again obtaining good employment. A’s promise is binding.
“3. A promises B that if B will go to college and complete his course he will give him $5,000. B goes to college and has nearly completed his course when A notified him of an intention to revoke the promise. A’s promise is binding.
“4. A promises B $5000, knowing that B desires that sum for the purchase of Blackacre. Induced thereby, B secures without any payment an option by buy Blackacre. A then tells B that he withdraws his promise. A’s promise is not binding.”

Also see: 1 Williston on Contracts (3rd ed) § 140.

Illinois courts have long recognized the doctrine of promissory estoppel. Estate of Beatty v. Western College of Toledo, 177 Ill 280, 292, 293, 52 NE 432 (1898); Estate of Switzer v. Gertenbach, 122 Ill App 26, 28, 29 (1905).

We conclude: that certain of the conditions under which the plaintiff was requested to retire; namely, the promise of the defendant to pay him retirement pay and to arrange for the plaintiff to take over and pay the premiums on the group life insurance in his name, could reasonably have been expected to induce him to resign, to accept the repayment of his capital fund on a restricted and long term basis and to accept the condition of a credit against his retirement pay by virtue of income derived from other employment; that such promises, which were beneficial to the defendant, did induce such action or forbearance by the palintiff; that injustice can be avoided only by the enforcement of such promises; and that such promises are binding.

Consequently, we believe that the contract was enforceable, either on the theory that it was supported by consideration, or under the doctrine of promissory estoppel. We adhere to the view of Judge Learned Hand that promissory estoppel is now a recognized species of consideration. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Edward Kutsenkow, Plaintiff-Appellant, v. Chicago and North Western Railway Company, Defendant-Appellee.
    Gen. No. 52,696.
    First District, First Division.
    September 16, 1968.

      O’Brien, Hanrahan, Wolfe & Been, of Chicago (Ernest L. Wojcik, of counsel), for appellant.
    James P. Daley and John C. Boylan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Edward Kutsenkow, brought an action for damages against defendant, Chicago & North Western Railway Company, for damages sustained by his refrigerator trailer when he attempted to drive the vehicle under defendant’s viaduct. At the close of plaintiff’s case, the Court sustained defendant’s motion for a directed verdict and plaintiff appeals from the judgment entered on said verdict.

The plaintiff testified that on August 18, 1960, during the early morning hours, he was driving his truck (which was twelve feet six inches in height) in a northerly direction on Kimball Avenue enroute to a destination where he was to deliver the sixteen tons of paper he was carrying. It was still dark outside. The streets were wet. The weather was foggy. Traffic was very heavy. Kutsenkow had a helper sitting in the tractor’s cab along with him. Before he came to the viaduct where the accident occurred, plaintiff passed under two other viaducts. Plaintiff stopped his truck before entering the first of these “. . . because it looked pretty low.” After “checking out” the viaduct, plaintiff and his helper saw that they had a little clearance so they proceeded on their way under the viaduct. When plaintiff came to the second viaduct he again brought his vehicle to a complete stop because the viaduct didn’t have any markings to show what the clearance was. He and his helper examined the viaduct and determined that it afforded adequate clearance, so they proceeded on their way under it. Shortly thereafter, Kutsenkow approached defendant’s viaduct. This viaduct was twelve feet, four inches in height, and it did not have any markings to indicate the amount of clearance it afforded. Plaintiff proceeded towards the viaduct in question at a slow rate of speed: “Well, I looked there and it appeared like it was just about as high as the other two viaducts and I wasn’t going too fast at that particular time; before I could apply my brakes to stop the thing and with all the traffic that was around, we had come under the viaduct and the damage occurred to the top of the trailer.” On cross-examination the plaintiff testified that one of the reasons he slowed down before entering the viaduct of the defendant was that he “. . . kind of got doubtful about the viaduct.”

Plaintiff contends, on appeal, that the trial judge erred in directing a verdict for defendant in that the question of his contributory negligence “. . . was preeminently a question of fact for the jury.” Secondly, he contends that the Court erred “. . . in excluding any evidence as to other accidents of a similar character to show notice to the defendant of a dangerous and unsafe condition.”

As to the plaintiff’s first point, we believe that the opinion of this Court in Carr v. Chicago & N. W. Ry. Co., 333 Ill App 567, 77 NE2d 857, is dispositive of the issues raised thereby. In Carr, plaintiff’s employee attempted to drive plaintiff’s truck under defendant’s unmarked viaduct without stopping first to determine whether the viaduct afforded adequate vertical clearance. As it turned out, the truck was several inches higher than the viaduct and collided with it. Plaintiff brought an action against defendant for the damages sustained by the truck alleging that the defendant, in the exercise of reasonable care, should have elevated the viaduct or posted signs. This Court, in affirming a directed verdict for defendant, stated that the judgment of the trial court could be supported either by plaintiff’s lack of due care or by an absence of duty owed by defendant to plaintiff. The Court held that as a matter of law the defendant had not been negligent in failing to post signs designating the clearance under the viaduct, stating, at page 572: “Generally, a railroad is not liable where the overhead structure has been placed under due authority, been constructed with reasonable skill and maintained in good repair.”

It is undisputed that plaintiff attempted to drive his truck under defendant’s viaduct (which he was “kind of doubtful about”) without first stopping his vehicle, as he had done on two previous occasions, to see whether there was adequate clearance. Furthermore, plaintiff failed to introduce evidence to the effect that the defendant did not have proper authority to construct the viaduct or, that there was any statute then in effect requiring the defendant to post clearance signs, or that the viaduct in question had not been constructed with reasonable skill and maintained in good repair. Therefore, in viewing the evidence in its aspect most favorable to the plaintiff, we agree with the trial court that it so overwhelmingly favors the defendant that no contrary verdict based on the evidence could ever stand. The trial judge correctly directed a verdict in favor of the defendant. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

It is next contended by plaintiff that the trial court erred in excluding evidence to the effect that another vehicle approximately the same height as plaintiff’s truck had struck defendant’s viaduct within a year previous to the incident in question. Plaintiff made an offer of proof that the defendant had a claim filed in regard to this prior accident, containing an investigation report. The offer of proof was denied. Plaintiff argues that the excluded evidence was admissible to show that the defendant knew of the unsafe condition created by the failure to post clearance signs on its viaduct. Plaintiff contends further that “it is a well settled principle of common law that any person or corporation that cuts through or crosses over a highway for the benefit of such person or corporation, must furnish the public a proper safe crossing.”

As we have already pointed out in our discussion of the Carr decision the defendant in the instant case was under no duty to vehicles passing under its viaduct to post signs designating the clearance the viaduct afforded. Therefore, any notice the defendant may have had about a supposed dangerous condition created by its failure to post signs was irrelevant to a determination of defendant’s negligence. Furthermore, plaintiff’s offer of proof did not tend to show that the previous accident had in any way been caused by defendant’s failure to maintain its viaduct in a good state of repair. We hold that the trial court correctly denied the offer of proof. In addition, we point out that while we agree with plaintiff’s contention that a railroad must exercise reasonable care to provide safe crossings at highways in existence, and that a crossing includes a viaduct, we cannot agree that this duty extends to the maintenance of the public roadway beneath the viaduct. People v. Illinois Cent. R. Co., 235 Ill 374, 380, 85 NE 606.

For the reasons given the judgment is affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel White, Defendant-Appellant.
    Gen. No. 52,875.
    First District, Third Division.
    July 3, 1968.

      James M. O’Shaughnessy, of Chicago, for plaintiff in error.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was charged with the theft of an automobile. He waived his right to trial by jury and was tried by the court, found guilty and sentenced to serve from two to four years in the penitentiary. He took a direct appeal to the Supreme Court, contending that he was arrested without reasonable cause, that the trial court erred in denying his motion for a directed verdict and that the State failed to prove guilt beyond a reasonable doubt. The Supreme Court after examining the record concluded that no substantial constitutional question had been presented and transferred the cause to this court. The facts follow.

On October 5, 1966, Officer Michael Smajo and a police trainee named Staszek were on patrol in a marked police car in the vicinity of 13th Street and Kedzie Avenue in Chicago. At approximately 3:00 a. m. they observed the defendant pushing a 1959 Thunderbird automobile into an alley. Another man was seated at the wheel of the vehicle. The officers left their patrol car and ordered the men to stop. When they questioned the suspects as to ownership of the car, the man at the steering wheel fled. Officer Smajo then took custody of the defendant, searched the car and found a piece of tinfoil under the ignition which when pressed would start the engine. The automobile was found to be the property of one Berlyn Bynum who later testified that he lived about three miles from the scene of the arrest and that the car had been stolen sometime between 10:00 p. m. and 3:00 a. m. on the night in question.

Reasonable cause to effect an arrest without a warrant depends upon the factual and practical considerations of everyday life on which reasonable and prudent men act. People v. Jones, 31 Ill2d 42, 198 NE2d 821. It does not require that quantum of proof necessary to sustain a conviction. People v. Brinn, 32 Ill2d 232, 204 NE2d 724. In the instant case the officer observed the defendant and his associate pushing an automobile into an alley at 3:00 a. m. and when they stopped to question the men, one of them fled. Evidence of flight has long been admissible in Illinois as a circumstance which may be considered with all the other evidence as tending to prove guilt. People v. Brown, 69 Ill App2d 212, 215 NE2d 813; People v. Nunn, 63 Ill App2d 465, 212 NE2d 342. The officer had reasonable grounds for making the arrest.

The evidence established that the car had been stolen from a location about three miles away within the preceding five hours and that at the time of the arrest the car was in the joint possession of the defendant and his partner. Although the defendant was not inside the vehicle, he was exerting control over it by pushing it into the alley. The exclusive and recent possession of stolen property is sufficient to raise a presumption of guilt and is sufficient to warrant a conviction for theft unless the possession is explained in such a manner as to raise a reasonable doubt of guilt. People v. Litberg, 413 Ill 132, 108 NE2d 468; People v. Styles, 75 Ill App2d 481,220 NE2d 885.

The defendant had possession of a stolen vehicle and the tinfoil under the ignition showed that the engine had been prepared so it could be started without an ignition key.

The trial court properly denied the motion for directed verdict. Defendant’s guilt was proved beyond a reasonable doubt, and the judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Otis McNeil (Impleaded), Defendant-Appellant.
    Gen. No. 51,423.
    First District, Fourth Division.
    September 18, 1968.

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

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

Defendant appeals his conviction by a jury of the crime of armed robbery for which he was sentenced to serve fifteen to twenty-five years. On appeal he contends (1) that his confession was not voluntarily made and therefore was not admissible, (2) that the confession was barred because it was an unsigned hearsay document, (3) that some of the evidence was the product of an illegal search and seizure, and (4) that he was prejudiced by the failure of the State to connect him with certain evidence introduced against him.

At the trial John D. Somers testified that on September 11, 1965, at twelve o’clock noon three armed men entered his fur salon, two wearing stockings over their heads and a third with a handkerchief over his mouth; that the men forced everyone to lie on the floor and then tied their hands together and that the men took $285 in currency and forty-one mink garments worth $75,000. He identified People’s Exhibit 1 as a garment bearing both his label and his garment number. He said he called the police five minutes after the occurrence, that thirty of the items were returned to him on September 13 and that he could not identify any of the three men.

William J. Trigg testified that he was a detective of the Criminal Intelligence Unit of the City of Chicago, that at two-thirty in the afternoon of September 11 he was on the second floor of a building located directly across from 2156 and 2158 South Millard Avenue with a walkie-talkie and binoculars, that he saw defendant in the company of David Moore, Phil Thomas and another man and that he observed defendant making three trips between 2156 and 2158 South Millard. He said on one of the trips defendant went from the second floor of 2156, where he lived with his parents, to the second floor of 2158 carrying a bed sheet tied together at the four corners with what appeared to be piece of fur sticking out.

Detective Robert Lopez testified that he executed a search warrant and searched defendant’s apartment on the second floor of 2156 South Millard, that he found there seven fur pieces with the label “John D. Somers” in them and that one of these fur pieces was People’s Exhibit 1.

There was testimony that twenty-eight fur pieces with the label “John D. Somers” were recovered at 2158 South Millard. Two nylon stockings with the bottoms removed and a knot tied in each end, taken from a black Mustang parked in a garage behind 2156 South Millard, were also placed in evidence. Detective Milton Deas testified that the registration for the 1965 Mustang was in the name of David Moore.

Defendant’s statement to the police was admitted into evidence as People’s Exhibit 6 and was read to the jury. In part it stated:

We drove downtown this morning about 10:00 o’clock looking for a place in which we could rob. We went to several places and they were too hard, so we found this place on Wabash, which looked relatively easy. However, when we got in there we found that there were seven people in there. Instead of the three that we saw in the front, those that I mentioned before were there. So we made them lay on the floor at gun point. Then I went into the vault and started to put coats in a waste basket, the kind that is on wheels. I loaded it up, then I said Let’s go. They then marched the people in the vault and we left. We pushed the waste basket to the alley where the car was parked and loaded it into the car and left. We went to my house at 2156 Millard. I sneaked the car into my garage so my parents would not see it. The car was a ’65 Mustang, black two door. Then I tried to find someone to buy them, all of them, which I was unable to do. I was in the process of looking when I was arrested.
First when we arrived at my house, I put the car into my garage and we all walked out to the front steps of my house. Fred, Phil and Dave remained on the front steps until I walked around to Emil Dennmark to get rid of the guns. When I came back, I went into the house, alone, and got some bedspreads and pillow cases. I went into the garage and got the furs. I put them in the bedspread and the pillow cases. The ones I put in the spread, I put back into the car. The ones in the pillowcase, I hid in my friend’s room and then I came back to the house.
He lives next door to me, and he wasn’t at home.

The statement described the other participants as Phillip Thomas and Fred McNeil who entered the store, and David Moore who drove the car. Defendant said he wore a handkerchief as a mask and Phillip and Fred wore stocking masks.

Defendant first contends that his confession was coerced and therefore should not have been admitted into evidence. At the hearing on his motion to suppress the confession defendant testified that he was beaten and harassed by police officers and was made to confess by police threats to keep defendant’s father, who was ill, in custody and to arrest defendant’s mother. The evidence shows that defendant’s father and mother occupied the apartment in which stolen furs were found; the father was in custody of the police and was released after defendant made his statement. Three police officers testified that no one struck defendant and that no threats were made.

The trial judge in denying the motion to suppress the confession stated:

I’ve listened attentively to all the evidence here and there isn’t any question in the court’s mind that this was a free and voluntary statement.
Now, the police would be really derelict in their duty if they didn’t bring Otis McNeil, Sr. into the police station where in his apartment the proceeds are found, in the apartment, and he had evidently knowledge of it, or if he didn’t they expected that he did and they would have been derelict in their duty and subject to criticism if they didn’t take him down to 11th and State to find out what the contraband was doing in that apartment with two of the other defendants.
Now, the only thing that you allege here about the confession not being voluntary, you said he wouldn’t leave his father go until he made his statement. What do we have here ? The man in custody, he gets down to the bureau or Central Detective Headquarters at 11th and State at 6:00 p. m., by 7:35 he is making a statement in the presence of the other 3 defendants and the father was one of the best witnesses the State had, the father said he was sitting in this office next to the office where this glass partition was and that he sat there and he could see Otis McNeil, Jr. in the next room and at no time did he hear any unusual noises, in fact, he proved that what Otis McNeil said didn’t happen at all, that he was slapped and they stood on his shoulders, and there was no outcry and then, Otis McNeil, Sr., they allowed him to talk to his son before he left the Central District Police Station and the father himself said Otis Jr. never complained at any time about being mistreated.

In People v. Ackerson, 37 Ill2d 117, 224 NE2d 849, the court said at page 121:

The trial court determined these questions in a preliminary hearing and found that the confessions were voluntary. On review such determination will not be disturbed unless manifestly against the weight of the evidence, or unless the court has committed an abuse of discretion.

Under this standard we are unable to disturb the trial court’s determination that the confession was not coerced.

Defendant’s second contention is that his statement (People’s Exhibit 6) should not have been admitted into evidence because it was an unsigned hearsay document. Detective Deas testified that he questioned defendant and reduced to writing both the questions and the answers; that People’s Exhibit 6 was a true and correct transcript of the questions asked and the answers made by the defendant. Defendant refused to sign the document at the end of the questioning. In People v. Perkins, 17 Ill2d 493, 500, 162 NE2d 385, the court held that after police testimony that the writing was a true and correct transcript of the questions asked and answers made by defendant, “it was admissible, if relevant and material, even though it was unsigned.” See also People v. Dogoda, 9 Ill2d 198, 137 NE2d 386; People v. Hanson, Ill2d 81,198 NE2d 815.

Defendant contends thirdly that some of the evidence introduced against him was the product of an illegal search and seizure. Defendant makes no argument about the stolen furs discovered in his apartment since the police had a search warrant for his apartment. However, he argues that the stolen furs discovered at 2158 South Millard should have been suppressed since the police had no warrant to search those premises. On a motion to suppress evidence defendant has the burden of proof. Ill Rev Stats 1965, c 38, § 114-12 (b). Defendant failed to offer evidence on the circumstances of the recovery of the furs from 2158 South Millard. There is no evidence indicating any illegal search or seizure— from all that appears, the inhabitant of 2158 may have given his consent.

Defendant also argues that the knotted nylon stockings found in the car in the garage behind his apartment building should have been suppressed. However, at the hearing on his motion to suppress, defendant failed to show the circumstances under which the recovery of the stockings was made. Here again there was no evidence of an illegal search or seizure. We therefore find no basis for disturbing the trial court’s denial of the motion to suppress.

Defendant’s final contention is that he was prejudiced by the State’s failure to connect the knotted stockings to him personally. This evidence was found in a car which belonged to David Moore, a participant in the robbery. Two of the robbers wore stockings over their faces and defendant is connected to the robbery both by the stolen furs found in his home as well as by his confession. Since defendant made no objection to the introduction of the stockings at the trial, any question as to their admissibility has been waived. People v. Duckett, 24 Ill2d 550, 554,182 NE2d 696.

The judgment of the Circuit Court is affirmed.

Affirmed.

McCORMICK, P. J. and ENGLISH, J., concur.


author: MR. JUSTICE ENGLISH MR. JUSTICE ENGLISH McCORMICK, P. J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ellsworth Brown, Defendant-Appellant.
    Gen. No. 51,820.
    First District, Fourth Division.
    July 10, 1968.
    Rehearing denied and supplemental opinion October 9, 1968.

      Chester A. Lizak, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged Rape.

Judgment

There was a preliminary competency hearing at which a jury found defendant to be sane. After a bench trial, defendant was found guilty of rape and sentenced to a term of 15 to 30 years.

Contentions on Appeal

(1) The evidence was insufficient to establish guilt.

(2) At the pretrial hearing a verdict of incompetency should have been directed by the court.

(3) The competency hearing was not fair.

(4) The sentence was excessive.

Evidence at the Trial Billie Jean Richardson, for the State.

She was married on June 10, 1960, and at the time of her testimony in December, 1965, had three children aged 5, 4 and 1, the youngest born by Caesarian section on December 8, 1964. The last time she had lived with her husband was in 1962, having lived since then with her mother and sister. She “really wasn’t divorced,” although she remembered testifying before the grand jury that she was divorced.

She had not known defendant before January 9, 1965, when, at 2:30 a. m., she was walking alone down a well-lighted street. Three men (one of whom she identified as defendant) came up and started beating her. One man threw something at her face which exploded and got in her eyes. They dragged her into a gangway and beat her on the face and head. All three had knives. Further,

I told Ellsworth Brown that I just had a Caesarian operation. The other two men then left. Brown walked me down the street to a courtway building. I did not try to escape, because he had a knife. . . . When he got me down to this gangway, he snatched the bandages off of my stomach. I was fully dressed; coat, skirt, blouse and sweater. I also was wearing a slip, bra and panties. Before he raped me, he showed me a white business card. I saw the letters “G, L, U” and the word “Clinic” on it. . . . In the courtway building, he had a knife against my neck and he had me against the wall in a dark space. A cabdriver came back and asked if anyone called a cab. We didn’t say anything.

The cabdriver hollered up the stairway, but nobody answered so he went back. All the time the cabdriver was present, defendant was holding her with one hand and was holding a knife to her neck with the other. He also had the knife against her neck when he took out his wallet. The business card to which she referred was sticking out of the wallet.

Continuing,

I guess he (the cabdriver) — from the way it seemed to me, we were just standing there talking, I guess. [Defendant] told me to turn around and face the wall. He kind of tore my slip and skirt. He didn’t unzip my clothes or anything, all he did was pull them up from behind and told me to bend over slightly. ... He had intercourse with me, while my panties were on. . . . Mr. Brown had intercourse with me by pulling the panties aside.

After the other two men had left, she was with defendant about 25 minutes. After he raped her she stayed there a few minutes, then went home and told her mother and sister of the incident. They reported her story to the police. Later that evening, she described to the police what had happened and was taken to Mount Sinai Hospital where a Dr. Janabi examined her, took a smear test, and treated her eyes. She didn’t know what happened to the underclothing she was wearing at the time of the incident. The police didn’t take them. The sweater and skirt were at her home. She next saw defendant on January 15 when she identified him in a “show-up” at the police station. She also identified the card defendant had shown her on January 6, and it was introduced into evidence.

She was positive that she had never stated to the police that all three men had raped her. “If the officer were to testify to that, he would be lying.”

Patrick King, for the State.

He was the police officer who talked to Billie Jean Richardson on January 6, 1965, at about 10:00 a. m. She appeared tired and sleepy.

On January 15, 1965, he arrested defendant. Defendant carried a wallet and card similar to the ones Billie Jean had described, and she identified defendant at a police lineup. She also made a statement which he typed as she dictated.

At the police station he asked defendant what he had to say about the case. Defendant stated that on his way home he saw two men attacking a woman; that he crossed the street to help the woman as the two men ran off. Billie Jean was the woman, and she accepted defendant’s offer to accompany her from the location of the attack. Defendant walked her to a courtway building where he showed her a “Dr. Gluckman’s Clinic” card. Defendant told her he worked at the clinic and that she could get in touch with him there. At that time a cabdriver came into the courtway inquiring if anyone had called for a cab. Defendant answered, “no,” and walked out of the courtway with the cabdriver, “halfway down the street.” Defendant denied having raped Billie Jean.

Sharon Loeb, for the State.

On January 6, 1965, she was employed by Mount Sinai Hospital as a registered nurse. She was present when Dr. Janabi administered the smear test to Billie Jean.

John Cioe, for the defense.

He was a police detective. On January 6, 1965, he took a statement from Billie Jean Richardson in the Mount Sinai Hospital emergency room. Since he had no independent recollection of the conversation, the defense introduced into evidence a copy of the report he had filed concerning the interview. The report read in part: “She was forced into the gangway where all three had sexual intercourse with her, by force and against her will. ...”

Ellsworth Brown, defendant.

He had been convicted of robbery in Virginia in 1961. He testified to the following:

On the morning of January 6,1965, while on my way home, I saw two men attacking Miss Billie Jean Richardson. ... I crossed the street but I didn’t see Miss Billie J. Richardson. I am afraid of dogs and I thought she was a dog crawling out of the gangway. But at the time I approached her there was a cabdriver coming, he was looking for someone. So he and I walked her down the street and that is when she told me, you know, and him, in his presence that the other two guys tried to do something to her, and she told us about some sort of operation. I, in turn gave her my address and showed her a card of the place where I was working and told her that’s where she can find me up to 12:00 o’clock in the afternoon. . . . The Yellow cabdriver was present when I walked her home. . . . She didn’t say anything about rape until we were standing in front of her house.

Defendant testified that he did not report the assault to the police. Also, he repeatedly denied raping Billie Jean.

Opinion

Because of the nature of the crime, reviewing courts are charged with an extraordinarily high standard of care in examining the evidence in a rape case. People v. Perez, 412 Ill 425, 107 NE2d 749; People v. Kazmierczyk, 357 Ill 592, 192 NE 657. When the charge is denied and the conviction depends upon the testimony of the complaining witness, it must be corroborated by evidence of other facts and circumstances unless her testimony is clear and convincing. People v. White, 26 Ill2d 199, 186 NE2d 351; People v. Mack, 25 Ill2d 416, 185 NE2d 154; People v. Reaves, 24 Ill2d 380, 183 NE 2d 169. In the case on appeal, Billie Jean’s testimony is the only evidence offered to prove certain essential elements of the offense. While this situation is by no means unusual, application of the principles set forth above requires that the evidence be subjected to close scrutiny. People v. Fitzgibbons, 343 Ill 69, 174 NE 848.

In so doing, we conclude that her testimony was not clear and convincing. She was impeached, in part, at least, by her own inconsistent statements. At the trial she changed her account of when her bandages were torn off by defendant. When she did decide on the correct sequence of events, this version was at variance with the signed statement she had given the police shortly after the incident. Then, she testified positively that defendant was the only person who had intercourse with her on the morning of the attack by the three men. This testimony was impeached by her statement taken at the hospital in which she asserted that all three men had had sexual intercourse with her. Even in the traumatic setting of a rape, it defies explanation as to how a woman, fully conscious throughout the episode, would be mistaken under oath or would forget whether she had been forcibly subjected to intercourse by one man or by three men. It also cannot be explained how she would not have been sufficiently impressed by the incident to have remembered at what point in the basic sequence of these terrible events the Caesarian surgical bandages had been ripped from her body, or how this could have been accomplished, she being fully clothed at the time. Further, the marked inconsistency between Billie Jean’s testimonial descriptions of her marital status at the trial and before the grand jury has a strong tendency to impeach her credibility under oath. To be sure, these variances are not material as bearing directly on proof of the elements of the crime charged, but they are not minor or unimportant on the question of her credibility when viewed in the light of the evidence as a whole. See People v. Webb, supra.

In a prosecution for rape, “where evidence is offered substantially impeaching the truth of her statements and the defendant denies the crime, her [the prosecutrix’] evidence should be corroborated.” People v. Fitzgibbons, supra, at 72. Also, when the complaining witness’ testimony in itself lacks verisimilitude, there must be corroboration by other testimony, facts or circumstances. People v. Qualls, 21 Ill2d 252,171 NE2d 612. Does it not overtax one’s credulity that, while holding a knife against the neck of his intended victim and maneuvering her for the purpose of committing rape, defendant should manage to extricate the wallet from his pocket and force her to look at his calling card? Is it not somewhat incredible that, while defendant was holding Billie Jean with one hand and holding the knife to her neck with the other hand, they carried on a conversation with the cabdriver, the three of them “just standing there talking?” Does not Billie Jean’s story reach the realm of unreality when one visualizes the position of the parties during the moments of actual intercourse — she, facing the wall and bending.over “slightly”; he, standing behind her, holding her with one hand, holding a knife to her neck with another hand, holding her panties to one side with another hand, guiding himself with another hand (without which assistance accomplishment of the act may well have been a physical impossibility in this posture of the case) ? Surely, it is not an undue burden upon the prosecution to require that such testimony be corroborated to some extent, at least, if it is to support a penitentiary sentence.

Are there, then, any facts or circumstances in the record which do furnish sufficient corroboration? The testimony of the nurse at the hospital on the morning in question is not corroborative of the allegation of intercourse, for the results of the smear test which she referred to were never put in evidence. The fact that when defendant was apprehended he had in his possession the calling card which the complaining witness had described, does not really support her story because of the unlikelihood of his having shown it to her in the situation as she pictured it. Furthermore, defendant’s possession of the card was equally consistent with his own explanation, and, in any event, this evidence would primarily serve only to bolster her identification of defendant, which was never controverted.

If the testimony of the complaining witness is corroborated at all, therefore, such corroboration must be found in her having made immediate complaint. In rape cases, the fact of the victim’s complaint of the offense without inconsistent or unexplained delay is admissible to strengthen her testimony as to commission of the crime. Stevens v. People, 158 Ill 111, 41 NE 856; People v. Damen, 28 Ill2d 464, 193 NE2d 25. For this to be truly corroborative, however, it must be proved by the testimony of third persons that the prosecutrix complained to them. People v. DeFrates, 395 Ill 439, 70 NE 2d 591. By definition, no witness can corroborate his own story. In People v. Rossililli, 24 Ill2d 341, 181 NE2d 114, the court found that the testimony of the complaining witness was “entirely uncorroborated”; yet, she had testified that as soon as she was freed by the alleged rapists, she had gone directly to the police to make complaint. Further, for the complaint to carry any weight, it must be a natural and spontaneous expression of outraged feelings. See People v. Cappalla, 324 Ill 11, 154 NE 451; Cunningham v. People, 210 Ill 410, 71 NE 389.

In the case on appeal, neither the mother nor the sister, nor anyone other than Billie Jean, testified to the fact of prosecutrix’ complaint. Even Billie Jean’s testimony did not establish that her complaint was a “natural and spontaneous expression of outraged feeling.” In view of her testimony that she stayed at the scene for a few minutes and then walked home, there is some question as to whether she had not thus taken the time to mull over her story.

Decision

We have reviewed the evidence according to the dictates of People v. Dougard, 16 Ill2d 603, 607, 158 NE 2d 596, and have come to the conclusion that the State’s proof was “of such an unsatisfactory character as to raise a reasonable doubt” of defendant’s guilt. People v. Rossililli, supra, at 345-347. The judgment of convietion is therefore reversed. Because of this determination, we will not discuss the other errors assigned.

Reversed.

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

Supplemental Opinion on Petition for Rehearing

MR. JUSTICE ENGLISH

delivered the opinion of the court.

The State has petitioned for rehearing, not contending that we have overlooked or misapprehended any points in deciding to reverse the conviction, but arguing only that the appropriate appellate remedy in this case would be to remand for a new trial rather than to reverse outright. Thus, the issue now presented is whether the State should be allowed a second chance to meet its burden of proof in a case in which (1) it had failed to adduce sufficient evidence to support a conviction at the trial, and (2) no material evidence offered by the State had been erroneously excluded or stricken. We are convinced that the State is not entitled to this kind of opportunity to rehabilitate its case at the expense of defendant’s right to acquittal on the evidence which the State did see fit to present.

A necessary corollary to our conclusion (that the evidence was insufficient to support defendant’s conviction) is that a judgment of acquittal should have been entered by the trial court. Had such a judgment been entered after a trial on the merits, defendant would have been discharged. In that circumstance, we cannot conceive of the possibility that the State would consider it even arguable that defendant should be retried in the hope (or even expectation) that gaps in the State’s case might be filled by additional evidence. And, of course, the State could not appeal in that situation. Illinois Const, art 6, § 7. Nor would it be open to the State to re-indict the defendant for the same offense. United States Const, Fifth Amendment.

Defendant in this case exercised his constitutional right to appeal his conviction, and, in so doing, he did not ask for a new trial. Having succeeded in establishing in this court that the trial judge should have acquitted him for failure of the State to prove its case, the defendant should be in no worse position than he would have been if he had been properly acquitted at the time of trial. We believe that it would be within our authority to reverse and remand with direction to enter a judgment of acquittal, but the legal effect would be the same as that accomplished by a simple reversal here.

In our view, it is irrelevant that the State’s Attorney thinks that other witnesses might be available for a second trial. Assuming otherwise, however, in the absence of a conclusion by a reviewing court that the State had been erroneously prevented by the trial judge from introducing material evidence at the trial, we are aware of no satisfactory method by which a court on appeal could gain any certain knowledge that the State’s proof would be adequate in a retrial. Or, looking at the question from its opposite side, it might more logically be presumed that in every reversal for failure of necessary proof, the State would, if given another chance, make out a better case, since otherwise the prosecution should never have been undertaken in the first place, and remandment in every case of reversal should therefore be required. In our judgment, however, this whole second-chance doctrine would be unavailing to the State in any event because such a retrial would be controlled and prohibited by the direction in the Fifth Amendment that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

We have considered the cases which the State has cited as supporting its position. Sullivan v. People, 108 Ill App 328, 346, involved reversal and remandment, but the case is distinguishable because the grounds for reversal in that case included numerous trial errors in the admission and rejection of evidence, and in the giving and refusing of instructions. Trial error was also the ground for reversal and remand in People v. Wolfson, 79 Ill App2d 309, 224 NE2d 581. People v. Noonan, 46 Ill App2d 63,196 NE2d 501, is not in point.

However, Miller v. People, 90 Ill 409, 410, People v. Samuels, 366 Ill 406, 407, 9 NE2d 211, and People v. Martin, 380 Ill 328, 340, 44 NE2d 49, also cited by the State, are all cases in which the court reversed, not for trial error, but because of insufficient evidence to convict. In each of these cases the opinion contained language to the effect that since it appeared that the State would not be able to produce additional or more satisfactory evidence at another trial, the case would not be remanded. The fact remains that all of these cases resulted in outright reversals, so the decisions were consistent with the decision we reach in the instant case. And there have been, of course, hundreds, if not thousands, of cases in which convictions have been reversed without mention of the possibility of remand for a new trial. The language referred to is disturbing, however, as indicating that we should, by some process or other, determine the probability of success by the State in another attempt at conviction, and if the prospect were sufficiently sanguine, then we should send the case back for retrial.

It is our belief that this concept derives from the broad proposition, generally recognized to be true, that “where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.” Bryan v. United States, 338 US 552. Earlier, the court had stated the rule to be that “a convicted person cannot by his own act avoid the jeopardy in which he stands, and then assert it as a bar to subsequent jeopardy.”

Murphy v. Massachusetts, 177 US 155, 158. However, to apply this principle to every appellant — to one claiming the right to acquittal because the evidence was insufficient to convict, as well as to one asking for a new trial on account of trial errors — overlooks the subtleties of differentiation which lie within the double-jeopardy clause. The two situations have markedly distinguishable characteristics. Since, in the case before us, defendant sought from this court an adjudication of acquittal based upon lack of evidence, and did not ask for a new trial, we are convinced that our conclusion to reverse without remand does not offend the line of cases which include the Bryan decision. Rather, it falls within our reading of Sapir v. United States, 348 US 373, and Forman v. United States, 361 US 416, 425-426, which recognize the controlling difference between these two situations in their relation to double jeopardy.

We note that the Illinois Supreme Court cases relied on by the State were decided prior to Sapir and Forman. Other similar Illinois cases have been decided since then, but they do not refer to those authorities, and no point appears to have been raised which placed this matter before the court as a contested issue. E. g., People v. Evans, 24 Ill2d 11,15,179 NE2d 657. Still other opinions employing the same kind of language (concerning the apparent unavailability of additional evidence as the reason for not directing a new trial) are distinguishable from the case now before us since trial errors formed all or part of the basis for reversal. E. g., People v. Wolfson, 79 Ill App2d 309, 224 NE2d 581. Our own research has also disclosed that there are a number of Illinois Supreme Court cases in which convictions were reversed for insufficiency of the evidence and remanded for new trials. It appears, however, that in none of these was there any point made on the granting of the new trial. Most of this small group of cases were decided prior to Sapir (e. g. People v. O’Brien, 404 Ill 236, 88 NE2d 486), and in the later case of People v. Mosby, 25 Ill2d 400, 185 NE2d 152, the defendant expressly requested of the reviewing court that the conviction be reversed for failure of proof and that the cause be remanded for a new trial. Here again, no issue was made of the remandment, and our system of adversary proceedings was thus not in full operation for the benefit of the court. The court in People v. Jamison, 92 Ill App2d 28, 235 NE2d 849, under similar circumstances, reached a similar conclusion when the cases just referred to were relied upon by the defendant.

On the state of the cases in Illinois, we consider that the particular point with which we are confronted has not been specifically decided, although we expect that the Supreme Court will file a definitive opinion on this question in the near future, as there is a rather constant stream of cases in which the issue could be raised. In the interim, therefore, we are presenting our views on the subject for whatever value they may have.

While we are of the opinion that the decision in this case is supported by what we have set forth above, we should like to mention that we fail to comprehend any justification for recognizing a distinction between an appellant who asks for outright reversal with new trial relief (based on trial errors) only as an alternative, and an appellant who does not include such an alternate request in his appeal. See Sapir and Forman, supra, wherein the Forman court appears to have given favorable consideration to Mr. Justice Douglas’ concurring opinion in Sapir, commenting that “a decisive factor in Sapir’s case” was the fact that he had not asked for a new trial. We can think of no reason in fairness and justice why a defendant on appeal should be required to discard his right to seek a new trial based on trial errors, in order to validate his right to seek an outright reversal for lack of evidence. In any sensible consideration of his position the former is seen to be a second-choice alternative to the latter. If his double jeopardy rights are deemed to have been waived by his request for a new trial, the waiver should then take effect only if the reversal is granted for the reasons contained in the new trial request, and, if the conviction is reversed for lack of evidence, the waiver contained in an accompanying request for a new trial would never become operative.

Furthermore, we question whether the theory of waiver is appropriately applied in these cases to either situation. A true waiver is a “voluntary knowing relinquishment of a right.” Green v. United States, 355 US 184, 191; and see 31 U Chi L Rev 365, 368. More and more in the field of criminal law a defendant’s waiver is set aside or ignored unless the court is first satisfied that it is an intelligent and understanding waiver rather than one which is pro forma or fictitious. For example: Carnley v. Cochran, 369 US 506, 513 (waiver of right to counsel); People v. Turner, 80 Ill App2d 146, 225 NE2d 65 (waiver of right to jury trial); People v. Fitzgerald, 91 Ill App2d 191, 234 NE2d 79 (entry of guilty plea). Surely, it is a legal fiction to assume, without judicial inquiry, that an appealing defendant has been fully advised by his counsel that (1) while asking for reversal for lack of evidence, he will also, in the alternative, rely on trial errors in order to get a new trial; (2) that the defendant will therefore have to waive his right not to be tried again even though the appeal might turn out to be successful on the first point; and (3) that the defendant has then, in every case, knowingly, intelligently and understandingly waived such right. We can’t picture it. Neither can we visualize a true waiver as being present in any part of current appellate procedures.

If the theory of waiver is found wanting, and we conclude that it is (Green v. United States, supra), then on what ground can a defendant ever be tried again after reversal?

In United States v. Berry, 309 F2d 311, 313, the Court for this Circuit held that there was a “continuity of jeopardy” from its original attachment in the first trial, through appeal and reversal to final disposition of the charge on a new indictment at the second trial. The Supreme Court in the Green case, however, while finding that the principle of waiver was “totally unsound and indefensible,” looked with equal disfavor on the theory of continuing jeopardy. The concept of continuing jeopardy had been advanced by Justice Holmes in his concurrence to Kepner v. United States, 195 US 100, but the Green court pointed out that the Holmes theory had been “consistently rejected” by the court and had “never outwardly been adhered to by any other Justice of this Court.” 355 US 184,196-197.

There are other opinions which consider that a setting aside of a conviction permits a second trial because the first trial may then be treated as though expunged from the record, or as though it had never taken place. E. g., State v. Robinson, 100 Ohio App 466, 137 NE2d 141 (1956). Unless the conviction is based upon truly void proceedings, this seems to us an untenable position, in conflict with the plain meaning of the language employed in the Fifth Amendment as well as with its general purpose.

We come to the conclusion, therefore, that a second trial after reversal does constitute a second jeopardy which is, nevertheless, countenanced in some cases because required in the interest of justice. The basic concern of the criminal law in preserving the delicate and difficult balance between the security of the community and the rights of the individual accused, has dictated the rule that a criminal defendant who is successful on appeal may be retried. But this rule should not be applied to all reversals. When a conviction is set aside because of prejudicial occurrences or trial errors, the reviewing court determines only that the accused did not receive the fair trial which was his due; it does not determine that he was entitled to an acquittal. In this type of case, therefore, the security of the community requires retrial. At the same time, the new trial in such a case does not constitute an infringement of the rights of the accused because he will then receive the fair trial which had been denied him — precisely the relief to which he is entitled under the circumstances, and, with no exceptions known to us, the relief specifically requested by the appellant.

On the other hand, when an accused is acquitted at trial, or when his conviction is reversed on appeal because of the insufficiency of the evidence, the results are the same so far as his relationship with society is concerned. He cannot reasonably be deemed a continuing danger to the community in one instance and not in the other. These extremes in result should not be left to the fortuitous circumstance of what court it is which decides that there was not enough evidence to establish his guilt. Here, therefore, the balance is seen to be tipped the opposite way, since there can be no infringement of the right to community security when the defendant is released on this ground by either court, whereas, in our opinion, his right against double jeopardy would be denied equally by a retrial order in either court.

The reason for the reversal should thus control the decision as to whether or not there should be another trial.

We previously reached a similar conclusion, without explanation, in People v. Brown, 66 Ill App2d 317, 319-320, 214 NE2d 289. See also State v. Moreno, 69 NM 113, 364 P2d 594, 595.

The Petition for Rehearing is denied and the opinion will stand as filed.

DRUCKER, J., concurs.

McCORMICK, P. J.,

concurs in the denial of the Petition for Rehearing but does not agree with all that is said in the supplemental opinion.

       She testified that after her husband left in 1962 she had not “lived with anyone else. ... It doesn’t necessarily mean that I lived with anyone to have a baby. I have known other men.” She testified further that on the day in question she did not have intercourse with any man other than the defendant.

       Later, she corrected herself as to the date: January 6, not January 9.

       On cross-examination she changed her testimony to the effect that the bandages (from her Caesarian operation) were snatched from her by defendant in the presence of the other two men before defendant walked her to the courtway building. She denied stating to the police that the other two men had left before the bandages were torn off. She then read her signed statement to that effect, but she stood by her cross-examination testimony that all three men were present at the time.

       The doctor was out of the country at the time of trial.

       While this report contained other matters, the only portion of the report abstracted is quoted verbatim. Supreme Court Rule 38 provides that the abstract will be taken as sufficient unless the opposing party files an additional abstract. (New Supreme Court Rule 342 contains the same provision.) The State did not file an additional abstract. We are, therefore, not required to consider other matters referred to by the State in its brief by citation to the record. Little v. Chicago Nat. Life Ins. Co., 273 Ill App 148. However, the State’s case would not be helped by so doing, because the report was introduced for the purpose of impeaching Billie Jean’s testimony by a prior inconsistent statement and does not constitute evidence of any positive assertions of fact which it contains. Smith v. Pelz, 384 Ill 446, 451, 51 NE2d 534; Nelson v. Northwestern El. R. Co., 170 Ill App 119.

       The State cites People v. Webb, 76 Ill App2d 333, 222 .NE2d 190, as a case affirming a conviction for rape on the testimony of the victim without corroboration. We note, however, that the court there found the testimony of the complaining witness to have been “clear and convincing.”

       The Illinois Code of Criminal Procedure sets forth the procedure for a motion for new trial on behalf of a defendant after a verdict or finding of guilty, but makes no provision for a motion for new trial on behalf of the State after an acquittal. Ill Rev Stats (1965), c 38, § 116-1.

       We can see no essential difference — except one of unfairness —between a defendant who is acquitted at trial and one who has to appeal to obtain reversal of a conviction on the ground of insufficient evidence. Surely, it would compound the unfairness to require that the latter also submit to a retrial.

       In his petition for rehearing, the State’s Attorney seeks to support his argument by noting that, in answer to a Bill of Particulars, the State listed 18 possible witnesses, whereas at the trial only 7 took the stand. We do not consider that an adequate representation has been made as to the additional evidence which would, with certainty, be presented at a new trial, even if this were clearly the only criterion for remandment. This case thus presents a good example of what we have in mind: at a second trial the State might use 10 or 12 witnesses and, if reversed again, maybe 15 would be presented at a third trial, and so on. Only one witness is claimed to have been unavailable (absent from the city) at the time of trial. The record does not disclose, however, that the State made any attempt to obtain a continuance on that account, pursuant to the Code of Criminal Procedure. Ill Rev Stats (1965), c 38, § 114-4(c) (2).
      Having remanded for a new trial, it would appear to be impractical for a reviewing court to attempt control of such trial to insure that evidence more satisfactory to the prosecution would be introduced. The new trial could not very well be granted on that condition (even if we were to consider this a desirable procedure, which we do not), and, if it were, the standard would be impossible of practical application. Suppose, further, that the State were to introduce only the same evidence at the new trial and manage again to obtain a conviction. What then? Nor would an acquittal in this circumstance serve as a solution to the problem, because the constitutional guaranty is not against a second conviction, but against being placed in repeated jeopardy through trial.

       He did make a motion for a new trial in the trial court, which motion was denied. Under Illinois law, that request has been abandoned, as any position or point not made in the reviewing court is deemed to have been waived and will not be considered. Supreme Court Rule 39, Ill Rev Stats (1965), c 110, § 101.39. See also new Rule 341, Ill Rev Stats (1967), c 110A, § 341(e).

       The Sapir case, in which a new trial had not been asked for, resulted in reversal for failure of proof, and remandment with instructions to dismiss the indictment. In the Forman case, a new trial was included in the relief requested and the reversal was based upon trial error, with remandment for a new trial.

       We make note here of the fact that under English law the reviewing court is powerless to remand for a new trial unless the original trial was a nullity for some reason such as lack of jurisdiction. See 4 Stephen, Commentaries on the Laws of England (21st ed 1950), at page 284.
      See also Connelly v. Director of Public Prosecutions, 2 All ER 401 (1964), where it was stated in the opinions of the House of Lords that retrial is not permitted “in respect of the same offense after the verdict of guilty has been quashed on any ground by the Court of Criminal Appeal.” (Page 406.) And further that such a decision by the reviewing court “can be regarded as placing the appellant in the same position as he would have been in if the jury had returned a verdict of not guilty.” (Page 408.)

       In the original proceedings, reversal and remandment had been based solely upon trial error. United States v. Berry, 277 F2d 826.

       This appears to be the position taken in the drafting committee comments to the Illinois Criminal Code of 1961. SHA c 38, § 3-4, page 140. There the statement is made in connection with a statutory declaration of a defendant’s double jeopardy rights:
      “Another obvious qualification is that if the former conviction has ceased to exist because of the action of a reviewing court upon either direct or collateral attack — invalidation, setting aside, reversal, or vacating — it does not constitute a bar to the subsequent prosecution unless the effect of the reviewing court’s action was to acquit the defendant.” (Emphasis supplied.)
      Six cases are then cited in support, but we note that in each of these cases the setting aside of the first conviction was accomplished either by the trial court on the defendant’s motion for a new trial, or by the reviewing court on reversal for trial errors.
      The statute to which these committee comments apply reads in pertinent part:
      § 3-4. Effect of Former Prosecution
      (a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
      (1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction;
      (d) However, a prosecution is not barred within the meaning of this Section 3-4 if the former prosecution:
      (2) ... or if subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the defendant was thereby adjudged not guilty.
      Subparagraph (a), just quoted, raises a question apropos of our consideration as to whether a reversal for insufficient proof might not properly be deemed “a determination that the evidence was insufficient to warrant a conviction.” The statute does not limit such determination to the trial court, and it could very well be interpreted as covering a reversal for insufficient evidence.
      As to the quoted part of subparagraph (d), the same question arises as to whether a reversal for insufficient evidence has the effect of adjudging the defendant not guilty. Again, we think this might well be the result. There have been no cases construing either clause, so far as we know.

       We believe this to be consistent with general language used in People v. Benson, 24 Ill2d 159, 163, 180 NE2d 483 (a case not here in point on the facts) where the court said, “We think it clear that defendant by appealing his former conviction subjected himself to whatever appropriate action might be taken by this court.” Our problem in the instant case thus becomes one of determining the “appropriate action.”
      We note in passing that the Benson opinion included the statement that “the retrial of an accused, after a judgment of conviction has been reversed and the cause remanded, does not justify a claim of double jeopardy.” (Page 162.) In support of this principle three cases were cited, all of which involved reversal and remandment for trial errors, not for insufficiency of the evidence. People v. Keagle, 7 Ill2d 408, 131 NE2d 74; People v. Woodward, 394 Ill 433, 69 NE2d 181; Stroud v. United States, 251 US 15.
      Other cases cited in Benson involved reversals for trial errors (Murphy v. Massachusetts, 177 US 155, and Lane v. People, 5 Gilman 305); the granting of a new trial on motion of the defendant in the trial court (Gannon v. People, 127 Ill 507, 21 NE 525); and waiver of the double-jeopardy defense by failure to raise the point in the trial court (People v. Scales, 18 Ill2d 283, 164 NE2d 76).

       Citing the Sapir case, the court stated, “The effect of a reversal for lack of sufficient evidence to support a conviction is not different from an acquittal by the jury and requires that the defendant be discharged.”


author: GOLDENHERSH, J.

text:
    Magdalena Barth and Simon Barth, Her Husband, Plaintiffs-Appellants, v. West Highland Savings and Loan Association, a Corporation, Defendant-Appellee.
    Gen. No. 52,146.
    First District.
    August 5, 1968.

      Hill and Hill, of Chicago (Richard Hill, Jr., of counsel), for appellants.
    William B. Weidenaar, David W. Alspaugh, Ruff and Grotefeld, of Chicago, for appellee.
   GOLDENHERSH, J.

Plaintiffs appeal from the judgment of The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, entered in favor of defendant after a non jury trial in plaintiffs’ suit to recover money which plaintiffs allege defendant improperly deducted from plaintiffs’ joint account.

The record shows that on January 10, 1966, plaintiff, Magdalena Barth, filed suit for divorce from plaintiff, Simon Barth, and in her complaint joined defendant, West Highland Savings and Loan Association, as a party defendant. On that same day a writ of injunction was issued restraining plaintiffs from withdrawing, and defendant from paying out, any money held on deposit in plaintiffs’ account with defendant. Defendant answered, setting forth the amount on deposit in a joint account maintained by plaintiffs. Plaintiffs were later reconciled, and an order was entered by the Circuit Court of Cook County dismissing the suit for divorce, and dissolving the injunction.

Without notice to, or authorization from plaintiffs, defendant debited plaintiffs’ account in the amount of $261 to reimburse itself for an attorney’s fee in the amount of $250, and an appearance fee in the amount of $11 paid in connection with its appearance and answer in the divorce suit.

Plaintiffs contend that the trial court erred in that there is no basis, statutory or contractual, for the payment of defendant’s attorney fees. Defendant does not contend that there is any contractual basis for its action, and relies upon sections 1-2,1-10 (t), 4-16 and 4-17 (c 82, §§ 702, 710 (t), 776, and 777, Ill Rev Stats 1967) of the Illinois Savings and Loan Act as authority for its position.

In Ritter v. Ritter, 381 Ill 549, at page 552, 46 NE2d 41, the Supreme Court said, “The allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. Any party to an action, claiming the right to recover costs from his adversary, must found his right upon some provision of a statute. This has been the law in this State from the earliest time. (Citing cases.) A court of chancery may be vested with a power to exercise a discretion in awarding costs but the power to act must come from a statute and the discretion must be confined to that which is authorized by legislative enactment. (Citing cases.)

“The rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. (Citing cases.) ”

Defendant argues that the stated policy of the Savings and Loan Act (§ 1-2) is the promotion of thrift, and to further the policy the Act must be liberally construed. It contends that the definition of “withdrawal value” of a capital account (§ 1-10 (t)) contemplates and authorizes “other proper deductions” and “unpaid charges,” the charges provided in section 4-16 do not purport to be all-inclusive, and since the Act does not specifically proscribe a debit for attorney’s fees and costs, the amounts were properly debited to the account.

Defendant argues further that its situation is different from that presented in interpleader actions in that there is no question of who is entitled to the funds, and it does not stand in the position of mere stakeholder. Finally, it argues that the defendant is a mutual enterprise, and the savers who comprise its membership should not bear the burden of costs and expenses caused by the action of a member-saver, plaintiff, Magdalena Barth.

Defendant cites no decisions of the courts of Illinois or any other jurisdiction in support of its position. Assuming, arguendo, that the Savings and Loan Act is to be liberally construed, a construction which, in the face of the rule enunciated in Ritter v. Ritter, supra, would support defendant’s position, requires a liberality beyond our contemplation. In the absence of specific statutory authority, we hold that the deduction from plaintiffs’ account was improper, and the trial court erred in entering judgment in favor of defendant.

The judgment of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, is reversed and the cause remanded with directions to enter judgment in favor of plaintiffs, Magdalena Barth and Simon Barth, and against the defendant, West Highland Savings and Loan Association, in the amount of $261 together with interest from the date on which said debit was made, and for costs.

Judgment reversed and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.