author: MR. JUSTICE MORAN

text:
    Orville L. Meyer, Plaintiff-Appellee, v. Continental Casualty Company, a Corporation, Defendant-Appellant.
    Gen. No. 67-85.
    Second District.
    December 20, 1967.
    Williams & Leonard, of Chicago, for appellant.
    Shehee and Berent, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal involves the construction of a health and accident insurance policy written by the defendant and insuring the plaintiff and members of his family. Approximately two years after the policy was written, the plaintiff’s daughter, in the words of the stipulation of facts, “took sleeping pills knowingly on impulse and knowing the consequences of her act.” Although plaintiff’s daughter has since fully recovered from the effect of the pills, the plaintiff is here seeking reimbursement from the defendant insurance company for the resulting medical expenses.

Under the terms of the policy, the defendant promised to pay for losses resulting from “injury or sickness,” which terms were defined in the policy as follows:

“ ‘Injury’ wherever used in this policy means bodily injury caused by an accident, occurring while this policy is in force as to the person whose injury is the basis of claim and resulting directly and independently of all other causes in loss covered by this policy. ‘Sickness’ wherever used in this policy means sickness or disease contracted and commencing after this policy has been in force for not less than thirty days after its effective date as to the person whose sickness is the basis of claim and resulting in loss covered by this policy.”

The issue, as finally condensed by the appellant’s reply brief and upon oral argument, is whether plaintiff’s loss was from an injury caused by an accident, or whether it was from a sickness. Inasmuch as the parties agreed that the loss was not accidental, the plaintiff could recover only if the loss resulted from sickness instead of from injury.

The court below, trying the matter without a jury, found that the loss resulted from a sickness, and that an intentionally inflicted sickness (as opposed to an intentionally inflicted injury) is compensable under the terms of the policy. The defendant appeals from a judgment in favor of the plaintiff for $385.50.

On the facts before us, we are not permitted to assume that the loss in question resulted from an attempted suicide. The entire actions and designs of plaintiff’s daughter are described in a single stipulation which does no more than tell us that she “took sleeping pills knowingly on impulse and knowing the consequences of her act.” Although defendant’s brief and argument uses the terms “overdose” and “suicide” throughout, neither of these terms is justified by the record. There is no evidence whatever as to the number of pills taken by the girl, that she had taken more than the customary dosage, or that she wanted to end her life. We are not permitted to presume that the girl attempted suicide. Grola v. Industrial Commission, 388 Ill 114, 120, 57 NE2d 373 (1944).

It is the opinion of this court that the trial court properly concluded that plaintiff’s loss resulted from a sickness rather than an injury. That the sickness might have been intended by the girl is irrelevant since the policy fails to exclude sickness or disease caused by an intentional act by the plaintiff or a member of his family. Had the defendant desired to exclude coverage for sickness or disease arising by virtue of the intent of such assured, as it did for intentional injuries, it would have been simple enough to have so provided in its policy. We cannot, however, read such language within the terms of its policy. Furthermore, it is axiomatic that any ambiguities in insurance policies are construed against the insurer and in favor of the insured.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: EBERSPACHER, J. MORAN, J.,

license: Public Domain

text:
    Janice Vancil, Plaintiff-Appellant, v. Ed Fletcher and Charles Mitroka, Defendants-Appellees.
    Gen. No. 67-56.
    Fifth District.
    December 21, 1967.

      MORAN, J., dissenting.
    Harris, Holbrook & Lambert, of Marion, for appellant.
    James B. Bleyer, of Marion, and Bill F. Green, Feirich & Feirich, of Carbondale, for appellees.
   EBERSPACHER, J.

This is an appeal from a judgment for the defendants in an action for personal injuries.

The occurrence in question involved a collision wherein the plaintiff, Janice Vancil, was riding as a guest passenger in the automobile of the defendant, Charles Mitroka. The automobile driven by the defendant Mitroka, collided with an automobile driven by the defendant, Ed Fletcher, at the intersection of West Main and Oakland Street in Carbondale, Illinois, on May 19, 1963. The plaintiff was riding in the back seat of defendant Mitroka’s automobile on the right side. The plaintiff’s husband was also seated in the back seat and the defendant Mitroka’s wife was seated in the front passenger seat. Two small children of the parties were also riding in the automobile, one in front and one in the rear. The defendant Mitroka was driving his automobile east on West Main Street. He approached the intersection of West Main at approximately 4:30 p. m. It was a “nice day” and the road was dry. Upon approaching the intersection, the traffic signal indicated red and Mitroka stopped at the signal in the left lane next to the center. There were two eastbound lanes and two westbound lanes on this portion of West Main Street.

While stopped at the intersection waiting for the light to change, a car on the opposite side of the intersection in the inside lane indicated an intention to turn left to the south. When the light turned green, the defendant Mitroka commenced a turn to the left. Mitroka testified that before making his turn he saw no traffic in the outside, or north, lane of the westbound traffic, however there were six to eight cars lined up in the inside lane on the opposite side of the intersection. After Mitroka got partly into the intersection and while starting to make his left turn, the plaintiff as well as the plaintiff’s husband, testified that they observed the automobile driven by the defendant Fletcher approaching from the east in the outside westbound lane. The plaintiff testified that she observed the Fletcher car 75 feet east of the intersection and was of the opinion that it was traveling 40 miles per hour. The plaintiff’s husband also stated he first saw the Fletcher automobile about 75 feet east of the intersection. Neither the plaintiff nor her husband made any comment to their driver Mitroka but continued to watch the Fletcher car upon its collision course. Neither of the defendants, Mitroka or Fletcher, decreased the speed of his vehicle prior to impact. The front end of the Fletcher vehicle struck the right rear quarter panel of the Mitroka vehicle. As a result of the collision, the plaintiff received multiple contusions and abrasions and lumbosacral sprain. The plaintiff’s complaint, as amended, alleged willful and wanton misconduct against Mitroka in driving his automobile and negligence against Fletcher in driving his automobile. The cause also includes a counterclaim by Mitroka against Fletcher for property damage to his automobile. Mitroka’s counterclaim alleged negligence of Fletcher in driving his automobile. The jury rendered a general verdict in favor of both defendants and for defendant Fletcher on the counterclaim of Mitroka. In answer to three special interrogatories the jury also indicated : (a) that the defendant Fletcher was guilty of negligence, (b) that the counterplaintiff Mitroka was guilty of contributory negligence, and (c) that the defendant Mitroka was not guilty of willful and wanton misconduct. This appeal is taken by the plaintiff on the judgment rendered on the verdicts. No appeal is taken on the counterclaim.

In support of the plaintiff’s effort to reverse the judgment, the plaintiff alleges that the trial court erred in denying plaintiff’s post-trial motion for judgment notwithstanding the verdict against both defendants and that the trial court erred in denying plaintiff’s post-trial motion for a new trial against both defendants. In support of the latter motion, the plaintiff alleges, that the jury’s answer to the Special Interrogatories and their verdict was against the manifest weight of the evidence, the defendant Mitroka’s use of improper impeachments, and that the trial court erred in denying directed verdicts against both defendants.

Turning first to the specific allegation of errors, the plaintiff alleges six specific incidents of improper impeachment by the defendant Mitroka. The first alleged error concerns the testimony of the witness Robert Vancil, the husband of the plaintiff. The witness, Robert Vancil, was called to the witness stand by the defendant Mitroka during the presentation of the defendant Mitroka’s case. The defendant Mitroka initially sought to call Robert Vancil for the purpose of cross-examination but after an exchange between counsel without any ruling by the court, counsel for Mitroka stated he would call Robert Vancil as his own witness. It might be noted at this point that Robert Vancil was originally a party plaintiff to the cause but had been dismissed prior to trial. The witness had also previously testified as a witness in the plaintiff’s case.

The first question asked of the witness Robert Vancil was whether he had discussed with his wife’s employer the reason for her ceasing her employment to which the witness replied in the negative. The witness was then asked if his wife ever told him where the Fletcher automobile came from immediately before the collision. The witness replied that they had discussed it but no definite answer was reached. The witness was then reminded of a deposition taken earlier in the case and then asked if he had been asked the same question during the deposition and he replied that she had told him she thought it came from the other lane of traffic but was not sure. The witness replied that he may have made that answer. No further questions were asked of the witness and objections by the plaintiff that the defendant was impeaching his own witness was overruled.

We do not consider that these questions amounted to impeachment, and even though Mitroka could not impeach a witness called by him, he had a right to appeal to the witness’s conscience and refresh his memory, and such procedure was not prejudicial.

The next alleged erroneous impeachment also concerns the witness Robert Vancil during cross-examination by counsel for the defendant, Mitroka, while testifying in the plaintiff’s case. Here again the witness was asked whether his wife, the plaintiff, ever made any statement to him as to where the Fletcher car was when she first saw it to which the witness answered, “No sir.” The witness was then handed a document marked “Defendant Mitroka’s Exhibit No. 3,” which was never offered for admission into evidence, and asked if the document refreshed his recollection. After examining it the witness stated he couldn’t read the writing of the document but that the signature appearing thereon looked like his own. The witness was then asked again whether his wife ever made the statement to him that the Fletcher vehicle pulled from the inside lane of traffic into the outside lane and just kept coming. The witness answered that she might have. The latter was asked and answered without objection.

The plaintiff urges that the foundation for impeachment was laid but no impeachment evidence was ever offered. Such evidence consists of evidence that the witness made a statement on a previous occasion which is inconsistent with his testimony at the trial. Such evidence is permissible to cast doubt on the credibility of the witness. Before such evidence may be introduced, a foundation must be laid consisting of calling the witness’s attention to the time, place and persons present when such statement was made or in the case of a written instrument by identifying the signature, Podenkirk v. State Farm Mut. Auto Ins. Co., 325 Ill App 421, 60 NE2d 269 (1945).

In the present case, the witness was not asked if he had made a particular statement at a particular time in the past but was handed a document and asked if the document refreshed his recollection. The witness was then asked the same question without objection by the plaintiff. Such procedure is not impeachment by proof of prior inconsistent statement and whatever other objection the plaintiff may have had, she failed to make.

In the remaining incidents of alleged erroneous impeachment, the plaintiff alleges that the defendant laid the foundation for impeachment but failed to follow up with proof of the prior inconsistent statement. We have examined the record in each of the incidents and find that the witness did not deny making the previous statement but was equivocal in his answer to the effect that he may have made the previous statement. No proper foundation was laid for the introduction of the prior statement, and as a result it would not have been admissible if offered. In view of the equivocal answers, it was the defendant’s option to offer impeaching testimony if they so desired. People v. Bush, 29 Ill2d 367, p 372, 194 NE2d 308, and People v. Preston, 341 Ill 407, 173 NE 383.

The plaintiff’s allegation that the jury’s answers to the special interrogatories and their verdict was against the manifest weight of the evidence may be dealt with summarily. The jury found both of the defendants guilty of negligence, the defendant Mitroka not guilty of willful and wanton misconduct and presumably that the plaintiff was guilty of contributory negligence. There is evidence to support the jury’s findings. It is clear from the record in this case that there was evidence of negligent conduct on the part of both defendants. The jury was presented with a question of fact as to whether the defendant Mitroka’s conduct amounted to willful and wanton. The question of the plaintiff’s contributory •negligence will be dealt with in a remaining portion of this opinion. To be against the “manifest weight of the evidence” requires that the opposite conclusion be clearly evident. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). The opposite conclusion is not clearly evident in this case.

Turning next to the plaintiff’s allegation that the court erred in denying the plaintiff’s motion for judgment notwithstanding the verdict as to the defendant Mitroka; the most recent statement of the applicable rule is found in Pedrick v. Peoria and E. R. Co., 37 Ill2d 494, 229 NE2d 504, in which the court stated that judgments n. o. v. ought to be entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.

The jury in answer to a special interrogatory found that the defendant Mitroka was not guilty of willful and wanton misconduct as necessitated by the Illinois automobile guest statute. There is no need to completely digest the record in order to determine that the jury had sufficient probative facts upon which to base their verdict. The evidence is undisputed that the defendant Mitroka stopped in response to the traffic signal and slowly made his left turn. There is also evidence that the Fletcher automobile was at least partially concealed by the inside lane of traffic. There is no allegation that the jury was incorrectly instructed. Such a finding of fact was in the province of the jury and the trial court correctly denied the motion.

The plaintiff’s last assignment of error is that the court erred in denying her post-trial motion for judgment notwithstanding the verdict as to the defendant Fletcher. Besides the general verdict the jury found by special interrogatory that Fletcher was guilty of negligence. It is the plaintiff’s theory that since she was a passenger in the Mitroka automobile she could not be guilty of contributory negligence. Before the plaintiff could recover, it was necessary for her to prove that she was in the exercise of ordinary care for her own safety. She was not relieved of that duty because she was riding as a guest passenger in an automobile. Grifenhan v. Chicago Rys. Co., 299 Ill 590, 132 NE 790 (1921); Piper v. Lamb, 27 Ill App2d 99, 169 NE2d 164 (1960); Nowak v. Witt, 14 Ill App2d 482, 144 NE2d 813 (1957).

The fact remains that plaintiff saw the approaching Fletcher car, when Mitroka did not, and did not warn her driver. There is a conflict in the evidence as to the speed at which the Fletcher car was approaching, and as to whether it was preceded by a truck in the outside lane of traffic. There is undisputed evidence that plaintiff’s driver, Mitroka, did not see it approaching; whether plaintiff knew her driver did not see the approaching car is not shown by the evidence. Plaintiff was only required to exercise such care as the situation may have required, and under no duty as a back seat passenger to supervise the operation of the car in which she was riding. The trial court, who heard and saw the witnesses, obviously concluded that whether under such circumstances plaintiff had a duty to warn and whether her failure to warn contributed to the collision, was a question of fact for the jury. From the evidence the jury could find, and apparently did conclude, that her failure contributed to the collision. Again applying the rule of Pedrick, supra, the court properly refused a judgment n. o. v. on behalf of plaintiff.

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

Affirmed.

GOLDENHERSH, J., concurs.

MORAN, J.,

dissenting:

The majority holding clearly conflicts with the holding of our Supreme Court in Smith v. Bishop, 32 Ill2d 380, 205 NE2d 461, wherein it was determined that “unless the passenger sees an obvious danger which the driver might not see, there would be no duty to warn him.” Id. at 384.

The unimpeached testimony of the plaintiff was that although she saw the Fletcher car at a distance of seventy-five feet, she was not expecting a collision. However, the majority says that she must warn the driver of her car about the imminence of a collision that she does not think is going to occur, i. e., when the plaintiff sees something which to her is not an obvious danger, she must nevertheless treat it as an obvious danger and warn of it. The logic of this reasoning escapes me.

The reasonableness of plaintiff’s belief that no collision was imminent is substantiated by the fact that the Mitroka car was almost out of the intersection when the collision occurred and that the Fletcher car struck the Mitroka car at its extreme right rear, thus indicating that if another fraction of a second had transpired, the collision would not have occurred.

“One riding in a motor vehicle driven by another has the right to assume that the driver will exercise proper care and caution, until he has notice to the contrary. He is entitled to repose confidence in the driver’s operation of the vehicle and to assume that he is alert to other traffic until it becomes apparent to one in the exercise of due care that the driver is inattentive. Acceptance of the driver’s manner of operating the vehicle is not ordinarily contributory negligence unless the driver’s fault or incompetence is so obvious as to demand effort on the guest’s part to abate the danger.” 8 Am Jur, § 527, page 84. See also Blashfield, Cyclopedia of Automobile Law and Practice, Vol 4, pages 553-554. The majority, in effect, recognize this principle by saying that the plaintiff was “under no duty as a back seat driver to supervise the operation of the car in which she was riding.” However, the result they reach is exactly opposite to the principle they espouse.

Assuming that a duty for her to warn her driver did arise as a result of her observation of the Fletcher automobile, this would still not defeat her recovery, for her failure to warn could not have been a contributing cause to the accident. “It is well settled that even where a plaintiff may be guilty of negligence he will not, for this reason alone, be prevented from recovering in an action for injuries unless it is also shown that such negligence contributed to the accident.” Hagen v. Bailus, 283 Ill App 249 at 251. It is apparent that plaintiff’s failure to warn her driver, if it can be termed a failure, could not have been a contributing cause of the accident for there was not sufficient time in which to voice a warning which could have directed her driver as to the appropriate action to take to avoid the impending collision. She testified that she saw the Fletcher car at a distance of seventy-five feet traveling at a speed of forty miles per hour. This would have given her little more than a second to voice a warning which would have prevented the accident. It is beyond the range of possibility that plaintiff could have taken any action in this short time which would have averted the accident. Hence, it cannot be said that her negligence, if indeed there was any negligence on her part, could have been the proximate cause of the accident which resulted in her injuries.

Then, too, even if we assume that the Fletcher car was in obvious danger when plaintiff saw it, I would still see no duty to warn for Mitroka was well into the intersection, making a left turn, when plaintiff saw the Fletcher car. It was then too late to protest, for the danger was already there. It is one thing to warn a driver of a danger unknown to him, and quite another to give direction when danger is already imminent. One may prevent an accident; the other may tend to create an additional hazard.

For the foregoing reasons, I would reverse the judgment of the trial court and order a new trial on damages alone between the plaintiff and the defendant, Fletcher.


author: TRAPP, J.

text:
    Virgil Cutright, Plaintiff-Appellant, v. Civil Service Commission of Springfield, and Frank England, Chairman, and J. H. Weiner and Harold C. Hawkins, Members of the Civil Service Commission, and Dwight H. O’Keefe, Commissioner of the Department of Health and Safety of Springfield, Illinois, and Dominick Rusciolelli, Member of the Civil Service Commission of Springfield, Illinois, Defendants-Appellees.
    Gen. No. 10,823.
    Fourth District.
    December 21, 1967.

      Horsley, Vespa and Lott, of Springfield, for appellant.
    W. J. Simhauser, of Springfield, for appellees.
   TRAPP, J.

Plaintiff appeals from the judgment of the Circuit Court entered upon administrative review of the decision of the Civil Service Commission of the City of Springfield, discharging plaintiff as a city health inspector. Under the record it is undisputed that plaintiff had been employed in this position for a period of ten years with no blemish on his record prior to the time the charges considered here were filed.

The evidence shows that plaintiff was a resident of the City of Springfield, Illinois, during the relevant years 1958 through 1965; that in 1958 he was assessed upon his automobile in Capital Township (Springfield); that in 1959, 1960, 1961, 1962, 1963, 1964 and 1965, plaintiff was not assessed upon his automobile in Capital Township but was assessed upon several rooms of furniture in Capital Township; that in 1959 and the years subsequent until September, 1965, plaintiff showed his residence as Green-view, Menard County, on his automobile registration with the Secretary of State; that in 1965 he received an assessment for the automobile from the Menard County Assessor and plaintiff signed and returned the assessment the next day after receipt; and that in September, 1965, plaintiff gave his residence as Springfield, Illinois, on his automobile registration.

The Civil Service Commission determined that plaintiff’s conduct constituted a plan for evading the payment of personal property taxes upon his automobile, which the Commission deemed a failure to pay “a just debt and obligation,” and that such acts were prejudicial to the city service. The Commission found violation of specified Rules (which are set forth only in the briefs), as follows:

“11.03— . . . that the employee has committed an act or acts to the prejudice of the City service, . . .”
“11.09 (i) — That the employee has failed to pay or make reasonable provision for the payment of his just debts.”
“11.09 (j) — That the employee has committed a criminal offense or a misdemeanor involving moral turpitude; or has been intoxicated in public.”

The Circuit Court held that there was not sufficient evidence to sustain the findings of the Civil Service Commission as to the alleged violations of Rules 11.09 (i) and 11.09 (j), but did hold as to Rule 11.03:

“. . . the Commission could have reached a decision based on the evidence presented before it that there was a fraudulent scheme by Plaintiff to avoid the payment of personal property taxes on his automobile and that such conduct was prejudicial to the city service.”

There is no cross-appeal by the Commission.

The Menard County Assessor gives no reason why no assessment was attempted on the basis of duplicate automobile registration cards received from the Secretary of State in the years up to 1965, and does not know how he happened to get the information. However, Wilson Park, Supervisor of Assessments for Sangamon County, testified that he wrote the Menard County Assessor that it had come to his attention that Mr. Cutright had an automobile but apparently it was not being assessed anywhere, and that he received a reply from the Menard County office that it would be assessed for 1965.

Plaintiff testified that his duties required him to drive through the side alleys to find complaints as to trash, garbage and weeds, and to report such to his office; that he received many calls at night and that he concluded that people were getting his phone number by inquiry as to his automobile license registration, and that he registered the automobile in 1959 as if he were from Greenview in Menard County to prevent people from tracing him through his automobile license, thus eliminating the bothersome telephone calls.

He testified that he told the Capital Township Assessors in 1959 that his car was registered in Menard County, and that when he took the assessment to the Menard County office in 1965 he had asked why he had not been assessed in the intervening years, and was then told it was probably caused by summer help who would discard the automobile registration duplicates transmitted by the Secretary of State if the clerk could not find a voter registration in Menard County.

Justifying his automobile registration in Menard County, plaintiff testified that his mother and brother lived in Greenview and that the sons supported the mother, who had no income. This included maintaining her home and the payment of taxes as well as procuring necessities, and that as a matter of expediency, the brother residing in Greenview accepted the responsibility of paying such bills and taxes, and that the other brothers remitted upon billing for their share of the several expenses. He stated that he also had personal belongings at his mother’s home. There is no contradiction of facts testified to by the plaintiff.

No explanation is given by any witness of the manner in which Wilson Park received the information which he transmitted to the Menard County Assessor, but it would be possible for a Capital Township Assessor being told by plaintiff that his car was registered in Menard County to report this fact to his supervisor. It is undisputed that plaintiff received no personal property tax assessment from Menard County until 1965, at which time he promptly signed it.

It is not charged that plaintiff undertook to avoid the payment of the personal property tax upon his automobile in Sangamon County specifically, but rather to avoid the tax in any county. It is recalled that in 1957 the Legislature provided that the Secretary of State should advise local tax assessors of vehicle registrations in the several counties. Chapter 95%, § 3-806 (Ill Rev Stats). Such information was used, albeit, imperfectly in Menard County. The record shows no reason suggesting that plaintiff concluded that it would not be followed in his case. Again, absent advice to the assessor of Capital Township, as testified to by plaintiff, there would be a considerable possibility that plaintiff would have the latter schedule his automobile as on the previous listing so that he would be assessed for the automobile, both in Menard and Sangamon County.

The charges as filed before the Commission do not appear in the record, but are only stated in the finding of the Commission. It cannot be ascertained with adequate certainty whether the act to the prejudice to the city service results from the alleged violations of Rules 11.09(i) and 11.09(j), or is a separate and distinct grounds for discharge.

The conclusion of the trial court presents a troublesome anomaly, for while it finds that the violations of the specific Rules are not supported by the evidence, nonetheless, the Commission could have reached a conclusion that there was a fraudulent scheme and that such was prejudicial to the city service.

The rule, as found, is that administrative decisions must be supported by substantial evidence. Gibbs v. Orlandi, 27 Ill2d 368, 189 NE2d 233; Burke v. Civil Service Commission, 41 Ill App2d 446, 190 NE2d 841.

The objective of Civil Service systems is to assure that an employee is not to be discharged for frivolous and trivial reasons, but on the other hand, he has no right to the job if he is incompetent. Hacker v. Myers, 33 Ill App2d 322, 179 NE2d 404; Burke v. Civil Service Commission, 41 Ill App2d 446, 190 NE2d 841. To that end the statute provides that discharge shall be for “cause.” While there is no legislative definition, our courts define “cause”:

“. . . to mean some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.”

Murphy v. Houston, 250 Ill App 385; Etscheid v. Police Board of Chicago, 47 Ill App2d 124, 197 NE2d 484; Fantozzi v. Fire and Police Com’rs, 27 Ill2d 357, 189 NE2d 275; Nolting v. Civil Service Commission of Chicago, 7 Ill App2d 147, 129 NE2d 236.

It has been stated that the judgment of the administrative body prevails if the decision relates to the requirements of the service. This rule is directed to conduct which may properly be described as detrimental to the discipline and efficiency of the service to be performed. Etscheid v. Police Board of Chicago, 47 Ill App2d 124, 197 NE2d 484; Nolting v. Civil Service Commission of Chicago, 7 Ill App2d 147, 129 NE2d 236; Fantozzi v. Fire and Police Com’rs, 27 Ill2d 357, 189 NE2d 275; Davis v. Board of Fire and Police Com’rs, 37 Ill App2d 158, 185 NE2d 281. Most of the reported cases relate to the performance of the employee’s duty. There is no evidence in the record found upon complaints as to the performance of plaintiff’s duties, or any complaint as to a want of efficiency.

In Fantozzi v. Fire and Police Com’rs, 27 Ill2d 357, 189 NE2d 275, charges were brought against a police officer following his taking bankruptcy. The officer was discharged upon a finding of the Commissioners that bankruptcy showed the officer to be a financially unstable individual, and that bankruptcy would impair the reputation and efficiency of the police department and tend to bring the police department into disrepute. The Supreme Court noted the absence of complaints concerning the officer’s performance of his duties, and determined that under the facts of that case, the employee was not a financially unstable individual who demonstrated substantial shortcomings in the performance of his duties. It pointed out that there was no evidence the officer was a dishonest debtor, and that there was no competent evidence that his bankruptcy would bring scandal to the service.

The conclusion of the trial court that the Commission:

“. . . could have reached a decision based on the evidence presented before it that there was a fraudulent scheme by Plaintiff to avoid the payment of personal property taxes on his automobile and that such conduct was prejudicial to the city service.”

does not follow the requirement of the Supreme Court that there must be substantial evidence of plaintiff’s shortcomings in some way detrimental to the discipline and efficiency of the service. The dismissal of plaintiff on the basis of Rule 11.03 requires some evidence or showing of the manner in which the offending conduct was prejudicial to the city service.

The cause is reversed and remanded to the Circuit Court with directions to reverse the decision of the Civil Service Commission, and remand the cause to such Commission for rehearing and consideration based upon evidence of the issue of prejudice to the city service cause of plaintiff’s conduct.

Reversed and remanded.

SMITH, P. J. and CRAVEN, J., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. J. C. Tribbett, Defendant-Appellant.
    Gen. No. 10,856.
    Fourth District.
    December 21, 1967.

      Vance Kepley, of Champaign, for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   SMITH, P. J.

Defendant appeals his conviction of robbery. For reversal he urges, insufficiency of identification, denial of his pretrial discovery motion and error in the admission of a revolver.

The facts are not unusual — indeed, mundane. A filling station is robbed by two armed men, the attendant resists, is hit on the head, and the robbers flee. The attendant is able to give a description of their automobile and the number of the license. The automobile is found abandoned, with a revolver on the floor, and the defendant apprehended and identified. A person admittedly one of the robbers testifies that defendant was not his partner-in-crime — that he was someone else. Defendant admits ownership of the car and at the trial, ownership of the revolver.

We will forbear further factual exposition, because no facts, in our opinion, render the identification incredible. The question of identity was one of fact, and . we can only say, as we have said many times before, the answer is not for us but for the jury. As we know, a single witness is enough to create this question, because nobody is incredible as a matter of law — anymore. .The question of defendant’s identity was answerable and has been answered and should not be reanswered here.

The revolver was never precisely stated to be the one actually held by defendant. It would be singular if such had happened. Holdup victims have enough on their hands without expecting them to take note of minutia. The State had the duty of proving not only the robbery (corpus delicti), but defendant’s nexus (criminal agency), and in proving such the foundation was laid for the admission of a weapon reasonably connected with the offense. Here, the robbers were armed, a like revolver is found almost immediately in the get-away-car, defendant is identified, and it turns out to be his. It was clearly admissible, without proof of ownership. The exactitude sought is not required.

Prior to trial defendant moved for the discovery of “all items of tangible evidence which the People have in their possession or control, or intend to introduce into evidence.” The motion was denied. It should have been allowed — at least as to the final disjunctive, “or intends to introduce into evidence.” As it turned out, the only discoverable item was the revolver.

Our quick affirmation requires elucidation. There are no authoritative rules in this State sanctioning criminal discovery, but the Code of Criminal Procedure impliedly recognizes their propriety as § 114-13 does authorize their promulgation. There is, however, a measure of discovery provided for in the Code. Both § 111-6 and § 114-2 spell out the furnishing of bills of particulars, but such were never really considered true discovery, rather their office was stated to be that of merely enlarging upon the statement of the offense contained in the charge as an aid in preparing for trial, or to preclude a second prosecution. Of course, such enlargement really is discovery — in the sense that a defendant knows more than he would have without it, and for some time now defendants have been able to obtain their confessions prior to trial, and know any statements whether inculpatory or exculpatory. People v. Bryant, 87 Ill App2d 238, 231 NE2d 4.

Indeed, the last decade has seen many innovations that would have been unthinkable not too many years before. The turnover of prior statements of prosecution witnesses for purposes of cross-examination is now standard in Illinois and many other states, and is specifically provided for in the United States courts. Section 3500, Title 18, USCA. A sign of the times, is the broadening amendment to Rule 16 of the Federal Rules of Criminal Procedure providing for an extensive disclosure, and, of utmost significance, a modicum of discovery for the government if a defendant opts for such — discovery now is somewhat of a two-way street.

As an aside, one well might wonder at the tortoise like pace discovery has taken in America. Such was recently commented on by Mr. Justice Brennan in, “The Criminal Prosecution: Sporting Event or Quest for Truth?”, Wash ULQ 279 (1963):

“It may appear strange that resistance to criminal discovery should be so stubborn in America, when Chief Justice Marshall seemed so strongly to approve it. You will recall that as a Circuit Justice he presided in the celebrated trial of Aaron Burr. At that trial a request was made on Burr’s behalf for pretrial inspection of a letter addressed to the President of the United States and in the possession of the United States Attorney. Although the great Chief Justice did not hold that there was an absolute right to compel disclosure, in characteristically strong terms he stated his view that if the letter had evidentiary relevance, or indeed was useful in cross-examination of any Government witness at the trial, it could not, in fairness to the defendant, be withheld from him. But the value of that precedent was virtually unappreciated in our country for almost a century and a half.”

Until recently, the prevailing view everywhere was best apostrophized by Judge Learned Hand in this much quoted paragraph from United States v. Garsson, 291 F 646, 649 (1923):

“Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see . . . Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime.”

But we must shuck such viewpoint and resolve the problem here in the context of the philosophy enunciated in the breakthrough case of People v. Moses, 11 Ill2d 84, 142 NE2d 1:

“Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, ‘a right sense of justice demands that it should be available, unless there are strong reasons otherwise.’ ”

It is not amiss at this juncture to reconsider certain basic principles on which this articulation is based, as it is an eminently proper one. We all know what a trial is, but we sometimes forget certain basic preconditions, if it is to serve its function and serve it well. For a working definition, let us say that a trial is a contest held just once between well prepared adversaries of roughly equal strength. This necessarily implies that neither side has an unjust advantage over the other. Thus, in determining whether or not there should be disclosure, we should ask ourselves whether or not such would avoid an unjust advantage, or to phrase it the other way, remove an unjust disadvantage. We should make it clear, right here, that we are not speaking of advantages or disadvantages as to which nothing can be done. For instance, the prosecution may have a very strong case, but this is not an advantage, or at least the type of advantage we are talking about. A defendant may have no real defense, and this is certainly to his disadvantage, but, again, discovery serves no office here. However, if the prosecution’s case is strong because it is full of surprises, this is an advantage that is unjust, because it will not square with the adversary concept — of a contest between well prepared adversaries of equal strength. Surprise negates equality and without that rough equality, a criminal trial will not produce the desired result, which is, to put it succinctly, to discover so far as human agencies can, whether a defendant is guilty or not guilty. Apropos is the following from 59 Harvard Law Review, 517:

“The destruction of the notion of a lawsuit as a sort of intellectual duel comes slowly and painfully. But the right to hold back relevant material so as to surprise the opponent at the trial and to refuse to disclose the existence and content of evidence favorable to him is being challenged. In criminal cases particularly the defendant ought to have protection from concealment.”

Since a trial contemplates a lone occasion, preparation for that occasion is of the utmost importance. Discovery can aid preparation. Indictments are never fulsome, indeed, quite otherwise, and a defendant not fully apprised is at a disadvantage because he is hindered in his preparation. Such purpose was recently touched on in State v. Johnson, 28 NJ 133, 145 A2d 313:

“We start with the premise that the truth is best revealed by a decent opportunity to prepare in advance of trial. We have embraced that tenet with respect to civil litigation, and absent overriding considerations, it should be as valid in criminal matters.”

Disadvantages, too, can arise during the course of the trial. Keeping in mind our so-called working definition, it must be readily apparent that it is an unjust disadvantage for a defendant not to know what a witness may have said on other occasions which might affect the credence to be given his testimony — certainly a matter of the utmost importance. The following from Jencks v. United States, 353 US 657, 1 L Ed2d 1103, is pertinent:

“Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.”

And, lastly, discovery must be had (possibly voluntarily by the prosecution) in those rare situations where nondisclosure, whether sought or not, amounts to suppression. As was said recently in Dennis v. United States, 384 US 855, 16 L Ed2d 973, 985,

“. . . Under these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations.”

With these principles in mind let us attempt an approach to the problem before us. We have a robbery charge to be tried and a defendant preparing to meet it. We should not be waylaid in our approach by trying to fathom whether discovery really would aid him in preparation or obviate surprise. Apparently, the prosecution had made an initial determination that the revolver was admissible, because it was offered and admitted, and we can reason backwards and infer an intent prior to trial to offer it. In our opinion, tangible objects which the prosecution intends to offer, should be subject to inspection, if such is requested, where, to paraphrase Moses, no “overriding considerations” are present. None here have been suggested. Apt in this context is the following from In re Di Joseph’s Petition, 394 Pa 19, 145 A2d 187:

“I believe that a person who asserts his innocence of a crime of which he stands accused is entitled to examine prosecution exhibits which are reasonably associated with the theory of guilt and of which he probably may be unaware. However, where an exhibit is one of which the accused is entirely cognizant and already knows whether it could or could not be an item of incrimination against him, he is not entitled to its inspection if such inspection would hamper the Commonwealth in proceeding with its case.”

The motion, as we have limited it, should have been allowed. If the State feared possible mishap, the court, upon request, could have set the stage for the inspeetion. However, the denial of the motion here worked no real disadvantage. Certainly foreknowledge by defendant of the intended use of his revolver would have been of little assistance to him in getting ready, and it is hard to see that he was surprised, and if he was, that it prejudiced him to the extent that a new trial should be allowed. Accordingly affirmance is called for.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    In the Matter of the Estate of L. R. Smith, Deceased. Lola Stegeman, et al., Petitioners-Appellees, v. Isabel Smith, Respondent-Appellant.
    Gen. No. 10,869.
    Fourth District.
    December 21, 1967.

      James N. Keefe, of Quincy, for appellant.
    John T. Inghram, and H. David Condron, of Quincy, for appellees.
   TRAPP, J.

This is an appeal from an order of the Circuit Court determining ownership of various items of personal property claimed by the executor of the estate of L. R. Smith as property of the estate and claimed by Isabel Smith, the widow of L. R. Smith, as her own property.

The court found certain Gorham pattern silver, certain property which Mrs. Isabel Smith brought to the marriage, and a watch to be the sole property of Mrs. Smith. There appears to be no real dispute about these items.

There is dispute as to the other articles consisting of a $500 ladies’ diamond ring, furniture purchased from a joint bank account funded by the decedent, furniture purchased from funds of the L. R. Smith Motor Company which, for practical purposes, was a proprietorship of L. R. Smith, and furniture purchased with funds of Mrs. L. R. Smith.

The $500 ladies’ diamond ring was one of two diamond rings obtained by L. R. Smith Motor Company as part of a trade-in on an automobile. Mr. Smith gave these to Mrs. Smith with directions to take them to St. Louis and trade them in on some jewelry she might want. Mrs. Smith did not trade the items, but Mr. Smith traded one of them on a watch which he gave to her. She kept the other ring and did not trade it. This is the ring in dispute. The court, largely by reason of the court’s finding that personal property of the parties was not identified as to ownership during the marriage, held this ring to be common property. We do not view the ring, which was delivered with authority to make complete disposition of it for such a personal item as jewelry, in the same light as the other property which the trial court determined was treated as common property. We believe this would be commonly understood to be a gift, and so hold.

Certain furniture was purchased while the parties were living together from a joint bank account for which the husband furnished the funds. The trial court was justified in finding that the parties treated such furniture as common property. It consisted of kitchen furniture, a bedroom set, a card table, lamps, a buffet, and a silver set, which both parties would use in a home. The court found that this treatment by the parties was the same as to furniture purchased with funds of the L. R. Smith Motor Company and furniture purchased from Mrs. Smith’s sole bank account. Absent any attempt by the parties to distinguish the property, we believe this finding is justified. There are practically no reported precedents with regard to establishment of a tenancy in common in distinguishable items of personal property. Here, separate funds of each, as well as joint funds, were used to purchase furniture of various kinds which were possessed and used by both parties.

The widow contends that her husband made a gift to her of all of the furniture, including carpeting. The trial court held that evidence of a separate gift of each item, which would be necessary to establish this position, was lacking. The record supports this determination. The possession was a common possession.

Absent other clear indicia of ownership, we believe that the treatment of the property by the parties as common property constituted a proper basis for the finding of the court that the parties held this property as tenants in common.

As to the property purchased with joint funds during a five-month period when the parties were separated, the court found the situation was different. There is a basis in the evidence for this difference in that Mrs. Smith advised Mr. Smith that she didn’t approve of it, and didn’t want it around.

Counsel for Mrs. Smith contend that all furniture purchased with funds of the joint account should be treated as held in joint tenancy with the right of survivorship. We think that this contention must be decided adversely to appellant upon the basis of In re Estate of Wilson, 404 Ill 207, 88 NE2d 662. In that case the Supreme Court held that the creation of a joint tenancy in tangible personal property required a writing specifically describing the property and specifically referring to the incident of survivorship. The purchase of tangible personal property from a bank account held in joint tenancy does not create a joint tenancy in the tangible personal property.

In order to find that the trial court erred in its determination that the furniture was held by the parties as tenants in common, we would be compelled to hold that the original ownership of the funds was determinative of the title to the furniture, or that Mr. Smith specifically gave the various items to Mrs. Smith as a gift. While source of funds is frequently an important item in the determination, we do not find it appropriate to make this a conclusive test. Neither do we find substantial evidence of gift, except as to the diamond ring above referred to.

The order of the circuit court is affirmed, except as to the finding of ownership of the $500 ladies’ diamond ring, and as to that item the order is reversed.

Affirmed in part; reversed in part.

SMITH, P. J. and CRAVEN, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Frank Dismukes (Impleaded), Plaintiff in Error.
    Gen. No. 52,009. (Abstract of Decision.)
    First District, Third Division.
    December 21, 1967.
    Irwin S. Thall, of Chicago, for plaintiff in error; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Smith, Defendant-Appellant.
    Gen. No. 51,581.
    First District, Fourth Division.
    December 21, 1967.

      John J. Cleary, of Chicago, for appellant.
    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 appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

James Smith, the defendant, was indicted by the Cook County Grand Jury on July 8, 1961, charged with having committed “the infamous crime against nature upon and with one Vernon Hill, a male person.” In the same indictment the defendant was charged with taking indecent liberties with Vernon Hill, and unlawfully tending to make the said Vernon Hill (a male child under the age of 17 years) a delinquent child.

The case against the defendant was first tried before a judge without a jury, at which trial the defendant was found guilty and sentenced to 5 to 15 years in the penitentiary. The defendant took an appeal from that sentence and this court reversed and remanded the case for a new trial. (People v. Smith, 55 Ill App2d 480, 204 NE2d 577.)

A second trial was held before a jury in July 1965. After the case had been presented to the jury the prosecution moved to nolle prosequi the charges of a crime against nature and contributing to the delinquency of a minor. The jury found the defendant guilty of indecent liberties with a child and the court sentenced the defendant to 15 to 20 years’ confinement. From that judgment and sentence this appeal is taken.

In this court the defendant urges :

1) The introduction of the evidence of flight and the instruction on flight constitute reversible error;

2) The introduction of the three previous convictions for crimes against nature was error;

3) The evidence supporting the conviction of the defendant rests on the testimony of a child of 10 years, and this testimony is not clear and convincing and is not otherwise substantially corroborated ;

4) The prosecutor’s comments upon the defendant’s failure to produce certain defense witnesses was reversible error;

5) The prosecution’s questions of defense counsel implying that defense counsel, prior to interviewing the State’s witnesses, should have advised them that they had the right to have an attorney present, and should have called the State’s Attorney’s office first;

6) The defense counsel was unduly restricted in his cross-examination of the State’s witnesses.

At the time of the trial Vernon Hill was 14 years of age, and attended grade 8-A of Vaughn Public Elementary School in Chicago. He testified that on the evening of July 8, 1961, at about 9:30, he met the defendant on the street; that the defendant had been to his home twice, once in June, and again on July 4, when he had taken pictures at a barbecue party. He stated that on the evening of July 8, the defendant asked him to come with him and clean his room; that he got a wastebasket near the front door, then followed the defendant to the basement, where he was forced to commit an indecent act on the defendant’s person, the details of which it is not necessary to relate here. The witness testified that the defendant said he would kill him if he told anyone what had occurred, then held him by the wrist and walked him home. He was unable to tell at what time he arrived home, but stated that his grandmother was in the hall, and followed him upstairs.

Ruby Hill, Vernon’s mother, testified that she had seen the defendant twice before; once in June, and again on July 4, when he took pictures of her children at a barbecue in the yard. She testified as follows: On the night of July 8, 1961, she had been out for about two hours looking for her son Vernon. When she returned home about 11:00 p. m., she saw the defendant standing in front of her building, and he told her that Vernon had been with him, cleaning his room. After the witness complained to the defendant that he should not have kept Vernon out so late he gave her $1 for Vernon and told her it was for some work Vernon had done for him. While they were standing there Earl Stamply, a friend of Ruby Hill’s, shouted from a second-floor window to hold the defendant and not let him get away, because he had done something to Vernon. The defendant then ran down the street. Mrs. Hill said she did not see him again that night. The court overruled an objection made to the testimony of Ruby Hill with reference to the shouted statement from the window and the flight of the defendant.

Ruby Hill further testified that she called the police and gave them a statement when they arrived; that about 11:20 p. m. they went to the defendant’s apartment, but he was not there; that about 2:00 a. m. the next day the witness and her mother were looking out the window of their apartment and saw the defendant across the street; that someone yelled out the window and the defendant ran through a building.

Alberta Graham, Vernon’s grandmother, testified that on July 8, 1961, she saw the defendant and Vernon walking toward her home; that it was after 10:00 p. m., and the defendant asked her not to whip the boy. She stated that when she went into the apartment she saw Vernon wiping his mouth and crying; that Earl Stamply then shouted out the window as Ruby Hill had previously testified. Again her testimony with reference to that matter was objected to and the objection was overruled.

Estelle Black testified on behalf of the defendant that he roomed at her house and that she had talked to him about 6:00 p. m. on July 8, 1961; that she went to bed at approximately 9:00 p. m., and did not see either the defendant or Vernon come in through the front door.

The defendant testified that on July 8, at about 6:00 p. m. he saw Vernon near an ice cream store in the vicinity of defendant’s home; that he gave Vernon a quarter, then went home and cleaned up, talked with the landlady and went on to a tavern where he stayed for an hour. He stated that when he left the tavern at about 8:30 he again met Vernon, who told him he was afraid to go home because he would get a whipping from his mother, and the defendant took the boy home where they met the complaining witness’ mother, Ruby Hill, and two cousins. He stated that he did not take Vernon home with him, nor did he take any indecent liberties with the child.

On cross-examination the defendant stated that he had dated Ruby Hill on numerous occasions. He further testified that later in the evening of July 8, he had gone to the home of a friend — one Betty Trisdale — about 11:00 p. m.; that she was a Chicago resident and that he knew where she lived, but that she was not present in court. He denied that he had run from Ruby Hill’s home as the State’s witnesses had testified. Ruby Hill was called as a rebuttal witness for the prosecution. She stated that she had seen the defendant only twice prior to July 8.

Over objection of defense counsel, before verdict and in the presence of the jury, the court admitted into evidence records of previous convictions of the defendant, exhibits 4, 5 and 6. The records were read to the jury by the Assistant State’s Attorney; in 1939 he was sentenced to the Illinois State Penitentiary for a term of one to ten years on a charge of crime against nature; in 1952 he was sentenced to the Illinois State Penitentiary for a term of five to ten years concurrent on two charges — conviction of crime against nature — and was discharged in April 1959.

The State’s Attorney also read to the jury that the records of the Circuit Court of Pulaski County show that James Smith was indicted for the offense of crime against nature and was found guilty as charged on August 8,1939.

The jury were instructed that the evidence of prior convictions of defendant Smith were introduced only for the purpose of determining the credibility or weight which they should attach to his testimony; that the convictions should not be considered by the jury as evidence that the defendant had committed the offense for which he was now charged. The jury returned a verdict of guilty. The State then made the following statement to the court:

“. . . in aggravation the State would point out the defendant is now 51 years of age; that in 1935 he was sentenced to the Illinois State Farm on the charge of petty larceny for a term of six months; that in 1939 he was sentenced to the Illinois State Penitentiary on a charge of crime against nature for a term of one to ten years; that in 1950, ... he was sentenced to the House of Correction for one year on a charge of contributing to the delinquency of a child; that in 1952 he was sentenced to the Illinois State Penitentiary for a term of five to ten years concurrent on two charges, convictions of crime against nature. Discharged in April of 1959.”

The State further pointed out that on October 27, 1961, after a conviction on a trial without a jury on the same indictment in which he was now being tried, the defendant was found guilty and sentenced to a minimum of five and a maximum of fifteen years in the Illinois State Penitentiary. After some discussion as to allowing the defendant credit for the time served while the case was on appeal, the court, according to the common-law record, sentenced the defendant to fifteen to twenty years in the Illinois State Penitentiary. The court made some statement afterwards that the defendant was really being sentenced for a term of nineteen to twenty years in the penitentiary; however, the common-law record shows that he was actually sentenced only for a term of fifteen to twenty years. This appeal is taken from that judgment and sentence.

The first objection urged before us is that the instruction concerning the flight of the defendant and the admission of evidence of his flight were reversible error. It is in evidence that the defendant, while standing in front of the home of the complaining witness, upon hearing Stamply’s shout from the window, hastily left the locality. Again, there is evidence in the record that subsequently, on the same evening, when the defendant heard a shout from a window he ran into and through a building. Counsel for the defendant in this court apparently contends that the conduct of the defendant was not “flight” in the sense that it has been used in the cases. In People v. Herbert, 361 Ill 64, 196 NE 821, cited by the defendant in support of his contention, “flight” is defined as follows, at page 73:

“Flight, in criminal law, is defined as ‘the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.’ ”

In the instant case the evidence of the voluntary withdrawal of the defendant in the two instances was properly presented to the jury and was a fact from which they could draw the conclusion that the defendant had fled. The instruction as to flight given by the State was a proper one, under the circumstances in the case. Under the Illinois law flight is a circumstance which may be considered with all the other evidence in the case as tending to prove the guilt of the defendant. There was no error either in introducing the evidence or in giving the instruction.

The defendant also argues that the introduction of the three previous convictions for crimes against nature was error. The three previous convictions which were properly certified to were introduced in evidence. The rule in Illinois is that if the defendant takes the stand he may be impeached by showing prior convictions of infamous crimes. First, the defendant argues that that rule should be changed. As far as this case is concerned, the rule exists and we are bound by it.

The defendant also raises the point that the exhibits should not have been introduced. In the statement of facts in defendant’s brief it is said: “Over objection of defense counsel, the court admitted into evidence, evidence of three previous convictions involving the crime against nature . . .” In this court the defendant argues that the impeachment of a defendant by a prior conviction of an infamous crime can be proved only by the introduction of the record of the conviction or an authenticated copy thereof. He further argues that the prosecution’s exhibits 4, 5 and 6 covering the convictions of the defendant were, over the objections of the defense counsel, received in evidence and read to the jury; and he argues that the reading of the records by the prosecutor is not an adequate substitute for the records. The records themselves do not appear in the abstract, nor in the record in this court.

No objection as to the proper identification of the records was made at the trial by counsel for defendant. Apparently, from the statements made by the Assistant State’s Attorney at the time the records were read, and the fact that the court had admitted them, the records were in proper form. In fact, in his brief in this court the defendant states that the prosecution’s exhibits 4, 5 and 6 were, over objections, received and read to the jury. In People v. Smith, 63 Ill App2d 369, 211 NE2d 456, the court said at page 381: “In the instant case, the record of the conviction was introduced by the reading therefrom by the keeper of such records — the Clerk of the Court. This is no less proper than the introduction of the physical record itself into evidence as an exhibit.” However, in the instant case, the records were physically introduced.

The defendant further argues that under the statute in force at the time of the trial convictions for crimes against nature were no longer considered infamous. Under the old code, section 141, the term “crimes against nature” was used, and such crimes were held to be infamous. Such offenses have been combined in Indecent Liberties with a Child, section 11-4. In the Committee Comments on the new sections (SHA c 38, § 11-4) it is stated that the section replaces and modifies the law formerly in chapter 38, § 141 (crime against nature), and that subsection (a) (2) incorporates into Indecent Liberties the crime against nature formerly covered by section 141. Section 587 (Ill Rev Stats 1959, c 38, § 587) included crime against nature as an infamous crime. In the new section 124-1 the crime of Indecent Liberties with a Child and the Crime of Deviate Sexual Assault are listed as infamous crimes and are punishable by imprisonment in the penitentiary.

Defense counsel also argues that the one conviction of August 8, 1939, was too remote to affect the credibility of a witness. In People v. Buford, 396 Ill 158, 71 NE2d 340, it is held that such a contention cannot be sustained. The records were properly brought before the jury.

On cross-examination the defendant was asked if the girl friend with whom, according to his testimony, he had spent the evening of July 8, was still a Chicago resident, and if the defendant knew where she lived at the time of the trial. He answered that he did know where she lived. The State’s Attorney then asked if she was in the courtroom that day and the defendant said she was not. The defense counsel then pointed out that a subpoena had been issued for her but was returned not served. Later in his argument the State’s Attorney commented on the fact that the defendant had not produced any witnesses to substantiate his presence in the home of the girl friend on the date of the incident.

In People v. Gray, 52 Ill App2d 177, 190, 201 NE2d 756, the court said:

“Where the defendant injects into the case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi for the time of the commission of the crime charged, his failure to produce such witnesses is a proper subject of comment on the part of the State. [Citing cases.] ”

During the trial of the case defense counsel took the stand as a witness for the defendant. He testified that on June 29, 1965, he had gone to the home of Vernon Hill in order to take a statement from him; that he had asked Vernon about a discussion which took place between him and the defendant when they first met in front of the candy store, and as to the conversation in the basement at the time of the alleged assault. He testified that Vernon said he had met the defendant at 9:30 in the evening and that the defendant had made a proposition to him in the basement to perform an indecent act in return for a payment of $10.

The State’s Attorney then raised the point on cross-examination as to whether or not the defense counsel had told the people they had a right to have an attorney present at the time of the conversation, and whether he had called the State’s Attorney’s office informing them that he was going to interview the State’s witnesses. The defendant answered, over objection, that he had not. Defense counsel makes the point that these questions should not have been asked. While we have been cited no Illinois case, we feel that counsel for defendant was within his rights. In the Canons of Professional Ethics of The Illinois State Bar Association and The Chicago Bar Association, in section 39 we find the statement: “A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party.” In Davis v. State, 241 Ark 646, 411 SW2d 531, cited by appellant, the comments made about defense counsel’s interviewing of State’s witnesses was made by the trial judge, not the prosecuting attorney. We do not understand why the State raised any point at all in the instant case about the testimony of defense counsel, since it would seem that the testimony was in favor of the prosecution; however, it is not reversible error, and this court will not reverse a judgment because of harmless error. People v. Saravia, 64 Ill App2d 479, 211 NE2d 560.

The point is made by the defendant that his cross-examination of witnesses was unduly restricted. The record does not support this contention. The only argument made by defendant on this point in his brief in this court is that he objects to the fact that defense counsel was not able to inquire as to certain disgusting details of the insertion of the defendant’s penis in the mouth of the prosecuting witness, and also that he was prevented from going into details with reference to the prosecuting witness’ progress in school. The court ruled properly in both instances.

The defendant objects that the jury was not properly instructed. A careful examination of the instructions given and refused does not support that contention. The jury was properly instructed.

In the previous trial of the case (People v. Smith, 55 Ill App2d 480, 204 NE2d 577), where the evidence was substantially the same as in the case before us, the defendant argued as he does here that the testimony of Vernon Hill was not clear and convincing and that there was no substantial corroboration of his testimony, and that therefore, defendant’s guilt was not proved beyond a reasonable doubt. The court said, at page 485: “We are of the opinion that the State made out a prima facie case showing defendant’s guilt, . . .” We also think that there was substantial corroboration of the testimony of Vernon Hill; that the defendant received a fair trial, and that defendant was proved guilty beyond a reasonable doubt. We will adopt the statement made by the Illinois Supreme Court in People v. Gambony, 402 Ill 74, 83 NE2d 321, at page 83:

“It is almost impossible in the trial of a lawsuit to prevent some improper statements getting to the jury, . . . This court has held that where the jury could not, under the record, have reached a different verdict had no such errors intervened, errors on the trial do not always justify a reversal. The verdict of a jury will not be set aside on such grounds unless from the record it can be seen that another verdict might have been reached had no such errors intervened. People v. Baker, 365 Ill 328.”

While there were some errors in the record, none of them would require reversal.

As we have pointed out, the common-law record indicates that the defendant in the instant case was sentenced for a term of fifteen to twenty years in the State Penitentiary. Under the statute he is entitled to credit for the term he served under the previous conviction during the time the case was on appeal and before the conviction had been reversed. Section 121-14 (d) (Ill Rev Stats 1965, e 38, § 121-14 (d)) of the statute provides:

“In any case in which an appellant serves pending appeal any portion of the sentence imposed in the trial court and the judgment of the trial court is reversed by a reviewing court and a new trial ordered the appellant shall be given credit in any subsequent sentence for the time served pending appeal.”

A further provision in the statute is the following (Ill Rev Stats 1965, c 38, § 119-3):

“Sentence Credit.) A person sentenced to imprisonment in a State penal or reformatory institution who is thereafter confined in any jail or other State penal or reformatory institution because of such sentence shall be credited on such sentence with the time during which he was so confined unless he violates any good behavior regulations of such jail or institution or any statute while so confined. Such good time confinement may also be counted on good conduct diminution of sentence credit under such regulations as may be provided by the Department of Public Safety. The period of time during which any person was confined to answer to a charge which results in a sentence imposed on or after July 1, 1965 requiring such person to be imprisoned in a penitentiary or reformatory or any other penal institution of the State or of any of its political subdivisions prior to pronouncement of such sentence shall be credited on such sentence unless he violates any good behavior regulations of such jail or institution while so confined, and may be counted on good conduct diminution of sentence credit under such regulations as may be provided by the Department of Public Safety.”

The court takes judicial notice that the Department of Public Safety gives the proper sentence credit under section 119-3. It would seem to be equally proper and appropriate that the same board should adjust the sentence credit required under section 121-14.

The sentence of the defendant in the instant case is fifteen to twenty years, subject to proper adjustment by the Department of Public Safety. The judgment is affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.

       Ill Rev Stats 1965, c 38, § 124-1. Definition.] “Infamous crimes” are the offenses of . . . deviate sexual assault, . . . indecent liberties with a child, ... if the punishment imposed is imprisonment in the penitentiary.

       Ill Rev Stats 1965, c 38, § 11-4(a). Indecent Liberties with a Child.] (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child: (1) Any act of sexual intercourse; or (2) Any act of deviate sexual conduct; or (3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.
      DEFINITIONS:
      Ill Rev Stats 1965, c 38, § 11-2. “Deviate sexual conduct,” for the purpose of this Article, means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another.
      Ill Rev Stats 1965, c 38, § 11-3. Deviate Sexual Assault.] (a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.


author: MR. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Luckey, Defendant-Appellant.
    Gen. No. 51,082.
    First District, Fourth Division.
    December 21, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman 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 Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Jack Luckey, was tried by a jury, found guilty of the sale of narcotics and sentenced to life imprisonment. He appeals contending; (1) That he was not proven guilty beyond a reasonable doubt; (2) that the prosecution prejudiced his case by introducing evidence of his prior criminal activities; (3) that a mandatory life sentence under Illinois Revised Statutes, 1965, chapter 38, section 22-40, was a denial of the equal protection of the laws; and (4) that such a sentence was cruel and unusual punishment.

Evidence

The People produced evidence that on March 15, 1961, an addict-informer, John Genarella, told police officers Hector Hernandez and Daniel Trylovich that he could make a purchase of narcotics from the defendant. Genarella called the defendant and arranged to meet him at Vic West’s restaurant. The informer was stripped and searched for narcotics and given $25 in marked money. He was driven to- within a block of the restaurant, got out of the unmarked police car and proceeded to the front of the restaurant where he met defendant. Officer Hernandez got out of the car at the same place and followed ten to fifteen feet behind Genarella. Genarella and defendant talked outside the restaurant for a minute or two and then went in. Officer Hernandez passed them while they were talking at the entrance and preceded them into the restaurant. Officer Trylovich had parked the police car in an alley across the street of the restaurant from which he could view Genarella and defendant at the entrance. Inside the restaurant Hernandez sat ten to fifteen feet from defendant’s table, facing the informer and facing defendant’s back. After a few minutes defendant got up and went into the men’s room. Genarella walked over to Hernandez and gave him three tinfoil packages containing narcotics. Defendant was then arrested in the men’s room with the marked money. Officer Hernandez testified that he had seen the informer pass Luckey the money under the table and saw their hands meet over the table but did not actually see the passing of the tinfoil packages. Genarella testified that the narcotics were passed at the table.

Defendant testified that he did not sell Genarella narcotics. He stated that Genarella had asked him to meet him at the restaurant in order to impress someone from whom Genarella was to buy narcotics and that Genarella gave him the money on the understanding that he would use it to show the supplier that Genarella’s friends had money to purchase narcotics from him.

Defendant’s girl friend, Bessie Campbell, testified that Genarella admitted to her that he “framed” Luckey. The Reverend Samuel Archibald testified that he heard a conversation between Genarella and Mrs. Campbell in which the informer did not deny Mrs. Campbell’s accusation that he “framed” the defendant.

Opinion

Defendant contends that his guilt was not proved beyond a reasonable doubt. He argues that under the rule enunciated in People v. Bazemore, 25 Ill2d 74, 182 NE2d 649, the uncorroborated testimony of an addict-informer was not sufficient to convict. However, the thorough police surveillance in the instant case corroborates the informer’s testimony and the evidence is sufficient to support the jury’s verdict. People v. Johnson, 75 Ill App2d 42, 221 NE2d 59; People v. Johnson, 87 Ill App2d 390, 231 NE2d 647.

Defendant also attacks the informer’s credibility on the basis of telephone calls to Mrs. Campbell, one of which was overheard by The Reverend Samuel Archibald, in which defendant allegedly admitted that he “framed” the defendant. Mrs. Campbell’s testimony includes a conversation with defendant in which he had stated that the informer had “set him up.” There is no indication in the record that the use of the word “framed” meant anything more than that the informer provided the occasion for a sale of narcotics. In addition to arguing that the informer was not credible, defendant suggests that the overall evidence was not sufficient in that the officer did not see the narcotics delivered to defendant. The evidence disclosed that the informer was thoroughly searched prior to meeting defendant, that there was strict and continuous surveillance by police officers, and that immediately after passing the money the informer delivered the narcotics to the police. It was within the jury’s province to disbelieve defendant’s denial of delivery and his explanation of the transaction and we cannot say that the proof was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Romero, 54 Ill App2d 184, 189, 203 NE2d 635.

Defendant’s second contention is that the informer’s testimony of prior criminal activity prevented his having a fair trial. On direct examination of the informer the following transpired:

“Q: How long had you known him [the defendant] ?
“A: Well, I believe some time ago, we were in the House of Correction together, the County Jail together. We spoke about this—
“Q: The only question before you Mr. Genarella, is how long before that day had you known him?
“A: About three or four weeks.”

There was no objection to this testimony. Later on cross-examination the informer stated:

“I probably had seen him [Luckey] six, seven days a week, because I was buying stuff off of him pretty regularly.”

No motion was made by defendant to strike this testimony. “The general rule is that the admission of evidence concerning a different substantive offense, in support of the crime charged, is sufficiently prejudicial to constitute reversible error.” People v. Baxter, 74 Ill App2d 437, 445, 221 NE2d 16. However, the language of People v. Henry, 3 Ill2d 609, 122 NE2d 159, at 614, is peculiarly appropriate to the instant case:

“. . . the State is not responsible for questions asked by defense counsel or answers to those questions by the State’s witnesses. . . . Nor is the court obligated to exclude improper evidence where the defendant makes no objection, does not move to exclude it or does not disclaim the answers. . . .” [Cases omitted.]

Furthermore, defendant himself testified, on direct, that he first met Genarella when “[w]e was doing time in the House of Correction at 2800 South California, here in Chicago.” Defendant also stated that he purchased cocaine from Genarella for his own personal use the evening before he was arrested. He also testified that he was arrested five times by an officer who was present at his incarceration. Finally defendant testified on cross-examination that Genarella asked him to “get rid of it [narcotics] for him to my associates. In other words, to sell it. That’s what I intended to do.” It is apparent that the defense felt that it was worth admitting a pattern of narcotics crimes to establish that Genarella himself was guilty of misbehavior and thus not to be believed. In view of his own testimony as to his criminal behavior, it is difficult to see the prejudice that resulted from the testimony he now complains of.

Defendant’s third contention is that a mandatory life sentence under this statute is a denial of the equal protection of the laws guaranteed by the United States Constitution. Illinois Revised Statutes, 1965, chapter 38, section 22-40, reads in relevant part:

“Whoever violates this Act by traffic in, selling, prescribing, administering, or dispensing any narcotic drugs, shall be imprisoned in the penitentiary for any term from 10 years to life, and for any subsequent offense shall be imprisoned in the penitentiary for life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs or of a felony under any law of the United States or of the District of Columbia relating to narcotic drugs. No probation or suspension of sentence shall be granted to any violator convicted under this paragraph.”

Defendant argues, with some force, that since this statute does not make one who has previously committed violations under the laws of a sister state a subsequent offender, it is unconstitutional. He suggests that the distinction between prior offenses under the laws of Illinois and of the United States or the District of Columbia are not sufficiently different from prior offenses under the laws of a sister state to justify the difference in treatment. We believe this argument is answered in People v. Shamery, 415 Ill 177, 112 NE2d 466. There the Supreme Court construed a slightly different forerunner of this provision to mean that prior offenses included misdemeanors in Illinois but only felonies elsewhere. Mr. Justice Maxwell dissented stating that such a distinction offended against the equal protection of the laws. In People v. Tillman, 1 Ill2d 525, 116 NE2d 344, the court adhered to its view in Shamery. These cases can be fairly read as standing for the proposition that the State may validly distinguish between those in-state crimes and those out-of-state crimes which it wishes to consider prior offenses. If the State may validly disregard prior out-of-state misdemeanors while considering in-state misdemeanors it then follows that it may validly disregard completely the crimes committed in a sister state.

Finally, defendant contends that basing a mandatory life sentence on his conviction in the instant case after a prior conviction of possession of narcotics is cruel and unusual punishment within the meaning of Robinson v. California, 370 US 660. There the court held that it was unconstitutional to punish one for having the status of addict rather than for committing voluntary-acts. Possession of narcotics is an act and not a status or condition and its punishment is not unconstitutional. People v. Nettles, 34 Ill2d 52, 213 NE2d 536.

The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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

       Section 23 of the Uniform Narcotic Drug Act (Ill Rev Stats 1951, c 38, par 192.23) provided in relevant part:
      Whoever violates this Act by possession, having under his control, manufacturing or compounding any narcotic drug shall be fined for the first offense not more than $5000, or be imprisoned for a period of not less than one year nor more than five years, or both. For any subsequent offense the violator shall be imprisoned in the penitentiary for any term from two years to life. . . . Any offense under this Act shall be deemed a subsequent offense if the violator shall have been previously convicted of a felony under any law of the United States of America, or of any State or Territory or of the District of Columbia relating to narcotic drugs.


author: PER CURIAM

text:
    Etta M. Anderson, as Administrator of the Estate of Albert Anderson, Deceased, Etta M. Anderson, et al., as Administrator of the Estate of Doris Olson, Deceased, Lawrence Elliott and Louise Elliott, Plaintiffs-Appellants, v. Howard A. Dale, Defendant-Appellee.
    Gen. No. 67-15.
    Third District.
    December 21, 1967.
    Rehearing denied January 25, 1968.

      Bull, Ludens & Potter, of Morrison, for appellants.
    Wilson, Siebert, Lynaugh & Corcoran, and Wilson & Frederick, of Springfield, for appellee.
   PER CURIAM

opinion.

Plaintiffs brought this action pursuant to the Illinois Liquor Control Act, article VI, sections 12 and 14 (111 Rev Stats c 43, § 131 and § 135). Section 12 pertains to certain unlawful sales of alcoholic beverages, and section 14, popularly known as the Dram Shop Act, pertains to civil liability for certain gifts or sales of alcoholic beverages. Defendant tavern keeper filed a motion for summary judgment, attaching certain depositions under oath in support of that motion, and the trial court granted the judgment for defendant. Plaintiffs appeal.

On July 16, 1961, certain of the plaintiffs, and certain of the plaintiffs’ decedents, were involved in an automobile collision resulting in the injuries and deaths set forth in plaintiffs’ complaint. The driver of the other vehicle, one Edward Bright, was eighteen years of age at the time of the collision, and according to the complaint, was intoxicated at the time of the collision. For purposes of this motion, Bright’s intoxication is not challenged.

It is alleged, and the depositions attached to defendant’s motion for summary judgment indicate, that Edward Bright became intoxicated on beer purchased by one Tom Carter, also a minor, from defendant’s tavern. Edward Bright, Tom Carter, and other boys, all under age, combined their money for the purchase of the beer. Tom Carter took the money, went into defendant’s tavern, and purchased the beer while the other boys remained outside in an automobile. Later there was a head-on impact between the automobile driven by Bright and the automobile in which plaintiffs and their decedents were riding.

Plaintiff’s complaint alleges that Edward Bright was intoxicated at the time of the collision. It also alleges that the defendant “. . . unlawfully sold or gave intoxicating liquor which was consumed by the said Edward W. Bright and which caused, in whole or in part, his intoxication.” There is no allegation that the sale of beer was made to the person of, or in the presence of, Bright.

Plaintiffs make two main points: First, it is contended that the Liquor Control Act should be construed so that any unlawful sale under section 12 of article VI to a minor in and of itself would impose liability on the tavern operator under section 14 of article VI. Second, Plaintiffs contend that the trial court erred in granting the summary judgment because the affidavits and depositions under oath of all witnesses to the gift or sale were not before the court when it ruled.

As to the first contention, Cunningham v. Brown, 22 Ill2d 23, 174 NE2d 153 (1961), clearly established that it was the legislative intent in enacting section 14 of article VI to create an exclusive remedy for civil damages. The Supreme Court said at 22 Ill2d 30: “We hold that Sec 14 of article VI of the Liquor Control Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property, or means of support by an intoxicated person or in consequence of intoxication.”

Plaintiffs concede this interpretation of Cunningham, but argue that where the sale of alcoholic beverage is unlawful, such as being in violation of section 12, we should interpret the Act to impose liability under section 14. This we do not believe we can or should do. Granting that a sale to a minor is unlawful, imposing this “unlawful” requirement on section 14 adds something that is not now necessary. “Unlawful” implies wrongful conduct, knowledge of a wrongdoing, and other far reaching concepts. As section 14 now stands, all that a plaintiff need prove by way of gift or sale is that the alcohol thus given or sold contributed in whole or in part to the intoxication of the person causing an injury. Whether the sale was lawful or unlawful is immaterial.

Plaintiffs’ difficulty, apparent from their complaint and the depositions, is that the gift or sale of alcoholic beverage was not directly to the intoxicated person who caused plaintiff’s injury. Rather, the sale was to a third person who paid for the beer with money, part of which belonged to the subsequently intoxicated person who caused the accident injuring Plaintiffs. A long line of cases have held that the gift or sale generally must be to the person who subsequently became intoxicated, or it is not actionable. Rittmeyer v. Anderson, 49 Ill App2d 71, 199 NE2d 463 (2nd Dist 1964), (a case almost identical to the factual situation in the instant matter); Stinson v. Edlen, 27 Ill App2d 425, 169 NE2d 682 (3rd Dist 1960); Blackwell v. Fernandez, 324 Ill App 597, 59 NE2d 342 (1st Dist 1945).

In Bell v. Poindexter, 336 Ill App 541, 84 NE2d 646 (3rd Dist 1949), the court was concerned with the adequacy of a pleading related to a gift or sale under section 14 of article VI, on facts not too different from the case before this court. There, the complaint alleged that one Ratliff or Graning, or both, purchased alcoholic beverages when one Charles Sparr was present, and that the defendant knew or had reasonable grounds to believe that the said Charles Sparr would drink all or part of the liquor. Charles Sparr was the allegedly intoxicated person who caused plaintiff’s injury. It was held that this allegation was legally sufficient to charge a gift or sale under section 14 of article VI. Plaintiffs rely on Bell, but the allegations of the complaint and the facts revealed in the depositions do not bring this case within the purview of Bell.

The statutory words used in section 14 of article VI, “by selling or giving alcoholic liquor,” import a two-part transaction. See Gunderson v. First Nat. Bank, 296 Ill App 111, 16 NE2d 306 (1st Dist 1945). Included are a seller and a buyer, or a giver and a receiver. We do not mean to say that a plaintiff must prove all technicalities of a law governing a gift or a sale, or that a defendant tavern keeper may rely, by way of defense, upon those technicalities. However, we do believe that the Illinois authorities do require proof that the gift or sale was to a person that the tavern keeper knew, or had reason to know, was going to be a recipient and a consumer of the alcoholic beverage. Bell v. Poindexter, supra.

To now engraft upon section 14 of article VI a liability which would automatically attach where the sale of alcoholic beverage was unlawful, regardless of to whom this sale or gift is made, adds a dimension to “gift or sale” that we believe the legislature did not intend. Neither do we agree with appellant that the strict liability concept, as envisioned by our courts in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), or in the unwholesome food cases, require such a result. Those situations pertain to “evolved” court made law and not to an exclusive statutory action like that which governs here.

Finally, we must agree with the trial court’s ruling on the motion supported by the depositions attached. The supporting evidence clearly and affirmatively shows that the sale was to someone other than the person of whose intoxication plaintiffs complain. The plaintiffs argue that the judgment should not have been granted because all witnesses to the gift or sale were not heard from, but, plaintiffs filed no counteraffidavits to controvert those facts contained in the depositions considered by the court. Indeed, from the language of plaintiffs’ complaint, it would appear that controverting facts were not present or available. From the record before us, and from the arguments of the parties, it is quite apparent that plaintiffs did everything they could in protecting their position in the trial court in regard to evidence on gift or sale. It is apparent that the fact situation on the sale involved simply does not meet the requirements for an actionable injury under the statute. Therefore, we believe that judgment for the defendant was properly granted.

For reasons stated, the judgment of the trial court is affirmed.

This opinion was submitted by Coryn, J., and is adopted as the opinion of the court.

Affirmed.