author: MR. JUSTICE ADESKO

text:
    Sherman H. Skolnick, Plaintiff-Appellant, v. Charles T. Martin, et al., Defendants-Appellees.
    Gen. No. 51,438.
    First District, First Division.
    July 22,1968.
    Sherman H. Skolnick, pro se, of Chicago, appellant.
    Kirkland, Ellis, Hodson, Chaff etz & Masters, and Bell, Boyd, Lloyd, Haddad & Burns, of Chicago, for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Appellant, as plaintiff in a certain other cause of action in the Circuit Court, No. 58 C 7219, against Arthur Lilly and Charles R. Perrigo, was noticed to appear in the office of Charles T. Martin, attorney for said defendants, on January 7, 1960, at 2:00 p. m., for a discovery deposition on oral interrogatories. He was represented by an attorney who was present together with the appellant’s father and appellant’s court reporter.

On January 6, 1965, appellant filed a suit against the appellees to recover damages for alleged injuries he claims to have suffered when on said January 7, 1960, he sat in attorney Martin’s office until 6:20 p. m. In his complaint, appellant alleged that he was forced to sit in the attorney’s office “in a low back, narrow chair with no arm rests of an adequate height for the plaintiff (appellant), a paraplegic with a scoliosis spine, disregarding and ignoring the plaintiff’s protestations.” Said complaint further alleged that said appellees violated appellant’s civil rights and liberties secured to him by the Constitutions and laws of the United States and the State of Illinois, particularly section 1, 14th Amendment of the Constitution of the United States; section 2, Article II of the Illinois Constitution; sections 1981, 1983, 1985(2), (3), 1988 of Title 42, US Code; section 241 of Title 18, US Code; and the pertinent provisions of section 139, chapter 38, Ill Rev Stats 1959.

Appellant further alleged that as a result he felt faint, suffered constant pain in the back and collapsed, becoming delirious, and thereafter was forced to stay in bed for a period of two weeks, became further paralyzed and crippled incurring expenses for doctor’s fees and medicines. He sought damages in the sum of $200,-000 and exemplary damages for an additional $200,000.

On January 26, 1965, appellees Martin, Lilly and Perrigo, moved to dismiss on the ground that this action was not commenced within two years pursuant to section 14 of the Limitations Act (Ill Rev Stats 1963, c 83, § 15), which provides:

“Actions for damages for an injury to persons, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.”

This motion to dismiss further provided that the appellant alleged the same cause of action in a suit filed on January 4, 1962, in the U. S. District Court for the Northern District of Illinois which was dismissed for failure to state a cause of action. This dismissal was affirmed in the U. S. Court of Appeals, 317 F2d 855 (7th Cir, June 6, 1963). Certiorari was denied, 375 US 908; rehearing denied 375 US 960 (1963).

Appellees further claimed in said motion that the appellant also alleged the same cause of action in another suit filed by him also on January 4, 1962, in the Superior Court of Cook County, No. 62 S 204. The Superior Court dismissed said suit on March 28, 1962, and the Illinois Supreme Court affirmed the dismissal on November 24, 1964. 32 Ill2d 55, 203 NE2d 428, US cert denied 381 US 926 (1965).

On February 17, 1965, appellees, Arthur Lilly and Charles R. Perrigo amended their motion to dismiss, claiming that this suit is also barred by a prior judgment pursuant to section 48 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48 (1) (d)) :

“(d) That the cause of action is barred by a prior judgment.”

On April 23, 1965, the trial court having considered the pleadings, briefs and arguments of the appellant and counsel for the appellees, sustained the motion to dismiss and entered the following order:

“This cause coming on to be heard on defendants’ motion to dismiss pursuant to Ch 83 § 15 and the court being fully advised in the premises:

“It is hereby ordered that the complaint be dismissed with prejudice, and plaintiff asking leave to file an amended complaint;

“It is hereby ordered that leave is denied and it is further ordered that the complaint be dismissed at plaintiff’s cost, that the plaintiff take nothing and defendants go hence without day.”

On June 2, 1965, the trial court denied appellant’s motion for rehearing and to vacate the order of April 23, 1965. Notice of appeal to the Supreme Court of the State of Illinois was filed on July 30, 1965. The Supreme Court in transferring the appeal to the Appellate Court made the following pronouncement:

“The issue in this case is whether plaintiff’s complaint was barred by a two year statute of limitations or whether the five year statute was controlling.

“There is no substantial constitutional issue presented, and the motion by appellees is allowed. The cause is transferred to the Appellate Court for the First District.”

Appellant contends that the instant case comes within the provisions of “civil actions not otherwise provided for” of section 16, chapter 38, of the Illinois Revised Statutes, which permits the commencement of a suit within 5 years next after the cause of action accrued. We do not agree with this contention.

Appellant’s complaint is an action for personal injuries and section 15, chapter 83, Illinois Revised Statutes provides that such actions “shall be commenced within two years next after the cause of action accrued.” His action is not a civil action not otherwise provided for as claimed by appellant. The Illinois Supreme Court in Handtoffski v. Chicago Traction Co., 274 Ill 282, 113 NE 620, (1916), said at page 286:

“Again said section 14 (present Chapter 83, Sec 15) is a particular provision designed to control actions for damages because of or on account of an injury to the person, regardless of the form of action, and it must prevail over the more general provision made in section 15, (present Ch 83, Sec 16) , and be treated as an exception to that general provision.”

Appellant’s complaint also alleges that his civil rights and liberties were violated. The U. S. Court of Appeals disposed of this contention in Skolnick v. Martin, supra, a suit identical with the complaint in this case. At page 857, the U. S. Court of Appeals said:

“There was no denial of rights under the Fourteenth Amendment or a claim stated upon which relief could be granted under the Federal Civil Rights Acts.”

The same U. S. Court of Appeals concluded that appellant’s alleged action is one for injury to the person and is governed by the two-year period of limitation. At page 856, the court said:

“On January 4, 1962, plaintiff filed the instant action in the United States District Court against Martin, Lilly and Perrigo. He sought to recover damages for alleged physical injuries charged to have been caused by alleged improprieties committed in the taking of his deposition on January 7, 1960.”

The court also stated:

“In short, plaintiff contends that defendants have misused the state power of compulsory process to inflict personal injuries upon him, thereby acting under color of state law and in violation of his rights under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.” (P 856.)

Appellant also contends that under the provisions of section 24 of the Limitations Act, (Ill Rev Stats 1963, c 83, § 24a), after the rulings adverse to the plaintiff in the U. S. District Court and in the Superior Court of Cook County, he could commence a new action within one year after judgments against the plaintiff. The Superior Court judgment was entered on March 28, 1962. The judgment in the U. S. District Court was dated August 14, 1962. The current suit was filed on January 6, 1965, which was more than the one year as provided in Section 24a. The plaintiff was late in filing this suit.

Appellant describes the instant case as an action for defendants’ conspiracy to obstruct justice in Illinois and to damage plaintiff in his person and property for enforcing, or attempting to enforce, in the State courts, plaintiff’s right to equal protection of the laws and that such action then comes within the provisions of “civil actions not otherwise provided for.” Appellant relies on Wakat v. Harlib, 253 F2d 59 (7th Cir 1958), and concludes that the 5-year statute of limitations would then apply. We do not agree. In Wakat the court held that there were violations of the Civil Rights statutes. The U. S. Court of Appeals has held that appellant in the instant case has no cause of action for civil rights.

In the opinion of the court, the judgment of the Circuit Court of Cook County is correct, and the decision of said court is therefore affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dewey Blevins, Defendant-Appellant.
    Gen. No. 51,487.
    First District, Third Division.
    July 15,1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley 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 Alan Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant was indicted for the offense of rape and after trial before a court without a jury was found guilty. He was sentenced to one to ten years in the Elinois State Penitentiary. Defendant contends only that he was not proven guilty beyond a reasonable doubt.

On May 23, 1964, Leontine Boon, a 16-year-old girl, who was born in Belgium but who had lived in Chicago for ten years before the occurrence, was picked up at her home at about 8:30 p. m. and taken to a party. One Elmer Neace, who was supposed to be her escort for the evening, called for her at her home in a car driven by another boy. The defendant sat in the front seat with the driver and Elmer Neace and the complaining witness sat in the back seat. After making one other stop, to pick up other people before going to the party, the group went to an apartment at 1644 Humboldt in Chicago where a birthday party took place. The version of the complaining witness follows.

She arrived at a sparsely furnished apartment at the Humboldt address. A group of young people were in the apartment drinking beer and whiskey, and playing records. Elmer, her escort, gave her a drink. She denied drinking any of it. The others present in the apartment were listening to music, necking and talking. At about 11:00 p. m. her escort left the party and did not return, despite the fact that he had been told that she had to be home at 11:30 p. m. She testified that she had no conversation with the defendant prior to this time, but at that time she saw people beginning to leave through the back and front doors. She started to get up but the defendant grabbed her by the arm. According to her testimony the defendant told her “he had eyes for me all night and if (she) didn’t do what he wanted that (she) would be in trouble. He said he would get me home in a cab if I would do what he told me to.” The defendant grabbed her by the arm and pulled her down on the couch and slapped her on the jaw. Defendant then picked up the complaining witness and carried her into the bedroom. She was asked how many people were present at the time of this conversation and the complaining witness replied that she did not remember anyone being there. She testified that she bit and scratched the defendant and, further, that she screamed. The defendant then hit her several times, tore off her blouse and then held her down by placing his elbow on her throat, and tore off her girdle. While in the bedroom Miss Boon told the defendant she was an epileptic and needed water. The defendant let her up and she went into the bathroom and put some water on her face. The defendant then took a wet washcloth and put it on her face and said, “How does that feel?” She said, “All right.” She said, “Let me go home,” and he said, “No.”

Miss Boon testified that she is not an epileptic.

According to Miss Boon, the defendant then resumed his attack and threatened to kill her if she did not stop kicking and biting him, and the defendant then committed the alleged rape. After the alleged rape the defendant said he was going to take a shower and proceeded to do so. Miss Boon, when she heard the shower running, got up, straightened her skirt and threw her girdle into her purse. She then asked the defendant where the cigarettes were. He told her they were on the TV. She then walked out of the apartment and ran down the stairs. She also testified that after leaving the apartment she walked about a block and fell over some bushes; that there were people around. She told them to call the police and they gave her a drink and a cigarette. She was taken to the County Hospital where she saw a doctor but she did not say anything to the doctor and the doctor did not say anything to her.

There were about fifteen to twenty people at the party.

She further testified that there were just a few scratches on her neck, although the defendant punched her on the jaw “real hard.” She also stated that he did not leave a mark on her.

On cross-examination the complaining witness admitted there were no marks on her face. The complaining witness was then asked the following question: “Did you ask him to use a condom, yes or no ?” Answer, “I asked him so he would get up and get one so I could get out.” The following question was put to the complaining witness and was answered in the following manner: Question, “How many rubbers were used, lady?” Answer, “I don’t even know if that one was used.”

Detective Richard Austin, the investigating officer, stated that at the time he first saw the complaining witness during the early morning hours of May 24, 1964, her blouse had a couple of buttons missing, she complained of a sore jaw and that there were marks on her neck. He arrested the defendant during the morning hours of May 24 at his apartment at 1644 North Humboldt.

The officer testified that he saw no scratches or marks of any kind on the defendant’s face. He further testified that after photographing and fingerprinting the defendant it was ascertained that he had no prior police record. The defendant admitted to the officer that he had intercourse with Miss Boon but denied that she had resisted and stated that a contraceptive was used.

The defendant testified that he was 21 years of age at the time of the occurrence, had received an honorable discharge from, the army and had never been arrested except for traffic offenses. He first met the complaining witness about May 24, 1964, when he was in a car also occupied by Elmer Neace, who escorted her to a party. The apartment was shared by the defendant, Elmer Neace and one James Rosebalm. At the party he served Miss Boon one or two drinks which she started to drink but he did not know whether or not she finished them. During the party defendant sat on a chair and Miss Boon sat on the arm of the chair. They had a periodic conversation. When the party began to break up Elmer Neace wanted to borrow some money and Elmer, James Rosebalm and Miss Boon walked into the bedroom with the defendant. The defendant gave Elmer the money. At that time the defendant told Miss Boon that he would take her home and she agreed it would be all right. After Neace and Rosebalm left, the defendant and Miss Boon began necking on the bed and defendant took off Miss Boon’s blouse. He believed that other people were still in the house at that time although they were gone later when he left the bedroom. The complaining witness said to the defendant, “If we do anything you are going to have to use a rubber.” He also testified that she took off her own girdle and that any marks he put on her would have been during intercourse and would have been on her neck. Defendant further testified that he kissed her many times, and that she did not resist him, scream or shout, nor did she bite or scratch him. He denied punching her in the jaw, or using any other violence, and stated he used a contraceptive. The intercourse was on the bed and he had to go into the bathroom to get the contraceptive. During this time she remained on the bed. After the intercourse defendant said he laid on the bed and talked to Miss Boon, and then told her he would take a shower after which he would take her home. While he was taking a shower she called to him and asked if he had a cigarette. He replied they were on the television set. He testified that she also brought him a cigarette while he was in the shower and later when he emerged from the bathroom she was gone. Defendant further testified that prior to having intercourse Miss Boon asked for some water and he went and got it. From the defendant’s testimony it would indicate that the defendant went to the kitchen to obtain a wet washcloth; that the kitchen was some 50 feet from the bedroom and the complaining witness remained on the bed. None of the doors in the apartment were locked at any time during that period.

The defendant testified that he did not know the whereabouts of Elmer Neace or James Rosebalm at the time of the trial. The trial took place nearly two years after the occurrence.

In People v. Perez, 412 Ill 425, 427, 107 NE2d 749, the court said:

“To sustain a conviction for forcible rape, it must be proved that the act was against the will of the victim, and that penetration occurred. (People v. Ardelean, 368 Ill 274.) It is undisputed here that penetration occurred, and that the act took place. The only point of contention is whether the act was against the will of the girl.

“It has been observed that an accusation of rape is easily made, hard to be proved, and still harder to be defended by one ever so innocent. Hence, a reviewing court is charged with the duty of carefully examining the evidence in such a case. People v. Scott, 407 Ill 301.”

The point confronting us is whether the act of intercourse was performed against the will of the girl. Where there is a conflict of testimony the court must look to the surrounding circumstances in an effort to determine the truth. The complaining witness in her testimony stated that she saw people starting to leave through the back and front doors all at the same time that she was grabbed by the defendant; that he then pulled her onto the couch and hit her in the jaw— suddenly there were no people present. It is argued by the defendant that all the people apparently left in the time that it took defendant to say two sentences, because the complaining witness testified that after this conversation she did not remember anyone being in the apartment. The complaining witness also testified that the defendant was beating her viciously at one moment and the next moment he was wiping her face with a wet washcloth and asked her if it felt all right. The complaining witness also admitted that the defendant complied with her request to use a contraceptive, although she stated later she was not sure whether a contraceptive had been used. She, however, admitted having asked the defendant to use a contraceptive and that a contraceptive was present.

Is it plausible to believe that a man who is intent on committing rape would be sufficiently concerned to wipe the victim’s face with a wet washcloth when she allegedly told him she was an epileptic and use a contraceptive for her protection? Despite the alleged vicious attack upon her by the defendant no effort was made by her to escape. Detective Austin testified that he saw no marks on the defendant, yet the complaining witness had testified about striking, scratching and biting the defendant. She even testified that she had scratched him with her fingernails. The only marks noted by Detective Austin were some marks on her neck. These marks could as well have been left on her neck while they were making love to each other as from any other cause. Indeed, these marks could have been made when she fell over some bushes after leaving the apartment. The complaining witness did not testify to any violence on the part of the defendant which would have produced marks on her neck.

When Detective Austin went to the apartment the following morning the doors were unlocked and the defendant was asleep on the couch. Is it likely that a man, who has recently committed a rape, would go to sleep at the scene of the crime and await his arrest by the police?

Defense counsel asked the complaining witness whether or not she asked the defendant to use a condom. Her answer was that she had asked him to get one so that he would get up and she could get out. She then testified that defendant did not get up but admitted that there was a contraceptive present.

The State argued that the complaining witness testified that the defendant threatened to kill her and told her, “You won’t be the first.” That the complaining witness had been overcome by superior force and had struggled to no avail. This is certainly not supported by the record.

The State concludes by arguing that in the defendant’s mind, when the complaining witness succumbed, it was equivalent to her voluntarily taking part in the sex act. With this argument we cannot agree. There are too many unexplained inconsistencies in the testimony of the complaining witness which leave a reasonable doubt as to the guilt of the defendant.

The State also argues that Detective Austin testified that there were marks on the victim’s neck and that the victim’s blouse was torn and ripped, as the complaining witness had testified. The blouse was not produced at the trial. One explanation as to why the blouse may have been ripped is that she had fallen over some bushes after leaving the apartment.

Another matter which creates a doubt in the mind of the court is the fact that the complaining witness testified that she was taken to the County Hospital for an examination. She testified that she said nothing to the doctor and the doctor said nothing to her. The doctor was not called to testify to any bruises or scratches on the complaining witness. Nor is it explained why this evidence was injected into the case.

The State cites the case of People v. Greer, 28 Ill2d 107, 190 NE2d 742, together with other cases, holding that the testimony of a single witness is sufficient to support a conviction, if the jury believed the evidence and it is not so unsatisfactory as to leave a reasonable doubt of the guilt of the accused. In this case, based upon the testimony and surrounding circumstances as they existed at the time of the occurrence and immediately prior thereto, we conclude that the evidence is so unsatisfactory as to leave no basis for a finding of guilty beyond a reasonable doubt.

The defendant was 21 years of age, and had received an honorable discharge from the army after having served three years in Korea and Thailand. His only arrests were for two traffic violations while he was in the army.

For the foregoing reasons the conviction must be reversed.

Judgment reversed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Maryam M. Jamal, Plaintiff-Appellant, v. Ahmad Jamal, Defendant-Appellee.
    Gen. No. 51,531.
    First District, Fourth Division.
    July 17, 1968.

      Cook & Watt, of Chicago (Rufus Cook, Garland W. Watt, and Raymond E. Harth, of counsel), for appellant.
    Meyer Weinberg and Bernard Kaufman, of Chicago (Meyer Weinberg, Bernard Kaufman, and Harry G. Fins, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Some four years after their divorce, plaintiff filed three separate petitions requesting post-decree relief:

(1) the issuance of a rule to show cause why defendant should not be held in contempt of court for failure to comply with the child-support provisions of the decree;

(2) enforcement of the property-settlement provisions of the decree through recognition and enforcement of a supplemental agreement thereafter entered into by the parties; and (3) the issuance of a writ of ne exeat in support of the other two petitions. A writ of ne exeat was issued under which defendant was taken into custody and released on bond; defendant filed a motion to dismiss the second petition and filed answers to the other two petitions; and a hearing was held, at the conclusion of which an order was entered (1) denying plaintiff’s petition for a rule to show cause, (2) striking her petition relating to property rights of the parties, and (3) denying ne exeat and releasing defendant’s bond. Plaintiff’s appeal followed.

First, as to the question of arrearage in child support. When the parties and their attorneys appeared in court with their records, they were directed by the court to repair to another room for the purpose of reconciling their differences and ascertaining by agreement the exact amount of arrearage, if any. After apparently attempting so to do, they reported back to the court that, while defendant had produced cancelled checks in more than the total amount due for child support from the date of the decree, some of the checks indicated that they were in payment of child support, but a good many others did not, and as to these latter checks there was a dispute as to whether or not they had been drawn for the purpose of child support. The issue of child-support arrearage as presented by the pleadings thus remained unresolved and was presented to the court for determination.

After a very considerable argument by counsel, the court called both parties as witnesses and conducted a brief examination. It touched very little, and only in a general way, upon the matter of child-support payments. Further, the court’s only concern about the supplemental property agreement seems to have been whether defendant was in Chicago or New York when it was signed. Plaintiff said he was in Chicago. Defendant said he was in New York. Neither party was asked any questions about the checks which were in dispute as to purpose. Counsel for defendant was permitted to ask some questions of both witnesses, and the court elicited some information about the peripatetic existence of defendant, who was an entertainer.

The only exhibits admitted into evidence were an empty envelope, which defendant said he had received in the mail from plaintiff’s attorney about a week before the petitions were filed, and a copy of a letter which he said he had dictated over the telephone to his own attorney in New York, enclosing the empty envelope and telling him that he had no way of knowing what it was about. Prior to the examination of the witnesses, a number of checks had been shown to the court and they had been discussed by counsel, but they do not appear to have been introduced into evidence. Also, during the questioning of plaintiff, a copy of a letter from her was given an identification number but was not admitted in evidence. The primary argument of defendant’s brief in this court is that we must affirm because the record is incomplete in not including the various documents just referred to. We do not agree, since only the two were admitted into evidence, and we fail to recognize the relevance of either. The letter from defendant to his attorney, incidentally, was read into the record in its entirety.

On the basis of the evidence introduced, no court could possibly determine whether there was an arrearage in child support as no testimony was elicited concerning the purpose of the checks which were in dispute. When the court concluded his preliminary type examination of the parties, as outlined above, he suddenly broke off the questioning and announced his decisions which were then incorporated in the order now subject to this appeal. He apparently decided that plaintiff’s testimony, in response to the court’s own questioning, supplanted her right to testify or present other evidence on her own behalf. Though counsel for plaintiff immediately made formal request to cross-examine defendant and to interrogate his own client in support of her claim for $3300 in past-due child support, he was denied the opportunity to do either. In a court of law this sort of procedure would be highly erroneous; in a court of conscience, it is unconscionable. The rights to cross-examine and to present evidence are so basic as to be grounded in due process. Collectively, they constitute the litigant’s day in court. Illinois Constitution, art II, § 2; People ex rel. Bernat v. Bicek, 405 Ill 510, 526, 91 NE2d 588; Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 350-351, 213 NE2d 778; Gorin v. McFarland, 80 Ill App2d 398, 408, 224 NE2d 615. Defendant’s citations to the effect that the scope and extent of cross-examination are matters for the trial court’s discretion do, of course, express sound principles of law but are not applicable to a situation of complete denial. We conclude that the procedure followed in the instant case effectively denied to plaintiff her day in court, and the resulting order must therefore be reversed and remanded for a proper hearing.

We next consider whether the court was correct in dismissing plaintiff’s petition concerning property rights of the parties. This petition detailed the following allegations: (1) a decree of divorce was entered on March 6, 1962; (2) the decree incorporated in its terms a property-settlement agreement between the parties; (3) specific parcels of real estate were to be sold and in consideration of receiving half the proceeds from such sales, plaintiff waived alimony and other property rights; (4) plaintiff’s share of the proceeds would have been worth more than $65,000; (5) the parcels were not sold, because defendant, by not paying his income taxes, allowed liens to attach to the properties in sums so large as to make their sale impractical and frustrate plaintiff’s expectation of receiving $65,000 as her share of the proceeds; (6) in consequence of these altered circumstances, on October 24, 1963, plaintiff and defendant entered into a second agreement in “full settlement” of defendant’s obligations under the divorce decree; (7) the new agreement provided that defendant was to remove all Internal Revenue Service liens from specific real estate, convey this real estate to plaintiff, and receive conveyances from plaintiff and members of her family of certain other business interests; (8) if the second agreement had been fully performed, plaintiff would have received a net equity of $272,500 in real estate, some of which had an exceptionally high income-producing potential; (9) plaintiff performed all of her obligations under the second agreement, and defendant transferred to her his title to the real estate, but defendant refused to satisfy his debts to the government, with the result that the property remained encumbered with the tax liens; (10) substantially all the property was lost through foreclosure; (11) due to her lack of funds, plaintiff had been powerless to prevent this loss; (12) plaintiff was unable to pay her attorneys’ fees and costs incurred in the preparation of this petition.

The petition sought the following relief:

“A. That Defendant be required to place Plaintiff in the financial position she would have enjoyed if he had honored the Decree and the Supplemental Agreement based on the Decree, and more particularly
“(1) That he be directed to pay to Plaintiff the sum of $272,500.00, plus interest from March 6, 1962, representing the net equities of the properties conveyed to her by said Agreement.
“(2) That he be directed to pay to Plaintiff the income she would have received as a result of her acquisition of the 1321 South Michigan Avenue property.
“(3) That he be required to pay his income tax obligations for the period when he and Plaintiff were man and wife, so that no property received by Plaintiff in this proceeding may be lost to her by reason of seizure by the Internal Revenue Service for payment of Defendants’ tax obligations.
“B. That Defendant be directed to pay all attorneys’ fees, related fees and costs, and court costs, resulting from this proceeding.
“C. That Plaintiff may have such other and further relief in the premises as equity and good conscience may require.”

Defendant moved to dismiss the petition on the grounds that the second agreement was not enforceable in the instant proceedings; that the prayer for relief was not sustained by the allegations; and that part A of the prayer was too vague. The court granted defendant’s motion and struck the petition.

The original property-settlement agreement was incorporated into the divorce decree. When a decree embodies an agreement constituting a settlement of property rights and interests between the parties, its terms will not thereafter be modified under any circumstances. E. g., Walters v. Walters, 409 Ill 298, 99 NE2d 342; see 1952 Ill Law Forum 149. The property rights created in the decree become vested and, after thirty days, the court is without jurisdiction to modify them. Ill Rev Stats (1965), c 40, § 19. Bratkovich v. Bratkovich, 34 Ill App 2d 122, 180 NE2d 716. And this is true even though it would retain jurisdiction for purposes of enforcement of the original decree. Brevet v. Brevet, 316 Ill App 406, 409, 45 NE2d 199. Furthermore, plaintiff’s petition in this case alleged additional facts which indicate that her rights to enforce defendant’s obligations under the property-settlement portion of the decree had been compromised and settled by the terms of the second agreement. Her claim under the decree thus became merged into the second agreement and is, therefore, no longer subject to the decretal enforcement procedures. See Blanchard v. Lewis, 345 Ill App 246, 253, 103 NE2d 183.

However, while plaintiff can no longer enforce her rights as conferred by the decree, she did allege facts which are sufficient to make out a prima facie case that defendant breached the second agreement, and she petitions the court particularly for relief from the legal injuries she suffered as a result of such breach. While we agree with defendant that the introductory paragraph of part “A” of the petition’s prayer is vague, it may be treated as surplusage, and part “A” may be considered as requesting only the relief outlined in paragraphs (1), (2) and (3) thereof. See Baker v. Brown, 298 Ill App 173, 18 NE2d 578. We find these paragraphs sufficiently specific in requesting relief from the consequences of defendant’s failure to perform his obligations under the second agreement, and amply supported by the allegations in the body of the petition. Ill Rev Stats (1965), c 110, § 34. It is our conclusion that, liberally construed, this pleading states a cause of action and should not have been stricken. Ill Rev Stats (1965), c 110, § 33(3).

The Circuit Court is the proper forum in which to seek redress for such an alleged grievance. Whether, not being properly filed in the Divorce Division under the post-decretal enforcement procedure, the petition should have been filed in a different department or division, is a question not here relevant. The appropriate remedy for such a misfiling is transfer and not dismissal. Ill Rev Stats (1965), cllO, §10(2).

As to the issue concerning ne exeat, plaintiff filed an amended petition for such a writ, supported by her affidavit. The court entered an order thereon setting the bonds of both plaintiff and defendant, and directing that the writ issue. Plaintiff filed her bond; the writ issued; it was served on defendant; and he was released from custody upon posting his bond. Defendant then filed a document entitled, “Answer to Amended Petition for Writ of Ne Exeat.” After the hearing related above, the court’s order denied plaintiff’s amended petition for issuance of the writ and directed the Sheriff to release defendant’s bond. This was an inappropriate order as to both form and substance.

The hearing should not have been considered as bearing on the granting or denial of plaintiff’s petition for the issuance of a writ, since the writ had already been issued and served. Under these circumstances, Section 11 of the Ne Exeat Act indicates that the issue for the court to determine is “whether the writ ought not to be quashed or set aside.” Ill Rev Stats (1965), c 97, § 11. Since the writ was neither quashed nor set aside, it still has life in the hands of the Sheriff, despite the fact that defendant’s bond was released.

As in the case of the hearing on the child-support petition, the hearing on the issues of both fact and law raised by the pleadings relating to ne exeat was inadequate for any proper determination. The court’s orders in this regard are therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion. Krakow v. Krakow, 349 Ill App 390, 110 NE2d 648. It is not clear to us how a successful appeal on this issue can be made effective where, as in this case, there is no supersedeas. These matters, including the selection of sanctions for effectuating our decision, are left to the resourcefulness of the parties and the trial court.

All parts of the order appealed from are reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

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

       There can be no doubt as to the sufficiency of the record in this regard, as the following colloquy demonstrates:
      “Mr. Cook (Counsel for plaintiff): I take it the record can show that I did not — I was not extended the privilege of cross-examination with respect to this defendant nor examination of my client on direct examination.
      “The Court: You may have the record show that, counsel.”


author: MR. JUSTICE CRAVEN

text:
    Jonas Wolfberg, Administrator of the Estate of Charles Henry Johnson, Deceased, Plaintiff-Appellant, v. Prudence Mutual Casualty Company of Chicago, Illinois, Defendant-Appellee.
    Gen. No. 51,545.
    First District.
    July 29, 1968.
    Rehearing denied September 17,1968.

      Harry Kroll, of Chicago (Alan S. Katz and Samuel Allen, of counsel), for appellant.
    George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

This appeal arises from an order entered in the circuit court of Cook County granting defendant’s motion to dismiss plaintiff’s complaint and dismissing the complaint by the estate of an insured against an automobile insurer based on negligence and bad faith of the insurer in handling the defense and negotiation of the claims of third parties against the insured arising out of an automobile collision.

The order was based upon the failure of the complaint to state a cause of action in failing to allege that plaintiff-estate was damaged by the payment of the judgment recovered against it or its ability to pay such judgment.

The genesis of this litigation was in an automobile collision on November 23, 1957, when insured’s automobile collided with two other automobiles, killing the insured and a passenger and seriously injuring four other occupants of his car. Charles Henry Johnson, plaintiff’s intestate, was insured by a policy issued by Prudence Mutual Casualty Company in the sum of $20,000. Suits were brought against the administrator of the estate of the insured on behalf of the deceased passenger and the other injured passengers. These suits were consolidated. Offer of settlement by the claimants in such suits was made for the balance remaining unpaid on the policy— $17,490, another claim against the insured having been settled. Also, a written demand that the insurer settle within the policy limits sum remaining was made by the administrator. The insurer refused to settle or negotiate.

Upon jury trial, verdicts totaling $55,500 were rendered and judgment entered. The insurer deposited $17,500

with the clerk of the court who, pursuant to court order, distributed the same among the claimants. Thereafter execution was issued and served upon Wolfberg, the insured’s administrator, and returned “no funds.”

Plaintiff administrator of the insured filed this suit against the insurer seeking recovery of the excess of $38,000, alleging negligence and bad faith on the part of the insurer in failing to negotiate and compromise the suits for $17,500. Upon motion of the defendant-insurer, the court entered a final order of dismissal.

That an insurance company may so conduct itself as to be liable for an entire judgment recovered against its insured, irrespective of its policy limits, is well-settled in this state. Olympia Fields Country Club v. Bankers Indemnity Ins. Co., 325 Ill App 649, 60 NE2d 896 (1st Dist 1945); Cernocky v. Indemnity Ins. Co. of North America, 69 Ill App2d 196, 216 NE2d 198 (2nd Dist 1966). Thus, in Cernocky, the court said:

“It is beyond question that an insurance company, although it acts under a policy which contains limits as to its liability, may so conduct itself as to be liable for the entire judgment recovered against its insured irrespective of its policy limits. General Cas. Co. of Wisconsin v. Whipple, 328 F2d 353, 355 (CA 7th, 1964).

“While the various jurisdictions differ as to the conduct which may subject an insurance carrier to liability for the excess of a judgment over its policy limits, in this jurisdiction conduct constituting fraud, negligence or bad faith may render the insurer so liable. (Citing cases.)” Cernocky v. Indemnity Ins. Co. of North America, 69 Ill App2d 196, 204, 216 NE2d 198, 203 (2nd Dist 1966).

An inquiry into the nature of such liability discloses that the insurance policy or contract itself contains no terms placing an express agreement or duty on the insurer to compromise claims. Rather, the contract leaves it to the insurer to determine the conduct of defense of actions brought against the insured, the matter of negotiation and settlement. By the contract of insurance, the insured agrees that the insurer has the right to conduct the defense of litigation and settlement negotiations. Since the nature of the contractual relation between insured and insurer requires the insured to give up these rights, the law places upon the insurer the duty of giving the interests of the insured equal consideration with its own interests and it must in all respects deal fairly with the insured, certainly where an action arises which may exceed the policy limits. Cernocky v. Indemnity Ins. Co. of North America, supra, quoting with approval from Ballard v. Citizens Cas. Co. of New York, 196 F2d 96,102 (CA 7th, 1952).

We find no decided cases in Illinois as to whether, as conditions precedent to such a recovery, it must be alleged in the complaint and borne out by factual proof that there has been payment of the excess judgment by the insured or his estate, or ability to pay the same. The authorities in other jurisdictions seem to be in disagreement on this issue.

Appellee cites the case of Dumas v. Hartford Accident & Indemnity Co., 92 NH 140, 26 A2d 361, 362 (1942), where the court said:

“A right of action for negligence accrues only when the plaintiff has suffered an injury. . . . The mere existence of an outstanding judgment, which may never be paid, is not a legal injury, for the essence of the injury in such a case is pecuniary loss. (Citing case.)”

Also, in Harris v. Standard Accident & Insurance Co., 297 F2d 627 (CA 2nd NY, 1961), the Court of Appeals affirmed dismissal of an action brought by a trustee-in-bankruptcy of the insured. In State Automobile Ins. Co. v. York, 104 F2d 730 (CA 4th NC, 1939), the court reversed judgment for plaintiff where there was no testimony that he could not pay the judgment or that he was insolvent.

A review of the authorities persuades us to the view that the cases relied on by appellee constitute the earlier and minority view on this issue. These cases were considered in Wooten v. Central Mut. Ins. Co. (La), 182 So 2d 146 (1966), which noted that these cases were not persuasive, had been severely criticized, and were expressly refused or failed to be followed in other federal circuits.

The majority view in this country is represented by Jenkins v. General Acc. Fire & Life Assur. Corp., 349 Mass 699, 212 NE2d 464, 467 (Sup Ct Mass 1965), which stated:

“. . . Despite some conflict in earlier cases, the weight of authority is that it is not necessary for the insured to allege that he has paid or will pay a judgment in excess of the policy limits in an action against the insurer for breach of its duty to act in good faith. . . .” (Citing Lee v. Nationwide Mut. Ins. Co., 286 F2d 295 (4th Cir); Wessing v. American Indem. Co., DC, 127 F Supp 775; Henke v. Iowa Home Mut. Cas. Co., 250 Ia 1123, 97 NW2d 168, and other cases.)

No different result should prevail whether plaintiff is a living person or the representative of a deceased insured’s estate. Thus, the proposition that the assets of the estate or the lack of assets were relevant or material has been specifically rejected in Sweeten v. National Mut. Ins. Co., 233 Md 52, 194 A2d 817 (where decedent’s estate had no assets); Lee v. Nationwide Mut. Ins. Co., 286 F2d 295 (insufficient assets); Henke v. Iowa Home Mut. Cas. Co., 97 NW2d 168; and Chitty v. State Farm Mut. Auto. Ins. Co., 38 FRD 37 (apparently no assets).

We are persuaded that the majority view is the sounder one both in justice and logic. The very fact of the entry of judgment itself constitutes damage and harm sufficient to permit recovery. The damage to the estate is the creation of liability for the judgments. The rule of damages is that incurrence is equivalent to outlay.

The insured would have had an action though insolvent. His death is no just reason to give a boon to the insurer.

Were payment or showing of ability to pay the rule, encouragement would be given to an insurer with an insolvent insured to unreasonably refuse to settle. Such a course would impair the use of insurance for the poor man. Further, the fullness or the emptiness of an insured’s purse would be an irrelevant and poor measure of liability and performance of duty by the insurer under his contract.

The trial court was in error in dismissing the complaint and entering judgment for the defendant.

This panel, sitting in the Appellate Court, Fourth District, in an opinion filed concurrently with this one (Childress v. State Farm Mut. Auto. Ins. Co., 97 Ill App 2d 112, 239 NE2d 492), considered a somewhat similar question. In Childress, however, the plaintiff-insured was wholly insulated from ever incurring any personal liability by reason of an intervening covenant by the terms of which his liability and subjection to damages were wholly removed. In Childress, the cause of action was one essentially based upon negligence without an underlying contractual relationship that would establish a duty, whereas, in this case, the cause of action is essentially one for breach of duty arising out of a contractual relationship.

The judgment of the circuit court of Cook County is reversed and this cause is remanded to that court with directions to set aside the judgment and order dismissing the complaint, and for further proceedings consistent with the views herein expressed.

Reversed and remanded with directions.

SMITH, P. J. and TRAPP, J., concur.

       This demand for settlement was made during the trial of the underlying action and after the trial had proceeded for three days and five days before the jury verdict totaling $55,500 was returned. The letter, as abstracted, reads as follows:
      “January 21, 1965
      “Prudence Mutual Casualty Company 162 North State Street Chicago, Illinois
      Re: Leatha Perry, Administratrix, et al, Plaintiffs, -vs.Jonas Wolf berg, Administrator, et al, Defendants Consolidated Case No. 58 C 4984
      “Gentlemen:
      “Although I have not received any direct notice from you, notwithstanding the fact that I have been advised that the plaintiffs in the above ease made formal demand of settlement this morning in the Chambers of Judge John C. Melaniphy, Room 905, in the County Court House, I am impelled to make the following demands upon you.
      “I have been advised that the plaintiffs in the above case, through their attorneys, respectively, have made a demand in full and complete settlement thereof on the above actions and claim encompassed in the consolidated cases of $17,490.00.

        “In the light of the massive injuries suffered by those plaintiffs and the death claim of Leatha Perry, I herewith demand that said offer of settlement be accepted and that said sum be paid.
      “This is so, particularly in the light of the liability situation as it has developed during the trial, and particularly in that the injuries suffered by Lester Funkhauser included multiple fractures of the skull and whose special damages totaled in the excess of $5000.00. Ellis Turner suffered multiple fractures of the right hip and other injuries, and his specials exceeded $1600.00. With regard to the death case, Leatha Perry, the widow, was left penniless and with a minor child, ten years of age, at the time of death. Consideration should be given concerning the massive scar on Lester Funkhauser’s face and further consideration of the fact that Jessie Bailey was injured to the extent that hospitalization was required, and his specials exceeded $800.00. Also, Leo Fletcher, who was injured, had specials approximating $500.00.
      “I have also been advised that there is still pending a claim of the Catchings against me as administrator. I have never been apprised of the matters and extent of the injuries suffered by them or the extent of their claim.
      “Under all these circumstances, I demand that these cases be settled for the above amount, or that a counter-offer be made that would take into consideration any potential claim of the Catchings. In the event that your company fails to take the above action and verdict is returned for an excess of the foresaid amount of the policy, then I intend to hold your company liable for any judgments in excess of $17,450.00 that may be entered against the estate of which I am the administrator, by reason of the above consolidated cases.
      “I have been advised that the original policy covering Charles H. Johnson was in the amount of $20,000.00 and the [sic] $2500.00 of said fund has been paid in connection with the claims made by the occupants of the Rohrbach vehicle.
      “I have also been advised that up to now there has been no offer made to the plaintiffs in connection with this case. As administrator, I believe that this is unreasonable and unwarranted, and that there is a duty upon you and the attorneys that you have retained to defend you under the policy to seek the guidance and offices of the Probate Division of the Circuit Court of Cook County in connection with the proper handling of the affairs of this estate. I stand ready to go before the Probate Division of the Circuit Court of Cook County at any time to seek such guidance, advice and direction.
      Very truly yours, /s/ Jonas Wolfberg Jonas Wolfberg Administartor [sic] of Estate of Charles Henry Johnson, Deceased
      JW: jb”


author: TRAPP, J.

text:
    Harry N. Grossman, Trustee in Bankruptcy for Gron, Incorporated, a Bankrupt, Plaintiff-Appellee, v. Tom D’Or, d/b/a The House of D’Or, Defendant-Appellant.
    Gen. No. 51,555.
    First District.
    August 28,1968.

      Foss, Schuman & Drake, of Chicago (George C. Pontikes, of counsel), for appellant.
    Shaffer, Seelig, Handel & Shapiro, of Chicago (Kalman S. Lieberman and Roger B. Handel, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from a judgment in the sum of $5,830 upon an account stated, entered in favor of the plaintiff after a trial before the court.

It is urged on appeal that the evidence established, as a matter of law, that defendant, as buyer, had revoked acceptance of the merchandise, and that the judgment of the court was against the manifest weight of the evidence.

The complaint alleges the sale of some 708 wig cases and the refusal to pay the unpaid purchase price thereon. Delivery was made under two invoices in September, six invoices in October and one invoice in November, all in the year 1962.

Defendant’s answer alleged that the wig cases were defective, that the seller and its agent were unable to cure the defects after prompt notice, and that defendant repeatedly asked that the cases be taken back, but received no reply.

Defendant argues revocation of acceptance under the provisions of chapter 26, § 2-608, Ill Rev Stats, 1961:

“(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
“(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
“ (b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.” 1961 July 31, Laws 1961, p 2101, § 2-608.

The trial court stated into the record certain conclusions, i. e., that there was some evidence that some of the cases were slightly defective, that such items were repaired by the salesman, or repaired by the seller and redelivered to the defendant, that payments were made from time to time on the several shipments without showing when such payments were stopped, and that the defendant had not reasonably informed the seller of the revocation of the acceptance of the merchandise.

The burden is on the buyer to establish any breach with respect to the goods accepted. Chapter 26, § 2-607, Ill Rev Stats, 1961. The evidence, as abstracted, has little specific focus on the quality of the merchandise, and is substantially undocumented. When called under section 60 of the Civil Practice Act, defendant testified that separate orders were given for the cases shipped under the nine invoices. The abstract does not indicate the number of orders as distinguished from the number of invoices. He testified that he complained as to the first shipment, specifically as to the failure of locks or latches on the cases, and the fact that the “blockhead” or form for holding the wig came loose in the case. He asserted that similar complaint was made as to all shipments, and that all of the cases were no good. Some cases were given away to customers who purchased wigs, and it is stated that one-half of such cases were returned. On cross-examination defendant testified that some wholesale customers to whom shipments were made returned the cases unopened, because they did not like the merchandise. He testified that some 350 to 400 cases were ruined by water when stored in his basement in 1965, and were hauled away.

One Linderman, appearing under subpoena, testified that he had been the salesman for the seller during the period of the shipments, that he had examined the first 200 cases sent to the buyer, a few of which had defective latches which he fixed, or which were repaired at the factory and returned to the defendant. On some, the form which held the wigs came loose and he glued the necessary pieces in. He testified that he told defendant to put aside a few cases for returning to the seller, which would be repaired or replaced. He further testified that defendant had stated to him that cases shipped to wholesale customers were returned to defendant by such customers because they had never been ordered.

Chapter 26, § 2-608(2) requires that revocation of acceptance of merchandise must be within a reasonable time, and:

“It is not effective until the buyer notifies the seller of it.”

By letter dated January 15, 1963, the City National Bank of Detroit advised defendant that it was assignee of the seller’s, Gron, Inc., accounts receivable and requested immediate payment of past due invoices.

Defendant replied on January 17, 1963, first making claim to revoke the acceptance of the merchandise, stating that the merchandise was very inferior, and that nine out of ten cases were returned to defendant, and:

“. . . we wish to return all Gron merchandise we have on hand. We will even pay the freight charges

to do so. And we wish a credit on our account to the extent of the merchandise that I will return. . . .” (Emphasis supplied.)

By a subsequent letter of March 19, 1963, defendant wrote the Bank that they would like to return some 500 cases:

“. . . which we have not as yet opened, because we feel that these cases would be in the same condition as the ones returned by our customers. . . .”

We have found no reconciliation or explanation as to the 500 cases which defendant wished to return by this letter and the 350 to 400 destroyed in the flood.

Defendant undertook to support the theory that there was revocation of acceptance with his own testimony concerning telephone calls to the seller, unspecified as to date or number, which were never completed because Gron was not reached. A telephone call to defendant was made by the seller, Gron, to order a wig, and it is stated by defendant that Gron then said that credit would be given or replacement made, as to an unspecified number of cases. Linderman testified that defendant did not, at any time, speak of revoking the acceptance of the merchandise, and in his testimony defendant does not claim that he ever so told Linderman.

The defendant has not undertaken to plead or prove damages arising from the alleged nonconformity of the merchandise under the provisions of chapter 26, § 2-714, Ill Rev Stats, 1961.

We have studied defendant’s cited authorities, Air Conditioning Corp. v. Honaker, 296 Ill App 221, 16 NE2d 153, and American Sanitary Rag Co. v. United States Hoffman Mach. Corp., 320 Ill App 556, 51 NE2d 809. In each of these cases the issues concerning the notice of revocation of acceptance and the defect or failure of the merchandise to conform were clearly and explicitly demonstrated.

Upon the facts presented, the evidence fails to establish that, as a matter of law, the defendant had revoked acceptance of the merchandise for nonconformity. The contents of defendant’s letters would support the conclusion of the trial court that the defendant had neither shown a nonconformity in some 500 of unopened wig cases, nor had revoked his acceptance of the merchandise. No authorities are cited to support a claim that uncompleted telephone calls are evidence of notice within the meaning of the Commercial Code. Defendant’s letters ask for credit and return of unused merchandise at his own expense only after written demand by the assignee Bank. We conclude that the judgment of the trial court is not contrary to the manifest weight of the evidence.

The judgment below is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Labe C. Pearson, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Philip S. Aimen, Defendant-Appellant.
    Gen. Nos. 51,658, 51,659. (Consolidated.)
    First District, Fourth Division.
    August 14,1968.

      Philip S. Aimen, of Chicago, for Labe C. Pearson, and Robert Schey, of Chicago, for Philip S. Aimen, appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Arthur Zimmerman, and Allison W. Davidson, Assistant State’s Attorneys, of counsel), for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crimes Charged

Pearson was charged with the offense of perjury, the complaint alleging that he had falsely stated his “legal address” on an application for certificate of title to a 1965 Pontiac automobile.

In ancillary proceedings, Aimen, attorney for Pearson, was cited for direct criminal contempt of court.

Judgments

After a bench trial, Pearson was found guilty and sentenced to six months in jail and to pay court costs of $100. Aimen was fined $200.

Evidence as to Pearson

Edwa/rd B. Jones and John C. Kilcus, for the State.

They were both corporals in the investigation department of the Secretary of State, and in that capacity were assigned by their Chief to investigate two addresses of defendant Pearson. The investigation culminated in the arrest of Pearson for violating section 4-103 (d) of the Motor Vehicle Act. The testimony of the two men was in substantial agreement.

Pearson had listed 1816 Darrow Avenue, Evanston as his “residence address” on a driver’s license application and 51 Linden Avenue, Glencoe as his “legal address” on an application for a certificate of title to a 1965 Pontiac automobile. The investigation disclosed that Pearson resided at the Evanston address and was employed at the Glencoe address where, in the absence of the owner, he was manager of a Shell Oil Service Station.

In addition, Jones testified that he did not know what Pearson’s state of mind was when he signed the application for the certificate of title, and that it would not have made any difference had he known that defendant had been using the Service Station as his mailing address. Jones reported the results of his investigation to the Secretary’s attorneys and they determined that Pearson had listed the Glencoe address “with fraudulent intent to hide his true place of residence.” The warrant for defendant’s arrest was issued prior to any conversation between defendant and the investigators.

Labe C. Pearson, defendant.

He had used the Shell Service Station as his mailing address in many business dealings over a period of some fifteen years. However, he did receive some mail at his place of residence. He would list his residence address or place of employment, depending on what information was requested. He always had used his Evanston residence address on driver’s license applications for a period of ten years. In purchasing and obtaining a certificate of title in 1962 for a 1961 Chevrolet, he had used his business location as his “legal address,” and no question had been raised. The same was true as to license plate applications.

He testified that he could read some things but not everything. He took a written examination for a driver’s license and it had been issued to him. Whenever he had been asked by the Secretary of State or any governmental body for his place of residence, he had given his Evanston address.

He did not know exactly what “legal address” meant. He though it meant “where you get your mail.”

Exhibits

Photographs depicting Pearson’s Glencoe address as a Shell Service Station, and depicting a house at the Evans-ton address.

Pearson’s driver’s licenses, listing the Evanston address, and a driver’s license application form indicating that the person using the form should list his “residence address.”

Pearson’s application forms for a certificate of title and for a state license to a 1965 Pontiac automobile. Both forms showed the Glencoe address filled in at the blank marked, “legal address.” Both forms bore defendant’s signature and another signature over the line labeled, “notary public.”

Pearson’s bank statement and printed bank checks, and various business letters addressed to him, all bearing the Glencoe address.

Two retail installment contracts entered into by Pearson for the purchase in 1962 of a 1961 Chrevrolet automobile and for the purchase in 1966 of a 1965 Pontiac automobile. Each showed as Pearson’s address the address of his place of employment.

Opinion as to Pearson

Two questions based on elements of the crime of perjury are pertinent to the disposition of this case:

(1) Did Pearson make a “false statement” in his application for certificate of title when he listed his place of business as his “legal address ? ”

(2) When Pearson made such statement, did he not believe it to be true ?

As to both of these elements it must be remembered that proof beyond a reasonable doubt is required to sustain a conviction.

Our conclusion is that the evidence is clearly insufficient to answer either question in the affirmative, and the conviction must therefore be reversed. As a matter of fact, it completely surpasses our understanding how, on this evidence, the Secretary of State could have initiated prosecution of the defendant for violation of the Motor Vehicle Act (footnote 2, above); how the State’s Attorney could have elected to proceed with the case, but on a perjury complaint (footnote 1, above); and, finally, how the court could have found defendant guilty of perjury.

The only semblance of a reason we can find for the whole proceeding is that the address given by Pearson on his automobile title application differed from that on his driver’s license application. But if, in this regard, the Secretary of State had wanted consistent answers, he surely would have asked consistent questions. The information as to “residence address” on one form (furnished by the Secretary of State) was conceded to have been properly supplied by defendant. The other form (also furnished by the Secretary of State), called for “legal address,” and this difference could reasonably have led one to believe that something other than “residence address” was being sought or the same terminology would have been used. Defendant testified that he didn’t know exactly what “legal address” meant. Nor do we. Webster’s Third New International Dictionary defines “address” as: “the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.” Thus it would appear that a “legal address” could be sensibly interpreted as either “a residence or place of business.” Criminality may not be found when a layman attaches the ordinary dictionary meaning to words employed by a State official on forms issued for use by the public. In the complete absence of direct proof showing an intention to falsify, the insertion by defendant of his business address (as he had previously done without question on other title and license applications) does not justify any inference of falsehood, but, rather, furnishes only a preposterous basis for perjury prosecution.

Evidence as to Aimen

At the conclusion of the Pearson trial, the court entered the following contempt order against Aimen, Pearson’s attorney:

Now in the name and by authority of the People of the State of Illinois, the Respondent, PHILIP S. AIMEN being present in his own proper person, the matter against said Respondent of alleged direct contempt of this Court is considered by the Court.

AND THEREUPON THE COURT FINDS AS FOLLOWS:

1. That on February 15, 1966 in the Circuit Court of Cook County, Third Municipal District, Niles Branch in the case of the People vs. Labe C. Pearson, Complaint No. 66 MC3-53918, Perjury, came on to be heard in the regular course before the Court.

2. That during the course of said case the Respondent, PHILIP S. AIMEN appeared as counsel for defendant, Labe C. Pearson.

3. That during the course of said case, Respondent stated that the prejudice of the Court was apparent. Thereupon, the Court interrupted proceedings to inform Respondent that he was contemptuous of the Court and that the Court would consider this matter after the conclusion of the case on trial.

4. That during the hearing of the case the Respondent ignored the Court’s instructions in that he repeatedly asked questions to which the Court had previously sustained objections; whereupon, Respondent would again argue with the Court. Thereafter, when another ruling was made on the same question, Respondent would continue arguing with the ruling of the Court, during which Respondent repeatedly interrupted the Court and opposing Counsel. Respondent also made unfounded remarks castigating opposing Counsel.

5. That the conduct of the Respondent, PHILIP S. AIMEN, which conduct of said Respondent took place while this Court was in open session, tended to impede and interrupt the proceedings and lessen the dignity of this Court; and further tended to embarrass and obstruct the Court in the administration of justice, bringing the administration of the law into disrespect and disregard.

THE COURT FURTHER FINDS that Respondent who is now and here present in Open Court is, by reason of said contempt of said Respondent guilty of direct contempt of this Court in open Court.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED, that Respondent, PHILIP S. AIMEN because of said contempt as aforesaid, be and he is hereby fined $200.00 (Two Hundred Dollars).

In determining the correctness of this order we shall, as urged by the State, consider the record presented for review as well as the order itself. In re Dunagan, 80 Ill App2d 117, 123, 225 NE2d 119, and cases there cited.

The charges against Aimen, as set forth in the above order, are to be found only in paragraphs 3 and 4. Paragraph 4 is lacking in specific allegations of fact and, in a thorough search of the record, we have been unable to find anything of a contemptuous character to support the accusations contained in this paragraph. Our attention will therefore be directed to paragraph 3 exclusively.

The charge that during the trial Aimen had “stated that the prejudice of the Court was apparent” is supported in the record by his comment to the judge: “I think your bias is showing.” This is not a proper statement for him to have made, and he should be ashamed of having made it, but we do not consider it an adequate basis for a contempt conviction. We do not mean to be holding that provocation by the court may, in itself, be a defense to a contempt action, nor that contemptuous conduct directed at a court’s rulings is excusable merely because the court may have been in error. Nevertheless, we do believe that these factors may be taken into account in ascertaining the state of mind of an alleged contemnor. As noted in People v. Rongetti, 344 Ill 107, 119, 176 NE 292, it was “apparent that the attitude of the trial court toward plaintiff in error all through the Rongetti trial and the proceedings for contempt against him was one of hostility. . . . plaintiff in error was given considerable provocation by the court by his actions and rulings and stinging remarks . . . .”

From the outset of the instant case, counsel for the defendant was presented with one surprising situation after another, culminating in the conviction which we now set aside, and for which the State’s Attorney recommended as penalty a fine of $1,000 and a year in jail. Commencing with the first witness, the court shut off Aimen’s questions (which we consider to have been proper ones) characterizing them as “ridiculous”; general objections of the State’s Attorney (in the form of “I object”) were frequently and consistently sustained without any specification of grounds even when requested by Aimen; **8 on occasions, the court foreclosed answers to Aimen’s questioning without there having been any objection by the State’s Attorney. The general atmosphere of the trial was so strained and heated that at one point the court said to Aimen, “I don’t want you to have a heart attack.”

Under all the circumstances, and especially in light of the difficulties Aimen encountered in seeking to defend his client, we feel that his conduct throughout the trial, while not exemplary, was not shown to have been more than a lawyer’s strenuous and persistent presentation of his client’s case, and we therefore cannot bring ourselves to affirm the contempt conviction. See In re McConnell, 370 US 230, 236. Furthermore, we do not consider his comment about bias, made in the heat of battle, to have been “calculated to embarrass, hinder or obstruct a court in the administration of justice.” (Emphasis supplied.) People v. White, 8 Ill App2d 428, 437, 131 NE2d 803; People v. Gholson, 412 Ill 294, 298, 106 NE2d 333.

Decision

The convictions of both Pearson and Aimen are reversed.

Reversed.

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

       Ill Rev Stats (1965), c 38, § 32-2(a).
      A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.

       Ill Rev Stats (1965), c 95%, § 4-103.
      It shall be a violation of this chapter for a person who: . . . (d) With fraudulent intent uses a false or fictitious name or address, or makes a material false statement, or fails to disclose a security interest, or conceals any other material fact, in an application for a certificate of title, ....

       The trial judge felt he knew with certainty. At the close of the evidence, just before finding defendant guilty, he said:
      From the evidence, it seems extremely clear that the defendant has not complied with the law. The matter of legal address, legal residence, legal anything, I am convinced, is a satisfactory one for everyone to know, that the State’s Attorney [Secretary of State?] wants to know where you live. If you want to adopt the argument adduced by counsel, every sewer digger could give the address of the sewer that is his place of operation, every gas pumper could give where he pumps gas. In this particular case the man has a residence.

       This had been his customary mailing address for fifteen years, and one at which he could readily have been located by the Secretary of State — as, indeed, he was.
      Defendant argues in his brief that there must be hundreds of thousands of automobile titles which show an address other than that of the owner’s residence. While this may well be true, there is no evidence in the record to support such a statement and we place no reliance thereon.

       As a typical example, one of the court’s responses was, “Some day we can sit down and I will explain, but we are not going to take all these people’s time.”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Jerrels, Defendant-Appellant.
    Gen. No. 51,669.
    First District, Third Division.
    June 27,1968.

      Wallace, Shelton, Kleinman & Belline, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant, David Jerrels, appeals from a conviction of armed robbery for which he was sentenced to two to four years in the penitentiary. Defendant was tried by a jury.

The contentions on appeal are that (1) the prejudicial conduct and remarks of the court deprived defendant of a fair and impartial trial; (2) the prejudicial remarks of the State’s Attorney deprived him of a fair and impartial trial, and (3) the courtroom identification of defendant after identification by the witnesses at a lineup deprived him of a fair and impartial trial.

The evidence shows that on January 4, 1966, Mildred Jones was a clerk in a dry cleaning establishment (Leader Cleaners) at 1200 West 63rd Street, Chicago. About 7:00 p. m. a man (later identified as defendant) walked into the store, raised up the counter and went behind it to where Mrs. Jones was standing. He drew a switchblade type knife and forced Mrs. Jones into the back of the store. She left the premises through a side door and phoned the police from a tavern across the street. From there she observed the man in the cleaners. He was waiting on customers and occasionally walked outside and looked up and down the street. He left the store shortly before the police arrived. Mrs. Jones returned to the store with the police and found the cash register on the floor in the back of the store. The sum of $38 was missing from the register.

On January 25, 1966, Mrs. Jones again saw the defendant in the store when he brought in a coat to be cleaned and gave the clerk his name and address. She gave that information to the police. The next day she identified defendant from pictures shown her by a detective and the following day she identified the defendant in a four-man lineup.

Willis Cunningham testified that on January 4th he was walking his dog in front of the Leader Cleaners and saw a man inside the store who appeared to be waiting on customers. Cunningham identified the defendant at the lineup on January 27th as the man whom he had seen in the store.

Velma Jerrels, defendant’s mother, testified that on January 4th defendant arrived home at 4 or 4:30 p. m. and did not leave home that evening. He went up to his room about 8 p. m. and she retired about 9:30 p. m.

Defendant denied that he committed the robbery. He was unmarried and lived at his parents’ home. He had done business with Leader Cleaners for some time and that was how Mrs. Jones knew him. He did not go to the cleaners on January 4th but did go on or about January 23rd to have a coat cleaned. On January 4th he arrived home about 4:30 p. m. and did not leave the house again that night.

Defendant first contends that the prejudicial conduct and remarks of the court deprived him of a fair and impartial trial. He argues that his cross-examination of the State’s witnesses was unduly limited. In People v. DuLong, 33 Ill2d 140, 210 NE2d 513, the court said at page 144:

“As a general rule the latitude to be allowed in the cross-examination of witnesses rests largely within the discretion of the trial court, (sic) (People v. Halteman, 10 Ill2d 74,) and ordinarily should be limited to matters brought out on direct examination. (People v. Matthews, 18 Ill2d 164; People v. Smith, 413 Ill 218.) Although we agree that greater latitude should be given an accused to impeach the credibility of adverse witnesses, we cannot say that the trial court abused its discretion or that prejudicial error resulted in limiting the cross-examination, A review of the alleged limitations of cross-examination shows defendant’s point to be unfounded. The objections were to questions not within the scope of direct examination and to repetitive questions and, therefore, the rulings of the court were proper and did not demonstrate prejudice on the part of the court. People v. DuLong, supra; Cannon v. People, 141 Ill 270, 30 NE 1027.

Defendant also sets forth in his brief numerous instances of allegedly prejudicial remarks of the court throughout the course of the trial. These comments followed the court’s rulings on many objections by the State’s Attorney. While defendant does not contend in his brief that the court was in error in sustaining the numerous objections throughout the trial, he does assert that the statements made by the court constituted reversible error. Although defendant is correct in saying that the statements were directed to the defendant’s attorney regarding his conduct, that alone does not demonstrate prejudice of the court. The comments were proper and did not indicate that the court was prejudiced against defendant or his attorney. They related to proper and improper questioning and the record shows the court was fair and patient in conducting the trial. Defendant cites People v. Judycki, 302 Ill 143, 134 NE 134 and People v. Wilson, 334 Ill 412, 166 NE 40, in support of his position. However, in both of these cases the court entered into questioning of witnesses and harassed counsel. The prejudice in those cases was clearly shown and could only have been adverse to the defendants. The court in the instant case displayed no such disposition.

Defendant next argues that the court further demonstrated prejudice by admonishing defendant’s mother to stop making gestures and motions and crying during the trial and final arguments. This admonition by the court was delivered outside the presence of the jury and was not therefore prejudicial to defendant. Furthermore, the conduct of the mother was a proper subject of judicial admonition and the court’s remarks were not unreasonable or erroneous.

Defendant next contends that the prejudicial remarks of the State’s Attorney deprived him of a fair and impartial trial. During the final argument the State’s Attorney said:

“The good Father comes in and testifies, and he has a right to do that, and I’m proud of him for doing it. And he answered the questions honestly. He knows the boy from going to church, he sees him around. The best he knows the boy is a pretty good kid because he goes to church. Judas had dinner every night with a certain fellow, too.”

Defendant argues that by the final sentence the State’s Attorney gave his opinion that the defendant was guilty. He cites several cases in support of his position. In those cases, however, the prosecutor clearly stated that he believed the defendant to be guilty of the crime charged. In the instant case the remark indicated only that the State’s Attorney wished the jury to note that church going is not necessarily incongruous with the commission of a crime. Furthermore, no objection was made to the comment at the trial and the point has thereby been waived. People v. Donald, 29 Ill2d 283, 194 NE2d 227; People v. Winters, 29 Ill2d 74, 193 NE2d 809.

Defendant finally contends that the courtroom identification of defendant after preliminary identification of him by the witnesses at a lineup deprived him of a fair and impartial trial. Defendant’s objection to this process is that defendant was not represented by counsel at the lineup. He relies on United States v. Wade, 388 US 218, which held that a defendant is entitled to counsel at such a lineup. However, on the same day as Wade was decided, the court held in Stovall v. Denno, 388 US 293, that the rule of the Wade case was to be applied only to lineups held after June 12, 1967. Jerrels was identified by Mrs. Jones and Cunningham at a lineup held January 27,1966, and, therefore, the rule pronounced in Wade, supra, does not apply. In Illinois the manner of identification goes only to the weight of the evidence, not the competency thereof. (People v. Brinkley, 33 Ill2d 403, 211 NE2d 730; People v. Napper, 78 Ill App2d 451, 223 NE2d 194.) The courtroom identification of defendant was neither improper nor reversible error.

For the foregoing reasons the conviction is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James S. Newsum, Defendant-Appellant.
    Gen. No. 51,695.
    First District, First Division.
    September 16,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul Brauner 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 Sheldon Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was convicted of the offense of indecent liberties with a child. He was sentenced to the penitentiary for a term of from two to eight years. On appeal, defendant contends he was not proved guilty beyond a reasonable doubt.

The complaining witness was a twelve and one-half-year-old boy, who lived at 1800 North Richmond Street, Chicago. At the trial he testified that on December 16, 1965, at approximately 8:00 p. m., his mother gave him a dollar and sent him to a store one block from home to purchase a carton of Royal Crown. On the way he met defendant, whom he did not know, and who asked him to take a walk and told him there was money involved, a couple of dollars. After some conversation, he accompanied defendant to defendant’s apartment, about a block and a half from the boy’s home. While there, the defendant performed several acts of deviate sexual conduct on the boy. Defendant then gave the boy a dollar and drove him to the store in a “1956 or 1957 green Plymouth.”

When the boy arrived at home, he gave the dollar bill to his mother but did not tell her what had occurred in defendant’s apartment until the following night. The police were called and, after they interrogated the boy, he went with the police to the defendant’s building, which contained 47 apartments. The boy pointed out defendant’s apartment, and the police secured a key from the caretaker and with the boy they entered defendant’s apartment. Defendant was not there at the time.

On cross-examination, the complaining witness testified that he had lived at 1800 North Richmond for approximately six years and was familiar with the neighborhood and the different streets in the area. Before the night in question, he had seen defendant’s apartment building several times when he had gone to a swimming pool. There were large apartment buildings to the north and south of defendant’s building.

Roy Handler, a Chicago police officer, testified that on December 17,1965, at about 8:30 p. m., he and his partner interviewed the complaining witness and his parents about the incident. The boy furnished the officers with a description of the defendant and then took them to an apartment building at 1742 North Humboldt Boulevard. As they walked into the lobby of the building, the boy pointed to a door and stated that it was the apartment. There was no name on the door or on the doorbell. The caretaker of the building was requested to open the apartment, and they all entered, the police, the boy and the caretaker. They all remained in the apartment for a few minutes. Because of defendant’s objection, Officer Handler was not permitted to describe what he saw in the apartment.

Another witness for the State, John A. Cooney, a Chicago police detective, testified that he and his partner arrested the defendant in his apartment at 11:35 p. m. on December 17, 1965. Defendant was taken to the Homicide and Sex Bureau at 2138 North California Avenue. Later, the boy and his parents came to the station, and the boy pointed at defendant.

Officer Cooney further testified that prior to defendant’s arrest, they knocked on his apartment door, and defendant answered the door. The officer identified himself and told defendant the nature of the charge. The arrest was made inside the apartment. The court permitted the officer to describe the apartment.

Defendant testified in his own defense and in substance denied the boy’s testimony. He was employed and lived at 1742 North Humboldt Avenue. On December 16, 1965, he had worked until 4:30 p. m. He had dinner with his sister and her boyfriend at Walgreen’s, where they stayed until approximately 6:30 p. m. He then purchased a bottle of beer and some potato chips and returned to his apartment, where he spent the evening alone. At that time he owned a 1956 green Ford. He had never seen the complaining witness before he saw him at the police station on the evening of December 17, 1965. Defendant testified that when the boy arrived at the police station, “the detective asked him, Ts this the man?’ And the kid just shook his head. He said nothing, he just shook his head.” On cross-examination, defendant stated that on his arrest he had said, “I’m not guilty because it’s the boy’s word against mine. I was pretty perturbed.”

Hallie Rollins, the caretaker of the building at 1742 North Humboldt, testified for the defense. The building had 47 apartments. She stated that police officers came to her on the night in question and ordered her to open the door of defendant’s apartment because a crime had been committed there. They had a young boy with them, and she did not recognize the complaining witness as the boy who came with the officers. After threats of arrest, she opened the door for police. Later that night two plainclothesmen came and, under protest, she gave them the key to defendant’s apartment, and they opened it themselves.

Defendant’s first contention is that the police illegally entered his home, and any testimony which described his apartment was evidence which should have been suppressed. Defendant’s pretrial motion to suppress was held by the court for disposition during the trial. In support, defendant cites People v. Albea, 2 Ill2d 317, 118 NE 2d 277 (1954), where the court said (p 322):

“However, we cannot be unmindful of the principles established by long precedent which have sought to preserve the sanctity of the home and the right of privacy of the individual merely because the evidence has changed from inanimate to animate form. It has been held that an illegal search cannot later be justified by the discovery of contraband property. . . . We see no reason for a different rule in this case when the ends of justice sought to be maintained are the same.

“This State had steadfastly adhered to the theory of inadmissibility of evidence obtained by illegal search

In People v. Albea, supra, it is also said (p 321):

“ ‘The principle seems clear that evidence obtained independently of the illegal search may be used against the defendants/ .... ‘It is only necessary for us to determine whether it has been shown the testimony of the witnesses was received from independent sources.’ ”

Three witnesses for the State were questioned about the interior or layout of defendant’s apartment: (1) The complaining witness, who gave a detailed description of the apartment on his direct examination; (2) Officer Handler, who entered the apartment in defendant’s absence; and (3) Officer Cooney, one of the arresting officers, who entered the apartment to arrest defendant. The trial court admitted descriptive testimony of the apartment by the complaining witness and Officer Cooney and sustained objections to Officer Handler’s description of the apartment.

The State contends that both entries of defendant’s apartment by police officers were proper, because at both times the officers entered defendant’s home to arrest him for a crime which they had reasonable grounds to believe that defendant had committed. Cited in support is People v. Barbee, 35 Ill2d 407, 220 NE2d 401 (1966), where it is said (p 411):

“A police officer may arrest without warrant ‘when a criminal offense has in fact been committed, and he has reasonable grounds to believe that the person to be arrested has committed it.’ (Ill Rev Stats 1961, chap 38, par 657; cf. Ill Rev Stats 1965, chap 38, par 107-2.) And when an officer is authorized to make an arrest, he is also authorized ‘to break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.’ (Code of Crim Proc, Am Law Inst Official Draft (1930) sec 28; see Ill Rev Stats 1965, chap 38, par 107-5 (d), which became effective Jan 1, 1964.) It is of course true that in the present case the officers who entered Barbee’s home made no arrest. But this circumstance can not be significant. Just as ‘a search is not to be made legal by what it turns up,’ (United States v. Di Re, 332 US 581, 595, 92 L Ed 210,) so the legality of the conduct of the officers in this case is to be determined upon an appraisal of the situation that confronted them, and not upon the success or lack of success of their efforts.”

As to the first entry of defendant’s apartment by police officers, the record does not indicate that the officers announced their authority and purpose before entering the apartment. Here the trial court correctly sustained the objection. As to the second entry by the officers, Officer Cooney testified that they did knock on the door and, when defendant opened the door, the officer identified himself and his purpose. Defendant testified that he heard the knock, and by the time he got to the door it was opened as far as the latch, and “I had to unlatch the door and Officer Cooney entered and took me to the Shakespeare station.” The testimony of the boy purported to be what he saw on his initial visit to the apartment on December 16, 1965, and the testimony of Cooney about the apartment was of what he saw after defendant was arrested in the apartment on December 17, 1965. We see no error here.

Defendant also complains that the police station identification violated his constitutional right to due process because there was no lineup and his counsel was not present. (Stovall v. Denno, 388 US 293.) We are not persuaded that the station identification procedure here was improper or impaired the testimony of the complaining witness. He had described the defendant to the police and led them to defendant’s apartment, where defendant was found later. After defendant’s arrest, we think it was proper procedure for the police to notify the complaining witness and his parents to come to the police station for identification purposes. The individual confrontation at the police station neither suggested nor induced defendant’s identification by the complaining witness. See People v. Harris, 92 Ill App2d 412, 416, 236 NE 2d 281 (1968). The “in-court” identification of the defendant by the complaining witness was positive, clear and convincing, and it was not tainted by the earlier police station identification. We find no error here.

Considered next is defendant’s contention that he was not proved guilty beyond a reasonable doubt. Defendant asserts that a charge of indecent liberties is an accusation easily made, hard to be proved, and harder to be defended by the party accused. Defendant cites People v. Hinton, 14 Ill2d 424, 152 NE2d 830 (1958). Defendant argues that his conviction rests entirely upon the testimony of the complaining witness, a child of tender years, and the evidence “must be so clear and convincing as to remove even a shadow of doubt. To be satisfactory this testimony must be consistent with the surrounding facts and circumstances. Where such evidence is not clear and convincing, this Honorable Court must reverse the causes.” Defendant cites People v. Williams, 414 Ill 414, Ill NE2d 343 (1953), an indecent liberties case, where the court said (p 416):

“We have always safeguarded the interests of an accused where the testimony is uncorroborated, by requiring that it should be clear and convincing. . . . ‘When a conviction of taking indecent liberties with a child depends upon the testimony of the prosecuting witness, and the defendant denies the charge, there must be substantial corroboration of the prosecuting witness by some other evidence, fact or circumstance in the case. . . .’”

Defendant questions at length the testimony of the complaining witness and asserts it was not natural for a child to wait until the next evening before he complained about what had happened. Also, in leading the police to the building with 47 apartments, he selected the first apartment he saw upon entering the building, and “the tenant was not in so a description of the apartment was observed. If the boy was in the apartment the previous night, he didn’t holler, scream or fight off his alleged attacker, the answer is simple, he wasn’t there. The only time he saw the apartment was when he and the police entered it on the next night for the first time.”

The State argues that the record shows no motive on the part of the complaining witness to accuse the defendant falsely. He was twelve and one-half years old and in the 8th grade at school. He was the recipient of several awards for achievement in school, and he was able to clearly relate what happened. Also, all of the facts related by the complaining witness were unimpeached by defendant on cross-examination.

We conclude that the testimony of the prosecuting witness was clear and convincing. The description by the boy of the defendant’s apartment as he saw it on the night of the incident was corroborated by Officer Cooney. Why the boy failed to promptly report the incident to his mother and why he did not resist the defendant were questions to be considered by the jury when it came time to consider the credibility of the witnesses and to reach a verdict.

The totality of the State’s evidence, if believed by the jury, was sufficient to establish defendant’s guilt beyond a reasonable doubt and met the requirements necessary to sustain defendant’s conviction in a case of this nature.

For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.