author: JUSTICE ROMITI

text:
      In re MARRIAGE OF KURT ANTHONY HILL, Petitioner-Appellee, and DIANE REVELS HILL, a/k/a DePland, Respondent-Appellant.
    First District (4th Division)
    No. 81-691
    Opinion filed April 1, 1982.

      Lap at and Sokolow, Ltd., of Chicago (Morris R. Saunders, of counsel), for appellant.
    Kurt Anthony Hill, of Chicago, for appellee, pro se.

   JUSTICE ROMITI

delivered the opinion of the court:

Respondent Diane Elizabeth Revels Hill DePland (Diane) appeals from an order of the trial court denying her amended petition for modification of the custody provisions of a judgment for dissolution of marriage. Those provisions had been incorporated into the judgment from a prior separation agreement entered into by Diane and petitioner Kurt Anthony Hill (Kurt). On appeal Diane contends (1) the trial court utilized an improper standard of proof in the hearing on the petition; (2) the court’s determination was contrary to the manifest weight of the evidence; and (3) the court erred in barring Diane from introducing evidence of acts occurring prior to the entry of the judgment of dissolution.

We affirm.

The parties were married in December 1971 and had one child, Kurt Anthony Hill Jr. (Kurt Jr.), who was five years of age at the time of the dissolution order, July 25, 1978. The separation agreement incorporated into that order provided that Kurt was to have custody and control of Kurt Jr. for the school year period of September through June each year, and Diane was to have custody and control during the summer months. Each party was to have reasonable visitation periods with the child each weekend during the other party’s custodial period.

In September 1980 Kurt apparently initiated certain proceedings (not included in the record on appeal) to enforce these custody provisions. Diane then filed a petition for modification of custody which was subsequently stricken by the court with leave to file an amended petition. On November 21, 1980, Diane filed an amended petition for modification alleging that since the entry of the judgment of dissolution she had become the custodial parent with Kurt’s consent. On December 15,1980, the court granted Kurt’s motion to dismiss that amended petition. On December 19 Diane filed a motion seeking visitation with Kurt Jr. during his Christmas vacation and also seeking a “rehearing of the December 15 hearing.” The court set a hearing for December 22,1980, on “respondent’s motion seeking visitation.” On December 22 an agreed order, signed by Kurt and Diane, was entered. That order set out the terms of Diane’s visitation with Kurt Jr. over Christmas. A paragraph of the order stating that Diane was withdrawing her motion for a rehearing was stricken. On January 5, 1981, Diane again filed a motion for a rehearing of the December 15,1980, hearing. On January 12,1981, the court entered an order granting Diane a hearing on her amended petition, but only on “the question of the existence or non-existence of consent’ by the custodial father to any possible integration of the minor child into the family of the mother.” Following that evidentiary hearing the court filed an order on March 4, 1981 (but entered it nunc pro tunc as of February 23, 1981), denying Diane’s petition. Diane then filed her notice of appeal on March 19,1981.

In a motion for dismissal filed with this court and taken with the case Kurt contends that the agreed order of December 22,1980, had the effect of denying Diane’s December 19, 1980, motion for rehearing so that her second motion was improper and her notice of appeal of March 19,1981, was not timely filed, depriving this court of jurisdiction. However we find that the agreed order, from which a waiver of the rehearing request was stricken, did not constitute a ruling on Diane’s December 19, 1980, motion. Thus Diane’s renewal of that motion on January 5, 1981, still within 30 days of the final order of December 14, 1980, was timely filed. The court granted that motion and following a hearing denied her any relief on March 4, 1981 (or February 23). In any event Diane then properly filed her notice of appeal within 30 days of that order, on March 19, 1981. Accordingly, we deny Kurt’s motion for dismissal of the appeal.

At the evidentiary hearing the following pertinent testimony was adduced. Kurt, who was examined as a section 60 witness (Ill. Rev. Stat. 1979, ch. 110, par. 60), and who also testified in his own behalf, admitted that from July 25,1978, until August 1980 his son did not reside with him for more than three days at a time. According to Kurt, in mid-August 1978 he told Diane that a new job would involve a lot of traveling, and he was considering enlisting the aid of his mother or Diane to care for Kurt Jr. at least for the first semester of his first-grade year. Diane asked if she could do this. Kurt told her she would care for Kurt Jr. three to five days of the week but the child would stay with him the rest of the time. He emphasized that he only wanted her to take care of Kurt Jr.; that when he became stabilized in the Detroit area by January 1979 she would have to send their son there for the rest of the school year. Diane assured him she was not trying to take his son.

That fall Kurt Jr. stayed an average of four days a week with Diane and three days a week with Kurt, who maintained a Chicago apartment with a separate bedroom for Kurt Jr. so he could be with his son. During this time Kurt also had a two-bedroom apartment in Rochester, Michigan. He made inquiries there about schools for Kurt Jr. and found two that he liked.

In mid-November 1978 Kurt telephoned Diane and asked her when school would be out so he could prepare for Kurt Jr.’s January enrollment at a Rochester school. Diane agreed to send this information but never did so. Subsequently Kurt agreed to let his son stay with Diane for Christmas. Diane told Kurt that Kurt Jr. would be excited about his January trip to Michigan. But on January 2, 1979, she called to say that Kurt Jr.’s teacher had advised her that the split school year could be traumatic for him. Kurt confirmed this opinion with Sister Frances Ryan, a child psychologist who had known Kurt Jr. from a prior school. He then agreed to allow the boy to remain with Diane for the balance of the school year. Diane told Kurt he could then have Kurt Jr. for the summer.

On May 11, 1979, Kurt visited Diane and she told him she and her new husband were moving to New Orleans. When Kurt reminded her that their son would be with him all summer and the next year, Diane told him not to worry, that nothing would change. The next day Diane asked if Kurt Jr. could accompany her and her husband on a visit to her mother in Louisiana. Kurt agreed to this.

By the end of June Kurt was again living in Chicago. In early August he phoned Diane and arranged to send money for Kurt Jr.’s travel back to Chicago. On August 22,1979, he again phoned Diane to ask about travel arrangements and to tell her he would be living with Sonni (Hill) (whom he subsequently married December 1, 1979). Diane said she would not send the child to live with “any white bitch.” He tried to calm her, telling her Kurt Jr. would be going to the Latin School, which would be a great opportunity. Diane again refused to send their son, saying she did not want him living with “that Nazi whore.” She then hung up the phone.

Three to seven days later Kurt called again but Diane persisted in her refusal. When Kurt called her on September 24, 1979, she informed him that she had enrolled Kurt Jr. in school in Louisiana and refused to return him because taking him out of school would harm him. Diane again refused a telephoned request to return Kurt Jr. on October 2, 1979. In mid-October Kurt called and his son answered. He first refused to talk but then said his mother had told him he could not speak to Kurt. Kurt then spoke to Diane, demanding the return of his son. Diane replied:

“Did you really think I would ever send him back to live with that whore you are with now, that dirty white bitch.”

On November 14, 1979, Kurt sent Diane a letter formally asking her to reconsider her actions. Several days later he called her. She still refused to send Kurt Jr. back to Illinois, but finally agreed to allow Kurt to visit his son in Atlanta over Thanksgiving. However she threatened Kurt with kidnapping charges if he “tried anything.” During that visit he again tried unsuccessfully by telephone to convince Diane to allow him to keep their son. Kurt testified that one reason he did not simply keep Kurt Jr. at that time was that he was black and Sonni was white and, apparently as a consequence of Diane’s threats, he was afraid of being stopped by the Georgia State police.

Kurt Jr. was also allowed by Diane to spend that Christmas with Kurt in Chicago. Kurt called her and informed her he had decided to keep the child. Diane threatened him with kidnapping charges and jail. On January 2, 1980, Diane called to tell Kurt her sister had been shot and she needed the comfort of her son. Within several days Kurt telephoned her and agreed to this provided she terminated legal proceedings she had begun in Louisiana. Diane agreed. Kurt also made clear to her that he was to have Kurt Jr. for the summer and the next year.

During the period from January 1980 to May 1980 Kurt testified he telephoned his son twice a week and wrote to him every week. In mid-May he called Diane to make arrangements to get the child back. Diane claimed to have information pertaining to tax fraud by Kurt, threatened him with jail, and refused to return Kurt Jr. When Kurt said he would come to Louisiana Diane said:

“Come on, baby. My father and uncle are waiting for you and they will blow you away.”

Kurt and his wife Sonni then decided to seek legal assistance.

Kurt was unable to reach Diane again until the end of June. She maintained her refusal to return the child. Kurt then could not reach her until mid-August. At that time he obtained the return of Kurt Jr. by falsely telling Diane he might have to have his left leg amputated. Kurt denied ever intending to consent to the integration of Kurt Jr. into Diane’s family.

Adolphus Lester Jr., testifying for Kurt, confirmed that in August 1978 Kurt and Diane agreed that Diane would have Kurt Jr. while Kurt was out of town and Kurt would have him when in town. Lester recalled that Kurt Jr. went to Kurt’s home about every week that fall.

Sonni Hill testified that she met Kurt in September 1978 in Michigan and married him December 1, 1979. In September 1978 Kurt told her he had custody of Kurt Jr. and was looking for a school for the child, who would be coming soon. In November 1978 he showed her his son’s room in his Michigan apartment and again told her the son would be there soon.

Diane testified to substantially the same facts concerning the periods of time Kurt Jr. stayed with her in the period in question. However she specifically denied all Kurt’s statements concerning his many attempts to regain custody. She testified that between July 25, 1978, and August 1980 Kurt made no statements to her concerning the custody of their son. She admitted receiving his letter of November 14, 1979. That letter stated, inter alia, that she was not allowing Kurt his legal rights to his son, was precluding all communication between them, and it further asked her to reconsider her actions. Diane maintained that the letter referred merely to a dispute over her threat not to send her son for a Thanksgiving visit if Kurt did not send money for the trip. Diane specifically denied making any of the belligerent statements concerning custody attributed to her by Kurt in his testimony. She testified that she first told Kurt in February 1979 of her plan to move to New Orleans. She told Kurt she would let him know what school Kurt Jr. was in and would set up visitation arrangements for November and December of that year. According to Diane Kurt wished them luck and said he would be glad when Kurt Jr. could visit him in November and December. Diane also testified that her sister was shot on January 7,1980, so she could not have used this as a reason for regaining custody of Kurt Jr., who was already with her on January 2 when Kurt claimed she telephoned him about the shooting.

Hugh DePland, testifying for Diane, stated that they were married September 22, 1978. To his knowledge, from May 1978 until August 1980 Kurt never asked for the return of his son. He too recalled that in February 1979 Kurt was told of their plans to move to New Orleans and at that time wished them luck.

I

The sole issue before the trial court was whether, under the terms of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)), Kurt Jr. had been integrated into the family of Diane with Kurt’s consent. Section 610(b) provides:

“(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:

(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

Commenting on this provision in its memorandum opinion the trial court stated:

“§610 reflects an underlying policy favoring the finality of child custody judgments and making their modification difficult. The statute has limited the previous broad discretion given the trial court in matters of child custody. [Hoffmann v. Poston (1979), 77 Ill. App. 3d 689, 396 N.E.2d 576; In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499.] Therefore, we emphasize that Respondent’s burden of proof in this action is extremely high. ” *

We find no merit to Diane’s contention that this statement by the court indicated it was imposing an improperly high burden of proof on her. The court was merely indicating its awareness of the presumption in favor of the custodial parent created by this section. As was stated in In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21, 396 N.E.2d 499, 502:

“We believe that section 610(b) * * * reflects an underlying policy favoring the finality of child-custody judgments, and making their modification more difficult. * * * By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child’s custodial and environmental relationships which is not to be lightly overturned.”

II

Diane also contends that the decision of the trial court was contrary to the manifest weight of the evidence. The testimony we have summarized presented the court with two widely divergent versions of the circumstances under which Diane gained almost continuous physical custody of Kurt Jr. from July 1978 to August 1980. The testimony of Diane and her husband, if believed, tended to establish that Kurt consented to this continuing custody and actually approved of it. But in its memorandum opinion the trial court clearly indicated that it believed the testimony of Kurt and his witnesses. That testimony established that over this period Kurt repeatedly attempted to regain custody of his son after arranging for temporary care by Diane while he relocated. Diane continued to have custody only because she persistently and adamantly refused Kurt’s requests, employing threats and subterfuge where necessary. Diane points to the instances in which Kurt relinquished control over their son after vacation stays with him. But in his testimony, as we have summarized, Kurt explained the threats or pleas that preceded each of these relinquishments, and he clearly established that his actions were not intended to permanently alter the custodial agreement he and Diane had originally made.

Thus this case differs from that of In re Custody of Burnett (1979), 75 Ill. App. 3d 998, 394 N.E.2d 58, cited by Diane, in which it was found that the custodial parent had placed the child with the child’s mother for two years and had willingly permitted the child to become integrated into the new family during this period, only seeking to regain custody after two years had elapsed. We find ample evidentiary support for the trial court’s determination that custody should remain with Kurt because he never donsented to a change in that custody.

Ill

Finally Diane contends that the trial court erred in barring her from testifying concerning who had actual custody of Kurt Jr. in the months immediately preceding the entry of the judgment of dissolution of marriage on July 28,1978. In an offer of proof Diane indicated that she would have testified that from the latter part of April 1978 until the day of the judgment of dissolution Kurt Jr. resided with her during the week and stayed with Kurt on weekends. Without reaching the merits of whether the trial court should have permitted this testimony, we find that it could not have affected the court’s determination of the issue of consent to a change in custody following the judgment of dissolution. Consequently we find that any error by the trial court in this regard was harmless and we find no basis for reversal on this ground. Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.

Accordingly, for the reasons set forth in this opinion, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, P. J, and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    FENTON McHUGH PRODUCTIONS, INC., Plaintiff-Appellant, v. WGN CONTINENTAL PRODUCTIONS CO., Defendant-Appellee.
    First District (2nd Division)
    No. 81-392
    Opinion filed April 6, 1982.
    Charles A. Boyle and J. Timothy Loats, both of Scheele, Serkland & Boyle, of Chicago (William J. Harte, of counsel), for appellant.
    Reuben & Proctor, of Chicago (Don H. Reuben, Shane H. Anderson, James A. Klenk, and Steven A. Weiss, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff Fenton McHugh Productions, Inc. (McHugh), filed a two-count amended complaint against defendant WGN Continental Productions Co. (WGN) based upon the theories of tortious interference with a literary property right (count I) and upon breach of fiduciary duties (count II). The trial court ordered count II stricken prior to trial. At the close of McHugh’s case, the trial court granted WGN’s motion for a directed verdict on count I.

In appealing these results, McHugh argues the trial court erred (1) in directing a verdict for WGN on count I; (2) in striking count II; and (3) in limiting the scope of evidence as to McHugh’s possible damages.

McHugh is essentially a one-man company, named after its operator, Fenton McHugh (also referred to hereafter as McHugh). McHugh engages in the production of television and audiovisual programs. Since 1954, he has produced, among other things, television shows for CBS and NBC; documentary programs for Storer Broadcasting, RKO Television, and Time-Life Broadcasting; and industrial films for corporations such as Eastern Airlines. WGN is a wholly owned subsidiary of WGN Continental Broadcasting Co., which telecasts programs over station WGN in Chicago.

In January 1975, WGN, in conjunction with McHugh, undertook production and distribution of a national farm news show entitled “National Farm Digest.” The program left the air in early April 1975, after an initial 13-week run. In July 1975, WGN began presentation of a new, nearly identical national farm news show called “U.S. Farm Report.”

McHugh filed suit against WGN on May 12, 1976, for breach of contract. This complaint was followed by four amended complaints, the last being filed on the first day of trial, October 21, 1980. This fourth amended complaint pleaded the causes of action noted. The trial court struck count II upon WGN’s objection to its filing.

At trial, McHugh testified on his own behalf. In the spring of 1974, he had seen the opportunity and market for production of a national farm news show. McHugh perceived that while there were numerous local farm news shows being broadcast in various locales throughout the country, no national show existed. McHugh believed this was due to the prohibitive distribution costs for a national broadcast.

McHugh was aware, however, that a new technique for duplicating a videotaped show, called high-speed dubbing, could dramatically reduce distribution costs and make a national farm show “economically feasible.” In pursuit of this idea, he initially “informally” approached Storer Broadcasting Co. for its opinion as to the viability of the program. McHugh also inquired whether several businesses, including Ralston-Purina and International Harvester, might be interested in sponsoring the program.

In May or June 1974, McHugh talked with Bradley Eidmann, general manager of WGN, about the possibility of cooperative production of the show. Their meetings eventually resulted in an oral agreement to that effect. The duties were divided between the parties, with McHugh responsible for writing scripts, WGN for controlling technical production aspects of the show, and both (although mainly McHugh) for securing sponsorship.

A demonstration film was created to show potential sponsors. In August 1974, Massey-Ferguson Co. agreed to buy one minute of national advertising time per week for the show’s first 13-week run. Later, two other sponsors were secured for the remaining two national advertising minutes. Both of these latter advertisers indicated they would not be renewing after the first 13-week run due to the seasonal nature of their products.

The show went on the air in January 1975. Although the parties had discussed the matter, no written agreement had been entered into at that point. Consequently, McHugh submitted a proposed contract. WGN countered with its own proposed agreement.

By mid-March 1975, no written agreement had been reached, a situation not unusual in the television industry. In the meantime, Massey-Ferguson had decided not to renew its sponsorship for the program’s second 13-week run. The other two sponsors, as noted, had previously indicated they would not advertise during that period. Therefore, as of mid-March 1975, the parties had no sponsors for the show’s second run which was set to begin in early April.

McHugh continued his efforts to secure new sponsors, focusing on International Harvester. In the meantime, the parties entered into a written joint venture agreement on March 19, 1975. Under that agreement, McHugh was to receive 30% of the net proceeds of the show. He was solely responsible for securing sponsors for the program. A contractual provision allowed WGN to terminate the agreement prior to the commencement of any 13-week period if national advertisers had not yet agreed to buy at least three minutes per week of advertising time.

On March 30, McHugh told WGN that International Harvester was interested in sponsoring “National Farm Digest,” but he was having trouble reaching final agreement with them on the matter. The program’s host, Orion Samuelson of WGN, told McHugh he would contact a friend at International Harvester about the matter.

McHugh continued to seek sponsors for the program, and as part of that effort went to a broadcaster’s convention in Las Vegas. While there, on April 7, McHugh received a phone call from Eidmann of WGN. The latter told McHugh that WGN was terminating the agreement due to lack of sponsorship. “National Farm Digest” was thereupon pulled off the air.

After these events, McHugh hoped to continue production of the show on his own. However, on April 29, he learned WGN planned to proceed with its own show, “U.S. Farm Report.” It was eventually sponsored by International Harvester, and debuted in July 1975.

On cross-examination, McHugh admitted there were no national sponsors for “National Farm Digest” after its initial 13-week run. He knew the contract with WGN allowed the latter to terminate the agreement in such circumstances. McHugh was familiar with television contracts from his prior experience in the industry. He received all money due him from WGN under the contract.

McHugh also related that none of the components of the show, that is, its format, national scope, or the low-cost production technique used, had originated with him. High-speed dubbing had been possible since 1973. McHugh had presented the idea to others in a limited manner prior to its presentation to WGN.

Orion Samuelson, host of “National Farm Digest” and a WGN employee, testified he suggested the idea of a national farm news show to his superiors at WGN prior to McHugh. Nothing had been done about the idea.

Samuelson denied he told McHugh he would contact his friend at International Harvester in an effort to secure their sponsorship of the program. He never took such action. He noted that company did eventually agree to buy three minutes of advertising on WGN’s new farm show.

Bradley Eidmann testified he had had discussions on the idea of a national farm show before McHugh suggested it. He admitted that an International Harvester representative had contacted him about sponsoring the farm show just prior to WGN’s decision to cancel it and to terminate the agreement with McHugh. Prior to that, McHugh had told Eidmann that International Harvester had agreed to buy one minute of advertising time on “National Farm Digest” for its second 13-week run. Eidmann learned no such agreement had in fact been reached. On May 27, 1975, International Harvester did agree to sponsor “U.S. Farm Report.”

After McHugh presented the testimony of additional witnesses (which is not considered relevant to our disposition of this appeal), WGN’s motion for a directed verdict was granted.

I

McHugh asserts the trial court erred in directing a verdict for WGN on count I.

According to McHugh, count I states a cause of action for “interference with and appropriation of a property right,” or, more precisely, for tortious infringement of an asserted common law copyright. The elements of this tort action are (1) the existence of a property right of the plaintiff which is protected by the common law; (2) infringement of that property right by the defendant through copying or other similar forms of misappropriation; and (3) damages resulting therefrom to the plaintiff. (See Golding v. RKO Pictures, Inc. (1950), 35 Cal. 2d 690, 694, 221 P.2d 95, 97; Glane v. General Mills, Inc. (Cal. App. 1956), 298 P.2d 626, 628.) A property right in an idea, often referred to as literary property, is protected by the common law when it is shown to be novel, it has been reduced to concrete (as opposed to abstract) form, and it has not been subject to “publication.” (Szczesny v. W.G.N. Continental Broadcasting Corp. (1974), 20 Ill. App. 3d 607, 315 N.E.2d 263.) Misappropriation of that right can be demonstrated by proof of copying by the defendant. Copying can be inferred from a showing of substantial similarity between plaintiff’s property and that of defendant, and access of defendant to plaintiff’s property. (Roberts v. Dahl (1972), 6 Ill. App. 3d 395, 401-02, 286 N.E.2d 51, appeal denied (1972), 52 Ill. 2d 599.) Obviously, the act of the defendant must also have been “wrongful” in a tortious sense. In order for the trial court’s ruling directing the verdict for WGN on this cause of action to have been proper, the requirements of the well-known Pedrick standard, which need no repetition here, must have been met. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

We believe the trial court’s ruling was correct. The evidence presented shows that the parties freely entered into a written “joint venture agreement” on March 24,1975. In his complaint, McHugh alleged he was forced to sign this document due to “undue influence, duress and coercion”; however, the trial court granted “partial summary judgment” to WGN on this question. Although McHugh argued on oral argument that the contract was signed under duress, we do not find that contention properly raised or supported by the record. Consequently, the terms of that agreement are central to this case.

One provision of the agreement states:

“WGN may terminate the joint venture effective upon the completion of any thirteen (13) week series of Programs * * ° if there is not one (1) or more national advertiser sponsor 0 ° e who has * * * agreed to pay for sponsorship of three (3) or more minutes of commercial time in each Program. * * * After termination of the joint venture, either party may create, produce, merchandise, sell and syndicate television programs similar or identical to the Program, provided however, that neither party shall use the title ‘National Farm Digest’ ” *

The evidence shows that at the time WGN terminated the agreement, there were in fact no national advertisers contracted to sponsor the program’s second 13-week run. Further, the contract obligated only McHugh to acquire such advertisers; thus, their absence could not be attributed to any wrongful failure of WGN to seek new advertising. The evidence shows that after termination of the agreement, WGN merely relied upon its contractual rights in producing “U.S. Farm Report,” a program nearly identical to “National Farm Digest,” but which as required did not use the latter’s title.

Consequently, it is clear there is no proof whatsoever that WGN tortiously infringed upon, misappropriated, or otherwise wrongfully affected McHugh’s alleged common law copyright in the idea of a national farm news show. In the absence of this element, McHugh could never succeed in procuring a verdict in his favor. Thus, the Pedrick standard was met. The trial court committed no error in directing a verdict for WGN on count I.

II

McHugh claims the trial court erred in striking count II of the fourth amended complaint before trial.

Count II purportedly states a cause of action for breach of a fiduciary relationship existing between members of a joint venture. The record indicates the complaint containing count II was filed on the first day of trial, October 21, 1980, some 28 months after McHugh filed his third amended complaint and 53 months after the initial complaint was filed. The record further shows that the first and second amended complaints, filed 40 months and 34 months, respectively, before the complaint at issue, each contained a count premised upon the same cause of action as count II.

As noted by WGN, the ruling upon the motion for leave to amend a complaint rests within the sound discretion of the trial court. That decision will not be reversed absent a showing of clear abuse of discretion. (Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 858, 392 N.E.2d 591, appeal denied (1979), 79 Ill. 2d 620.) Cases have held that no clear abuse of discretion exists where a trial court denied an amendment proffered on the eve of trial, which amendment sets out matters the plaintiff must have been aware of earlier (Farnor; Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71, 78, 248 N.E.2d 534), or which would result in an unwarranted delay in trial (Nurnberger v. Warren & Van Praag, Inc. (1971), 133 Ill. App. 2d 843, 851, 272 N.E.2d 234).

McHugh fails to explain why he found it necessary to add count II on the first day of trial when he had alleged and then withdrawn the same cause of action on two instances three years earlier. In such circumstances, there was no error committed in striking count II.

Ill

McHugh contends the trial court erred in limiting the scope of damages evidence he might present under count I. Since the trial court properly directed a verdict for WGN on this claim, we need not address the issue.

For the foregoing reasons, we affirm the results achieved below.

Affirmed.

STAMOS, P. J., and HARTMAN, J., concur.

       The show worked on a “barter system.” The parties were responsible for securing national sponsors for three minutes of air time per show, the revenues to be kept by them. Each station to which the show was distributed was given three minutes of air time per show for which local advertising could be sold. Advertising contracts generally are sold in multiples of 13-week blocks, a period known as a broadcasting quarter.

       The other witnesses called by McHugh included two advertising executives at International Harvester’s ad agency, an International Harvester marketing executive, a former associate of Orion Samuelson at WGN, a WGN production man, and an accountant.

       Since this controversy arose prior to January 1,1978, there is no concern that the matter has been preempted by the Federal Copyright Act of 1976. See 17 U.S.C.A. §301(b) (2) (1977); O’Bryan Construction Co. v. Boise Cascade Corp. (1980), 139 Vt. 81, 424 A.2d 244.

       Literary property, although difficult to precisely define, is generally considered to arise from literary, artistic, aesthetic or other creative work or from the application of scientific, industrial, or technical research and development. See Kaul, And Now, State Protection of Intellectual Property? 60 A.B.A. J. 198 (1974).

       “Publication” is the act of the author dedicating his work to the public, which dissipates the protection afforded to a common law copyright. Vic Alexander & Associates v. Cheyenne Neon Sign Co. (Wyo. 1966), 417 P.2d 921, 923.

       In most cases involving violation of a common law copyright, the plaintiff has the option of proceeding in tort, as McHugh did, or on the theory of a contract implied in law, or quasi-contract. (Szczesny v. W.G.N. Continental Broadcasting Corp. (1974), 20 Ill. App. 3d 607, 612; see Belt v. Hamilton National Bank (D.D.C. 1952), 108 F. Supp. 689, 691, aff’d (D.C. Cir. 1953), 210 F.2d 706; see also Havighurst, The Right to Compensation for an Idea, 49 Nw. U.L.R. 295, 304 (1954); Stanley v. Columbia Broadcasting System, Inc. (1950), 35 Cal. 2d 653, 221 P.2d 73.) Here, however, the parties entered into an express contract. This precludes reliance upon quasi-contractual theory.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SERGIO SANCHEZ, Defendant-Appellant.
    First District (5th Division)
    No. 80-3106
    Opinion filed March 26, 1982.
    Rehearing denied April 30, 1982.
    Di Natale & Montemurro, of Chicago (Anthony M. Montemurro, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged by indictment with the murder of Justina Rivera in violation of sections 9 — 1(a)(1) and 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1) and9 — 1(a)(2)), and with armed violence in violation of section 33A — 2 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Following a bench trial, defendant was found guilty of murder and was sentenced to serve 20 years in the Illinois Department of Corrections. On appeal, he contends that: (1) the court improperly admitted hearsay evidence; (2) the testimony of an eight-year-old witness was neither competent nor credible; and (3) he was not proved guilty beyond a reasonable doubt.

Johnny Ramos testified that on June 5,1980, he resided with his wife Marta in a first floor apartment at 2659 West Cortez, Chicago, Illinois. At about 4:30 a.m. on that date he was awakened by the sound of gunshots followed by screaming. Less than one minute later he heard a knocking on his door accompanied by the victim screaming, “Call the police, help me, Marta.” He then telephoned the police, returned to the door, opened it, and saw the victim collapse on the floor. Noticing that she had been shot, he asked the victim, “What happened?” to which Justina Rivera replied, “My sister’s husband shot me.” At the time the victim spoke, she was covered with blood and was nervous and shaking a lot, mumbling and scared, and her words “came out in a terrified way.” Within two to three minutes after the witness heard the gunshots, the police arrived at the scene. On cross-examination the witness testified that the victim’s face was covered with dirt and blood.

Marta Ramos testified that on June 5,1980, she was sleeping with her husband and was awakened at about 4:30 a.m. by the sound of gunshots. A minute or two later she heard some pounding at the door. Her husband opened the door and she saw the victim covered with blood, standing and then falling down. The victim appeared to be in pain. She testified that the police arrived a couple of minutes after the gunshots and that a police officer asked the victim, “Who did this to you?” to which the victim replied, “Sergio.”

Investigator Bruce Peck testified that at about 5:15 that morning he conducted an interview with the victim at the hospital emergency room. The victim was lying on a table, groaning, shaking and shivering. Her breathing appeared to be forced and she seemed to be in great pain. The investigator spoke through a medical student interpreter. He asked the victim who shot her and she replied “Sergio.” He then asked who this person was and she replied that he was her sister Iris’ boyfriend. She also said she was shot because Sergio believed that she was coming between him and Iris. On cross-examination Investigator Peck repeated that the victim was speaking Spanish, which he did not understand, and that he did not know what, if any, medication had been administered to her.

Investigator Michael Shull testified. He had conducted a search of defendant’s apartment on the morning of June 5, 1980, and found it unoccupied. Later that afternoon he located and questioned defendant. Defendant related that on June 5, 1980, he was home asleep until approximately noon. When told that his apartment had been searched at 8:30, and then shown a photograph of the victim, defendant called the victim a whore, then pounded his fist on the photo, crumpled it up and threw it on the floor. On cross-examination Investigator Shull stated that defendant later told the police that he was at his former wife’s home that morning.

Carlos Gonzales, the eight-year-old son of the victim was the only eyewitness to the offense. He testified that on the night that his mother was shot he was awakened by the sound of defendant’s footsteps going towards his mother’s room. He had seen the defendant on three prior occasions. He stated that he first saw defendant on the night in question in his apartment at the back door, near his bedroom, and that defendant had looked into his bedroom. The boy testified that he heard defendant say “I got to do this” as he walked to his mother’s bedroom. He then explained that he tiptoed to the kitchen where he could see defendant pull a gun from his pants and load it. The witness watched the defendant lift the gun with both hands and shoot in his mother’s direction. The boy further identified defendant, in court, as the man who shot his mother and explained that he had identified defendant in a lineup on the day after the shooting.

On cross-examination the boy testified that he had gone to sleep at about midnight and had turned the light out. Then he stated that the light in his bedroom was on when he went to sleep. He further stated that he did not get out of the bed until after he heard the shots. He then related that when he got out of bed he saw defendant put bullets in the gun and cock it. He later remembered that when the shots were fired he was on the back porch and although he could not see into his mother’s bedroom he saw defendant pointing the gun into her room and shooting in her direction. The boy explained how defendant then dragged his mother by her feet and then placed her on a couch. He watched as defendant sat down and argued with his mother about something in Spanish. The boy said he then saw his mother try to open the front door, and that defendant ran out the door first and then down the stairs. He saw his mother go down the stairs and fall on the floor. He also described how defendant had put some dirt around his mother’s mouth with his hand. He admitted that certain police investigators had told him, prior to his viewing a lineup, that in such lineup would be the man who shot his mother.

Investigator James Padar testified that he examined the crime scene and found a large amount of blood on the stairway outside the door to the second floor apartment and trailing to the third floor apartment. He also found two bullet holes in the wall of the victim’s front bedroom.

Officer Jose Martinez testified that he acted as interpreter for Investigators Shull and Padar when they questioned the defendant, and Herberto Torres testified that he was the medical student who interpreted the victim’s conversation at the hospital.

Defendant, his wife and their four children testified that at the time of the shooting, defendant was at their house, asleep in his wife’s bedroom. On cross-examination defendant stated that he had lived with Iris Ramos for three or four years, that together they had one child, and that they stopped living together three or four months before June 1980.

The parties stipulated that if Dr. Yuksel Konakci, an expert in forensic pathology, was called to testify he would state that Justina Rivera died on June 5,1980, as the result of a bullet wound to her chest, the bullet passing through her right lung and exiting her right back.

Opinion

Defendant contends that accusatory statements made by Justina Rivera after she was mortally wounded were inadmissible as hearsay evidence and did not qualify under the spontaneous declaration exception to the rule against hearsay. Defendant argues that the interval of time between the shooting and the utterances destroyed their spontaneity. People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528; People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.

The three criteria for a hearsay statement to be admitted as a spontaneous declaration are: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807; People v. Vinson (1977), 49 Ill. App. 3d 602, 364 N.E.2d 364.) It is well established that asking the declarant “what happened” is insufficient to destroy the spontaneity of a response. (People v. Damen; People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61.) Similarly, we deem that asking the declarant “Who did this to you?” is insufficient to destroy the spontaneity of a response. Applying the above criteria to the first two statements, we find that all three elements are present and that these declarations were properly admitted into evidence.

As to the third statement, made in the emergency room 45 minutes after the shooting, both the first and third criteria were met, and the only disputed question is whether the victim had time to fabricate. However, time alone does not control the admissibility of the utterance, but rather the critical factor is the lack of opportunity to fabricate. People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310.

The trial court was justified in concluding that the statements herein were not the product of fabrication. The testimony that the victim was “shivering” and “shaking” and was “groaning” and in “great pain” was sufficient to establish that the victim did not engage in reflective thought. (See In re Hatfield (1979), 72 Ill. App. 3d 249, 390 N.E.2d 453; People v. Robinson (1977), 47 Ill. App. 3d 48, 361 N.E.2d 759.) In our view Justina Rivera’s statement to Investigator Peck was a spontaneous reaction to her shooting. Moreover, even if the victim’s emergency room statement did not meet all three criteria, its admission was harmless beyond a reasonable doubt since it was merely cumulative. See Vinson; Parisie.

Defendant next contends that eight-year-old Carlos Gonzales was not competent to testify. The competency of a minor to testify is determined by the degree of intelligence rather than his age. (People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1; In re Cruz (1979), 76 Ill. App. 3d 565, 395 N.E.2d 388.) In determining the minor’s intelligence, the judge should consider whether the minor is sufficiently mature to: (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. (People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10; In re Cruz.) The competency of such a witness is to be determined by the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion or a manifest misapprehension of some legal principle. Ballinger; In re Cruz.

In the instant case the trial judge and the prosecuting attorney both conducted voir dire examinations of Carlos Gonzales to determine his competency. During the prosecutor’s examination the witness told the court that he was a third grader at Nixon School. He testified that he studied math, reading, writing and spelling, and that sometimes his grades were good and sometimes bad. He supplied the names and ages of his brother and sister. He testified that he believed in God, and that he knew what a lie was, and that God, his parents, and the judge would all punish him if he lied. He said that he would promise the judge that he would tell the truth. He also recited his birthday and knew the day of the week on which he was testifying.

In the examination conducted by the judge the boy told'the court that he did not go to church. The judge asked the boy to read aloud a series of words printed on a calendar. The witness was able to recite each word but one, apparently not being able to pronounce a man’s last name. He was asked to count the number of months in a year, and stated that he did not know the answer. He told the court that by placing his hand on the red book he was to tell the truth, and that if he didn’t he would go to jail, and that God would also punish him.

Applying the above standards to this case, we do not believe that the judge’s determination should be reversed. The witness experienced some difficulty in answering questions during the trial, specifically relating to his precise location when the shooting occurred. However, once the judge has determined that the minor is competent to testify, any confusion or contradiction in later testimony only goes to his credibility as a witness, not his competency to testify. (In re Cruz; People v. Goble (1976), 41 Ill. App. 3d 491, 354 N.E.2d 108.) Accordingly, defendant’s argument on this point is without merit. Further, we reject defendant’s argument that the witness’ cross-examination testimony that the prosecutor had spoken to him prior to the hearing regarding the type of questions the judge would ask about telling the truth indicates that the boy did not appreciate the moral duty to tell the truth. On the contrary, his answers indicate an intention to be honest and do not show the witness was incompetent to testify. Moreover, the trial judge was able to observe the demeanor of the witness, and in our opinion he did not abuse his discretion in permitting the boy to testify.

Defendant’s next contention is that the testimony of Carlos Gonzales was not credible. Defendant emphasizes the fact that the witness gave contradictory testimony regarding his location when the gunshots were fired which, defendant argues, completely erodes his credibility as a witness and further demonstrates that a reasonable doubt exists regarding the defendant’s guilt.

It is the function of the trier of fact to weigh the testimony, judge the credibility of the witnesses and determine factual matters in debatable circumstances, and in criminal proceedings, the trier of fact may believe part of a witness’ testimony without believing all of it. (People v. Jones (1980), 86 Ill. App. 3d 1013, 408 N.E.2d 764.) A reviewing court has neither the duty nor the privilege to substitute its judgment as to the weight of disputed evidence or credibility of witnesses for that of the trier of fact. (Jones; People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528.) We have reviewed the witness’ testimony and find no basis to reverse the judge who saw and heard the witness. While there are a few minor contradictions as to his precise location at the moment of the shooting, there are many significant details which remained consistent in the witness’ testimony which, in our view, demonstrate that the boy received lasting impressions of the events in question, many of which were corroborated by independent testimony. See People v. Goble (1976), 41 Ill. App. 3d 491, 354 N.E.2d 108.

Finally, defendant argues that he was not proved guilty beyond a reasonable doubt in light of the evidence presented and that his alibi testimony, corroborated by five members of his family, was not overcome by sufficient credible evidence.

It is settled that a single positive and credible witness who had an ample opportunity to observe the accused is sufficient to support a conviction even though such testimony is contradicted by the alibi testimony of the accused and alibi witnesses. The fact that defendant denies his guilt, and that defense witnesses corroborate his alibi, does not, in and of itself, create a reasonable doubt of defendant’s guilt. (Wade.) The trier of fact must determine the weight and credibility of the witnesses, and unless that determination is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of defendant’s guilt, the verdict will not be disturbed on appeal. People v. Donald (1963), 29 Ill. 2d 283, 194 N.E.2d 227; People v. Owens (1977), 46 Ill. App. 3d 978, 361 N.E.2d 644.

The court here obviously believed the eyewitness testimony of Carlos Gonzales that defendant entered his apartment on the night of the occurrence and fired a handgun into his mother’s room. We believe the court was entirely justified in doing so since the boy had seen defendant on three prior occasions, and apparently had ample opportunity to view him during the events before and after the shooting. After examining all the evidence of this case in light of the above principles of law, we do not believe that the evidence was of such nature as to render the testimony of Carlos Gonzales so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt.

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

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE HARTMAN

text:
      In re ESTATE OF FRANK PRUSIS, Deceased.—(GENE BACYS PRUSIS, Petitioner-Appellant, v. ALGERD PRUSIS, Respondent-Appellee.)
    First District (2nd Division)
    No. 81-565
    Opinion filed March 30, 1982.

      Rima L. Skorubskas, of Zumbakis & Associates, of Chicago, for appellant.
    Peter C. Rolewicz and Yasus & Slomka, both of Chicago (Vytold C. Yasus, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The administrator of the Estate of Frank Prusis, his surviving spouse, Gene Bacys Prusis (Gene), appeals from an order of the circuit court dismissing her amended verified petition for citation to discover assets following an evidentiary hearing by the trial court. The sole issue is whether Gene established a prima facie case.

Decedent Frank Prusis died on July 2,1978. Gene filed an amended verified petition to recover assets alleging, among other things, that: she and decedent were married November 14, 1970; decedent established a number of “Totten trust” savings accounts in his own name as trustee for his nephew, respondent Algerd W. Prusis (Algerd); decedent retained absolute, unqualified control over the accounts and possessed and exercised all incidents of ownership thereof; petitioner learned how title was held to these accounts only after decedent’s death when she saw a list of them furnished by Algerd, attached as Exhibit “A”; decedent and Algerd entered into a written agreement on January 29, 1975, Exhibit “B”, purporting to dispose of the proceeds of the accounts upon decedent’s death, and into a subsequent, allegedly “superseding” agreement dated December 19, 1977, Exhibit “C”, of which petitioner had no notice or knowledge prior to decedent’s death; and, the transfer of title to the account was illusory and intended to defraud petitioner. Gene requested that the property either be included in decedent’s estate or be found subject to her claim for her statutory marital share.

Algerd filed a verified motion to dismiss the amended petition, which, among other things, admitted the establishment of the Totten trusts, and asserted that: petitioner and decedent wanted to ensure that their assets would pass to their respective families; petitioner was aware of the manner in which title was held to the subject accounts; petitioner and decedent filed joint income tax returns between 1970 and 1977; petitioner was present during the drafting of the first agreement and participated in designating certain beneficiaries thereof; Algerd had no intent to defraud petitioner, who had, in fact, delivered the list of accounts, Exhibit “A”, to Algerd voluntarily.

At the hearing on the petition for citation to recover assets, held October 22,1980, counsel agreed to proceed on the merits of the petition itself; ruling upon the motion to dismiss was reserved until the completion of petitioner’s evidence.

Petitioner testified that decedent had been married once before he married her. Before they married, they discussed the disposition of his property should he predecease her. He would leave everything to her, and nothing to Algerd, who was already wealthy. Gene would leave nothing to decedent because she had children from her first marriage. A few years after the marriage, when Gene asked decedent about “our testament,” he replied, “what I said previously still stands.” He never told her in what institutions he had deposited his money and hid financial records from her. She saw two passbooks, however, one in her name and the other in respondent’s name. Decedent never discussed with her the manner in which title was held in the five subject accounts; she first learned of them after her husband’s death.

Petitioner and decedent visited decedent’s attorney, Vytold C. Yasus, to complete their income tax returns, but neither decedent nor Yasus ever discussed the disposition of her husband’s assets. After January 29, 1975, decedent told her he had made a “testament” in which he listed her grandchildren. She first became aware of the 1975 agreement when she discovered it in a hat box in decedent’s closet after his death. She was first informed of the 1977 agreement by Algerd at decedent’s wake. On cross-examination she testified that when she and decedent prepared their income tax returns at Yasus’ office, decedent brought the “interest slips” from his accounts and she brought hers. She observed and signed the tax return forms to which were attached sheets listing interest from savings accounts. She also observed “bank slips” and later found a carbon copy of the “listings” which decedent had prepared. At decedent’s funeral she gave Algerd one or two passbooks bearing Algerd’s name “as trustee,” apparently not the subject of this suit; two or three bearing decedent’s and her names; and two passbooks bearing decedent’s name. She told Algerd she did not know where the others were kept and he replied “with me.”

Petitioner testified on redirect examination that she never exchanged “bank slips” with the decedent, and never saw a list on which the name of the bank, as well as the manner in which title was held, was listed. Decedent never showed her the passbooks before his death.

Algerd was called by petitioner as an adverse witness (Ill. Rev. Stat. 1979, ch. 110, par. 60). He was decedent’s nephew. He did not know when the five accounts in question had been established, except that one had been established prior to decedent’s marriage to petitioner. The “Bell Savings” account dated back to September 1969, which account he referred to as the “one that has my name on it.” He identified an account at “First Federal” bearing an issue date of December 1973, which was a transfer from another account; an account at “Union Federal”, which was also transferred from another account in 1971; and another account at “Union Federal Savings and Loan” which was opened in October 1975 and which had been transferred from another account. All the accounts in question had been established prior to September 16,1977.

Algerd testified that decedent periodically gave him small gifts, telling him, “ ‘I got a dividend and here’s your share’ ”; however, “[i]t never was anywhere equal. But you know $50 or something close to my birthday or whatever.” Prior to decedent’s death he did not discuss with Gene any of the accounts or agreements in question, but he did so afterwards when “she brought it out. She knew all about it.” Gene asked him to verify whether he had two agreements with decedent; when he so acknowledged, Gene looked at the agreements and simply shook her head. The total amounts in the five accounts at or near the date of decedent’s death approximated $57,000.

No passbooks were offered or received in evidence, nor were any underlying financial institution trust agreements which established the accounts.

Counsel for Algerd renewed his motion to dismiss the amended petition. Memoranda of law were filed by the parties. After oral argument thereon, the trial court granted Algerd’s motion and dismissed Gene’s amended petition.

Gene argues that Totten savings account trusts, as well as other inter vivos transfers, which are colorable or illusory, are invalid as to the rights of a surviving spouse, relying principally upon Montgomery v. Michaels (1973), 54 Ill. 2d 532, 301 N.E.2d 465 (Montgomery), and In re Estate of Mertes (1975), 34 Ill. App. 3d 557, 340 N.E.2d 25 (Mertes). In Montgomery, the supreme court held that a Totten trust, while valid for other purposes, cannot defeat the surviving spouse’s statutory share, wherein the settlor is trustee and retains absolute, unqualified control over the account and exercises the incidents of ownership thereof, including the right to receive interest payable thereon and withdraw principal, therefrom. The supreme court emphasized that the intent of the deceased spouse in creating the trust, even if to deprive the surviving spouse of his or her statutory share, is irrelevant to this determination and the trust corpus would be available to satisfy the spouse’s statutory share, or for the payment of estate debts and the expenses of administration. The Mertes court followed Montgomery and gave that decision retroactive effect by applying it to Totten trusts established before Montgomery. The appellate court found the Totten trusts there at issue invalid as to the surviving spouse, notwithstanding the trial court’s finding that the trust was neither illusory nor fraudulent, and that there was no secretive conduct involved in its establishment or maintenance. On the basis of these authorities, Gene urges that the trusts here should be declared invalid as to her rights.

In Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185, relied upon by both parties, plaintiffs, in a consolidated appeal, attempted to invalidate certain inter vivos transfers. Plaintiffs in each case were the surviving husbands and raised Montgomery in support of their claims. In the first case, decedent had created an inter vivos trust for the ultimate benefit of several relatives and charities. In the second case, a savings account named decedent and her sister-in-law as joint tenants. In distinguishing Montgomery, the supreme court stated (73 Ill. 2d 342, 356-57):

“The courts of this State have readily upheld inter vivos trust arrangements where the settlor has named himself trustee and retained indicia of ownership and control. (Farkas v. Williams (1955), 5 Ill. 2d 417.) There is no contention in this case that the trust was not a valid inter vivos trust. It is only contended that it is invalid to the extent that it deprived the plaintiff of his marital rights in the property. With the exception of Montgomery v. Michaels and the rules therein concerning the validity of Totten trusts, no general principles have emerged invalidating such other inter vivos transfers per se in respect to the marital rights of surviving spouses. Rather, whether the transfer of property in trust is vulnerable to attack depends on whether the trust employed is colorable and illusory and a fraud on marital rights. (E.g., Holmes v. Mims (1953), 1 Ill. 2d 274.) This determination necessarily turns on the facts of each individual case. (See Burnet v. First National Bank (1957), 12 Ill. App. 2d 514.) We therefore reject the reasoning of the appellate court that our decision in Montgomery is controlling in this case.”

Gene reads Johnson as merely limiting Montgomery to Totten trust accounts, which she maintains the instant trust accounts must be. The thrust of Algerd’s argument is that the accounts at issue are not Totten trusts; therefore, their validity must be ascertained with reference to principles relating to revocable inter vivos trusts under Johnson rather than those relating to Totten trusts set forth in Montgomery. Algerd also cites and relies upon In re Estate of Anderson (1966), 69 Ill. App. 2d 352, 217 N.E.2d 444 (Anderson), and In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 413 N.E.2d 486 (Chandler).

In Anderson, the court held that two savings account trusts were revocable inter vivos trusts, not Totten trusts. The court observed that the account at issue in In re Totten (1904), 179 N.Y. 112, 71 N.E. 748, consisted merely of “a savings account in the name of a depositor as trustee for another, nothing more.” (69 Ill. App. 2d 352, 363.) In contrast, accounts at issue in Anderson were accompanied by specific trust instruments “containing definite terms and provisions regarding the deposit and disposition of funds and the change, alteration, modification and termination of the trust.” (69 Ill. App. 2d 352, 363.) In Chandler, a surviving spouse claimed that a savings account trust established by her deceased spouse for his brother was subject to her statutory marital share. Her name had been stricken from the trust account by decedent and the name of his brother was substituted therefor. The trial court held the transfer to have been illusory under Montgomery and ordered, among other things, one-half to the wife as marital property. The account was accompanied by a “Discretionary Revocable Trust Agreement” containing definite trust provisions, as in Anderson, and was held by the appellate court to be an inter vivos transfer outside the scope of Montgomery. The appellate court examined the facts surrounding the creation and maintenance of the trust, e.g., decedent was in poor health, had lived with the beneficiary, and had made no withdrawals from the trust res, and found that decedent had intended to make a valid and effective transfer of the funds to his brother.

Gene contends that Algerd is bound by a judicial admission, made in his motion to dismiss, that the instant savings accounts were Totten trusts; however, such motions are made only for the purpose of determining whether, as a matter of law, the facts set forth in a petition or complaint state a claim upon which relief may be granted. (O’Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 88, 224 N.E.2d 782; Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 929, 393 N.E.2d 580, aff’d (1980), 82 Ill. 2d 313.) Accordingly, we must examine the agreements of January 29, 1975, Exhibit “B”, and December 19, 1977, Exhibit “C”, for the purpose of ascertaining whether either or both contains “definite terms and provisions regarding the deposit and disposition of funds and the change, alteration, modification and termination of the trust[s],” relied upon in Anderson, or rise to the dignity of “Discretionary Revocable Trust Agreement[s],” found in Chandler. The agreements contain identical headings, to wit, “Agreement.” They also contain identical opening and closing language, as follows:

“This Agreement executed the day below written acknowledges that FRANK PRUSIS has established several savings accounts in his name as trustee for ALGERD W. PRUSIS. In consideration therefor, the said ALGERD W. PRUSIS agrees to disburse from the aforesaid accounts upon the death of FRANK PRUSIS the following amounts:
All the remainder of such funds shall be retained by ALGERD W. PRUSIS for his personal use. In the event any of the above named persons are minors at the time of my death, I direct that ALGERD W. PRUSIS hold the amounts as trustee for such minors until they shall attain the age of majority.”

Both agreements are dated as above noted and witnessed by one witness, Vytold C. Yasus. Both are signed by decedent and Algerd. The ellipsis shown above contain in each agreement the names of persons to whom funds in specific amounts are to be distributed, as well as provisions in specific amounts for decedent’s burial, post-funeral luncheon, and grave maintenance. The only differences between the 1975 and 1977 agreements are the inclusion of Gene and her grandchildren in the former and their exclusion from the latter agreement.

To be noted is the absence of any language in the 1977 agreement stating that it supersedes the 1975 agreement. No declaration of trust for Algerd is set forth in either agreement; merely language that decedent has elsewhere established “several savings accounts in his name as trustee for ALGERD W. PRUSIS.” Although Algerd is named trustee of such amounts as may be due minors at the time of decedent’s death until they reach the age of majority, neither the specific trust accounts nor their amounts are identified in either agreement. Nor is any mention made in either of revocability, change, alteration or modification of the trusts. From the foregoing, the agreements cannot be said in and of themselves to constitute trust agreements conveying inter vivos interests which satisfy the requirements of Anderson and Chandler and remove them from the ambit of Totten trusts described in Montgomery and Mertes.

Each of the trust accounts said to have been established by decedent appears to have been created in savings and loan institutions, namely, First Federal Savings and Loan Association, Union Federal Savings and Loan Association and Bell Federal Savings and Loan Association and, if so, may be governed by section 4 — 10(b) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, 1977, ch. 32, par. 770(b)). Those provisions contemplate the execution of written trust agreements with the institution and encompass designation and change of beneficiaries and trustees, revocation, and other amendments and changes, among other provisions. Neither the passbooks nor the underlying agreements creating them have been submitted or received in evidence. In their absence, it is impossible to determine whether the putative trust accounts are revocable inter vivos trusts or Totten trusts.

Accordingly, the cause must be reversed and remanded. Algerd should be directed to answer the amended petition and, upon further hearing, the trial court should consider any trust agreements under which the savings accounts were created (In re Estate of Anderson), or any agreements which may appear in the passbooks themselves in the event no separate agreement was made, together with any facts from which inferences may be drawn as to decedent’s intent or lack thereof to make valid inter vivos transfers. Johnson v. La Grange State Bank; In re Estate of Chandler.

Reversed and remanded.

STAMOS, P. J., and PERLIN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN HERNANDEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 81-65
    Opinion filed April 6, 1982.

      James J. Doherty, Public Defender, of Chicago (Ina S. Marks, Assistant Public Defender, of counsel), for appellant.
    kichard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, James Koch, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant Juan Hernandez was indicted on two counts for the murder of Jaime Mora (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1), (a)(2)), two counts of armed violence based upon the murder of Mora and the aggravated battery by gunshot wound of Tammie Sandel (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2), and two counts of aggravated battery based upon the shooting of Sandel (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a), (b)(1)). Motions to quash defendant’s arrest and to suppress a confession taken thereafter were denied. A jury found defendant guilty on one count each of murder, armed violence, and aggravated battery. The trial court sentenced defendant to serve 25 years for the murder of Mora and 20 years for the armed violence upon Sandel. The court considered the aggravated battery convictions merged into the armed violence conviction.

Defendant argues on appeal (1) the trial court erred in denying his motions to quash his arrest and to suppress a confession he made thereafter; (2) the State failed to prove him legally accountable for the crimes committed on the victims; and (3) he was denied a fair trial by allegedly improper statements made by the State during its closing and rebuttal arguments to the jury.

On July 6,1979, at about 11 p.m., Jaime Mora was shot to death and Tammie Sandel was gravely wounded while standing at the intersection of 38th Street and Washtenaw Avenue in Chicago. The gunman was allegedly Mario Mata, who was indicted with defendant but separately tried. Defendant drove the car from which the shots were fired. Defendant was arrested at the home of his girlfriend in Chicago at 6 a.m. the following day.

Defendant’s initial motion to suppress rested upon his contention that his confession was involuntary. Arresting officer (Chicago police department) Moser related he arrested defendant at the home of Linda Dunleavy at 6 a.m. on July 7,1979, in the company of two other officers. Defendant was read his Miranda rights at the time of his arrest and at the police station. Defendant acknowledged understanding those rights. Defendant agreed to give a statement. An assistant State’s Attorney was called. He questioned defendant after reading the latter his rights. Defendant gave a 14-page written statement, which he signed. On cross-examination, Moser related defendant was handcuffed to the wall while detained and questioned. Moser did not see defendant beaten while in custody. Defendant did not complain to Moser about his treatment.

Assistant State’s Attorney Cavanaugh questioned defendant at the police station. He made no promises or threats to defendant. Cavanaugh noticed nothing unusual about defendant’s appearance. Defendant did not complain about his treatment. On cross-examination, Cavanaugh admitted defendant stated he was treated well “except for two guys [police officers].” Cavanaugh did not inquire further on that matter.

Officer Cigielski, Moser’s partner, corroborated Moser’s version of the events. No threats or promises were made to defendant. Defendant was not abused.

A picture of defendant taken after he gave the statement was admitted into evidence. It showed no indications defendant had been beaten.

Defendant related he was beaten by two policemen while in the detention room. One smacked his head into the wall, while another punched his arms and chest. After the assistant State’s Attorney questioned him, policemen offered defendant a deal if he would talk. Eventually, defendant was forced to give a statement. On cross-examination, defendant stated he looked over the written statement before signing it, but did not read it.

The trial court found defendant’s version of the events to be non-credible and denied the motion to suppress.

The case proceeded to trial. There, one of the witnesses was Officer Cigielski. He had been assigned to investigate the shootings of Jaime Mora and Tammie Sandel. He interviewed six individuals at the scene and learned the shots had been fired from a brown station wagon. Cigielski was directed to the residence of Linda Dunleavy. There, he spotted a brown station wagon parked in the street and saw a woman looking out a second floor window. Cigielski went to the second floor, knocked, and received no response. He finally kicked in the door and asked for defendant or Dunleavy. Cigielski conducted a search after being told they were not there. He found the two hidden in a closet in the back of the house. Also in the closet was a shotgun. Defendant was arrested. The time was 6 a.m. At the station, defendant admitted to Cigielski he had driven the car involved in the incident.

Later in the proceedings, the trial was disrupted and a mistrial declared at defendant’s request. Defendant then filed a motion to quash the arrest based upon the additional information contained in Cigielski’s testimony. The trial court denied this motion.

At the second trial, victim Sandel testified to the events on the night of July 6, Í979. She was standing on a street corner with Mora and another man. A brown station wagon drove by. Some time later, the same car approached and stopped. There were four persons in the car. Defendant was driving, and Mario Mata was seated behind him. Sandel knew both men. After the car stopped, a rifle came out the window where Mata was sitting. Sandel’s two companions ran. Sandel heard about eight shots. She began to walk away and was shot in the back. The car then drove away, with defendant at the wheel.

Another witness testified to the events of the shooting, which he observed from several hundred feet away. He could not identify the passengers in the car, but saw both Mora and Sandel lying wounded on the ground. He had seen defendant drive the car on earlier occasions.

Other police officers involved in the investigation testified, and Officer Cigielski repeated his testimony from the earlier trial. Assistant State’s Attorney Cavanaugh also testified as he had at the suppression hearing.

Defendant took the stand in his own behalf. He had been out driving on the night in question with his brother. He picked up his friend, Mario Mata. Defendant then drove over to pick up Linda Dunleavy, his girlfriend. As he approached the corner of 38th Street and Washtenaw Avenue, shots rang out from his car. Defendant knew there was a gun in his car. Defendant repeated his testimony concerning his version of his arrest and interrogation. On cross-examination, defendant stated the gun had been put into his car by his friend. Defendant had moved the gun to under the driver’s seat. He took the gun up to Dunleavy’s house after dropping off Mata. Defendant claimed he was unaware the gun was used to shoot anyone that night. He admitted driving the car at the time in question.

Also introduced into evidence was the statement defendant gave to assistant State’s Attorney Cavanaugh. In that statement, defendant related he had passed the site in question in his car with Mata and another while driving to pick up Dunleavy. He recognized Jaime Mora standing on the corner. Defendant knew there was trouble between Mora and Mata. Mata said, “Let’s get them later.” They drove to Dunleavy’s house. Mata then said they should “get” the men on the corner, meaning he wanted to shoot at them or beat them up. Defendant finally agreed to do so. He drove to the site and stopped the car. Mata pulled out the gun, and the group on the corner split up and ran. Defendant heard shots and saw Mora fall. Defendant then drove away. This statement was initialed on each page by defendant and signed on the final page.

The jury found defendant guilty on the theory of accountability for the murder of Mora and aggravated battery and armed violence upon Sandel.

I

Defendant asserts the trial court erred in denying his motions to quash his arrest and suppress his statements.

A.

Defendant moved to quash his arrest on the basis that he was improperly arrested without a warrant in the home of his girlfriend. On appeal, defendant relies principally on the holding of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, in arguing the trial court erred in denying the motion.

As argued by the State, Payton is inapplicable to the present circumstances. A careful reading of Payton and its Illinois counterpart, People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, demonstrates that the holdings of those cases were concerned solely with the specific fact situation in which police make a warrantless entry into the defendant’s home for the purpose of effectuating his arrest. Since defendant was not arrested in his own home, the rationale underlying the Payton and Abney holdings does not directly apply here.

Our research indicates Illinois reviewing courts have apparently not yet directly addressed the question of what the proper police procedure is when arresting a suspect in the residence of a third person. In People v. Grant (1982), 104 Ill. App. 3d 551, 432 N.E.2d 1200, we assumed without discussion that such an arrest could be made without a warrant so long as the record contained adequate proof of the presence of exigent circumstances justifying such warrantless police activity. This assumption coincides with the holding of the only other case on point we have discovered. In United States v. Williams (3d Cir. 1979), 612 F.2d 735, 738, cert. denied (1980), 445 U.S. 934, 63 L. Ed. 2d 770, 100 S. Ct. 1328, which preceded and anticipated the Payton rationale, it was held that the protections of the fourth amendment extend to a defendant arrested in the residence of a third person. The Williams court held that there must be exigent circumstances present to validate a warrantless arrest in such a situation. 612 F.2d 735, 738.

We have considered the competing interests involved in this situation and agree with the Grant and Williams decisions. The interests involved in such circumstances are threefold. First, there is the strong interest in maintaining effective law enforcement by not unduly restricting the ability of law personnel to apprehend legitimate criminal suspects. Second is the strong fourth amendment interest of the third party, whose home is invaded in such circumstances. Third is the fourth amendment interest of the suspect, although this interest is certainly not as strong as in a situation where the suspect is within the confines of his own home. Compare United States v. Watson (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820, with Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.

As a preliminary matter, we note defendant does not contest the issue of whether the arresting officers had probable cause to arrest him in this case. Starting from that underlying premise, we now hold that there must be proof of exigent circumstances in order to validate the warrantless arrest of a suspect in the home of a third person. Where exigent circumstances are lacking, the police must procure a warrant in order to protect the fourth amendment rights at stake.

The factors to be analyzed in determining whether exigent circumstances were present have been presented often before and need no further recitation here. (See People v. Henderson (1981), 96 Ill. App. 3d 232, 236, 421 N.E.2d 219.) Applying the present facts to those elements, we first note the crimes involved were significantly violent: the apparently unprovoked shooting death of one person and grave wounding of another. Because of this, the police could reasonably believe defendant was armed and dangerous at the time of his arrest. (Indeed, in hindsight, the facts show defendant had the murder weapon in his possession when arrested.) As noted, and conceded by defendant, there was clear probable cause to effect defendant’s arrest. The record shows a car reasonably thought to be defendant’s was parked outside the residence in which the arrest took place. Thus, the police had strong reason to believe defendant was in the premises. Further, we find no unduly long delay between the officers’ awareness of defendant’s location and his arrest, in which a warrant could have been obtained. The shooting occurred at 11 p.m.; the arrest took place at 6 the following morning. It appears the arresting officers interviewed witnesses, followed their leads, and proceeded to seize defendant as soon as information as to his whereabouts was available.

In sum, the record on the whole strongly demonstrates the presence of exigent circumstances for the arrest of defendant in the home of his girlfriend. Consequently, the absence of a warrant did not serve to vitiate that police action. Since defendant’s arrest was proper, his statement cannot be suppressed on this basis.

B.

Defendant contends his confession must be suppressed because it resulted from physical and mental coercion and was involuntary.

When an accused makes a statement to law enforcement personnel in circumstances which indicate that the former’s will was overborne or the statement was not a product of a rational intellect, that statement is involuntary and thus inadmissible at trial. For a statement to be voluntary and thus admissible, there must be no compulsion or inducement of any sort. (People v. Kavinsky (1980), 91 Ill. App. 3d 784, 790, 414 N.E.2d 1206, appeal denied (1981), 83 Ill. 2d 572.) The burden is upon the State to establish voluntariness of a confession by a preponderance of the evidence, and the State has the burden of producing all persons whose testimony would be material on the issue, or to explain their absence. The trial court’s determination will not be disturbed unless it is contrary to the manifest weight of the evidence. People v. Lewis (1979), 75 Ill. App. 3d 259, 278, 393 N.E.2d 1098, appeal denied (1979), 79 Ill. 2d 623.

Our review of the record convinces us the trial court properly denied the suppression motion based on this ground. We agree defendant’s story of physical and mental coercion lacks credibility in the face of the remainder of the evidence concerning the circumstances of his confession.

II

Defendant argues the State failed to prove beyond a reasonable doubt he was responsible for the shootings of the victims by Mario Mata.

The record is clear defendant did not fire the gun at the victims here. Clearly, defendant’s only overt act was to drive the car from which the gunfire came, to and from the scene. In order to validly convict defendant of murder and armed violence in these circumstances, it was necessary that the State prove beyond a reasonable doubt that defendant solicited, aided, abetted, agreed to or attempted to aid Mata in the planning or commission of the shootings, that he so participated either before or during the commission of the offense, and that he did so with the concurrent specific intent to promote or facilitate the offense. Defendant’s mere presence at the scene was insufficient to establish guilt under the accountability theory. People v. Shaw (1981), 98 Ill. App. 3d 682, 685, 424 N.E.2d 834; People v. Sakalas (1980), 85 Ill. App. 3d 59, 68, 405 N.E.2d 1121, appeal denied (1980), 81 Ill. 2d 597.

However, we view the record as adequate to support defendant’s conviction. That he aided, abetted, and participated in the shootings of Mora and Sandel cannot really be questioned. The 14-page statement he gave on the day of his arrest clearly indicates defendant’s active participation in the crimes, which were obviously preconceived, coldblooded actions rather than the spontaneous events suggested by defendant.

III

Defendant claims he was denied a fair trial by four statements made by the State during its closing and rebuttal arguments to the jury.

We have reviewed those statements and the circumstances in which they arose. There is no need to recite them here. All of the comments to which defendant now objects were within the scope of proper closing argument. Defendant received an eminently fair trial and his convictions stand.

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.

       We do not decide whether the warrant required in the absence of exigent circumstances should be an arrest warrant, which would be sufficient under Payton, or a search warrant. We note that the Supreme Court’s decision in Steagald. v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642, although not directly on point, would seem to presage the requirement of a search warrant due to the multiple fourth amendment interests involved.


text:
    THE PEOPLE ex rel. ILLINOIS STATE BOARD OF ELECTIONS, Plaintiff-Appellant, v. VICTOR deGRAZIA et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-963
    Opinion filed April 6, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Karen Konieczny, Assistant Attorney General, of counsel), for appellant.
    Foran, Wiss & Schultz, of Chicago (Thomas A. Foran, Stephen A. Forman, and Jeffrey C. Blumenthal, of counsel), for appellee Victor deGrazia.
    Antonow & Fink, of Chicago (William I. Goldberg and Alan P. Solow, of counsel), for appellee Daniel Walker.
    Sneider & Troy and Foss, Schuman & Drake, both of Chicago, for appellee James R. Sneider.
   JUSTICE DOWNING

delivered the opinion of the court:

The Attorney General, on the relation of the Illinois State Board of Elections, filed a two-count complaint in the circuit court on July 1,1980, alleging violations of section 9 — 25 of the Illinois Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 9 — 25). Pursuant to section 1A — 1 of the Election Code, the State Board of Elections generally supervises the administration of the registration and election laws throughout the State. Named as defendants in the complaint were Victor deGrazia, James R. Sneider, individually and as treasurer of the All Illinois Democratic Committee (AIDC), Daniel Walker, and AIDC.

AIDC was a State political committee (section 9 — 1.8 of the Election Code) formed to retire debts incurred by the successful 1972 gubernatorial campaign of Daniel Walker. James R. Sneider was the treasurer of the committee. Victor deGrazia was Deputy to the Governor of Illinois at the time of the alleged contributions.

Article 9 of the Election Code requires various political organizations to record and report receipts and expenditures. AIDC litigated the applicability of these reporting requirements. (See Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113; Walker v. State Board of Elections (1979), 72 Ill. App. 3d 877, 391 N.E.2d 507.) AIDC finally complied with the reporting requirements by filing its final report with the State Board of Elections on September 28,1978. A copy of the report, signed by Sneider, was appended as an exhibit to the instant complaint.

According to the report, deGrazia made the following contributions to AIDC in his own name on the dates indicated:

May 1,1975 $10,000
May 2,1975 8,000
May 5,1975 9,000
May 9,1975 10,000
May 14,1975 2,000
June 11,1975 3,500
June 30,1975 5,800
Total $48,300

Count I, paragraph 10 of the complaint alleged, on information and belief, that these contributions made by deGrazia in his own name were actually contributions made and received from another person, and thus were “in the name of another person” within the meaning of section 9 — 25. Paragraphs 11-14 alleged that each defendant knew or should have known that these contributions were “in the name of another person.” Paragraphs 15-18 alleged that each defendant accepted these “anonymous” contributions in violation of section 9 — 25 without forwarding them to the State treasurer. The prayer for relief in count I sought a finding that these contributions violated section 9 — 25, a declaration that these contributions escheated to the State, and a judgment against defendants for $48,300.

Count II of the complaint realleged the entire body of count I, and then alleged that each defendant wrongfully used, appropriated, and converted the “anonymous” contributions described in count I. Count II sought an accounting of the contributions and imposition of a constructive trust in favor of the State as to the $48,300. The circuit court dismissed the complaint for failure to state a cause of action.

I

Plaintiff contends that the circuit court erred in dismissing the complaint. The circuit court based its decision on a variety of reasons, including the following: there were no anonymous contributions or contributions by one person in the name of another; Walker and deGrazia were not members of the committee; there was no allegation that Walker performed or participated in any acts involved in the complaint; Sneider was only acting in a ministerial capacity; and any action against AIDC should have been instituted at the administrative level. Statute of limitations and res judicata defenses raised by defendants were not ruled on by the circuit court.

We agree with the circuit court that the complaint fails to allege a cause of action. We find it necessary to deal with only one of the contentions raised by defendants.

Section 9 — 25 of the Election Code reads:

“No person shall make an anonymous contribution or a contribution in the name of another person, and no person shall knowingly accept any anonymous contribution or contribution made by one person in the name of another person. Anonymous contributions shall escheat to the State of Illinois. Any political committee that receives such a contribution shall forward it immediately to the State Treasurer.” (Ill. Rev. Stat. 1979, ch. 46, par. 9—25.)

Section 9 — 25 deals with two types of prohibited contributions: anonymous contributions and contributions made by one person in the name of another person. As the campaign disclosure act (section 9 — 11) requires the specific identification of all who contribute $150 or more per year, it is obvious the legislature intended to prohibit contributions in the name of another person and those that are anonymous. Although anonymous contributions are not defined, we consider those to be contributions received where the contributor is unknown, unnamed, or the source or origin (donorship) cannot be identified. The instant contributions having been identified as from deGrazia, it follows, as a matter of law, the contributions cannot be anonymous. The legislature further provided that of these two types of contributions, only anonymous contributions escheat to the State of Illinois.

Plaintiff contends that the deGrazia contributions escheated to the State of Illinois. As noted earlier, section 9 — 25 provides that anonymous contributions shall escheat to the State, but makes no provision for contributions made by one person in the name of another person. At oral argument, counsel for the Board of Elections contended that the terms “anonymous” contributions and contributions “in the name of another person” are snyonymous. Counsel also conceded that section 9 — 25 expressly provides only for the escheat of “anonymous” contributions. We reject the argument that these terms are synonymous, as the statute plainly refers to two separate types of prohibited contributions, providing different sanctions for each type of contribution. Therefore, in order for plaintiff to prevail, we must read section 9 — 25 to apply equally to both types of contributions.

Escheat, as used in this statute, means the reversion or forfeiture of property to the State upon the happening of some event. So far as we can determine, the reviewing courts of this State have not previously considered whether escheat is penal in nature. It has been noted by commentators in discussing the general subject of escheats that they are not favored by the law and any doubt whether property is subject to escheat is resolved against the State. (See 27 Am. Jur. 2d Escheat §10 (1966).) We believe, as used in section 9 — 25, escheat is penal in nature. (Cf. 27 Am. Jur. 2d Escheat §1 (1966) (“As applied to corporate property, escheat is in the nature of a penalty”).) The section commands and prohibits certain acts and provides for the penalty of escheat. Cook County v. Thomas Recreational Vehicle (1979), 68 Ill. App. 3d 582, 584, 386 N.E.2d 591; see also Bee Jay's Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 95, 367 N.E.2d 173, cert. denied (1978), 435 U.S. 970, 56 L. Ed. 2d 61, 98 S. Ct. 1610.

Penal statutes must be strictly construed and will not be extended beyond their obvious or literal meaning. Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 83, 96 N.E.2d 482; Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 932, 347 N.E.2d 34; see also Boghosian v. Mid-City National Bank of Chicago (1960), 25 Ill. App. 2d 455, 463, 167 N.E.2d 442, appeal denied (1960), 19 Ill. 2d 625 (right of government to acquire property by escheat must be strictly construed).

Applying a strict construction to section 9 — 25, we hold that it does not provide a statutory remedy to the Board of Elections for contributions made by one person in the name of another person.

All the relief sought by plaintiff, including the declaratory judgment, accounting, and imposition of a constructive trust is predicated on either our determination that these contributions are “anonymous” or on the existence of a statutory remedy under section 9 — 25 for contributions made in the name of another person. Since we hold as a matter of law that these contributions are not anonymous and that no statutory remedy exists for contributions made by one person in the name of another, the circuit court properly dismissed the complaint.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.

       See Webster’s Third New International Dictionary 89 (1976).

         In fact, the plaintiff in its brief in this court concedes:
      “[I]t is the State Board’s belief that the contributions set out above, although reported in the name of Victor deGrazia were, in fact, contributions received from a person other than Victor deGrazia.”

       As additional penalties, criminal sanctions for violation of section 9 — 25 are provided for by section 9 — 26 of the Election Code. Ill. Rev. Stat. 1979, ch. 46, par. 9 — 26.