Illinois Appellate Court Unpublished Opinions: second series

APPEAL FROM THE MUNICIPAL COURT

OF CHICAGO, FIRST MUNICIPAL
DISTRICT OF THE CIRCUIT COURT

OF COOK COUNTY, ILLINOIS.

49955

DCMINIC NESCI,

Plaintiff -Appellee,

V.

HENRY SENNHOLZ and OTIS JONES,
Defendant s -Appe 1 lant s .
MR, JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT,

Defendants appeal from a judgment for $5,000,00 entered in
favor of the plaintiff in a personal injury action. The plaintiff,
Dominic Nesci, was self-employed as a gardener for about seventeen
years, working only during the spring and summer months. He did
this type of work about six months of the year. On May 21, 1957,
at about 4;45 P.M. he was driving east on 95th Street in the inside
lane. Upon approaching Damen Avenue the traffic lights were red
and he came to a stop along side of a CT.A. bus, which was standing
and unloading passengers. While the plaintiff was stopped at the
red light the truck owned by the defendant, Henry Sennholz, and
driven by the defendant, Otis Jones, struck the right rear of
plaintiff's vehicle. As a result of the impact the plaintiff's
vehicle was pushed about thirty feet and plaintiff jerked his
neck, hurt his back and hit his chest on the steering wheel.
Plaintiff's testimony showed that he was under the care of
Dr. Nathan Triefield and that he was away from his business
from May 21, 1957 to June 15, 1957, and that during such period
he employed one Ralph Iser at $90.00 per week for three weeks.
Plaintiff testified that he lost six stops in 1957 but during his
testimony he identified only one of the six customers. He also
testified to losing three stops in 1958.

On January 12, 1962, the attorneys of record for the plain-
tiff wrote to one of the attorneys of record for the defendant.

-2-

Henry Sennholz, stating, among other things, that plaintiff's
income loss was 9 days at $20.00 per day, total $180,00, and that
plaintiff returned to work on June 4, 1957, During the trial
defense counsel called trial counsel for plaintiff as a witness
for the purpose of introducing this letter into evidence. The
letter, in addition to the foregoing, contained a figure which
the plaintiff would take in settlement of the case. The court
refused to permit sections of the letter to be introduced,
primarily on the basts that it was an offer of compromise and
settlement, and for that reason inadmissible.

All of the points and arguments raised by the defendants
in their brief relate to the damage aspect. The defendants,
however, have made no point, nor have they argued, that the
verdict of the jury is excessive.

The defendants raise five points in their brief. The
first three points concern separate phases of the law on the
question of the admission in evidence of a certain letter
allegedly written by one of the members of the law firm repre-
senting the plaintiff. The fourth and fifth points are addressed
to the medical aspects, loss of time and loss of customers. It
is apparent that the entire theory of defendants' case is that
errors were committed by the court bearing on the question of
damages, but since no point has been made or argued in defendants'
brief "that the verdict is excessive, we come to the conclusion
t]^t all questions relative to damages have been waived.

In Gardner v. Railway Ej^press Agency, Ipc«/274 111. App.
626, the court held that, vher» a defendant contended that the
court committed several errors that bear upon the question of

damages, it was entirely unnecessary to consider those alleged

-3-

errors because defendant had not by any assignment of error raised

the point that the amount of the verdict was excessive.

In Hedge v. Midwest Contractors Equipment Co., 58 111.
App. 2d 365, the defendant contended that the plaintiff was
contributorily negligent as a matter of law. The court there
held that it was precluded from considering the jury's findings
because the manifest weight question had not been raised or
argued on appeal. .-.j^

Supreme Court Rule 39 (111. Rev. Stat. 1963, chap. 110,
par. 101.39) requires the appellant's brief to contain points
and authorities which shall consist of the propositions relied
upon in support of the appeal, and, further, that no point not
contained in the brief shall be raised afterwards. This Supreme
Court rule has been adopted by the Appellate Court of Illinois,
First District, in its Rule 5.

No point was urged by the defendants on the question of
their liability.

Since the defendants in their points and authorities
urge error which would go only to the question of damages but
have failed to raise the point that the verdict of the jury
was excessive, we cannot under the Appellate Court Court rules
further consider this matter.

Judgment affirmed.
Dempsey, P.J., and Schwartz, J., concur.

Abstract only.

^

\Ji^"b^i

62 I>A^ /f3

STATE OF ILLINOIS
APPELLATE CO-URT
FOURTH DISTRICT

General No. IO635

; '/

Thomas D. Burton, Florence C.
Fitzpatrick, Julian Van Sice
and Famous Finance Co., a
corporation.

Plaintiffs (Objectors)'

-_ ^ Appellants

vs .

John L. Cain, as Treasurer of
Sangamon County, Illinois and
Sx-Officio Tovm Collector of
Capital Township s-nd not as an
individual.

Defendant -Appellee

Agenda No. 5

X

Appeal from
Circuit Court
Sangamon County

TRAPP, J.

Appellant taxpayers appeal from an order of the
Circuit Court which denied a motion for leave to re-file
their objections to real estate taxes for the year I962
in San-garaon County. The same order granted a motion in
behalf of the collector to strike the taxpayers' objec-
tions, found that the taxes under protest were not paid
within the time allowed by law and ordered the collector
to distribute the taxes paid ajid held in the Protest Fund
to the taxing bodies entitled thereto.

-1-

Digitized by tine Internet Arciiive

in 2011 with funding from

CARLI: Consortium of Academic and Researcii Libraries in Illinois

http://www.archive.org/details/illinoisappellat2v63illi

Separate complaints were filed for the several tax-
payers on December 31^ 1963 ^ alleging that on divers dates
rajiging from Noveinber 12j 19^3; through Januar;^^ 9? 1963^
(sic), such taxpayers paid the amoujit of taxes billed
under protest "in order to avoid a forced sale of such real
estate for non-payment of such real estate taxes" j and
alleging that the taxes billed were so improper and ex-
cessive as to constitute fraud.

On January 16, 196^, one of the judges of the cir-
cuit court entered an order granting leave to file tax-
payers objections as being equitable. On January 21, 1964,
the collector filed a motion to strike the objections up-
on the grounds, among others , that the taxes had been paid
under protest after the filing of the delinquent tax list
and the entry of judgments thereon. The motion filed in
behalf of the collector further alleged that at the time
of entering judgment for the delinquent taxes, the court
had ordered that all objections to taxes paid under pro-
test should be filed on or before December 6, 1963- This
allegation is not controverted in the record. Petitioners'
statement of facts sets out that the collector filed a
delinquent tax list on October 25, 1963, and that judg-
ment was entered on that date except as to taxes paid
under protest.

On March 10, 1964, the matter v/as heard by another

-2-

Judge of the circuit court who ordered the objection
stricKen as being filed upon leave grar^ted ex parte and
without notice. Taxpa,yers were granted leave to present
a new motion for leave to file objections and such motion
was filed on March 12. 1964.

A suramary of the grounds in support of the motion
for leave to file the objections included: (l) that the
collector "...did not give to this Petitioner notice in
any manner of the time of the filing of the delinquent
tax list" J (2) that z'r.e necessary investigation of the
taxes in order to prepare the objection and the personal
absences of the petitioners v;ere major and unavoidable factors
in the delay^ (3) that the collector had adequate notice
that the tajces v?ere paid under protest when the payment
v/as accepted on November 12;, 1963' The saine allegations
v;ere made as to each petitioner.

On August 5j 1963, the court made the finding and
entered the order set out at the beginning of this opinion.
On September 30^ I963, the court denied a motion for re-
hearing. At this time the parties stipulated that the
court's memoranda of reasons for his ruling might be in-
cluded in the record. It is in the following language:

" The court only has discretion to
grant leave to hear late filed tax ob-
jections where such objections are based
on payment of taxes under solid (sic)

-3-

protest. The payment of taxes after
delinquent date and after judgment cannot
be under a valid protest. The invalidity
of the protest is a complete bar to hear-
ing any objection."

The several steps essential to making objections
to real estate taxes levied are set forth in Chap. 120^
111. Rev. Stat. (I96I). The taxes become delinquent as
provided for in §705. Payment under protest is made
pursuant to §675^ which also requires that the objector
appear at the next application for judgment and make ob-
jections to the taxes paid under protest. Under §7l6,
the objector must present a receipt showing payment of
at least 75 per cent of the taxes to which objections
have been made.

Notice of the application to be made by the
collector for judgment upon delinquent taxes is provided
in §706, i.e., by newspaper publication at least ten days
prior to such application. This section specifically pro-
vides that such public advertisement shall be sufficient
notice of application for judgment and sale. The apparent
contention of the taxpayers that they shall have personal
notice of the action of the collector, or some form of
notice other than that provided by such publication, is
without support in the statute.

While §710 of the chapter provides that the appli-
cation for judgment shall be filed during the month of

-4-

September, it also provides that, if for any cause, there
is delay and the collector is prevented from advertising
in that month, it shall be legal to obtain judgment for
such taxes any time thereafter, and that failure to make
such application for judgment during the month of September
is not a valid objection to the rendition of a judgment.

The Supreme Court has clearly interpreted the
statutory procedure to mean that payment of the taxes
and the filing of a protest are mandatoiy to enable the
collector to omit the property from the delinquent tax
list upon which judgments are obtained. The People ex
rel Claude Anderson, County Collector v. Chicago & Eastern
Illinois Railroad Company, 399 111. 520 at p. 526; 78 N.
E.2d 265. It is apparent upon the pleadings and argument
of the petitioners that their respective parcels of real
estate were upon the delinquent tax list and judgment was
entered thereon by reason of the failure to comply with
the statute.

The exercise of the discretion of the court to
permit the filing of tax objections is limited to those
instances where the objections have been- filed by the
authority of the court granted prior to the entry of judg-
ment for taxes. Nugent v. Toman, 372 111. 170; 23 N. E.2d
43. This rule was reiterated by the Supreme Court in The

-5-

People ex rel John L. Cairiy County Collector v. Illinois
Central Railroad Compaxiy, Supreme Court No. 39218, an
opinion adopted on September 28, 1965. There the taxes had
been paid in full under protest. At the time of the entry
of judgment for delinquent taxes, the court ordered that
objections to the taxes should be filed on or before
December 6, 1'963. This seems to be the identical order
alleged by the collector in his motion to strike. Such
order fixing the time for the filing of tax objections
was entered as a part of the order for judgment against
the real estate on the delinquent tax list. The Supreme
Court held that such order fixing the time for filing
objections was valid where filed prior to the time of
entry of judgment against the property, citing Nugent v.
Toman.

The dominant and controlling facts in this case
seemed to be that the petitioners took no steps regarding
their respective taxes \intil judgment had been entered
against them. Under the interpretation of the statute
adopted by the Supreme Court, the lower court had no
discretion to authorize the filing of objections after
judgment had been entered against the petitioners.

Petitioners urge that necessary investigation to
prepare the objections and their several personal absences
excused the delay in filing the objections. Delay for the

-6-

A

I

suggested reasons has no apparent relation to the essential
requirements that the tax be paid under protest prior to
the time of the entry of judgment for the delinquent taxes.
As a matter of fact, it would appear to be clear that the
petitioners were aware that their taxes were unpaid and
had had a period of time extending over several months from
the date of the issuance of the tax statement to investi-
gate the problems incident to filing the tax objections.

A contention of petitioners is that after the entry
of the several judgments, the collector accepted the pay-
ments paid under protest and that he should be estopped
to oppose the motions of the petitioners. It seems
axiomatic, however, that the administrative act of the col-
lector is not binding upon the court, and again, judgment
having been entered against the taxpayers, the acceptance
of the tax payments by the collector was not an act upon
which petitioners relied to their detriment, a usual element
in estoppel.

The judgment of the circuit court is affirmed.

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

-7-

protest. The payment of taxes after
delinquent date and after judgment cannot
be under a valid protest. The invalidity
of the protest is a complete "bar to hear-
ing any objection."

The several steps essential to making objections
to real estate taxes levied are set forth in Chap. 120,
111. Rev. Stat. (I96I). The taxes become delinquent as
provided for in Sec. ?05. Payment under protest is made
pursuant to Sec. 675» which also requires that the objector
appear at the next application for judgment and make .
objections to the taxes paid under protest. Under Sec. 7l6,
the objector must present a receipt showing payment of
the taxes to which objections have been made.

Notice of the application to be made by the
collector for judgment upon delinquent taxes is provided
in Sec. 706, i.e., by newspaper publication at least ten days
prior to such application. This section specifically pro-
vides that such public advertisement shall be sufficient
notice of application fox* judgiuciit aiid sale. The apparent
contention of the taxpayers that they shall have personal
notice of the action of the collector, or some form of
notice other than that provided by such publication, Is
without support in the statute.

While Sec. 7IO of the chapter provides that the appli-
cation for judgment shall be filed during the month of

-^-

K0V2 1965

Robert L. Conn, clerk

TELEPHONE

AREA CODE 217

525-2586

STATE OF ILLINOIS

Ai»PEi.LATE Court

FOUKTH DISTKICT
SPRINGFIELD GazOl

November 1, 19^5

Callaghan & Company
6l4l North Cicero Avenue
Chicago k6, Illinois

Attention: Editorial Department
Gentlemen:

Our attention has been called to the fact
that in the opinion in re Burton, et al vs. Cain, etc.
General No. 10635s sent to you on October 27, 1965)
there are certain errors to be corrected.

Accordingly, we are enclosing herewith a
new page k- on which the words "at least 75 per cent of"
have been deleted in line 9 of the first paragraph
appearing on said page, and ask that you substitute
the new page for the one previously received.

»

On page 5 of the opinion we ask that you
substitute the word "October" for the word "September"
in lines 1 and 5«

matter.

Thank you for your early attention to this

Very truly yours ,

Clerk, Appellate Court
Fourth District

RLC : iv

j

i

CH/MGO BAR ASSOCIAKOK

PEOPLE OF THE STATE OF ILLINOIS ^ ) APPEAL FROM
Plaint if f -Appellee ^, )

) CRIMINAL DIVISION
vs. )

) CIRiJUiX COURT
MILLARD WHITLEY, )
- Defendant=AppelIarst.) COOK COUl'flPY-o- —

MR„ PRESIDING JUSTICE McCORI^IGK DELIVERED THE OPINION OF THE COURT.

The Criminal Division of the Circuit Court of rook Coanty\, ir,! a

bench trials found the defendant 5 Millard Whitley 3 ^^xx:'LX.Y of the

crime of indecent liberties with a child o The couit sentenced the

\
defendant to the Illinois State Penitentiary for a term of not less

than ten nor more than twelve years 3 and denied his written motiori

for a new trial. This appeal is taken from the findings and judg-'

ment of that court. The only objection raised by the deferjdant is

that he was not proved guilty beyond a reasonable doubt.

The witnesses revealed a sordid story to the trxal courts
Briefly s, the facts developed at the trial were that the defersdantc,
a 46'=year old man, had intercourse with an 11-year old girlc

Janet Miller, the complaining witneaSg testified to the follow-
ing s She and Geraldine Williams ^ aged 13 „ and their respect ivi^
younger brothers and sisters 5 were alone at Janet "s apartment on
the date of the crime. Mrs. Miller had left the hovjse at lOoOO a.m.
to go to church. About loOO pom. the def eridant came to the Miller
apartment and asked for Mrs. Miller y because he wanted her to iron
a pair of pants for him. Upon learning that she was not at home he
asked Janet if she would iron the pants for him. When she said she
would not 5 he left. About an hour later he came back and again
asked for Mrs, Miller, He then asked Geraldine if she would irorj
his pants. He offered to pay her 25 cents, Geraldine started to
iron the pants, but Janet told her not to^ Janet took the pants
off the ironing board and threw them on the floor. The defendant
then gave Janet a quarter which he later took backg telling her to

1

^2-

come with Geraldine to his house to get the quarter o They went
to his apartment and the defendant then said one of the girls
should take the quarter and get some candy „ Janet said she would
go but the defendant said that she should stay there g and he gave
the quarter to Geraldine. After Geraldine had closed the door be-
hind her the defendant went back to another roomj, then returned to
the front and threw Janet across a bed where the def ersdant '^ s girl
friend used to sleep. He pulled down Janet's pants and had sexual
intercourse with her. As Geraldine came in she saw Janet pulling
up her pants. Geraldine had a bag of candy with her. The girls
then left the apartment. When they were outside Geraldine asked
Janet what had happened and Janet told her. Janet testified that
when she was at the defendant's apartment on previous occasions the
defendant's girl friend was there also 5 but that the defendant had
not on other occasions given Janet a quarter.

Janet testified that she was standing in the wastiroom with ber
pants still around her ankles when her girl friend returned. Hew-
everj Janet also testified that in a statement made to the police
two days after the crime she had said that Geraldine ;, upon reenter-
ing the apartment, saw her pulling up her pants in the bedrcomo
Janet further testified on the stand that the statement to the police
was a true statement. Although she testified on the stand that she
had gone directly home from the defendant's apartment j, she admitted
that in her statement to the police she had said that she and
Geraldine went home after going to a store and buying some cand/c

Geraldine 's testimony revealed substantially the same story
as Janet's. After the girls arrived at the defendant "s apattment
he gave Geraldine a quarter and she left to buy some candy. When
she got back the door was open and she could see Janet in the bed-
room pulling up her pants. On cross-examination Geraldine stated

„3"

that Janet's pants were on the floor; that she and Janatc, after
leaving the defendant's apartment g did not go to the store for
candy but that they went to Geraldine's apartment which was lo-
cated right next to the Miller apartment. She indicated at severa]
points in her testimony that she had no knowledge of Janet haviisg
had $5.00 or any money on her when they left the defendant.

Daisy Miller, the mother of Janet c, testified that she came
home at about 2:45 p.m., and that from the cijne she returned she
knew where her daughter was„ Geraldine"s youBger sister j, GiniiyQ
told Mrs. Miller that Janet had acctised the defendant. RcSo Miller
went to find the defendant, brought him to her apartment at about
4^00 p.m., and asked him if he had been in her housec He said he
had and that he had come over to get a pair of pants pressed o He-
denied that he had done anything to Janet and told MrSo Millet that
the girls had taken $5.00 from him^ Mrs„ Miller testified that she
had taken Janet to the Provident Hospital c, had returned home at
about 5:00 or 5:15, and that later that same evening they went to
the Cook County Hospital where Janet was examined. It was stipu-=
lated that the hospital records indicated that the examining doctor
found that there were superficial abrasions on the lateral wall of
the vagina and that motile sperm were found therein o The discharge
diagnosis was that there was a possible rape^ Mrs„ Miller told the
court that she had known the defendant for six years prior to the
date of the crime, but had never gone out socially with him or
dated him; that occasionally the girl with whom the defendant was
living at the time would baby-sit for her at the Miller apartment 5,
and that sometimes the defendant accompanied hero

The defendant testified in his own behalf „ His testimony set
forth the following: He knew Daisy Miller c, the mother of the com-
plaining witness. She had roomed with him at one time. During the
time she was not rooming with him he used to cook for her and help

^4=

her when she was sick. He knew Janet j her mother had sent her
on errands to his apartment many times c On the day of the Inciriieriic
in question he went to the Miller home to get Daisy Miller to press
a pair of pants for him. On previous occasions she lia.d Lroned his
clothes— 'Shirts and other articles of apparel <> He arrived at the
Miller apartment at 12 o" clock j, and asked for Mrs. Miller o Janet
said that her mother was at church and that she 5 Jajietc, would prass
the pants. Another little girl [Geraldme] was with JaneCc The
defendant told Janet that he was afraid to have her press the pants-
however^ Geraldine said she would do it if he would give her a
quarter. He gave her the quarter and she started to press the parvtSj,
but did not finish them because of an ensuing altercation between
him and Janet. He said, "Janet had taken $5o00 from me and 1 was
trying to make her give me back my $5o00o"

The defendant then testified that Janet had taken the $5o00 at
his own apartment. He further stated that he did not come back to
the Miller apartment, but that the two girls eame to his apartment
where Janet said she wanted money to get some candy « He stated
that he gave Geraldine a quarter to get candy ^ that she had come
back from the store when he saw Janet put her hand into the pocket
of his pants which were hanging on the chair next to his bed. Al-
though he had earlier testified that his eyesight was poor 9 he now
testified that he saw her take $5„00 out of the pocket. The two
girls then ran out and he chased after them up to the Miller apart--
ment„ At that time he asked Janet for his moneys and said he was
going to tell her mother. She replied that if he didn't go away
she would call the police. The girls ran out of there^ over to a
friend's apartment across the hall„

Although the defendant had already testified that he had orig='
inally intended to visit his children "„ » o who live on the west
side, . . because I had promised them I would be over to see them
o , . ," he at this point testified that he went from the scene

with the girls to his own apartment g then to a frletid^s house dovrn
the block^^-arriving there about 2'oOO Poin,,— ^atid playevl cards. He
stated that Mrs. Miller came there abour 5s30 or 6jO0 p„iiv >, and he
left with her„ They stopped at his place for refreshment ar-^d a
drink 5 but Mrs. Miller did not participate o Tiiey then went to the
Miller apartment where Mrs„ Miller repeated what, Gera.idine^s sister
had saido He denied the charge and went back to his own house ^ Or
cross-examination he said that as far as he kneWg Janet '''wa,?? a nice
little girlo" At no time during his testimony did the defendar,t
state he had told Mrs. Miller that Janet had taken money from hiiHo
The defendant told the court that he had six children o Thcj woxnar;
with whom he had been living told the court toat he had supported
her and the children for eleven years o

The defendant put on two character witrsesseSc One was his
illegitimate daughter ^ Gwendolyn Richardson ^ who testified that
she lived at 3400 West Franklin Boulevard; that she was 14 years
old; that she visited the defendant frequently at nis house;, and
that he had a reputation in the community in which he lived as a
•'law abiding man." The other witness 5, Lorraine Rxchardsony who
was 17 years old, testified that she livec. at the same address as
Gwendolyn^ and that the defendant was het" "step-father „" Her testi-
mony with reference to the character of the defendant was to the
same general effect as that of Gwendolyn c

The court, after argument and discussion with the Assistant
State's Attorney and the defendant's attorrie)^^ found tne defendant
guilty of the crime of indecent liberties ui'jder section ll-'^ of
the Criminal Code ( 111 „Rev. Stat „ 1963c, choSB;; -5 11-4) g and sen-
tenced him to the Illinois State Penitentiary for a period of ten
to twelve years. This section provides s

i

I

"(a) Any person of the age of 17 years and upwards
who performs or submits to any of the following acts
with a child under the age of 16 commits indecent Lib-
erties with a child;

(l) Any act of sexual intercourse;

ii it ic

"A person convicted of indecent liberties with a
child shall be imprisoned in the penitentiary from one
to 20 years."

In this court the defendant argues that there are inconsist-
encies in the testimony of Janet and Geraid.s.re,, It is trae that
there are some slight inconsistencies in their testlmorjyr, however j,
it is equally true that the testimony of the defendant is also in^'
consistent „ The testimony of Janet is direct arid ccnaistert with
reference to the criminal act committed upon her person by the
defendant. The stipulated medical evidence fxirnishes sttong i:or<-'
roborationo The minor inconsistencies are with reference to the
place in the apartment where she was at the time she was putting on
her pants J and the question as to whether the door to the apartment
was open or closed after Geraldine left,; The defendant ^'s testimony
is not consistent with reference to the time and place where the al-'
leged theft of the $5.00 occurred o

It should be noted that both Janet and Geraldine testified that
the defendant gave a quarter to Janet ac Janet ''s homeg then took it
back and left, and that he told her to come to his house to get it.
Both Janet and Geraldine testified that when they went to the defend-
ant's house he gave the quarter to Geraldine and told her to go out
and get some candy. This testimony is corroborated by the defendant
himself. It is also worthy of note that the defendant at no time
testified that he complained to Mrs., Miller that Janet had taken
$5.00 from him. Mrs. Miller testified that after she brought ths
defendant back to her apartment to tell him about the aecasation
made by her daughter^ he said that the girls had taken $5„00 from
him„

I

The defendant cites PeopIe_v^„Wi3^iarns c, 4i4 Ill,i|-l4y III N.Eo
2d 343^ and People v, Nunes„ 30 III „ 2d 143^ 195 N.E„2d 706, to sap^
port the proposition that the charge or rape or indecent liberci.es
is easily madej, hard to prove^ and still harder to defend against:
by one ever so innocent » In neither of those cases was there the
significant evidence present in the instant casec. for in both ot the
cited cases the complaining witness merely charged the defendar^t with
the crime; there were no sperm tests; there was either no eorroborat-'
ing testimony or substantially weak corroborating testimony , In the
present case the hospital report confirmed that the Ciomp lain Ir^g wiC'-
ness had had intercourse „ Shortly after the inci-rient the complain-
ing witness told her friend's yoxinger sister 9 Ginnyj, what had happer'-
edg and Ginny reported the story to MrSo Miller » The prosecatlon' s
witnesses were substantially in agreement as to the relevant facts
of Che crime o The testimony of the defendant is internally incon-
sistento

The trial judge had the opportunity to observe the witnesses
testifying before himj, and stated that in his opiniorij Janet was a
very intelligent young girl for her age'; that her testimony vas
clear and sufficiently corroborated „ In the trial of a lawsuit
where there is conflicting evidencej it is necessary for the trier
of the fact to believe one side or the other^ and tne rule is clear
that "In a bench trial of a criminal case the trial court ''s judg-
ment based upon the credibility of the witnesses will not be dis-
turbed unless it is based on clearly unsatisfactory and Lrriprobabltr
evidence „" People v„ Johnsono 47 Ill„ App.zd 4^+1 ^ 198 N„E.2d 173,^
People Vo Clarke 30 Illo2d 216, 195 N„E«2d 631„

In People v„ Sharp „ 384 111 » 503 ^ 51 N.E.2d 554s a ^'^se where
the defendant was convicted of taking indecent liberties witr. a

child g the court pointed oxit that the evidence of the pros scut rix

was corroborated 8 and the court turther saLd'i

"The testimony of the three children
on direct examination is amply sufficient to
sustain the conviction. It is cent ended ^ how^'
everj that the cross-examinarion of these wit-
nesses shows so much ionfxisicn a«d contradict i.on
that their testimony becomes wholly fr^or en). ess as
evidence to prove the charge beyorsd a reasonabl^i'
doubt o

it -k "k

"The testimony of the childrers as to the detail s
of what took place is not exactly the same,; and Ih
this respect strengthens rather than weaKerrS theii:
testimony s, because impressions creat,ed by fright
and surprise are not imprirted upon witnesses
alikeo o o »"

The court held that the alleged crime was proved, beyond a. reasorj-

able doubt „

In the instant casej it is the opinion of triis court that the

evidence is sufficient to remove all reasonable doubt of the defend'-

ant^s guilt „ The judgment of the Grlminai Division of the Circuit

Court of Cook County is affirmed c

AFFIRMED,

DRUCKERjJog and ENGLISH., J.,, concur.
Publish abstract only

I

49861 y ,

PEOPLE OF THE STATE OF ILLINOIS, )

) APPEAL FROM
Plaintiff-Appellee, )

) CIRCUIT COURT

)

) COOK COUNTY

LUIS ROSARTO RIVERA, )

)

Defendant: -Appellant. )

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Defendant was convicted at a bench trial of voluntary man-
slaughter and sentenced to one to ten years in the penitentiary. He
appeals from the judgment.

About 4^00 A.M. on October 12, 1963, Sam Adelphia, Gerald
Carrao and Joseph Maranto were seated in a small restaurant on Chicago's
near north-west side. Aiigelo Christopha and Joseph Panzo, friends of
Adelphia, entered the restaurant and sat down at the service counter.
Shortly thereafter, defendant Luis Rivera, Luis Diaz Melendez and Antonio
Rivera entered and took seats iminediately next to Adelphia and his
companions. An argiiment ensued between Adelphia and Melendez, which was
quickly stopped by defendant and Carrao. A short while later a violent
fist fight broke out between Adelphia and his companions on the one side,
and defendant and his companions on the other. The evidence is conflicting
as to whether Christopha and Panzo joined into the fight.

During the course of the altercation several shots were fired
by defendant from a pistol which he had in his possession upon entering
the restaurant, the bullets striking Adelphia in the back and in the head.
The coroner's report showed that the bullets entered Adelphia 's body from
the rear, traveling in a downward path; death was caused by the bullet
which enteied the head.

Defendant testified that he was lying on the floor when he
fired the shots, that he fired into the air and that at the time no one
was near him. Defendant claimed he fired the pistol to frighten off his
attackers, who were hitting him with their fists, sugar bowls and sticks,
and biting and kicking him, all of which acts were admitted by Adelphia' s

eompaalons , Carxao and Miiranto, Both Carrao and Maranto testified,
however, tliat deteLidant had Adelphia in a headlock, and that both
Adelphia and defendant were standing when the shots were fired. The
witnear^es stated they attempted to warn Adelphia that defendant had put
his hand into his pocket just before the shots x/ere fired.

Both MeIe:odez and Antonio Rivera were indicted with defendant
tor the murder of Adelphia. The State elected to try defendant Luis
Rivera alone, and at the time of his trial the ch.arges against Melendez
and Antoiii%"> Rivera were still pending. At the close of the State's case
ill chief, defense counsel sought to call Melei.dez and Antonio Rivera as
witnesses for the defense. Counsel for Melendez aivd Antonio Rivera
advised defense counsel that the two men would take the stand but would
answer only to their respective names and addresses. It appears that
neither Melexjdez nor Antonio Rivera could speak English, and an inter-
preter had to be etnployed for the purpose or translating their testimony,

Melendea took the stand and testified to his name and address,
■-/lien defen&'e counsel directed the witness' attention to the early
.Tiorni.n^ of October 12, 1963, and asked if the witness had occasion to
see defendant Ri^/era, the x^ritness' counsel InL'errupted the questioning
and advioied the witness of his right to refuse to answer any questions
which might tend t.-> incriminate him. Melendez thereupon refused to
answer the question on the ground of self-incriir.ination, and was excused
as a witness.

Ajitonio Rivera was then called and likewise testified as to
his name and address. Defense counsel again sought to inquire into the
witness' connection with the defendant on the night in question, and the
witness' counsel again interrupted. After Antonio Rivera was advised as
[^o his constitutional rights, he refused to answer the question. Defense

.>u.nsel asked him why he refused to answer the question, whereupon the
Court interrupted and said, "Well, we'll say that by reason of his

«

~i-

llmltati{jn"-yoa have talked to your lawyer?, , , All right. Under the 5th
An-ieiidmeiit . " Antonio Rivera was then excused cib a witness.

The indictment charged rhe crime of inurder. There was a finding
, of not guilty on the murder charge, and a finding of guilty on the lesser
included charge of voluntary manslaughter „ The trial judge based the
finding of g^iilty primarily upon the evidence thar- the bullets entered
Adelphia's body and moved in a downward Hianner, leading the Court to
conclude that defendant could not have been lying on the floor and shooting
into the air as he had testified. The Gout' thereafter entertained and
allowed the State's motion to nolle pr_osegul the iridictments against
Mel end ez and Antonio Rivera.

Defendant maintains that the trial judge claimed the privilege
against self-incrimination for the witness Autoxiio Ri\'era which was error
for the reason that the privilege is a personal one and can be claimed
only by the witness himself; that the trial judge erred in failing to
compel Melendez and Antonio Rivera to becoime witnesses for the defendant;
: and that Che State deprived defendant oi his right to the testimony of
competent: eye-witnesses, Melendez and Antor;io Rivera, by joining them as
co-defendants when it clearly appeared they weie not guilty of the crime
harged.

As to defendant's first contention, it does not appear that
the Court claimed the privilege against sel f -Incrimination for Antonio
Rivera. After defense covmsel objected to the witness' counsel advising
the witness, while on the stand, of his constit i^r ional rights, the Court
stated, "Now, he may advise him. and then it Is up to the witness."
After some discussion, the witness stated that he refused to answer the
question. When defense counsel asked the witness why he refused to
answer the question, the Co\irt interposed aad asked the witness if he had
talked to his lawyer, remarked about the wiTness' language impediment
and concluded that his refusal was based upon !he Fifth Amendment. The
witness himself claimed the privilege, and the fact that he did not use

legal language for the purpose is immaterial, since no special form of
wording is necessary. See Quinn v. United States, 349 U.S. 155, 162.

The cases cited by defendant in support of this position are
not in point, for the reason that in those cases the Court itself
interposed objections to questions asked of witnesses who had either
declined representation by counsel at trial or who had stated they had
no particular reason for not answering the questions propounded, or the
court itself claimed the privilege for the witness before the witness
had an opportxonlty to speak. See Eggers v. Fox, 17? 111. 185; United
States V. Ginsburg, 96 F.2d 882; Looney v. People, 81 111. App. 370. In
the case at bar the privilege against self-incrimination was claimed by
Melendez and Antonio Rivera themselves.

We turn to defendant's contention that the court should have
compelled Melendez and Antonio Rivera to become witnesses on behalf of
defendant. The two men took the stand as witnesses, and answered to
their respective names and addresses, as defense counsel was informed
they would do before they were called. It was only when defense counsel
sought to question them with respect to their association with defendant
on the night in question that they refused to answer, which was their
right since they were still under indictment on the same charge as
defendant. Perhaps defendant's strongest case in support of this
position is McElwain v. Comm.onwealth, 146 Ky. 104. While it is held in
McElwain that a co-defendant is a competent witness at the separate
trial of his co-defendant, it is nevertheless held that he cannot be
compelled to give testimony which will tend to incriminate him; the
Court there further stated that it was for the witness himself to
determine what constituted self -incriminating testimony.

Finally, defendant maintains that the State attempted to
intimidate Melendez and Antonio Rivera into refusing to testify on behalf
of defendant, by joining them as defendants on the same charge where it
clearly appeared they were not guilty of murder. This is not substantiated

I

-5-

by the record. While it does appear that only defendant was initially
indicted for the murder of Adelphia, the grand jury returned a true
bill against all three men in November of 1963 . On the facts the grand
jury could reasonably have believed the three men were acting in concert,
since all three participated in the fist fight and since neither
Melendez nor Antonio Rivera attempted to aid Adelphia or to disavow the
act of the defendant, but rather fled from the scene. See People v.
Kolep, 29 111, 2d 116; People v. Cole, 30 Iilo2d 375, 379. The case of
Thompson v. People, 410 111. 256 j cited by defendant in support of this
position is inapposite, for the reason that in Thompson it affirmatively
appeared that the sheriff and the State's Attorney threatened prospective
witnesses, and that these witnesses did not testify because of the
threats. Here, no such situation presents itself; on the contrary, the
circumstances indicate that the indictment of Melendez and Antonio
Rivera as co-defendants with defendant Luis Rivera was entirely proper.
For these reasons the judgment is affirmed,

JUDGMENT AFFIRMED.

BRYAN'-, J., and LYONS, J., concur.