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Mccottrell v. Benson

NOVEMBER 9, 1961.

LINWOOD MCCOTTRELL, PLAINTIFF-APPELLEE,

v.

HENRY BENSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding. Judgment affirmed.

HOFFMAN, PRESIDING JUSTICE.

This is an appeal by the defendant from a judgment against him based upon a jury's verdict in a personal injury suit.

The plaintiff and defendant were neighbors, and a dispute arose between them concerning the cutting of a tree on the property line between them. In the ensuing argument, defendant shot plaintiff. It was for the injuries plaintiff received that this suit was brought.

After the incident, a criminal complaint was sworn out against the plaintiff, charging him with assault upon the defendant. Plaintiff was found guilty by a justice of the peace, but upon appeal to the County Court, the proceedings were dismissed because of the failure of the defendant (the prosecuting witness) to appear.

The first error complained of by the defendant on this appeal is that the plaintiff in the trial introduced, over the objection of the defendant, the record from the County Court revealing that the charge of assault placed against him by the defendant, arising out of the incident complained of, had been dismissed by the County Court for failure of the defendant to appear. On this question the law is clear: A plea of guilty in a criminal proceeding is admissible as an admission against interest in a later civil action based upon the same occurrence. Galvan v. Torres, 8 Ill. App.2d 227, 131 N.E.2d 367; Jones on Evidence, vol 2, 5th ed, 1958, sec 370, p 693; 20 Am Jur, Evidence, sec 648, p 545. However, the record of a conviction is not admissible even though the later civil action is based upon the same assault (Cammarano v. Gimino, 234 Ill. App. 556), nor is a judgment of acquittal or dismissal admissible. See Coberley v. Wilson, 71 Ill. 209; Jones on Evidence, vol 3, 5th ed, 1958, sec 639, p 1218.

There is no doubt but what it was reversible error for the trial court to admit the criminal record into evidence. Where, in a jury trial, the trial court commits an error of law pertaining to the admission of evidence which requires a reversal of the judgment, the Appellate Court, upon reversal, must remand for a new trial, unless it appears from the record that the error cannot be obviated upon another trial. Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, 239, 119 N.E. 265; Abdill v. Abdill, 292 Ill. 231, 232, 126 N.E. 543; Frey v. City of Chicago, 330 Ill. 640, 642, 162 N.E. 139.

But we are confronted here with the fact that the defendant has stated, and, in fact, demanded, that this case not be returned for retrial. His notice of appeal prays "that said judgment, based upon said verdict, be set aside and held for naught and that said cause not be remanded for further action by the Circuit Court of St. Clair County, Illinois." His brief states, "We do not feel that this matter should be remanded for a new trial." Also, it is to be noted that the defendant took no issue with the statement in plaintiff's brief that he, the defendant, had "waived his right to ask for new trial."

Supreme Court Rule 33 provides that the notice of appeal "shall state what judgments, decrees, orders or proceedings are desired from the reviewing court by way of relief." Ill Rev Stats 1959, c 110, par 101.33. Furthermore, it is well established that the party against whom an error has been committed may waive or release such error and may thereby give up his corresponding rights thereunder. Where errors have been released, the fact that the errors were obvious and that the decree is erroneous is immaterial. 2 ILP Appeal and Error, sec 71, p 168.

The right to a new trial may be abandoned in the trial court by a failure to argue a motion for a new trial, Berg v. New York Cent. R. Co., 323 Ill. App. 221, 55 N.E.2d 394, or by a failure of the trial court to rule upon said motion, Fulford v. O'Connor, 3 Ill.2d 490, 121 N.E.2d 767, 773. If such can happen in the trial court, we perceive no reason why the same rule should not apply in the Appellate Court. Where an appellant specifically states to us that he does not want a cause remanded for a new trial, he has circumscribed the relief he seeks here.

We must, therefore, hold that the defendant has waived his right to a new trial.

Entirely apart from the question above is the other point made by the defendant, which is, that the verdict is contrary to the manifest weight of the evidence. To properly consider this requires a careful review of the evidence.

Plaintiff McCottrell lived next door to premises owned by the defendant Benson. The defendant's property was rental property but had been vacant for better than two years prior to the date the shooting occurred. At the rear of the two lots and on or near the dividing line between them, was an elm tree, the roots of which had grown through the floor of an outdoor privy situated on defendant Benson's property. The roots had grown in such a manner that the door of the defendant's privy was jammed shut.

On the morning of October 30, 1958, defendant Benson went to his premises with the intention of cutting the roots of the tree for the purpose of straightening the privy. While he was there, the plaintiff came out of his house and a heated discussion about the cutting of the tree ensued. The defendant claims that during the discussion plaintiff threatened to shoot him if he cut the tree roots. This threat to shoot the defendant was denied by the plaintiff. Defendant also contended that he noticed that plaintiff McCottrell had a pistol with him at that time, that he had it part-way out of his pocket and that he threatened to use it. This, likewise, was denied by the plaintiff.

After the morning argument, the defendant left, and returned about 2:00 o'clock in the afternoon carrying a loaded shotgun by his side. He claimed he brought the gun ...


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