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Johnson v. Jackson

SEPTEMBER 17, 1963.

ARTHUR JOHNSON, PLAINTIFF-APPELLANT,

v.

DANIEL JACKSON AND MELVIN SMITH, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Judgment affirmed.

MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a verdict and judgment entered thereon in the Superior Court of Cook County on January 11, 1962, finding defendants, Daniel Jackson and Melvin Smith, police officers, not guilty of false arrest and assault and battery.

Plaintiff-appellant alleges three assignments of error: (1) that the court erred in admitting the statement of one Osbie Allison; (2) that the court erred in refusing to direct a verdict in favor of the plaintiff; and (3) that the court erred in refusing to give certain instructions requested by the plaintiff.

The defendants, Daniel Jackson and Melvin Smith, along with Officers Lewis DeNye and John Walker, constituted a "plain clothes" team whose regular duties were to clear so-called "bottle gangs" off street corners in front of liquor stores on Friday and Saturday nights. On September 20, 1952 at about 9:00 p.m. these officers arrived at the Larabee Cut Rate Liquor Store at the corner of Larabee and Division for the purpose of clearing the street of a "bottle gang."

The defendants and their witnesses testified that the police officers entered the liquor store and that the defendant, Melvin Smith, showed his badge to the plaintiff, Arthur Johnson, and to Osbie Allison and identified himself as a police officer; that Melvin Smith then asked why they were using loud and profane language in the presence of ladies; and that the plaintiff made no response to these questions.

Officer Smith then proceeded to search Osbie Allison who did not resist. When he started to search the plaintiff he resisted and pushed away Officer Smith's hand. Officer Smith stepped back and tripped over a peanut machine and fell to the floor. The plaintiff continued to come forward but was restrained by Officer Jackson who had come to the assistance of Officer Smith. At the time of this occurrence from fifteen to thirty people were congregated in the liquor store and this fact had some bearing on how well all of the witnesses saw the incident.

Thereafter, the plaintiff along with Osbie Allison and a few other people were taken out of the liquor store, placed in a squad car or "wagon" and taken to the station. An arrest slip was signed by Officer Jackson and a complaint was filed by Officer Smith for resisting arrest and for disturbing the peace. The plaintiff spent the night in jail and on the morning of September 21, he was transferred to the Bridewell Hospital. There was testimony and evidence to show that the reason for plaintiff's transfer to the hospital was a fractured jaw. All the police officers testified that the first they knew of any injury to plaintiff was on September 21 when notices were put in their call boxes.

The primary factual controversy present in the lower court centered around how the plaintiff, Arthur Johnson, sustained his double-fractured jaw. Evidence was introduced showing that Arthur Johnson had suffered from epilepsy in a mild form for fourteen to sixteen years prior to the time of his injury. During this time he had held down a regular job. Subsequent to his fractured jaw his epilepsy seizures became more frequent and prolonged and evidence was offered tending to show that he would never hold a full time job again. All witnesses agreed that Arthur Johnson did not drink and was not in the liquor store for the purpose of drinking or securing liquor.

It was the contention of plaintiff that after he pushed Officer Smith away and to the floor he was hit across the face with a hard object which broke his jaw. The four police officers denied striking plaintiff at all. The statement of Osbie Allison tended to corroborate this. On the other hand, the testimony of plaintiff's witnesses, Willie Stevens, Willie Morris, Odie Smith and Carter Johnson bore out the position of Arthur Johnson that he had been hit by some hard object in the liquor store.

The defendants speculated that the plaintiff had been injured while in the jail cell by a fall brought about by one of his epileptic seizures. They alleged that the plaintiffs had made no effort to secure impartial witnesses who would have shown that there was no evidence of a fractured jaw at the time Arthur Johnson was jailed. The testimony of the four officers remained consistent throughout questioning. The jury returned verdicts under both counts for the defendants.

The statement of Osbie Allison was taken the evening of September 21st out of the presence of and without notice to the plaintiff, Arthur Johnson, by the arresting officers at the police station. If the statement was offered to prove Osbie Allison's version of the factual occurrences of the day before it was clearly hearsay and as such inadmissible. Jendresak v. Metropolitan Life Ins. Co., 330 Ill. App. 157, 70 N.E.2d 863; 10 ALR 2d 1035-1050; McCormick On Evidence, § 228, § 231, pp 463, 482-483 (1954), 5 Wigmore On Evidence § 1373, pp 53-54 (3rd Ed 1940). Plaintiff's counsel full well knowing the possible impact of that statement made only a general objection which was overruled by the lower court. This had the effect of allowing the statement to stand for whichever proposition the jury chose to attribute to it.

"It is well settled that an objection, to be good, must point out the specific ground of the objection, and that if it does not do so, no error is committed in overruling it." 53 Am Jur, Trial, § 137, p 121; 88 CJS Trial, § 125, p 254. McCormick in his treatise on evidence states:

"The precept constantly urged in the opinions is that objections must be accompanied by a reasonably definite statement of the grounds. The purposes of the requirement are that the judge may understand the question raised and that the adversary may have an opportunity to remedy the defect, if possible." McCormick On Evidence, § 52, p 117 (1954).

See also DeMarco v. McGill, 402 Ill. 46, 55, 8 N.E.2d 313; People v. McCurrie, 337 Ill. 290, 169 N.E. 214; Illinois Iowa Power Co. v. Rhein, 369 Ill. 584, 17 N.E.2d 582; Forest Preserve Dist. v. ...


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