APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendants, William Bridgeforth and Willie Davis, were convicted by a jury in the circuit court of Cook County of the offense of arson and sentenced respectively to not less than 5 nor more than 10 years and not less than 4 nor more than 8 years in the penitentiary. Their separate appeals have been consolidated for consideration and opinion.
The record shows that at approximately 1:30 P.M. on December 14, 1968, a fire occurred in an apartment building located at 609-611 East 50th Street in Chicago. Officer Butler of the police bomb and arson unit testified that his investigation revealed that the fire started on the rear porch of the second floor and spread upwards and downwards throughout the remaining areas of the building. Krista Porter, age 11, Jo Ann Falls, age 10, and Yusef Johnson, age 10, said they saw the defendants on the second floor back porch and saw Davis set a pile of trash afire. Joyce Johnson, age 12, saw the defendants standing next to the fire. Ella Fisher, an adult, saw the defendants in back of the building and watched Bridgeforth throw a bottle in the back door.
Defendant Bridgeforth testified that he is a real-estate broker and contractor and described the transaction in which he became the purchaser of the building where the fire occurred. He testified further that on December 14, 1968, at approximately 11:50 A.M. he met Davis and they went to a pawn shop at 47th Street and Prairie Street where Bridgeforth purchased a sewing machine. They met Willie Curtis at the pawn shop and the three left for Bridgeforth's office at 8014 South Ashland Avenue. Both Curtis and Bridgeforth testified that Bridgeforth had called Curtis and asked him to meet him at the pawn shop, and that Curtis went to Bridgeforth's office in order to see some plans and specifications for some construction work he was to do for Bridgeforth. They arrived at the office about 1:30 P.M. and stayed there until 4:00 P.M. This alibi testimony was corroborated by Curtis, Bridgeforth's sister, Mae Hodge, who is a school teacher and works part time as his secretary and bookkeeper, and Leo Taylor, the proprietor of the pawn shop. Bridgeforth testified further that on December 2, 1968, he had executed and delivered to the contract vendor a quit-claim deed to the property and on December 14, 1968, the date of the fire, had no interest in the building.
As grounds for reversal Bridgeforth contends that count I of the indictment is fatally defective in that it fails to charge an offense under the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1-1 et seq.) Count I charged the defendants with "arson, in that they by means of fire knowingly damaged the 50th St. Lawrence Building." He argues that "damaging a corporation is damaging a fictional entity, not real or personal property, and there is no such thing as consent of a building."
In People v. Woodruff, 9 Ill.2d 429, we held that the niceties and strictness of pleadings are required only to the extent that a defendant would be otherwise surprised at the trial or be unable to meet the charge or prepare his defense. Admittedly the indictment could have been drawn with greater precision, but that the defendants understood the charge and were not prejudiced by its alleged insufficiencies is evidenced by the fact that before trial the People and both defendants stipulated "that the building in question on this charge of arson was owned by the Fiftieth-St. Lawrence Building Corporation, Mrs. Sally Hill being President thereof." We hold that count I was sufficient to advise defendants of the statutory offense charged and to enable them to prepare their defense. People v. Ross and Pawlak, 41 Ill.2d 445.
Defendant Bridgeforth contends next that the judgment of guilty on count II of the indictment must be reversed and the cause remanded for a new trial.
Count II charges the defendants with "arson in that they, by means of fire, knowingly damaged the personal property of Norma Jean Porter, having a value of more than one hundred fifty dollars * * *." Bridgeforth argues that because count I is fatally defective and because the testimony of Norma Jean Porter does not prove the value of the personal property she lost in the fire, the jury may have convicted him on count II because it believed him guilty of count I, in which the value of the building was not material. This argument fails for the reasons that count I was not fatally defective, and the testimony of Norma Jean Porter is sufficient to sustain the conviction on count II.
Defendant Davis contends that the trial court abused its discretion in permitting 2 of the 4 children to testify without a sufficient showing of their competency. Defendant Bridgeforth makes the same contention with respect to all four of the children. No such objection was made at trial and the alleged error, therefore, was not preserved for review. (People v. Matthews, 17 Ill.2d 502.) However, because of the damaging effect of the testimony, and its obvious importance to the case, we elect to review defendants' contentions. In People v. Davis, 10 Ill.2d 430, in rejecting the contention that a witness who was 9 years of age at the time of the commission of the offense charged should not have been permitted to testify, the court, at pages 436-437, said: "We are unable to agree that it was error to permit her to testify. She was subjected to an examination by the court to determine her competency; the court found that the child had sufficient mental perception and moral understanding to qualify her to speak as a witness. If the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent. Not age, but the degree of intelligence of a child, determines the question of the child's competency. (Shannon v. Swanson, 208 Ill. 52; State v. Segerberg, 131 Conn. 546, 41 A.2d 101.) In the case at bar the intelligence of the witness was ascertained, to some extent, by her appearance and conduct in the presence of the court, and it is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that a decision to admit such testimony will be reviewed. (People v. Karpovich, 288 Ill. 268.) We find no reason to disturb the court's determination that the witness was competent." Here, as in Davis, we find no reason to disturb the court's determination that each of the witnesses was competent.
Several issues raised by defendants concern the witness, Ella Fisher. The record shows that she is the sister of the defendant Davis and until December 13, 1968, had been a tenant in a building located at 605-607 E. 50th Street. A fire occurred in that building on December 13, and she spent that night with a friend on Drexel Boulevard. She was called to the stand by the defendant Bridgeforth, and upon her being called, defense counsel moved that she be made the court's witness for the reasons that she had been named as a possible State's witness, that she had signed the complaint against defendant Bridgeforth, that the police report indicated that she had told them that she had seen defendant Bridgeforth throw a "molotov cocktail" in order to start the fire, that there had been "bad blood" between Mrs. Fisher and the defendant Bridgeforth, and that fairness and justice demanded that she be called as the court's witness. The court refused to call her as the court's witness and she testified on behalf of the defendants. She testified that she had come to court without a subpoena, that she had been to the court house several times in connection with the case, that she was Davis's sister, and had first met Bridgeforth when he started collecting the rent at 605-607 E. 50th Street. She stated that on the afternoon of December 14, 1968, between 1:00 and 2:00 in the afternoon, she was in a drug store at the corner of 50th Street and St. Lawrence making a telephone call, and that after she left the drug store she went around into the alley behind 609 E. 50th Street because some women said "Bridgeforth was around the back of the house" and she went around to see what he was doing back there. When she got to the back she saw Bridgeforth and Davis coming out of the back of 609 E. 50th Street, and she saw Bridgeforth throw a bottle in the back door. He and Davis then went down the alley to Bridgeforth's car which was parked on St. Lawrence and drove away on 50th Street. She was approximately 10 or 12 feet away from Bridgeforth when he threw the bottle. There was considerable colloquy between the witness and defense counsel following which defense counsel, arguing that the witness had demonstrated her hostility, not only by her testimony, but by her demeanor, renewed his motion that she be called as a court's witness. The court, over the objection of the State's Attorney, permitted her to continue to testify, but as a court's witness.
On cross-examination by defense counsel she stated that she had made two statements to the police, one at the corner of 50th and St. Lawrence in front of the drug store and a later signed statement at the police station. She told the police that she had seen defendant Bridgeforth, but made no mention of Davis. When she testified before the grand jury she did not tell the grand jury that she had seen Davis at the rear of the building. In a later statement, in response to inquiries by the police, she mentioned that her brother also had been present with Bridgeforth. She testified about difficulties with Bridgeforth in connection with the payment of rent and discussions with respect to rent, lights, heat and Bridgeforth's alleged failure to furnish hot water.
Both defendants argue that the People's unexplained failure to call Ella Fisher as a witness raises an inference that her testimony would be unfavorable to the People's case. In view of the fact that she testified, and her testimony is unfavorable to defendants we need not and do not draw any inferences from the People's failure to call her. Were we to engage in speculation, the reason for the failure to call her is most probably the fact that she is the sister of defendant Davis.
Defendant Bridgeforth contends that the trial court erred by initially refusing to call Ella Fisher as the court's witness. It was not an abuse of discretion to refuse to call Ella Fisher as the court's witness until some hostility to the defendants became apparent. (People v. Collins, 25 Ill.2d 605; People v. Crump, 5 Ill.2d 251.) When the witness's hostility to the defense became apparent, the court made her its witness, the defendants were given the opportunity to cross-examine her, and there is no showing of prejudice by reason of the refusal to make her the court's witness at any earlier point in her testimony.
Both defendants contend that the trial court committed reversible error in refusing to admit into evidence certain records of the Cook County Department of Public Aid. A supervisor of the Department testified that he appeared and testified in response to a subpoena served at defendants' request and that he had with him the Department's records concerning Ella Fisher. He advised the court that the records were confidential under the provisions of section 602(a)(9) of the Needy Families with Children Aid and Services Acts (42 U.S.C.A., sec. 602(a)(9)) which provides: "A State plan for aid and services to needy families with children must * * * provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes ...