*1 not order x-rays but merely manipulated leg. The court held that no expert testimony was necessary to establish liability. Polionos readily distinguishable since in Polionos the doctor knew there leg injury was a whilе in present case, according Dr. Harmon’s testimony, he could signs find no of hip injury and was never informed complaints hip pain.
In Colletti, Scardina v. 63 Ill. 481, 762, evidence was offered tending to show that the defendant doctor either ligate failed to a severed blood vessel before closing a wound subsequent surgery ligated it in a manner that allowed ligature slip off. Plaintiff offered expert witnesses who testified that the blood vessel was open when they reopened the wound after post-operative complications. These witnesses did not testify that open blood vessel likely to be thе result of defendant’s negligence. The court held that the “common knowledge” exception to the requirement expert testimony was not applicable. The same is true the case at bar. Accordingly, since there expert was no testimony that the defendant doctor proper violated the care, standard of the directed verdict in his favor was proper under the Pedrick rule. Co., Pedrick Peoria 2d 494, 510, 229 & Eastern R.R. 37 Ill. 513-14.
Affirmed.
TRAPP, P. J., GREEN, J, concur. ILLINOIS, THE PEOPLE OF DANNY Plaintiff-Appellee, THE STATE OF SIMPSON, Defendant-Appellant. D. Fourth District No. 12978 Opinion filed
BARRY, dissenting. J., Gaston, counsel), appellant. Goldstein, (William R. of for
Gaston & of Urbana (Thomas Knight and Mark Burgess, Jr., Attorney, L. R. Urbana State’s of James Attorneys, counsel), People. Lipton, Assistant State’s of for the court: opinion Mr. PRESIDING ALLOY delivered JUSTICE armed from a Danny Simpson appeals conviction Defеndant County. The Champaign in a trial in the Circuit Court of robbery jury Urbana, in robbery accomplished the Coin-o-Matic laundromat Illinois.
From the young record that two appears black men robbed laundrоmat and occupants p.m. 28,1973. its about 8:45 on December The suspects, two Danny Simpson, Brown, defendant D. and Kevin were later apprehended A police. State, 16-year-old Byron witness for Adams, testified that and Simpson at his about 10 appeared home p.m. on December him they just and told “hit” the laundromat. Adams that was go testified he asked to Kevin Brown’s car sack, a grocery retrieve which receipts turned out to contain some *135, and a gray metal cash box. The approximately box contained which Brown and Simpson proceeded split evenly, according to witness $5 Adams, giving They after Adams with gun dimes. also left a him. Defendant Simpson’s alibi included his arrived at he Carter, Adams’ home night question Raymond with and that Kevin Brown was already up story, there. Several witnesses backed father, witnеss, but at Elga Kyse, least one Adams’ foster corroborated Adams’ Simpson version Brown and together. arrived victims, robbery laundry
Three Kim Inja attendant customers Candice Trinkle and Robert at the Cuppеrnell, also testified trial. Neither Kim nor Trinkle was asked to make an identification at the trial. Cuppernell positively was unable to trial identify at the *3 one of robbers. Cuppernell testify the did that he hаd identified someone 9, 1974, in a lineup January days on robbery. Subsequent 12 after the testimony exhibit, and an (also which will which to we refer of defendant complains on appeal), person Cuppеrnell show that the identified by at the Simpson. was the defendant Brown and Simpson robbery were indicted for tried jointly. and Brown aby jury, convicted a had as Simpson but mistrial was to when the jury against could not reach a him. charge verdict the The errors now complained during Simpson’s separate of occurred trial in second
The testimony objects testimony to which defendant involved of Kurata, Adams and аn public Marian assistant testified defender who concerning Simpson Adams Cuppemefi’s lineup. identification of at the had testified “they” just told him that had hit “we” the laundromat. He very admitted that he not the сould remember conversation well listening because he carefully, was not and that he could not remember might who laundry. have said that “we” robbed the did not recall that He Simpson anything said to that effect and said that did most of the Brown talking.
The objected ground alleged defense on the that if the Brown, statement by were made and hearsay could be inadmissible
321 State, however, a that it show against Simpson. The contended tended to laundromat, the joint by Simpson and concerted effort Brown and to rob by that in admissible any and such case statement Brown would be Simpson exception by the сo- against hearsay under for statements the conspirators. objection defendant’s and The court overruled testimony was admitted. exception
The and of co- hearsay allows acts declarations which defendant, such conspirators against to be admitted as even when defendant, is and made out of presence statements declarations are the v. jurisdictions (Spies established in the law Illinois and well other 898, 1, 229, is not (1887), 865), Ill. N.E. N.E. and it People 122 17 12 the actually nor that all necessary conspiracy charged that a be 24Ill. (1st 1974), v. Dist. conspirators (People be indicted or tried Stewart 111, 605, 450; 614, (1951), N.E. 2d v. 409Ill. People 321 Niemoth 1360, 73 858, 97 97). S. Ct. 118, 733, denied, .2d U.S. L. Ed. 98 N.E cert 344 is, however, prima to at least a case two necessary It show facie plan accomplish a criminal persons engaged in a more wеre common v. 122Ill. (Spies People, means. goal by or to reach another end criminal the 1, appear, despite prosecutor’s It not 238-39.) does court, any specific attempt рrosecutor that the made representation to and carried out Simpson together plotted to show Brown and robbery. admissible,
To be
as to commission
the Brown statement
merely a
design,
must bе
crime
in furtherance of the
common
Ill.
(1887),
v.
already
(Spies People
of what has
been done.
narrative
229-37;
554, 558, 264
140.)The
People
(1970),
Davis
Ill. 2d
Simpson
that he and
by
statement made
Brown to the effect
alone,
robbery,
qualified
be
under
standing
might
committed the
State,
by
for
that statements
exception
contended
as
incriminating
presence,
admitted
Simpson’s
made in
could be
hearsay
rule.
“implied
еxception
an
admission” which is another
(1966),
Ill. 2d
that doctrine as stated in
Watson
Under
236,
“When, here,
incriminating
an
statement is made
accused,
denied
hearing
of the
such statement neither
.and
to,
objeсted
fact of his failure
nor
both
statement and the
*4
deny
admissible as
of the truth of
accusation.”
are
evidence
us,
showing
there
Unfortunately,
the basis of
record before
was no
on
supposed
by
statement
regarding Simpson’s reaction to the
it was
shown
of them had robbed
laundromat. Since
not
the two
was
objection
denial when one
was silent and
no
made
for,
admissible
could
be
reasonably called
the statement Brown
29 Ill.
(1963),
v. McCain
implied
exception (People
under the
admission
talking
132, 135,
did most of the
784).
193 N.E.2d
Adams said Brown
2d
up the cash box.
pick
car to
sent Adams to Brown’s
lineup out of the
рicked
he
someone
had testified that
CuppemeU
6.
card No.
holding
so selected was
person
and that the
January
defender, Kurata,
testify that
to
public
assistant
The State then called the
holding
in fact
at that
was
CuppemeU
subject
by
identified
further offered
Simpson. The State
person
and that such
card No.
at
admitted,
evidence,
transcript of the conversation
in
the court
Cuppernell
showed
transcript
Kurata. Such
lineup,
prepared by
as
any
he
as to whether
response
question
to the
making
negative
a
that the
argues
robbers. Defendant
being
one of the
dоubt about No.
could
hearsay and
inadmissible
transcript
Kurata
and the
were
witness,
the State’s own
impeachment
in
not be used otherwise
that has
in
of the fact
procedure
light
must
Cuppernell. We
viеw
testify
a
to
to another
that it is error to allow witness
been determined
defendant,
testimony,
where the
identification of a
person’s out-of-court
here,
during its case
by the
in direct examination
is еlicited
State
a
chief,
is
be used as
supplementary testimony sought
and where the
to
substitute for an
identification or to bolster a weak identification.
in-court
415;
See,
People
e.g., People
(1968),
v. Denham
For the reasons judgment of the Circuit Court of Champaign County is reversed and this cause remanded for a new trial.
Reversed and remanded.
STOUDER, J., concurs. Mr. BARRY, dissenting: JUSTICE In my view of law, Adam’s testimony as to statements made Brown in Simpson presence, s positively identifying Simpson рartner as a crime, to the was admissible against Simpson as an implied admission. The majority take different view on the grounds asserted that the record here contains “no showing regarding Simpson’sreaction supposed ” * statement by Brown e.” On the contrary, the record shows that after this incriminating statement, Brown and Simpson proceeded then Adam’s open gray metal *135, cash box containing аnd to *5 divide it evenly between themselves after giving Adams *5 in dimes. Certainly that “reaction” part on the of Simpson is a confirmation on his part of the truth of Brown’s statement. I agree admittance to the record of Kurata this identification, Cuppemell,
effect that had in who could make no in-court fact previous made a That error. identification of error, however, does require case there reversal- where other abundant evidence of Simpson’s guilt, including positive Brown’s identification, and Simpson’s corroboration of that identification splitting “the take” Adam. 52 Ill. 2d Canale, (1972).
I would affirm the conviction. ILLINOIS, v. ANDRE Plaintiff-Appellant, THE PEOPLE OF THE STATE OF KENNEDY, Defendant-Appellee. No. District
Fourth 17, 1976. filed Opinion