City of Chicago v. Abdullah
| Decision Date | 04 September 1979 |
| Docket Number | No. 78-695,78-695 |
| Citation | 32 Ill.Dec. 103,395 N.E.2d 50,76 Ill.App.3d 325 |
| Parties | , 32 Ill.Dec. 103 CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellee, v. Hassan ABDULLAH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender of Cook County (Brian L. Heise, Timothy P. O'Neill, Asst. Public Defenders, of counsel), for defendant-appellant.
William R. Quinlan, Corp. Counsel, Chicago (Daniel Pascale, Asst. Corp. Counsel, Chicago, of counsel), for plaintiff-appellee.
Following a bench trial in the circuit court of Cook County, the defendant, Hassan Abdullah, was convicted of the "improper display of a Chicago flag insignia" in violation of section 173-9 of the Municipal Code of Chicago (Chicago, Illinois, Municipal Code 1977, ch. 173, § 173-9) and was fined $25. On appeal the defendant contends that the municipal ordinance under which he was convicted is unconstitutionally vague. We reverse.
The only evidence adduced at the trial was the testimony of Officer James Herman, a Chicago police officer, Lieutenant Walter Duffy, commanding officer of the Special Police Unit, and the defendant.
Officer Herman, the complaining witness in the instant appeal, testified that on June 15, 1977, he arrested the defendant at the Traffic Headquarters Building located at 320 North Clark Street. On direct examination the following colloquy took place:
The City then responded, "Indicating for the record, your Honor, a flag, rectangular in shape, outlined in gold." The record fails to indicate whether the flag in question, or the defendant's special policeman's uniform were ever marked as exhibits or introduced into evidence.
Lieutenant Duffy testified that on the day of his arrest the defendant was a special policeman employed by the St. Mark Day Care Center. He further testified:
"Q. And officer, on that date, or prior to that time I beg your pardon Lieutenant, had you given the defendant permission to wear the Chicago flag insignia?
A. No.
Q. And you have seen the insignia that Officer Herman pointed to, and you recognize that?
A. Yes.
Q. What is that?
A. The Chicago flag.
Q. And, sir, who is authorized to wear that flag, if you know?
A. Chicago policemen, firemen."
The defendant testified that he had received the uniform in question from the day care center and that this uniform had a flag of the City of Chicago attached to its right sleeve when it came into his possession. The following testimony was given on direct examination:
"Q. And while in the performance of your duty on that day, did you have occasion to wear a uniform?
A. Yes, I did.
Q. And while in the performance of your duty, since you have been a special policeman, have you always worn the same uniform?
A. Yes, I have.
Q. You were wearing that uniform on the date in question?
A. Yes.
Q. How did you obtain that uniform?
A. By my employer.
Q. And who was your employer?
A. St. Mark Day Care Center.
Q. And when your employer gave you that uniform did it have any markings similar to that worn by the Chicago Police Department?
A. Yes.
Q. Did it have a flag of the City of Chicago on either one of the shoulders when you were given that uniform by your employer?
A. Yes.
Q. Which shoulder was that on?
A. The right shoulder."
The defendant was charged with the offense of:
"Improper display of a Chicago Flag Insignia in that he while working as a special policeman, wore a Chicago flag insignia, the insignia of the Chicago Police Department, without the approval of the superintendent of police in violation of Chapter 173 Section 9 of the Municipal Code of the City of Chicago."
This charge is contained in the record but is undated. The transcript of the trial proceedings refers to a motion for a non-suit and the submission of a new charge:
Miss Shropshire (The City): And we request leave of Court to file a new charge, which I have already shown to Mr. Conners.
The Court: Now, the charge now is still a City charge. Is the defendant ready for trial? Inasmuch as the new charge that you have suddenly been advised of, you have a right to ask for a continuance to prepare your case; you have a right to a jury trial.
Mr. Conners (Public Defender): I have conveyed that information to the defendant, your Honor, and he said he wants to go to trial today on the newly filed charge."
Whether the defendant proceeded to trial on the initial charge or the new charge is unclear from the record. We are left to speculate whether the undated charge in the record is the initial charge or the newly filed charge.
The defendant was found guilty on November 2, 1977 of the "improper display of a Chicago flag insignia" and fined $25. A hearing on a motion for a new trial was held on February 7, 1978 wherein the defendant argued that he was not proven guilty beyond a reasonable doubt and that section 173-9 of the Code was vague and overbroad. The court denied the motion. A notice of appeal was filed by the defendant on February 14, 1978. No issue has been raised as to the pleadings.
As a general policy, Illinois courts will only decide constitutional questions where necessary to a disposition of the case. (Bender v. City of Chicago (1974), 58 Ill.2d 284, 319 N.E.2d 34; People v. Fleming (1971),50 Ill.2d 141, 277 N.E.2d 872; Pletcher v. Illinois Racing Board (1978),57 Ill.App.3d 73, 14 Ill.Dec. 796, 372 N.E.2d 1075.) Since we hold that the city has failed to prove that the defendant committed the offense charged, it is unnecessary for us to consider whether the statute is unconstitutional. (See City of Chicago v. Wilson (1978), 75 Ill.2d 525, 27 Ill.Dec. 458, 389 N.E.2d 522.) It is our opinion that the resolution of the constitutional issue raised by the briefs is unnecessary to a disposition of the case before us. Osco Drug, Inc. v. Dept. of Regis. and Educ. (1977), 54 Ill.App.3d 936, 12 Ill.Dec. 436, 370 N.E.2d 59.
Section 173-9 of the Code provides that:
(Amend.Coun.J. 8-24-70.)
Section 173-13 of the Code provides that:
"Any person violating any of the provisions of this chapter shall be fined not less than five dollars nor more than one hundred dollars for each offense."
Although the defendant in this appeal has failed to raise the issue that there was insufficient evidence to support the judgment against him, Supreme Court Rule 366(a)(5) gives a reviewing court broad power to:
"give any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, that the case may require." (Ill.Rev.Stat.1977, ch. 110A, par. 366(a)(5).)
Furthermore, Supreme Court Rule 366(b)(3)(i) provides that the following procedural rule applies in non-jury cases:
(Ill.Rev.Stat.1977, ch. 110A, par. 366(b)(3)(i)).
"We are not unmindful of the rule that reviewing courts hesitate to reverse a case tried by a judge without a jury, as the presumption is that the trial judge...
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