WRIT OF ERROR to the Circuit Court of Sangamon County; the
Hon. DEWITT S. CROW, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1954.
Plaintiff in error, Eddie Holtzman, hereinafter referred to as defendant, was convicted by a jury of receiving stolen property, and was sentenced to not less than one year nor more than ten years' imprisonment in the penitentiary by the circuit court of Sangamon County. By this writ of error, he now seeks to have that judgment reversed.
The record discloses that Arthur Reynolds, a witness for the People, testified that seven shirts were stolen by him from W.T. Grant Company on April 1, 1952, and that he sold them to the defendant, Eddie Holtzman, at Holtzman's place of business in Springfield, for $1.00 each. He testified that he saw Holtzman mark the figures $2.98 on the labels of the shirts, and that he had previously sold articles of clothing to Holtzman; that he had been indicted for grand larceny on March 11, 1952, and had talked to Eddie Holtzman about being under indictment some two weeks prior to the sale of the shirts on April 1. He further testified that in the latter part of November, 1952, Holtzman told him that it would be best for all if he left town before the trial came up. He identified the shirts at the trial as People's exhibits 1 through 7.
Hiebert Hanson, a witness for the People, testified that he was manager of the W.T. Grant Company store in Springfield, on April 1, 1952. He identified People's exhibits 1 through 7 as property of the W.T. Grant Company by the "Pennliegh" label, which was the registered trademark of the company. He testified that the gummed label on the collar, marked $2.98, was not on the shirts at the time they were owned by the W.T. Grant Company. He had no way of knowing that the particular shirts were in the Springfield store, but shirts of the same pattern had been handled by the store. He placed a value on the seven shirts at between $20 and $21. He testified that the W.T. Grant Company is a corporation with a registered agent at 222 W. Adams St., Chicago, Illinois.
Detective Sergeant Virgil Lester Harvel testified that the defendant ran a new-and-used clothing store in the city of Springfield, and that on the morning of May 3, 1952, he took the defendant to the office of the State's Attorney where the defendant stated that he had purchased six or seven shirts from Arthur Reynolds. Later, when asked if they could search his place, defendant said that he had the shirts at one time but sold them, but that he was willing for the officers to make a search. Sergeant Harvel and James McIntyre, a policeman, accompanied the defendant to the Holtzman store on the same day. When they asked defendant where he kept the shirts, he pointed to the east side of the room, and after looking around there a little they asked him what was kept on the west side, to which the defendant answered, "Nothing." The witness testified that while he was looking around the west side of the room, Holtzman said that he had another box of shirts which he handed to the witness, and which were the shirts later introduced in the trial as People's exhibits 1 through 7, and were the same shirts that Arthur Reynolds identified at the police station as the shirts he stole from Grant's and sold to the defendant. Although defendant was present when Reynolds made this identification, he failed to comment on it at that time.
James McIntyre substantiated the testimony of Harvel, except that he testified that officer Harvel found the shirts after Holtzman had stated that there were no shirts on that side of the store.
The accused did not take the stand in his own behalf, nor were any witnesses called by him. After the verdict of the jury was returned, defendant was given leave to file a written motion for a new trial. During the interim, counsel who had represented defendant during the trial was given leave to withdraw, and a successor entered his appearance. The new counsel, who represents the defendant before this court, filed a motion for a new trial in which he made numerous assignments of error. Three of the points made in the motion, which are now before this court, have to do with the question of new or additional evidence.
The motion for new trial, which was in part supported by the affidavits of five persons, alleged that the affiants knew certain facts and were prepared to testify in behalf of the defendant, that the failure of his attorney to call the affiants as witnesses deprived defendant of a fair opportunity to present fully and completely his defense, and that he was unduly prejudiced at the trial by the failure of his counsel to call them as witnesses. It is apparent on the face of the affidavits that the evidence which these witnesses might testify to clearly does not come under the category of newly discovered evidence. The trial court took judicial notice of the fact that the trial counsel for the defendant was a practicing attorney at the bar of Sangamon County for more than twenty years, and during such time in the past had been a public defender of Sangamon County. The trial counsel was one of defendant's own choosing, and a court of review will not, upon the change of counsel, consider the incompetency of his former counsel as a basis for reversal. People v. Hicks, 362 Ill. 238; People v. Zwienczak, 338 Ill. 237; People v. Ney, 349 Ill. 172.
Additional affidavits by Luther Braizer and T. Jonathan Jackson were also filed in support of the motion for new trial. These affidavits recited that subsequent to the conviction of the defendant, Arthur Reynolds met them in a tavern in Springfield, and in response to a question by Braizer stated that he did not steal seven shirts at one time but stole two shirts at a time on different days and sold them to Holtzman two at a time on different days, and when asked why he had testified that he had stolen and sold all seven shirts at one time he replied that he lied because he had the defendant where he wanted him, and that the defendant could have shut him up by giving Reynolds what he wanted so that he would not have lied about Holtzman.
It is contended by counsel for the defendant that this was material, competent, non-cumulative and convincing testimony of competent witnesses discovered by the defendant after the trial. He argues that, if the contents of the affidavits are true, the offense committed by the defendant would be that of buying goods and property not exceeding the value of $15, and that the maximum punishment fixed by the statute is a fine not exceeding $1000 and confinement in the county jail for a term not exceeding one year.
A distinction is to be drawn between evidence which impeaches a witness in the sense that it affects the credibility of the witness, and evidence which is probative in that it presents a state of facts which differs from that to which the witness testified. Newly discovered evidence, the effect of which is to discredit, contradict and impeach a witness, does not afford a basis for the granting of a new trial. If, however, it contradicts a witness by showing facts, a new trial may be ordered when it appears that such new evidence has sufficient probative force or weight to produce a result different from that obtained at the trial which has been had. While the evidence set forth in the affidavit tended to support a different offense than that committed by the defendant, these facts, if true, were well known to the defendant at the time the offense was committed, and he had every opportunity to defend himself on the basis of the lesser included offense.
We are, therefore, of the opinion that the sole effect of the affidavits of Braizer and Jackson was to impeach the testimony of the witness Reynolds, and this was not a sufficient basis for the granting of a new trial. (People v. Johnson, 286 Ill. 108.) This rule has not been modified by the case of People v. Cotell, 298 Ill. 207, as contended by counsel for the defendant. In the Cotell case the affidavits for new trial set forth facts which were newly discovered, which impeached the testimony of the accomplice Anderson, which were peculiarly susceptible of the most positive verification by the People, and which, if true, virtually destroyed her entire testimony. The affidavits in that case contain offers of proof to prove that Anderson's residence during certain periods of time was not as she had testified, that she had previously stood trial on charges of larceny wherein she defended on the grounds that a man had induced her to take his property, that bank records showed the disposition of funds received by her in the offense to be such that the defendant could not have received any of the fruits of the crime as claimed by her testimony, and that a ...