Appeal from the Circuit Court of Lake County; the Hon. L. ERIC
CAREY, Judge, presiding. Judgment of conviction reversed.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
This appeal is prosecuted from an order, based on a jury verdict, entered on January 20, 1965, by the Circuit Court of the 19th Judicial Circuit, Lake County, that adjudged the defendant, Marvin Haycraft, guilty of the crime of robbery as charged in his indictment. The defendant was sentenced to a prison term of not less than eight nor more than twenty years.
The defendant was arrested on the 23rd day of July, 1964, several hours after the robbery of a tavern in the city of Waukegan, and charged with the commission of that crime. At the original arraignment on August 7, 1964, Haycraft entered a plea of not guilty and was remanded to the County jail for want of bail. Approximately one and one-half months later, Haycraft withdrew his first plea and, on rearraignment, pled guilty to the charge and petitioned the court for probation. He was released on his own recognizance at that time and the matter was continued until December 30, 1964, for a hearing on his petition.
During the interim, and in violation of his bond, Haycraft was apprehended by the police in Phoenix, Arizona. It is apparent that the defendant realized, at this point, that his petition for probation was unlikely to succeed. He, therefore, orally requested on December 30 that he be allowed to withdraw his plea of guilty. His request was granted and, on his third arraignment, he entered his plea of not guilty and the matter was placed on the January 1965 Criminal Trial Calendar of the court. After several delays, the cause came to trial with the result already indicated.
Although reversal is urged by defendant on several grounds, we need discuss only one. Haycraft testified on his behalf, and was asked, during cross-examination, the following question:
"Q. Do you recall, too, Marvin, that at that time you had a conversation with Anthony Dohoney from the Probation Department?
"A. Oh, yes, I talked to a probation officer.
"Q. Now what did you tell the probation officer?"
Defense counsel objected at this point and moved for a mistrial. Although the objection was sustained, the trial continued after a denial of the motion.
Subsequently, Anthony Dohoney, a probation officer for Lake County, was called to testify as a rebuttal witness for the State and, in answer to a question propounded to him, stated as follows:
"Mr. Dohoney: Well, in the process of preparing a probation report, I was interrogating the defendant as to what had taken place in the City of Waukegan for which he was charged; namely, a robbery. I asked him if he performed the act and since he had already pled guilty at that time, he . . ."
An objection was again promptly sustained and the court proceeded to strike all of Dohoney's testimony and admonished the jury to disregard it in its entirety. However, a second motion by the defense that a juror be withdrawn and a mistrial declared was denied and it is from those denials that Haycraft appeals.
While Illinois has no precise law on the subject, the general rule in other jurisdictions appears to be that a plea of guilty, subsequently withdrawn by leave of court, is not admissible into evidence against an accused upon his trial on the substituted plea of not guilty. Kercheval v. United States, 274 U.S. 220 (1927); People v. Spitaleri, 9 N.Y.2d 168 (1961); State v. Joyner, 228 La. 927, 84 So.2d 462 (1955).
The Kercheval case, cited above, is the leading decision on the subject and did much to correct the conflict on the point that existed between various jurisdictions. Kercheval had been indicted for using the United States mails to defraud. He first pleaded guilty to the charge and was thereupon sentenced. He then petitioned for leave to withdraw his guilty plea and alleged that he had entered it only on the promise of the prosecution that his sentence would be minimal. The trial court granted his petition but permitted the prosecution to introduce his earlier plea into evidence during the trial on his substituted plea of not guilty. The Supreme Court rejected the position of both the trial court and the Circuit Court of Appeals ...