Appeal from the Circuit Court of Montgomery County; the Hon.
GEORGE KELLY, Judge, presiding. Judgment reversed and cause
Defendant appeals from the judgment of the Circuit Court of Montgomery County entered on a jury verdict finding him guilty of the offense of Disorderly Conduct, (c 38, § 26-1, Ill Rev Stats 1965). The court fined defendant $250 and ordered him to pay the costs of court.
The complaint charges that on June 10, 1965, at approximately 1:00 a.m., defendant committed the offense of Disorderly Conduct in that he knowingly, with intent to annoy William F. Whitnel, made a telephone call to his home, but had no conversation with him, in that he hung up the telephone immediately upon hearing Whitnel's voice.
Defendant argues as grounds for reversal (a) the trial court erred in admitting evidence of prior occurrences similar to that charged in the complaint (b) the court erroneously permitted a supervisor for the telephone company to testify as to certain matters, and (c) erred further in not permitting defendant's counsel to interrogate his character witnesses as to defendant's reputation for "peacefulness and quietude." Finally, defendant contends that the evidence fails to establish defendant's guilt beyond a reasonable doubt, and there is a variance between the charge set forth in the complaint, and the evidence.
William F. Whitnel testified that he lived in Litchfield and for four years had been Superintendent of Unit 12 Schools. He had known defendant for approximately 7 years. Defendant is employed by Unit 12 as a Junior High School teacher, and also operates a cafe in Litchfield. He had discussed with defendant his absence from his teaching duties, during part of which defendant was on sick leave, but was not ill, and was working in his cafe. They had also discussed an extension course which defendant planned to take to meet the requirements of the Board of Education for "professional growth." A day's pay was deducted from defendant's salary because of his failure to attend a Teacher's Institute. Whitnel stated that he had received a report that defendant had discussed the deduction with the County Superintendent of Schools but he did not know the result of that conversation. On one occasion he had written defendant regarding his failure to comply with a School Board rule that he be at school at 8:00 a.m.
Over objection, the witness testified that in the preceding 6 months approximately 15 telephone calls had been made to his home, usually between 11:30 p.m. and 2:00 a.m., and when the telephone was answered, there was no one on the other end of the line. He kept no record of the calls except three which were made on June 8, 9, and 10, 1965. The usual pattern was that he or his wife would be awakened by the ring of the telephone, would answer, and hear a click. There was no conversation at any time.
On June 8, 1965, at 1:40 a.m. the telephone rang, Mrs. Whitnel answered, no conversation ensued, and on that afternoon, after Whitnel talked with the Chief of Police of Litchfield, a monitoring device was placed on the telephone in the Whitnel home.
The next morning at 1:15 a.m., the phone rang, Whitnel answered, and heard the click at the other end of the line. In accordance with instructions received from Mr. Gary Clifton, manager of the telephone company, he left the phone off the hook. Later that morning he saw Mr. Clifton and the Chief of Police, and then put the phone back on the hook.
The next morning, June 10, 1965, at about 1:00 a.m., there was a similar occurrence. Whitnel went to the police station, and a patrolman and he drove past defendant's cafe. He saw defendant stooping down in front of a stool. They drove past the place, turned around and passed it a second time, and he again saw defendant in the place. It was then 1:07 and defendant's place of business was closed. Later, about 1:45 a.m. the phone in Whitnel's home buzzed again, "as if it were trying to ring." He saw the State's Attorney and signed a complaint.
Gary Clifton, commercial manager of the telephone company at Litchfield, testified that he authorized the attachment of a monitoring device to Whitnel's line. He explained that while this device is attached it makes the called number the controlling party, and so long as the phone to which the call was made is off the hook, the phone from which the call is made is tied up. He supervised the technician who traced the calls of June 9 and 10, 1965, to George's Cafe, where the phone is listed in defendant's name.
Defendant objected to the testimony with respect to the tracing of the calls on the grounds that the witness had no personal knowledge of the result of the tracing operation, the testimony was hearsay, and no reason was shown why the technician who did the actual tracing was not present in court.
Mrs. Whitnel testified that the calls were received, and a patrolman testified that on the morning of June 10 he and Whitnel drove past defendant's place of business and the lights were on.
Defendant testified that he called Whitnel's home late on the night of June 9, 1965, to discuss with him approval of a correspondence course he intended to take. He was unable to fix the time, except that it was later than 10:00 p.m., the closing time of his business. He heard 5 or 6 rings, and when there was no answer, he hung up.
Defendant argues as a ground for reversal that the court erred in admitting, over objection, the testimony of Mr. and Mrs. Whitnel, that calls had been received over a period of time commencing about January 1, 1965. Defendant concedes that evidence of unrelated offenses may be admissible to prove design, motive or knowledge (People v. Brown, 26 Ill.2d 308, 186 N.E.2d 321), but that in the cases which so hold, it was proved that the defendant was the perpetrator of the ...