Appeal from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding. Affirmed.
Defendant was convicted of perjury and appeals. The setting for the conviction was her testimony in the probation hearing of Donald Spears. Spears had pleaded guilty to a charge of aggravated battery involving one Carl White, who was "monkeying around with his wife." Defendant, who is now married to Carl White, testified for Spears at such hearing. The facts center around who married whom, why and when. The facts are bizarre and so contradictory as to defy accurate presentation.
[1-3] It is apparent that both the defendant and Spears did some light and fancy juggling of commonly accepted principles of truth and morals. One count of the indictment charged the defendant with falsely stating at the probation hearing that she was not the wife of Spears, but that he had another. This count was properly dismissed on the theory (apparently) that the defendant spoke the technical truth when she said she was not married to Spears as a result of an abortive marriage with him in Clinton, Illinois abortive because her then husband, Carl Nave, was living. On the remaining counts, defendant moved for and obtained a bill of particulars requiring the State to specify the materiality of the false statements. In response, the State asserted that the statements were material to the issue of whether the public interest would be subserved by granting him probation. A motion to dismiss these counts for the reason that the alleged false statements were not material to that issue was denied. We might pause here to note, lest silence raise unwarranted implications, that the materiality of a false statement in a perjury indictment is a question of law. People v. Glenn, 294 Ill. 333, 128 N.E. 532. Hence, since a motion for a bill of particulars has to do with the "facts," the motion was inappropriate and should have been stricken. A jury never passes on the issue of the "materiality" of the alleged false statements.
The court reporter's transcript of the probation hearing leaves no doubt but that the defendant testified that Spears had a wife; that Spears said he was having trouble with her; that she was going with other men and he had tried to stop her; that the wife visited the defendant with two other women, and that Spears was paying on his wife's wedding and engagement rings at the jewelers. Defendant testified that she, Mrs. Nave, and Mary Jane Spears were not one and the same person; that Mrs. Spears was having relations with Carl White and that Spears was trying to break it up. In her perjury trial she testified that the Mrs. Spears she referred to was herself. Further contradictions need not be detailed. Her testimony furnishes nothing from which the truth can be established. We cannot separate the wheat from the chaff. On this record it was characteristically the province of the jury to make that determination. By their verdict, they have determined that she did falsely testify that Spears was married to a third person, a fact denied by other witnesses, and also falsely testified that the wife of Spears, a person other than herself, was having relations with Carl White. Her testimony is a hopeless maze of contradictions and the verdict of the jury is amply supported by evidence beyond a reasonable doubt.
Was this testimony, as a matter of law, material to the issue before the court in the probation hearing? We think it was. Spears was seeking probation. Under the statute the issue was whether "the public interest does not require that the defendant [Donald Spears] receive the penalty provided for the offense." Ill Rev Stats 1965, c 38, § 117-1(2). An affirmative finding on this issue by the court was a condition precedent to probation. The marital status, the stature, the habits and the conduct of Donald Spears were all matters of proper and necessary inquiry. Whether he was a married man with children was material on the issue. That his wife was having an affair with Carl White lent color to his conduct in the shooting. We thus conclude that the testimony which the jury found to be false was material to the issue before the court.
It is urged that one of the elements of perjury is that the false statement must be one "which he does not believe to be true." This is the statute. Ill Rev Stats 1965, c 38, § 32-2. Defendant testified that she believed she was telling the truth and that Spears was married either to Evelyn Johnson, or to her half sister, Dorothy Fields, or to her sister, Ruby Peppin. Neither fact was shown in this record. If she believed this, why did she go through a purported marriage with him? The mere assertion of these statements belie their correctness and there is a sound basis for the jury giving little credence to her statements that she believed she was telling the truth.
The State offered and the Court received evidence of a prior conviction of the defendant for burglary. Such conviction was then pending on appeal and such was brought out. People's Instruction No. 7 told the jury that such conviction could be considered by them as affecting defendant's credibility as a witness a standard instruction in this context. Defendant tendered instruction, which told the jury that they should consider the fact that the conviction was then pending on appeal, was refused. Both the admission and refusal are urged as error.
It is a rule of long standing in Illinois that an accused taking the stand in his own defense, and thus putting his credibility in issue, opens such to possible impeachment. One of the established vehicles for impeachment is proof of a prior conviction of an infamous crime. There are those who view this vehicle askance indeed, some take the jaundiced view that it is a veritable denial of the presumption of innocence, and it may be that this ancient form of impeachment more anciently a disqualification should be restudied in the light of modern trends. However, such restudy is not for us. Our sole problem here is whether a pending appeal precludes its use.
Our answer is that it does not. We bottom our answer on the very simple proposition that a conviction is a conviction until set aside. In People ex rel. Keenan v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168, certiorari denied 358 U.S. 828, the petitioner argued that his previous conviction of an infamous crime did not operate to cause a vacancy in the office of the Cook County Assessor because an appeal from such conviction was then pending. Our Supreme Court repudiated this argument in this language:
"We find no merit in petitioner's contention that pendency of his appeal stays the finality of his conviction and thereby holds in abeyance a vacancy in the office of Cook County Assessor."
While manifestly not on all fours with this case and the problem that we consider, we find some difficulty in distinguishing between a conviction finalized in the trial court that will warrant the creation of a vacancy in a public office and the admissibility of a prior conviction in a criminal case for the purpose of impeachment only of a defendant who testifies in his own behalf. The Appellate Court for the First District, Fourth Division, in People v. Webb, 80 Ill. App.2d 445, 225 N.E.2d 679, had occasion to consider the precise proposition that we now consider. They were then dealing with the admissibility of a prior conviction of an infamous crime, and whether or not it was admissible while pending on appeal against the defendant who testified in his own behalf. Relying heavily on Keenan, that Court concluded that such a prior conviction was admissible and in so doing stated:
"We therefore hold that in a criminal case, when the defendant testifies it is proper to introduce the record of his prior conviction, even though an appeal is pending in the case."
The United States Court of Appeals for the Seventh Circuit reaches a like result. The Federal rule as to the mode of proof is different than ours it can be effected on cross-examination but putting that aside, the problem was squarely presented in United States v. Empire Packing Co., 174 F.2d 16, 20, certiorari denied 337 U.S. 959. There it was said:
". . . Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned regarding said conviction ...