Appeal from the Circuit Court of Marion County; the Hon. E.
HAROLD WINELAND, Judge, presiding. Reversed and remanded.
This is an appeal from a judgment of the Circuit Court of Marion County, Illinois, finding the defendant guilty of the crime of burglary, and from the sentence imposed by the court on that judgment.
The defendant was charged with burglary of the Langenfeld Motor Company, Centralia, Illinois. The State's first witness was Charles Linder, an employee of the West Side Motor Company, a business firm in the same city. He testified that on the night of the alleged crime he saw one William Dugger attempting to gain entry into the West Side Motor Company. According to the testimony, Dugger, upon being discovered, got in the passenger side of a 1956 Oldsmobile with a light top and dark bottom, bearing Missouri license plates, and having taillights which flickered.
The next witness was the Sheriff of Clinton County, who testified that he received a radio report of this incident and shortly thereafter stopped a car fitting the above description. The driver of the car was William Dugger and the defendant was a passenger. There was one television set in the back seat and three more in the trunk. The Sheriff testified that the defendant at first stated that he had purchased the television sets from a stranger, but later admitted that he had taken them. The State's last witness, a partner of Langenfeld Motor Company, testified that his firm owned the sets and that they were missing from his place of business.
The defendant then took the stand in his own behalf. He related that he had received approximately $135 in cash that morning from his employer. The testimony of the employer substantiated this. He further related that he had been drinking beer in St. Louis most of the afternoon and he and Dugger went to Centralia where the defendant intended to visit his sister. His testimony indicated that upon arriving in Centralia he was intoxicated and thus unable to visit his sister. He stated that he stopped at a coffee shop (across the street from Langenfeld Motors) where he was approached by a stranger who offered to sell the four television sets for $100. The defendant states that he paid the $100, transferred the sets from the stranger's car to his car, and left Centralia to return to St. Louis. He also testified that during this transaction Dugger was "passed out" in the car and that shortly after leaving Centralia he awoke Dugger who took over the driving. This occurred shortly before they were stopped by the Sheriff.
During cross-examination the Assistant State's Attorney asked the defendant: "Have you ever been convicted of a felony?" The defendant's counsel objected and the objection was sustained. The jury found the defendant guilty and he was sentenced to the penitentiary for not less than six years nor more than twenty years.
The defendant first contends that a new trial should be granted on the grounds that the reference to a prior felony conviction was prejudicial error. Defendant relies on Levinson v. Fidelity & Casualty Co. of New York, 348 Ill. 495, 181 N.E. 321, wherein questions were asked of one of the defendant's witnesses relating to the witness's past. These questions included references to prior arrests, trials, etc. The court held that even though the objections to the question were sustained, they were improper and highly prejudicial.
The State, in its brief, admits that the question was improper but denies that it was prejudicial. The State contends that there was no indication that the jury was or was likely to be prejudiced against the defendant. Referring to the Levinson case, the State admitted that if it had continued in the improper line of questioning, then the jury might have been prejudiced, but that the one question in itself, did not so prejudice. The State also relies on the case of People v. Cichon, 320 Ill. 111, 150 NE 647, in which the State's Attorney asked the defendant if he had ever been previously arrested. An objection was sustained. The court stated: "We do not see how it can reasonably be claimed that defendant was prejudiced by the State's Attorney asking a question which he should not have asked . . . but which the court did not permit the witness to answer. . . ." Id. at 116.
It is the rule in Illinois that proof of a prior conviction of an infamous crime for the purpose of impeaching the defendant's testimony shall be by the record of conviction or on authenticated copy of the record. People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1; People v. Bennett, 413 Ill. 601, 110 N.E.2d 175; People v. Halkens, 386 Ill. 167, 53 N.E.2d 923. In the Bennett case the court stated:
"A defendant has a right to be tried by the law of the land, and a conviction secured through the use of improper questions designed to prejudice the jury in disregard of the law cannot be condoned." Id. at 605-606.
In People v. Decker, 310 Ill. 234, 141 N.E. 710, the State's Attorney asked the defendant questions relating to whether he had ever been in trouble or had charges against him. The court ruled that such action would necessarily cause a reversal unless the evidence so clearly and conscientiously showed the defendant to be guilty that the court could say that such misconduct did not substantially prejudice the rights of the defendant.
There is no doubt that the question, "Have you ever been convicted of a felony?" was improper. The question remains did the evidence, apart from the improper question, clearly and conscientiously show the defendant to be guilty? In a recent case, People v. Osborne, 78 Ill. App.2d 132, 223 N.E.2d 243, the defendant was asked whether he had ever been in a penal institution. There was an objection, a conference, the question was withdrawn and the judge instructed the jury to disregard it. The court, in affirming the conviction, condemned the practice of asking such questions, but concluded from the evidence presented, as well as the record as a whole, that the jury's verdict could not have been affected by the question. A judgment of conviction will not be reversed merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. People v. Cavanaugh, 13 Ill.2d 491, 150 N.E.2d 592.
In the present case, the evidence discloses that the defendant was arrested with stolen television sets in his possession. The State claims he took them from the showroom of Langenfeld Motor Company. The defendant claims he purchased them for a sum of $100. In support of this contention he shows that he had $135 in cash the morning of the alleged offense and approximately $18 in his possession that evening when he was arrested. It is possible that he spent in excess of $100 or gave it away, or lost it. It is also possible that with this money he may have purchased four television sets from a stranger. We cannot say that the evidence conclusively shows him guilty. The question, "Have you ever been convicted of a felony?" could have been very influential on the jurors. Although the objection was sustained, the objection could only indicate to the jurors that the reason for the objection was that the answer would be in the affirmative. Such a conclusion could be very ...