APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 26, 1968.
These cases arise out of the circuit court of Cook County and by our previous order have been consolidated for purposes of appeal. In a bench trial in April, 1965, (Docket No. 39546) defendant Frank Macias was convicted of unlawful possession of narcotics and sentenced to the penitentiary for a term of not less than 2 nor more than 5 years. In a jury trial in March, 1966, defendants Frank Macias and Gene T. Webb were jointly tried and convicted of armed robbery, (Docket Nos. 40243 and 40250) and each was sentenced to the penitentiary for a term of not less than 10 nor more than 20 years. Each was acquitted on separate charges of attempted murder.
Defendants contend that the convictions in both cases should be vitiated because of alleged perjury of a police officer in the hearing on a motion to suppress evidence in the narcotics case and subsequent testimony on the same subject in the robbery case. For consideration of this contention we shall give a brief summary of the facts and then later recite such detailed facts as are necessary to a consideration of other points advanced by defendants as grounds for reversal in the respective cases.
On September 29, 1964, a jewelry store in Chicago was robbed of $22,000 in jewelry. In a bizarre chase two of the robbers dragging three hostages held a number of policemen at bay, proceeded to their get-away car about a block away, rescued their driver from another policeman by threatening to shoot a hostage and successfully drove away. In an exchange of shots a policeman was hit. Approximately four months later, on February 10, 1965, an arrest warrant was obtained for defendant Webb and on February 12 he was arrested by Federal authorities and turned over to the Chicago police about 3:00 o'clock in the afternoon. Learning from Webb and the Federal officers that about one month prior to the jewelry store robbery Webb and Macias had been arrested together in connection with an armed robbery in Louisiana, the description of Macias was checked through the Bureau of Identification files. It was determined that Macias's description matched the description of one of the jewelry store robbers and immediately, about 3:30 or 4:00 P.M., Officer Evans and two other officers went to Macias's home and arrested him. Prior to being placed in the lock-up Macias was searched by the lock-up keeper and when his shirt was untucked from his pants ten sticks of marijuana and $900 in cash fell to the floor.
In the hearing on the motion to suppress the marijuana on the grounds that the arrest was without probable cause and unlawful, Officer Evans testified that prior to going out to Macias's house he showed some pictures of Macias and others to Sergeant Finnin. Finnin was an eyewitness to the jewelry store robbery and he identified the picture of Macias as one of the robbers. Subsequently, in the robbery trial in an attempt to discredit Sergeant Finnin's testimony as to his identification of Macias at a police lineup on February 12, 1965, defense counsel asked Finnin if he had ever seen a picture of Macias prior to the lineup. Finnin replied that he had not. To impeach Finnin, Officer Evans was then called, but he denied showing Macias's picture to Finnin prior to Macias's arrest and stated that to his knowledge Finnin had not seen a picture of Macias at any time prior to his arrest and appearance in the lineup.
Defendant Macias contends that this inconsistent testimony constitutes obvious perjury, that his arrest was unlawful and his conviction on the narcotics charge is null and void. Further, each defendant contends that such alleged perjury vitiates the entire proceedings in the robbery case and nullifies the convictions of both defendants.
We have held that claims of perjury will not generally be considered in reviewing a judgment of conviction, as in most cases the issue has not been presented to or passed upon by the trial court, and the facts in support of the claim do not appear in the record. (People v. Grayson, 29 Ill.2d 229.) The Post-Conviction Hearing Act has been held to be an appropriate remedy for assertion of a claim of perjury so that the prosecution may have an opportunity to offer evidence to meet it. People v. Hoskins, 25 Ill.2d 333; People v. Jennings, 411 Ill. 21.
This rule is applicable here. Even if it is accepted that Evans's inconsistent testimony in the two cases is evidence of perjury there is no way of determining in which case perjury occurred. Defendants do not charge the prosecutors with knowledge of the inconsistency but defense counsel for Macias was the same in both cases and he did have such knowledge. This is evidenced by the fact that Evans was called as a defense witness in the robbery case to impeach Sergeant Finnin's denial that he had seen Macias's picture prior to his arrest. Nonetheless, for reasons of trial tactics or appellate strategy, counsel did not see fit to call the inconsistency to the court's attention, nor did he seek to challenge Evans with the inconsistency. Approximately one year had elapsed between the two trials and it is entirely possible that given a chance to have his memory refreshed Evans may have been able to explain his statements or perhaps to retract one or the other. Instead, counsel chose to ignore the inconsistency not only at that time but during the entire trial and to bring it up for the first time on appeal. Nor was counsel's opportunity to bring out the inconsistency altered by the fact that Evans had been called as a defense witness, for as stated in People v. Wesley, 18 Ill.2d 138, 151, where a "witness unexpectedly gives testimony against the party calling him, such party has the right of examination to show that the witness gave surprise testimony and to specifically call his attention to former inconsistent statements made by him for the purpose of refreshing his memory or awakening his conscience to the end that he may relent and speak the truth if he is lying".
At this time we cannot make a determination of defendants' perjury charge since it was not presented to or passed upon by the trial court and, on the basis of the records before us, it is impossible to determine whether perjury was committed, or if so, in which instance.
We now proceed to a separate consideration of the additional contentions of defendants in the individual narcotics and robbery cases.
In the narcotics case, after the motion to suppress was denied, stipulations were entered into and defendant Macias was found guilty by the court in a bench trial. The issues presented here are confined to the hearing on the motion. Defendant contends the police did not have probable cause to arrest him for the jewelry store robbery nor did they have a right to enter his home by alleged trickery and arrest him without a warrant for a crime committed nearly four months previously.
We have held that the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable ...