APPEAL from the Circuit Court of Ogle County; the Hon. HELEN
M. RUTKOWSKI, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Defendant, Leon Cagle, was found guilty of burglary in a jury trial in the circuit court of Ogle County and sentenced on November 9, 1967, to a term of from 2 to 10 years in the State penitentiary. He has appealed, as an indigent, directly to this court on the ground that he was denied due process of law by the suppression of certain evidence favorable to him. Defendant also contends that reversible trial errors were committed in not allowing him to use a police report to impeach the police officer testifying for the State, in denying defendant's motion to remove from the courtroom three cases of beer that were not offered in evidence, and in defining reasonable doubt and how to justify an acquittal in the jury instructions. Defendant urges further that the State did not prove his guilt beyond a reasonable doubt, and, in the alternative, that this is a proper case for the court to reduce defendant's sentence.
It appears from the testimony of the owner of the Cherry Avenue Tap, Rochelle, Illinois, that sometime during the night of September 22, 1967, and early hours of September 23, the beer shed in back of his tavern had been burglarized and five cases of beer stolen. A police officer testified that at approximately 6:00 A.M. on September 23 defendant was seen in the company of two other individuals who were each carrying a case of beer in the vicinity of the Cherry Avenue Tap, and that defendant dropped the beer after having been seen by the police officer. The officer chased the individuals, apprehended Jimmy Montgomery and arrested him; and several hours later brought the three cases of beer to the police station. Defendant was not allowed to use the officer's police report to impeach his testimony identifying defendant, and that report was not offered in evidence by the prosecution, nor admitted by the court when offered by defendant.
On behalf of the State, Jimmy Montgomery testified that he broke into the Cherry Avenue Tap in the morning hours of September 23, 1967. The first time he and Dan Smith took two cases of beer, and the second time he, Dan Smith and defendant re-entered the tavern and took three cases of beer. Montgomery also stated that he had not been tried for the burglary and was released on bond at the time of the trial. Moreover, with respect to his testimony and role in the case, the State refused to answer defendant's request in his motion for a bill of particulars for any written confession of any alleged accomplice.
Defendant did not testify. Dan Smith, however, called as a witness by defendant, denied his own participation in any burglary, and denied that he and defendant were involved in the second "break-in" described by Montgomery. Smith further testified that the cases of beer they were carrying when seen by the police officer had been obtained at the home of Jimmy Montgomery; that when he saw a police car about two blocks away he started running, and defendant followed him because they had been drinking at a party and didn't want to get picked up, since they were under age.
The court denied defendant's motion to remove from the courtroom the three cases of beer which were present throughout the trial but never introduced in evidence. The jury found defendant guilty as charged. Defendant's counsel made a statement of mitigating factors, but no statement in mitigation or aggravation was made by the State, and the court imposed the aforementioned sentence.
With respect to the constitutional issue presented on this direct appeal defendant contends that there was a violation of due process of law by the suppression of favorable evidence requested by him by the denial to him of the copy of the confession of his alleged accomplice, Montgomery, and by the denial to him of the police report which apparently recited that the beer was taken by unknown persons and omitted any reference to defendant.
The State contends that there was no suppression of evidence because defendant did obtain a copy of the police report during the trial and was given a recess to examine it, and failed to lay a proper foundation for it to be admitted in evidence.
This court has consistently held that an accused person is entitled to the production of a document that is contradictory of the testimony of a prosecution witness. (People v. Neiman, 30 Ill.2d 393, 399; People v. Cole, 30 Ill.2d 375, 381; People v. Wolff, 19 Ill.2d 318, 323, 327; People v. Moses, 11 Ill.2d 84, 89.) In the Moses case the court stated at page 89, after noting that identification of the accused was crucial (as in the case here):
"Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, `a right sense of justice demands that it should be available, unless there are strong reasons otherwise.' [Citation.] We hold, therefore, that it was error to refuse to turn over the records in question."
Moreover, we have expressly adopted in the Wolff case at page 327 the Federal rule, originally promulgated in Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007, and incorporated in a Federal statute (18 U.S.C. § 3500) construed in Palermo v. United States, 360 U.S. 343, 3 L.ed.2d 1287, 79 S.Ct. 1217, that "where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes."
Although the prosecution here did deliver to the defendant the requested favorable police report which referred to the burglary by unknown persons, the ruling of the trial court in effect prohibited use of the report even for impeachment purposes.
From the record it appears that after the prosecution's principal witness, the police officer who apprehended defendant's alleged accomplice Montgomery, testified on direct examination that he saw defendant Leon Cagle carrying a case of beer, the court, on cross-examination, denied defense counsel the right to impeach that identification by the witness's own police report.
On cross-examination the officer was asked, "At the time you saw this subject you didn't know who he was, did you?" The officer answered, "Yes, I did." Defense counsel then asked, "And you never mentioned his name in the police report?" Objections were sustained. Defense counsel then asked the officer if he filed a report, and he replied that he did. The police report was marked defendant's exhibit I for identification, and defense counsel asked the officer, "Where in that report is it indicated that you in fact saw Leon Cagle in the early hours of September 23, 1967?" The trial court sustained the objection ...