APPEAL from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Piatt County;
the Hon. BURL A. EDIE, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of involuntary manslaughter in a bench trial by the circuit court of Piatt County. The Appellate Court, Fourth District, affirmed the conviction (101 Ill. App.2d 69) and we granted leave to appeal.
The circumstances of the trial are, to say the least, unusual. The State's Attorney prosecuting the case was the only witness for the State. He testified that he attended an inquest at which he heard testimony about an automobile accident in which the defendant was involved and which resulted in the death of a woman. The State's Attorney gave the names of the witnesses at the inquest, related their testimony, and said that their testimony was not based on hearsay. He also stated that he had made some independent investigation of the accident. Defendant's counsel made no objection to the State's Attorney's testimony. As soon as the State's Attorney left the stand both sides rested. Oral argument was waived. The court found the defendant guilty of involuntary manslaughter. Defendant moved for probation.
At the probation hearing neither side presented evidence. Both sides argued for probation. The probation officer's report was filed that morning with a recommendation for probation "with the special condition that he serve short sentence in a penal institution." The court instead felt that it should "impose as a condition of this probation a very decisive jail sentence or a state farm sentence." The court admitted the defendant to probation provided that a term of one year be served at the Illinois State Farm at Vandalia.
The defendant appeals on the ground that the only evidence heard by the court was hearsay evidence and that such evidence was insufficient to prove him guilty beyond all reasonable doubt. Without passing on the question of whether or not uncontradicted hearsay evidence standing alone could ever be sufficient in a felony case, we find this evidence insufficient.
It was improper for the State's Attorney to appear as a witness under the circumstances of this case. Also, there is no showing that any of the witnesses who testified at the coroner's inquest were cross-examined or their testimony checked in any way. Thus, the State's Attorney's testimony is subject to the inherent vice of hearsay, i.e., the hearsay statements might be true without the related facts being correct.
For these reasons we must reverse. Since the trial placed defendant in jeopardy and the error is the failure of the evidence to support the charge, there is no basis to order a new trial.
Mr. CHIEF JUSTICE UNDERWOOD, dissenting:
In my opinion this court's judgment is neither legally sound nor realistically defensible.
The defendant presents only two questions: Whether a conviction based solely on hearsay evidence may stand, and whether the sentence of 1 year's imprisonment imposed as a condition of probation was justified.
A somewhat more detailed factual statement than that contained in the majority opinion is necessary to clearly understand the trial proceedings. On May 11, 1967, the involuntary manslaughter charge against defendant came on for hearing. A jury was waived, the court inquired whether both sides were ready to proceed, and defense counsel then stated:
"I might say to the Court, off the record * * *". The off-the-record colloquy does not, of course, appear, but the State's Attorney immediately thereafter stated: "Both sides are ready and I would like to be sworn." He then related his attendance at the inquest into decedent's death; that he heard named witnesses there describe defendant's conduct in driving his southbound car at 10:00 A.M. in the northbound lane of the highway, forcing one witness's car off the highway in order to avoid a head-on collisilon, and then colliding head-on with the northbound car in which decedent was a passenger; that the State's Attorney had made an independent investigation and learned that shortly before the collision defendant had left a Monticello tavern where he drank two shots of whiskey with beer chasers. No objection was made to this testimony and at its conclusion defense counsel stated: "The defense rests, Your Honor." Argument was waived, the trial court found defendant guilty, defense counsel moved to be admitted to probation and a hearing on that motion was set for May 26.
On that date the motion was heard. Neither the State nor defendant offered any evidence. The probation officer's report recommended probation with a short jail sentence. Defense counsel urged defendant be granted probation with no imprisonment. The State's Attorney did not oppose probation with "a short time in jail" if the court so concluded. When the court's comments indicated a belief that more substantial punishment was called for, defense counsel again requested a conference, the content of which is ...