APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
FITZGERALD, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 6, 1970.
A jury in the circuit court of Cook County found John Ricker guilty of perjury. The court placed him on probation for 3 years and fined him $1000. The basis of the conviction was the incriminating testimony of Ricker before the February and May, 1963, grand juries which returned indictments against Louis Fisher and his completely contradictory and exculpating testimony in Fisher's trial at which Fisher was acquitted. While there is no question that defendant made contradictory statements under oath, he has raised some twelve points seeking reversal of his conviction.
Defendant first challenges the constitutionality of paragraph (b) of section 32-2 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 32-2(b)), upon which his conviction is based. Section 32-2 provides in part:
"(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point, in question, which he does not believe to be true.
An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false."
It is argued that paragraph (b) creates an unconstitutional presumption of guilt. A considerable portion of defendant's brief is devoted to discussing and quoting from cases such as Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470; 69 2 Ed. 904; Tot v. United States, 319 U.S. 463, 87 L.Ed.2d 1519, 63 S.Ct. 1241; United States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658, 85 S.Ct. 754; and United States v. Romano, 382 U.S. 136, 15 L.Ed.2d 210, 86 S.Ct. 279. Romano involved the constitutionality of sections 5601(b)(1) and 5601(b)(4) of 26 U.S.C. which provided in part "that the presence of the defendant at the site of an illegal still `shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *.'" 382 U.S. 136, 138, 15 L.Ed.2d 210, 212, 86 S.Ct. 279, 281. Yee Hem, Tot and Gainey involved similar statutory presumptions. The issue in those cases was "the limits which the Fifth and Fourteenth Amendments place `upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.'" Romano v. United States, 382 U.S. 136, 139, 15 L.Ed.2d 210, 213, 86 S.Ct. 279, 281.
By definition contradictory statements cannot both be true. (See People v. Walker, 28 Ill.2d 585.) Thus, proof that a person has made contradictory statements proves of itself, without aid of any presumption, that the person has made a false statement. The only presumption involved in paragraph (b) of section 32-2 is that he did not believe both statements to be true. It is, of course, arguable that the statements were made because of excusable mistake or some other valid reason. Since this statute is limited to proceedings where an oath or affirmation is required and to a statement that is material to an issue or point in question, it is a reasonable presumption. In most cases perjury will have been committed; the exception will be rare and ordinarily will be shown by evidence more readily available to the defendant than to the State. Under such circumstances, a rebuttable presumption which puts the burden of going forward with the evidence on the defendant is constitutionally permissible.
It is next argued that failure to warn defendant of his privilege against self-incrimination should preclude use of his contradictory statements to convict him of perjury. This issue has been analyzed and discussed at length in several Federal cases. The conclusion reached in these cases was summarized in United States v. DiGiovanni (7th cir.), 397 F.2d 409, cert. denied 393 U.S. 924, as follows: "It is well established that the Government's failure to give Miranda-type warnings to a grand jury witness, even one as to whom the proceedings have become accusatory, does not bar a perjury prosecution for false testimony before the grand jury. See Cargill v. United States, 10 Cir. 381 F.2d 849 (1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968); United States v. Di Michele, 3 Cir., 375 F.2d 959, cert. denied 389 U.S. 838, 88 S.Ct. 54, 19 L.Ed.2d 100 (1967); United States v. Rosen, 2 Cir., 353 F.2d 523 (1965), cert. denied, 383 U.S. 908, 86 S.Ct. 889, 15 L.Ed.2d 663 (1966); United States v. Winter, 2 Cir., 348 F.2d 204, cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360 (1965); United States v. Parker, 7 Cir., 244 F.2d 943, cert. denied, 355 U.S. 836, 78 S.Ct. 61, 2 L.Ed.2d 48 (1957)." 397 F.2d at 412.
Defendant attempts to distinguish the foregoing cases by first pointing out that the "federal statute [section 1621 of 18 U.S.C.] is similar to paragraph (a) of the Illinois statute. [Section 32-2(a).] There is nothing in the federal statute classifying contradictory statements as perjury." He then states: "In the instant case, the defendant did not commit perjury * * * `federal style' or as defined in paragraph (a) of the Illinois act. He was charged under section (b) of the Illinois act. Therefore the federal cases are not analogous."
It is apparent that defendant again confuses the effect of paragraph (b) of section 32-2. We have already shown that proof of contradictory statements made under the circumstances mentioned in that paragraph is proof of all the elements of perjury as defined in paragraph (a). Paragraph (b) does not create a new or different offense from that defined in paragraph (a), it merely provides another method of proving perjury as defined in paragraph (a). We see no reason, and defendant suggests none, why the method of proving perjury should change the rule that failure to warn a witness of his privilege against self-incrimination will not bar a perjury prosecution.
Defendant twice raises the question of res judicata, which requires a brief description of the indictment returned against him and prior proceedings under it. The indictment contained 6 counts. Count 1 charged conspiracy to obstruct justice; count 2, conspiracy to commit perjury; count 3, obstructing justice; count 4, the making of contradictory statements before the February 1963 grand jury and in the Fisher trial; count 5, the making of contradictory statements before the May 1963 grand jury and in the Fisher trial; and count 6, perjury at the Fisher trial. Prior to the first trial, the People nolle prossed count 6. A jury then found defendant not guilty on counts 1 and 2, but it failed to agree as to counts 3, 4 and 5. Prior to the second trial, the People nolle prossed count 3, and counts 4 and 5 were consolidated for trial. It was, of course, under counts 4 and 5 that defendant was found guilty.
Defendant points out that counts 4 and 5 charge perjury under paragraph (b) of section 32-2, while count 6 charges perjury under paragraph (a) of the section. He then argues that the nolle prosse of count 6 is res judicata, or amounts to a dismissal, of the charge under counts 4 and 5. This court has held that although one of two counts charging the same offense has been nolle prossed, the defendant may nevertheless ...