APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the conviction of the defendant, Joe Gibson, by the circuit court of Tazewell County on the charge of murder. The defendant was sentenced to a term of imprisonment of not less than 25 years nor more than 40 years.
A number of errors have been assigned by the defendant as grounds for reversal, but we shall direct our attention to only those which we deem material which are as follows: (1) that the court erred in permitting the prosecution to impeach defense witnesses by eliciting inadmissible evidence, and (2) that the Court erred in instructing the jury.
• 1 The law is well settled in Illinois to the effect that evidence of noninfamous crimes and evidence of arrest of other encounters with the law which do not result in convictions for infamous crimes are inadmissible for impeachment purposes. (People v. Jackson, 95 Ill. App.2d 193, 238 N.E.2d 196.) However, a series of cases have resulted in establishing an exception to this general rule so that it is now proper to cross examine a witness to bring out the witness's unlawful and disreputable occupation and activity as a matter affecting credibility. (See People v. White, 251 Ill. 67, 95 N.E. 1036; People v. Bond, 281 Ill. 490, 118 N.E. 14; People v. Winchester, 352 Ill. 237, 185 N.E. 580; People v. Garcia, 90 Ill. App.2d 396, 232 N.E.2d 810.) In the White case a defense witness who had on direct examination testified that he was a bartender was cross examined and it was disclosed that the witness ran a gambling house. The Supreme Court stated:
"Surely the prosecution was not required to permit this witness to appear before the jury as a man of high character and worthy of confidence when he was disreputable and his chief occupation that of a lawbreaker."
In the Bond case a defense witness was asked by the State if she had kept a house of ill fame. The Supreme Court held such an inquiry as to occupation to be permissible, stating:
"If a witness is engaged in an unlawful and disreputable occupation, in justice and fairness he should not be permitted to appear before the jury as a person of high character who is engaged in a lawful and respectable occupation."
In the Winchester case it was held to be error to deny the defendant the right to ascertain if a witness for the People was associated with a house of prostitution. In the Garcia case it was held to be proper for the State to inquire of the operator of a club where a shooting occurred as to his operation of a dram shop without a liquor license, since such testimony of the operator, who was a defense witness, might tend to be influenced by interest, bias or other motive to falsely testify where he stated he was trying to get a license and that he did not want any trouble at the club.
There is no question but what a review of the cases cited establishes a rule in Illinois to the effect that it is proper on cross examination of a witness to bring out the witness's unlawful and disreputable occupation and activity as a matter affecting credibility. In the case before us for review the State contends that the law set forth in the White, Bond, Winchester and Garcia cases constitute ample authority for the type of cross examination of defense witnesses that was conducted for impeachment purposes. Directing our attention to the cross examination conducted by the prosecutor of defense witness Joan Marie Hebner, the record discloses that the witness testified that she was separated from her husband, he provided her with no income, that she was unemployed, that she had a four year old child and was receiving State funds known as aid to dependent children. After this information had been obtained from the witness the following colloquy took place between the prosecutor, witness Hebner and the court:
"Prosecutor: Let me ask the question first. Is it a customary thing for you to spend the afternoon drinking while your four year old child is with your parents?
A. No, it's not customary, but I do it once in a while. Defense Counsel: I'm objecting to any further questioning along this line, your Honor.
Prosecutor: We have a right to impeach their witness, your Honor.
Court: He has a right to object too."
It was noted that the court did not rule upon the objection of defense counsel, thereby permitting the jury to conclude that such questioning was proper for the purpose of impeachment. Later the prosecutor ...