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People v. Cline

DECEMBER 13, 1972.




APPEAL from the Circuit Court of Sangamon County; the Hon. HOWARD LEE WHITE, Judge, presiding. MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant appeals his conviction of burglary upon a jury verdict. Sentence of one to three years was imposed.

Issues raised upon review include: (1) The sufficiency of proof of guilt beyond a reasonable doubt; (2) error in permitting testimony of out-of-court statements of a co-indictee; (3) error in refusing to permit the testimony of an alibi witness not named in defendant's answer to the State's motion, and (4) prejudicial argument.

Defendant was indicted for burglary together with Mariner and Casper. Each of the latter pleaded guilty and they testified for the prosecution. In brief, they testified that the trio left a bowling alley at about 11:00 P.M. on January 6, 1970, and drove in defendant's car to the premises of the burgled company. Mariner and defendant entered the premises while Casper was to drive around in the car and pick them up. It appears that about 11:30 P.M., a silent alarm brought deputy sheriffs in two cars. The first, Goveia, placed his car outside of the fenced premises to throw light upon the rear and one side of the building, and Tuttle and Mayberry drove on to the lot and entered the building. Mariner was captured there. Defendant was arrested at his home at 3:00 A.M. The abstract does not show any facts upon the arrest of Casper.

Defendant testified that he left the bowling alley at 11:00 P.M. with Casper and Mariner, that they let him out at a "truck stop", adequately identified in the evidence, and took his car to go look for a truck part. He met Linda Amberg by prearrangement and was at this place with her and one Landreth until 12:30 A.M. He then left with Amberg and parked until 1:30 A.M. Landreth, a fellow employee, testified to the meeting at the truck stop.

• 1 Upon the issue of proof of guilt beyond a reasonable doubt, counsel's argument is directed essentially to matters of witness credibility. There is, of course, a conflict in the evidence, and matters of testimony which are argued as inconsistent. Such questions of credibility and consistency of facts is essentially a matter for jury determination after hearing and seeing the witnesses. Upon review we have found nothing which requires reversal as a matter of law.

Defendant urges that the court erred in admitting into evidence hearsay testimony which implicated defendant. Following the testimony and cross-examination of Mariner and Casper, a deputy, Tuttle, testified to the search of the premises and the arrest of Mariner, and that as an incident to the on-site investigation, Mariner named defendant as having been in the building. No objection to such testimony appears in the abstract.

We have examined the principal authorities argued by defendant. In People v. Barragan, 337 Ill. 531, 169 N.E. 180, and People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300, co-defendants called by the prosecution as witnesses denied that the defendant participated in the crime. In People v. Hundley, 4 Ill.2d 244, 122 N.E.2d 568; People v. Newman, 30 Ill.2d 419, 197 N.E.2d 12; People v. McKee, 39 Ill.2d 265, 235 N.E.2d 625, and People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26, the witnesses called by the State were made court's witnesses when they denied defendant's connection with the offense. In each, hearsay testimony asserted to be impeaching was introduced which had the effect of proving defendant guilty. In most cases, there was objection to the evidence and also a failure to instruct the jury that the testimony was limited to the question of the credibility of the witnesses. See People v. Bacon, 2 Ill. App.3d 324, 276 N.E.2d 782, and People v. Tate, supra.

The facts in this case are substantially different in that the witnesses who participated in the crime had testified and had been cross-examined. Hearsay in the aspect of impeachment is not present.

The hearsay issue presented here is to be determined upon the principles stated in People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 38, 741 where the court said:

"The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered."

In People v. Poole, 121 Ill. App.2d 233, 257 N.E.2d 583, the court said:

"The fundamental purpose of the rule against hearsay is the exclusion from evidence of those out-of-court assertions whose real value cannot be determined because the source of the assertion cannot be cross-examined by the party against whom it is being offered. [Citations omitted.] Hence it is the opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered, that is the essential feature without which the assertion must be rejected."

• 2 Here, Mariner had been sworn and had been cross-examined. The purpose of the hearsay rule has been satisfied and the testimony of Tuttle does not require reversal. (See People v. Keller, 128 Ill. App.2d 401, 263 N.E.2d 127, and People v. Hoffmann, 124 Ill. App.2d 192, 260 N.E.2d 351.) Upon the facts here present, this conclusion is consistent with the rule in People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77.

We have examined the arguments of respective counsel. Defendant's complaint of the argument of the State's Attorney that defendant claimed a "monstrous plot" by the prosecutor and police to put an innocent man in jail is shown in the abstract to be an argument by the State in response to the defendant's argument. Other argument complained of had the same quality, and we do ...

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