APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendant was convicted of reckless homicide in connection with an incident in which his automobile veered onto a sidewalk, bounced off the side of a bridge, hit two boys, killing one of them, hit two vehicles and came to a stop after colliding with a large "Be-Mac" truck. He was sentenced to 1 to 3 years in the penitentiary. At the trial, Officer Payne testified that the defendant, after being given the Miranda warnings by a Sgt. Marhoff, who did not testify at the trial, admitted going 65-70 miles an hour before the first impact. On appeal, the defendant contends, inter alia:
1. That Officer Payne's testimony that, in his presence, Sgt. Marhoff read the Miranda warnings to the defendant constituted hearsay and was improperly admitted over objection.
2. That the State must produce all material witnesses to the giving of such a warning or explain their absence and that, since such was not done here, Officer Payne's testimony as to the defendant's subsequent admission as to speed was improperly admitted over objection.
3. That the evidence is not sufficient to establish the defendant's guilt beyond a reasonable doubt.
We disagree with the first two of these contentions but concur in the third and therefore reverse without remanding.
The defendant first contends that to permit Officer Payne to testify as to what Sgt. Marhoff, in his presence and hearing, read to the defendant as his Miranda warnings violates the rule against hearsay. This is not correct and reflects a misunderstanding of what constitutes hearsay.
• 1 One of the clearest statements found in Professor Cleary's Handbook of Illinois Evidence (2d ed. 1963), where, in section 17.4, page 275, it is pointed out that:
"Hearsay does not encompass all extra-judicial statements but only those offered for the purpose of proving the truth of matters asserted in the statement. Therefore, when the mere making of the statement is the significant fact, hearsay is not involved."
To the same effect it is said in 2 Jones on Evidence (5th ed.), section 271, page 521, that:
"§ 271. Extra-Judicial Statements Not Within the Rule. If a statement previously made out of court is offered in evidence through a witness or a writing, not for the purpose of establishing the truth of the matter stated, but merely for the purpose of establishing the fact that the statement was made, the evidence is admissible, if it is relevant, and it is not subject to the exclusionary impact of the hearsay rule."
In Hunter's Trial Handbook for Illinois Lawyers (3d ed.), section 309, at page 258, it is said:
"§ 309. Definition of Hearsay Evidence. Hearsay evidence includes only those statements made outside court which are offered to prove the truth of that which is asserted in the statement. Our Illinois Supreme Court has stated that `the distinction between admissible testimony and that which is barred by the hearsay rule is well illustrated by Wigmore's example of the witness A testifying that "B told me that event X occurred.' If A's testimony is offered for the purpose of establishing that B said this, it is clearly admissible if offered to prove that event X occurred, it is clearly inadmissible, for the only probative value rests in B's knowledge and B is not present to be cross-examined." People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 728 (1963)."
To the same effect see McCormick's Handbook on Evidence (Hornbook Series), section 228, at page 463; VI Wigmore on Evidence (3d ...