APPEAL from the Circuit Court of Massac County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1975.
Defendant-appellant, Frank Morse, was convicted of arson after a jury trial in Massac County and was sentenced to serve from 5 to 20 years' imprisonment. On appeal he alleges that he was not proved guilty beyond a reasonable doubt, that the court erred in allowing the State to cross-examine its own witness with prior inconsistent statements, that the court erred in allowing certain cross-examination of the defendant, that the court erred in allowing certain closing argument by the State, and that the sentence imposed is excessive.
The principal witness for the State was Charles Chaney, an accomplice. He testified that on the night of the offense he, the defendant, and one Isabell Kean were together. After driving around in defendant's car for some time, drinking an unspecified quantity of beer, they arrived at the Knotty Pine Tavern in Joppa, Illinois, which was then closed. Leaving Kean in the car, Chaney and the defendant went behind the tavern. Chaney stated that one of them had poured gasoline on the back of the tavern and the other had lit the gasoline but could not remember who had done what. At this point, the State's Attorney, in chambers, stated to the court that he was surprised by Chaney's testimony and asked the court to declare Chaney a hostile witness. Chaney was advised of his constitutional rights and asked to speak with an attorney. An attorney was appointed and immunity from prosecution was secured.
Over the strenuous objection of defense counsel, the court declared Chaney a hostile witness. Before the jury, the State was allowed to question Chaney about two prior unsworn statements he had given. The statements contradicted each other on several points, including the car the defendant was driving, the previous movements of defendant, Chaney, and Kean, and the reasons for the fire. But the major element of the prosecution, that defendant and Chaney had started a fire at the tavern late in the evening, remained consistent in Chaney's testimony and prior statements.
Isabell Kean testified that she had accompanied Chaney and defendant to the tavern at which point the two men left the car. Upon their return, defendant indicated that the building was on fire and the three left in defendant's car. Her testimony contradicted that of Chaney's in minor respects, and she stated that she could not see what the men were doing from the car.
Two State's witnesses established that defendant had owned an old Dodge automobile at the time of the offense and identified photographs of the car.
Three witnesses seated on a porch across the street from the tavern noticed a light green Dodge, which they believed to belong to the defendant, leave the tavern parking lot immediately after the fire began. None could recognize any of the occupants, however.
James Christmas, fire and police chief of Joppa, Illinois, testified that he had been parked across the street from the tavern for over three hours on the evening of the fire and had seen defendant, Chaney, and an unidentified third party drive past three times in defendant's green Dodge, which the witness identified. After the witness went home, he was notified of the fire. Upon his return he smelled gasoline and noticed that the concrete steps of the tavern and gravel behind it were burning. The evidence about the nature of the fire was corroborated by two other witnesses. Both saw defendant and his car at the tavern while the fire was being extinguished.
The owner of the tavern testified that he had given no one permission to start a fire at the tavern.
The owner's daughter testified that she saw defendant, Chaney, and Kean in defendant's car at the fire. Mrs. Violet Stevens, wife of the tavern owner, testified that several months after the fire, defendant admitted to her that he and Chaney had started the fire and apologized for doing so. Mrs. Stevens, however, did not report the statement until a few days prior to trial, over a year later.
Defendant attempted, through his own testimony and that of one witness, to establish an alibi for the evening. Defense evidence showed that defendant spent the evening at his home with Reba Stevens, Delmar Harris, and Matt Turner. Twice during the evening, Chaney and Kean, both of whom had been drinking, left in defendant's car. Defendant testified that when the fire alarm sounded, he walked from his home to the tavern and found Chaney, Kean and his car. He stayed at the fire for a short while and then drove home after dropping Chaney off. Reba Stevens corroborated defendant's story about being at home, but neither Harris nor Turner could reconstruct their movements.
Sid Rice was the final witness for the defense. He stated that he talked to Chaney the day after the fire and that Chaney admitted having set it. He also stated that the conversation took place after 4:30 p.m. because that was the time he finished work. On cross-examination, Rice identified his time-card from his place of employment for the period indicating that he did not work the day after the fire.
• 1 Defendant first contends that he was not proven guilty beyond a reasonable doubt. Of course, no discussion of the sufficiency of the evidence would be complete without a determination of the propriety of the use of Chaney's prior inconsistent statements during the State's case. This will be discussed in detail below. We believe, however, ...