APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Will County which found the defendant, Paul Skidmore, guilty of violating section 1 of "An Act to prohibit the solicitation of legal business * * *" (Ill. Rev. Stat. 1975, ch. 13, par. 15), which prohibits an individual not a licensed attorney from soliciting legal business for a money fee or other remuneration. The trial court sentenced the defendant to a term of three months imprisonment and further imposed a fine in the sum of $500.
The defendant was tried by a bench trial and the evidence disclosed that a nine-year-old son of Judith Hunter was struck by an automobile on October 15, 1976. Subsequently, on October 17, 1976, Mrs. Hunter received a phone call at her home. The voice was that of a male whom she later met at her home on November 19, 1976. During the telephone call the caller identified himself as Harold Stevens, an attorney from Chicago, and stated that he had knowledge of her son's accident and that he felt that legal action might be needed. The caller, later identified as the defendant, during the initial phone call also identified as the defendant, during the initial phone call also talked to Mrs. Hunter's husband, to whom he gave a telephone number.
On November 17, 1976, Mrs. Hunter received another call from the defendant, who still identified himself as Mr. Stevens. She was asked if she had thought about hiring him as a lawyer and replied that she was still thinking about it but that her husband was out of town and she requested the caller to come to her home on November 19, 1976. The caller, being the defendant, agreed to do so.
After this call Mrs. Hunter called an attorney in Joliet and she was thereafter called by an individual from the State's Attorney's office. On November 19, 1976, at approximately 6 p.m. Mr. Hjemvick, an investigator, and a court reporter, both from the State's Attorney's office, came to Mrs. Hunter's home. Mr. Hjemvick at this meeting and a subsequent meeting portrayed Mrs. Hunter's husband. During this meeting the defendant said that there was a possibility of suing the driver of the motor vehicle which struck her son. He also brought with him a copy of a police report which was about the son's accident and provided Mrs. Hunter with a business card bearing the name Harold Stevens. This particular meeting lasted for approximately 1 or 1 1/2 hours during which time the court reporter, Mr. Rydman, was located two rooms away and was transcribing the conversation between the parties.
Mrs. Hunter and Mr. Hjemvick, who portrayed her husband, did not agree to legal action during the first meeting with the defendant so he again came to the Hunter home on November 29, 1976, at approximately 1:30 p.m. The scenario was the same as at the previous meeting. This time the defendant, alias Harold Stevens, obtained a release of medical records, said release being signed by Hjemvick, and further obtained authorization to commence legal action.
A further recitation of the facts as adduced by the testimony and evidence during the course of defendant's trial will be set forth as they become pertinent to the issues presented for determination by this court.
The first issue presented is the defendant's contention that the trial court erred in admitting into evidence two typewritten transcripts of conversations with the accused where the court reporter testified that the transcriptions were not accurate and complete.
Addressing ourselves to this issue the record discloses that on direct examination the court reporter testified that the transcripts of the meeting on the 19th and 29th of November were a true and accurate record of the conversations which ensued at those meetings. On cross-examination the witness testified that the transcripts were not true and accurate because of interruptions resulting in two people attempting to talk at the same time.
The defendant labels the two transcripts as past recollections recorded, which if they are in fact such, would constitute an exception to the hearsay rule. In order to be admissible as an exception to the hearsay rule there must be present four essential elements:
"(1) [T]he witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum." McCormick on Evidence § 299, at 712 (2d ed. 1972).
The defendant contends only that the last element is absent, since the court reporter testified that the transcripts were not true and accurate because of interruptions among those being recorded when two people attempted to talk at the same time.
The trial judge in admitting the transcripts made certain remarks which we deem to be pertinent and which are as follows:
"The Court: Well of course my notion of it is that that is true [referring to interruptions destroying the transcript accuracy] even if you are just going to have a witness testifying as to what he recalls, the chances are he wouldn't remember the interruptions any way so he couldn't tell you that from memory, besides that it happens frequently in the trial of cases and yet the record goes up on appeal time after time and I'm sure that there are very few court ...