APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES R. WATSON, Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
The defendant before us is a self-admitted liar.
But did he commit perjury as defined by our statute?
We fear not and we are compelled to reverse.
The facts are not in great issue. On August 21, 1975, David Grinestaff was murdered during a gas station stickup. During the investigation, defendant Leon Mason contacted a Danville officer with information about the crime. Mason testified before a grand jury implicating James Dumas and Dumas was ultimately convicted for the murder, which was affirmed by this court on appeal. People v. Dumas (1977), 49 Ill. App.3d 756, 364 N.E.2d 616.
After Mason's grand jury testimony, a deal between Mason and the local State's Attorney regarding a separate criminal proceeding in another county broke down. The reasons for the break are not so important as the open distrust that arose between the two. Other factors led the prosecutor to believe that Mason would not testify at the Dumas trial as he had before the grand jury. The State received court permission, under the applicable Supreme Court Rules, to take Mason's evidence deposition. During the deposition (at which the accused murderer, James Dumas, was present), Mason testified to events regarding a third person named Dago, a second .38-caliber gun, and a statement to Mason by Dumas which was either at odds with the grand jury testimony, or which Mason later admitted was false or "dirty." The evidence deposition was prepared and filed with the clerk of the court by the court reporter.
Mason was under subpoena in the Dumas trial and did obey the subpoena; however, he was not called to testify at trial by either side or as a court's witness. The State called 27 witnesses against Dumas. With Mason present, the evidence deposition was naturally inadmissible and was not offered to the jury in the Dumas case.
Mason was charged with 11 counts of perjury arising from his sworn evidence deposition. The first 9 counts alleged perjury based on section 32-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 32-2(a)), i.e., that Mason, under oath, made false statements in his evidence deposition (material to the Dumas murder case) which Mason did not believe to be true. The last two counts charged perjury under section 32-2(b), in that Mason allegedly made contradictory statements (the first before a grand jury and the second in the evidence deposition) material to the Dumas murder case. After a bench trial, he was found guilty on all counts.
On appeal, he raises several points, but the lynchpin on this appeal is the materiality of the evidence deposition vis-a-vis its influence on the decision maker, be it the Dumas murder trial court and jury or the grand jury.
At early common law, perjury was wilful false assertion under oath intended to mislead the tribunal or jury. (See 60 Am.Jur.2d Perjury § 1, at 966 (1972).) Lord Coke is attributed with introducing the concept of materiality into the crime's definition:
"Perjury is a crime committed, when a lawful oath is ministered by any that hath authority, to any person in any judicial proceeding, who sweareth absolutely, and falsely in a matter material to the issue, or cause in question, by their own act, or by the subordination of others." (Coke, The Third Part of the Institutes of the Laws of England 164 (6th ed. 1680).)
And regarding the element of materiality, Coke wrote:
"For if it be not material, then even though it be false, yet it is no perjury, because it concerneth not the point in suit, and therefor in effect it is extra-judicial. Also, this Act giveth remedy to the party grieved, and if the deposition be not material, he cannot be grieved thereby." Institutes, at 167.
1, 2 There is no question that under our present perjury statute (Ill. Rev. Stat. 1975, ch. 38, par. 32-2), materiality is an element of the crime which presents a question of law for the court to decide. (People v. Dyer (1977), 51 Ill. App.3d 731, 366 N.E.2d 572; People v. ...