Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Donald W. Morthland, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Ward, was found guilty of perjury after a jury trial in the circuit court of Macon County. The appellate court affirmed his conviction (50 Ill. App.3d 885), and we granted his petition for leave to appeal (58 Ill.2d R. 315). His contention is that his prosecution had been barred under the doctrine of collateral estoppel.
The defendant had been previously tried and found guilty of burglary. The trial court, however, granted his motion for a new trial on the ground that the evidence had been insufficient to support the jury's verdict. The case was not retried and the charge was later dismissed. The State acknowledges that the effect of the order for a new trial was to bar another prosecution on the burglary charge. (See Ill. Rev. Stat. 1975, ch. 38, par. 3-4(a)(1); People v. Woodall (1975), 61 Ill.2d 60.) The prosecutor then secured an indictment of the defendant for perjury, which was founded upon answers he had given to several questions on direct examination while testifying at his burglary trial.
The burglary prosecution was by way of criminal information and it charged that the defendant had knowingly and without authority entered the garage of the house of the Marshall family in Decatur on October 11, 1975, with the intent to commit a theft. The State at trial introduced evidence to show that two "Mickey Thompson tires with mag wheels" had been stolen. As has been noted above, the trial judge found the State had failed to establish its case. The perjury indictment, following generally the language of the perjury statute, charged that the defendant, on direct examination at his burglary trial, made as answers false statements material to the issue while under oath, which he did not believe to be true:
"Q: And, okay, and then you left his house going around the corner, went south [on] Upton Lane, and went out. Did you stop at any time there by Marshall's house?
Q: Did you see Rhonda Marshall at that time?
Q: Did you get out of your car for any purpose other than to go to McMann's door? [The McMann house was next to the Marshall house.]
Q: You didn't go to Marshall's house?
Q: At any time during that day, or any other day, did you, without authority, enter Marshall's garage on 3310 Upton Lane and steal a ...