APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a trial without a jury in the circuit court of Cook County, the defendant, George Cantrell, was found guilty of perjury (Ill. Rev. Stat. 1973, ch. 38, par. 32-2) and sentenced to a term of six months periodic imprisonment. A second count of perjury was dismissed, and the defendant was found not guilty of obstruction of justice.
The indictment alleged that the defendant falsely stated to the grand jury that he did not have a portion of a certain conversation with Joseph Ettinger. It also charged that the conversation in question was material to the issue of whether the defendant had knowledge of or participated in planting false evidence, a gun, near the body of Clarence Torry. On appeal, the defendant argues the indictment was insufficient to charge perjury; that he was not proved guilty beyond a reasonable doubt; and that the State did not prove his testimony was perjured rather than the result of an imperfect memory.
On April 19, 1973, Willie Stokes shot Torry eight times in an alley near 47th Street and Indiana Avenue in the City of Chicago. The defendant, an off-duty Chicago police officer, had seen Stokes and Torry enter the alley. The defendant and Stokes had been acquainted for a number of years. The defendant and another off-duty Chicago police officer heard shots in the alley and rushed to the scene. They found Stokes holding a gun and Torry lying on the ground. There was another gun on the ground near Torry. The gun on the ground is the false evidence described in the indictment which was allegedly planted near Torry. Stokes and his son, who was also present at the scene, told the officers that Torry had attempted to rob Stokes. Charges of unlawful use of weapons, failure to register a gun and possession of a stolen gun were subsequently filed against Stokes. Torry was charged with attempt robbery, unlawful use of weapons, and other gun charges.
In an unrelated incident several days after the shooting, Stokes was arrested by another police officer who alleged that Stokes had offered him $3000 to kill certain members of the Blackstone Rangers, a Chicago street gang. Stokes was charged with solicitation to commit murder.
Joseph Ettinger, an attorney who was representing Stokes, wrote a letter to the State's Attorney claiming the defendant had entrapped Stokes into committing the solicitation. The State's Attorney authorized the placement of an eavesdropping device upon Ettinger.
On May 21, 1973, the defendant appeared in court with Stokes and Ettinger in a proceeding related to the shooting. The defendant told the prosecutor that Stokes would testify against the shooting victim in a robbery case. The gun charges pending against Stokes were dropped. Ettinger invited the defendant back to his office where he taped their conversation. The transcript of this conversation is 102 pages. Most of the conversation concerns the solicitation to commit murder charges pending against Stokes. During the conversation, Ettinger changed the subject to the shooting of Torry and, more particularly, to the gun found on the ground next to Torry. The transcript of that part of the conversation, which is quoted in the indictment, is as follows:
"Ettinger: George [Cantrell], where did that gun come from?
Cantrell: Counselor, I'd rather not say, I'll take the fifth.
Cantrell: It wasn't mine.
Ettinger: It wasn't your gun?
Ettinger: And it wasn't the guy's on the ground?
Ettinger: It is now. He just bought a gun. He just ...