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08/03/88 the People of the State of v. Lester Penn

August 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

LESTER PENN, DEFENDANT-APPELLEE

SECTION 32-2 OF THE CRIMINAL CODE OF 1961 (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 32-2) PROVIDES:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

533 N.E.2d 383, 177 Ill. App. 3d 179, 127 Ill. Dec. 511 1988.IL.1193

Appeal from the Circuit Court of Jackson County; the Hon. George Oros, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. HARRISON, P.J., and KARNS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

The State of Illinois appeals from an order of the circuit court of Jackson County dismissing for failure to state an offense an information charging defendant, Lester Penn, with perjury. We affirm.

Defendant was charged by information on November 13, 1985, and by amended information on March 21, 1986, with the offense of perjury in that his testimony at two different criminal trials was contradictory. The amended information reads essentially as follows:

"In that while under oath or affirmation on July 25, 1985 in a criminal murder proceeding, . . ., where by law such oath or affirmation is required, [defendant] made statements material to the issues, concerning a conversation with Emmett Cooper in an automobile returning to Carbondale from Menard, Illinois as follows in the questions and answers below:

then on November 12, 1985 while under oath or affirmation in the criminal murder proceeding, . . ., where by law such oath or affirmation is required, made contradictory statements to his July 25, 1985 testimony on issues material to the points in question in People v. Emmett Cooper in that Lester Penn testified as follows in the questions and answers below:

all being that a false statement was made on either July 25, 1985 or November 12, 1985, in violation of Chapter 38, Section 32 -- 2, Illinois Revised Statutes, 1983."

The case proceeded to a bench trial on December 5, 1986. Immediately upon the State resting its case, defendant presented a written motion to dismiss the amended information for failure to state an offense because it failed to allege the requisite mental state that defendant did not believe the false statement to be true at the time of its utterance. The court took the motion under advisement and the State was granted leave to, and did, file a response to the motion. The defendant then filed a reply to the State's response. On January 6, 1986, the court granted the defendant's motion to dismiss the information for failure to state an offense in a written order finding that the information failed to allege an essential element of the offense of perjury -- the defendant's mental state. The State appeals, arguing that where an information charges perjury by the utterance of contradictory statements, the State need not charge, or prove, defendant's mental state.

"(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.

(b) Proof of Falsity.

An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need ...


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