*1 566 sub and without and unreasonable arbitrary is
property, welfare. safety health, to the relation public stantial Ill. Mundelein, Estates, Village Inc. v. (Mundelein of v. Elmhurst, 104; Skrysak Krom 8 Ill.2d City v. 291; are of We Mount Ill.2d Prospect, Village of 329. to sustain she has failed wholly opinion burden. County court of circuit Cook judgment reversed.
accordingly reversed.
Judgment (No. 34352.
Henry People Plaintiff vs. Error, Napue, Defendant Error. Illinois,
Opinion May 21, 1958. *2 Davis, C.J., Schaefer, J., dissenting. and Ming George N. of Chicago, (Moore, Leighton, & of for counsel,) in error. plaintiff Leighton, Castle, Attorney General, of and Springfield, Latham Benjamin S. Attorney, State’s of Chicago, Adamowski, G. (Fred Leach, H. South, William Francis X. Riley, and T. of for the counsel,) People. Gallagher, John Klingbiel
Mr. delivered the opinion Justice court:
Henry Napue a in petition the criminal court of Cook under County the Post-Conviction Act Hearing (Ill. Rev. Stat. 1957, chap. 38, pars. 826-832,) to set seeking a aside conviction for murder on the that ground it was obtained the use of knowing perjured It is testimony. further that oral alleged admissions were made as a result of coercion during illegal and detention, that the intro duction of testimony such concerning admissions deprived him of due process. After a on the hearing the petition trial court denied relief. We have allowed a writ of error to review the record. as a who contends his accomplice, appeared
Petitioner he been had not testified him, falsely against witness the his testimony, for any consideration promised was the statement to be false. Petitioner knew prosecutor sentenced after trial and was in by jury, 1940, convicted crime for term for a years. imprisonment he when a 21, was tried occurred on August 1938, which of a robbery officer was killed Chicago during police in the crime. There were five lounge. participants cocktail Hamer wounded in the He was shooting. One George of murder on a convicted plea guilty, apprehended At trial years. sentence of receiving petitioner’s was called as witness on behalf principal State. On cross-examination he was asked whether had him anyone a reward which testifying, that no one he replied anything. Upon further he admitted, however, questioning when was interviewed *3 he penitentiary said would not unless he testify received some consideration and it, that while he was in the cell to be called at the waiting trial some came him lawyer to do what he could. On re-direct the examination assistant Attorney State’s “Have asked: I promised you that I would recommend any reduction of sentence to Hamer anybody?” replied: “You did not.” years
Several after the the petitioner’s lawyer conviction who had prosecuted the case, and who had since resigned his from as position assistant State’s Attorney, a peti- tion in the nature of a writ of error coram nobis on behalf of Hamer. other Among matters he therein that alleged at the time Hamer was sentenced he that if he would with co-operate law-enforcing officials the upon trial of when he Napue was a apprehended, recommenda- tion for a reduction of his sentence would be made and, if possible, effectuated. The former prosecuting attorney testified on behalf of the at the present He hearing.
569 a not he was had insisted Hamer that explained 1938 told Hamer He then crime. the voluntary participant the other participants out when borne this were the atten- the matter to bring he would were apprehended, at Prior to testifying Napue’s authorities. tion proper Attorney whether the assistant Hamer asked State’s trial, the to which assistant said, he had latter would do what the he would his word keep Attorney replied State’s the attention of the authorities direct proper that Hamer was case he were satisfied telling Hamer’s as a at the not called witness the truth. present hearing. post-conviction the a conviction obtained by presentation
Where known the authorities to be prosecuting per- the constitutional of due jured, requirement is not process Kansas, v. (Pyle satisfied. 213, 214; U.S. ed. L. 317 87 Holohan, v. Mooney 103, ed. To U.S. L. 791.) a denial of due within the show process of this meaning rule it is not that the necessary false testimony be concerned the with directly question guilt. Even it though bears only upon credibility of it witness, may have the effect of the accused of a fair depriving trial. Whether such effect is present depends, course, upon circum- stances of the case. In particular People v. Savvides, 1 N.Y.2d 554, N.E.ad defendant was convicted in substantial part upon testimony an given by accomplice. the trial Prior tO' the assistant district attorney reached with the understanding accomplice, who had pleaded guilty, latter’s “continued co-operation” the district attorney would him to permit withdraw his plea *4 to and to a plead guilty lesser offense. the Upon defend- trial the ant’s accomplice denied that he expected any con- sideration return for his testimony; and the assistant District Attorney remained silent. It was held that the failure prosecutor’s to the expose falsehood substantially the prevented defendant from a fair having trial, despite fact evidence of the that it did not bear directly guilt. The court out the pointed danger accomplice his or other consideration return for leniency he is to incriminate others to further his likely testimony, and that the his testi- interests, ability own jury’s weigh would be unless disclosure is made. mony seriously impaired the In the case at bar the evidence at post-conviction little leaves doubt that the hearing prosecutor Hamer if he his co- give testimony against Napue actions would be the the attention of operative brought authorities, effectuate, a reduc- appropriate possible, tion in his sentence. This would his be reasonable under- of the statements made and the by standing prosecutor, does not here that such a deny was made. promise Hamer’s to the effect testimony that no had been himto and had there been given clearly untrue, no dis- closure of its falsity contention would raise petitioner’s serious constitutional question. Subsequent testimony by Hamer revealed, that he had however, been reluctant to unless he received testify consideration for it, to the trial he was assured that prior efforts would be made his on behalf. disclosure was Such sufficient to apprise that he had some jurors interest or motive in testifying, enabled them to his other judge in the light thereof. We think, that under the therefore, circumstances of this case the trial court was warranted in concluding there was constitutional no infirmity virtue of the false statement.
As a further contention petitioner merely asserts that after his arrest he was held in from custody 11, 1940, June until 17, 1940, without taken being before an exam- June magistrate; he was ining continually questioned to induce a confession; and that “the record contains positive proof incarceration illegal rendering any confession oral or written inadmissible.” There is no further argument on We have point. considered the contention, however,
571 appear It does not merit. without find it to be in evi fact offered in was made by Napue confession any it while detention, an Moreover, illegal dence at his trial. does coercion, evidence of other serve corroborate may involun an admission or confession itself render a not of v. also, People 11; see, Ill.2d People, v. 10 tary. (Davies in a posi trial court was The Ill.2d LaFrana, 261, 266.) it before of the witnesses credibility tion to determine shown by been has and to their testimony. Nothing weigh its in aside findings. this court setting to justify petitioner criminal court affirmed. The order of the
Order affirmed. Mr. Schaefer, dissenting: Justice holds that Hamer’s testimony court opinion was false and that the it was false. knew that prosecution People And also accord holds, in with v. opinion Sav- vides, 1 N.Y.2d that due can 554, process N.E.2d be violated by false testimony that knowingly goes of a credibility key witness as well as which by goes directly or guilt innocence. With these I holdings agree. But the further and opinion goes says: “Subsequent testimony by revealed, that he had been however, reluctant to testify unless he received consideration it, for and that to the trial prior he was assured that efforts would be made in his behalf. disclosure Such was sufficient to apprise jurors that he had some interest or motive in and enabled testifying, them to his other judge in the thereof.” light What is overlooked here is that Hamer clearly testified that no one had offered to help an except unidentified lawyer from the public de- fender’s office. fact was, however, that the offer not made unidentified assistant public but defender, by the assistant State’s Attorney charge prosecuting the case.
The relevant parts Hamer’s cross-examination are these: a reward you you Did anybody give
“Q. reward testifying?
A. There ain’t me nobody promised anything.
>jí íjí that time and attention to your Q. Directing place did Statesville, you Napue’s tell Mr. Steinberg [one drunk that ? attorneys] you day were *6 A. No, I didn’t. you testify And didn’t tell him that wouldn’t you
Q. case for you this unless some consideration it? got have him him away.
A. I would told to get anything I didn’t want to talk to him. Did tell him what I you you? told
Q.
A. Yes. You said wouldn’t
Q. you testify you unless some got consideration ?
A. Yes, did; I I told that.
íjí What are
Q. you sentenced for?
A. One ninety-nine hundred years. You have that reduced, you? to don’t
Q. hope A. me do Well, anybody help anything why me, certainly I would. Weren’t that when here
Q. you you came expecting ? today
A. There haven’t no one me told more no anything, than lawyer. lawyer come and talked me a to while and said he ago to do what he could. going Which
Q. lawyer was that? A. I don’t know; it was a Public Defender. see- I don’t him in here. You mean
Q. he was from the Public Defender’s office? A. I imagine is where he was from, I don’t know. And he Q. was the one who told you that ?
A. he told Yes, me he was did trying get something for me.
*% % here, at while were you Statesville Now,
Q. George, visited you were months term, ago about two your serving some officers? police see me. came to A. some officers Yes, police didn’t trial, about this you came and asked Q. They they, Henry Napue? it.
A. said about Yes, they something came ask you willing would be Q. They you didn’t testify, they?
A. Yes. time them
Q. And, course, you at that told you would ?
A. Yes. And
Q. you told them you would but you some expected consideration for it? I asked them
A. was there chance of me any getting any. man told me he didn’t that he know, couldn’t me anything. Then Q. you to a spoke lawyer today who said would *7 to try your time get cut?
A. That was this Public Defender. I don’t even know his name. I could point out, I saw him.
Q. How do you know is from the Public Defender’s office?
A. I seen him once before when I was tried. being you But Q. don’t know ishe from the Public Defend- er’s office?
A. INo, don’t know where he is from.” The opening questions and answers on Hamer’s redirect examination were these:
“Q. Mr. Hamer, has Judge Prystalski trial judge] [the promised you any reduction of ? sentence
A. No, sir.
Q. Have I promised that I would recommend any re- duction of sentence to anybody?
A. You did not. the Parole been to of Board Has any representative
Q. reduction of sentence? a you you see A. No, Sir. Has of Governor any representative
Q. a of Illinois reduction sentence? you
A. No, sir.”
There is here an effort exclude all unmistakable to sug- a a to make by anyone promise position gestion effective. who Thereafter, prosecutor these and elicited these filed a asked answers questions coram nobis on behalf of Hamer which alleged: petition * * “Your iden- *, well petitioner knowing if and tifications of and Webb when Poe, Napue appre- hended would be of an and not character unsatisfactory the kind of evidence which a be asked to jury could upon a severe inflict unable to deter- proper, penalty, being mine advance whether Poe, and Webb would Napue make confessions of their in the crime participation repre- sented to Plamer that if he would be to willing cooperate with law officials the trial trials enforcing Poe, and Webb when were Napue they that a apprehended, recommendation for a reduction of his sentence would be made and, possible, effectuated. Hamer at time a unhesitatingly expressed complete willingness cooperate * * * time he at would be any called upon. “Before on behalf testifying of the State and against Hamer Napue, expressed your petitioner reluctance further any to cooperate unless he were definite assur- given ance that a recommendation for reduction of his sentence * * * be made. Your petitioner feeling the interest of justice required Hamer’s testimony, again assured Hamer that every effort possible would be made to conform the promise previously made to him. *8 took the witness stand and without equivocation pro- ceeded to supply, detail, under all oath, the testimony made the confession completely corroborated which of Napue a conviction testimony Hamer’s Without Napue. have been may confession his own uncorroborated doubtful.” extremely was know- record shows that perjured
The I conviction. about judgment used to bring ingly so obtained affirm the think that we should not judgment the jury the effort to mislead might upon speculation In both our own constitution have failed. my opinion set Federal constitution that this conviction be require aside.
Mr. Davis in this joins dissenting Chief Justice opinion.
(No. 34623. People Village ex al., rel. et of Park Forest vs. P. of Cook Appellants, Assessor Cullerton, J. al., et County, Appellees.
Opinion May 1958.