*1 Plaintiff-Appellee, Illinois, State Defendant-Appellant. McCoy, v. Orville 10,931. No. Gen.
Fourth District. 12, 1968. November CRAVEN, J., dissenting.
Hagin Champaign, appellant. Harper, No appellee. brief for
SMITH, P. J. *2 involuntary manslaughter Convicted a bench arising accident, for conduct out of an automobile the de- guilty, pleaded jury trial, fendant a not waived was found guilty by probation. the court and admitted One of the probationary one-year was a terms sentence to the Illinois only appeals State Farm at not Defendant Vandalia. judgment guilty, from the but also from the order granting “denying defendant and the State’s jail thirty-day recommendation that a be im- sentence posed.” judgment of His motion for new trial attacks the guilty ground prove on the that “the did State not guilt beyond of the a reasonable doubt.” defendant argument court, oral defense
On in this counsel suggested guilty” plea “not a that we treat as “guilty” plea clearly spectre tacit and indicated that wrongful impending pending, of a action either death working spell or and that the hinterlands casts Patently court, proceedings. over entire in this we this guilty guilty. plea plea a a “tacit” cannot treat not recognize ‘provisional or “The law Illinois does not ” 148.) Miller, plea. (People 264 Ill pro forma’ . . . People Grabowski, NE2d Ill2d guilty plea trial court and that in the There was on record on review. must remain where it judgment new trial attacks Defendant’s motion ground did not “the State that beyond doubt.” In guilt reasonable motion for new accompanying the brief to the court his ground trial, evidence up that the sole he sets as the hearsay evidence; that such evi- heard the court was accordingly value, and that there dence has (1) could find that upon the court was no evidence which (2) did it. that the accused committed crime was question sole therefore whether uncontradicted hear- say standing received without guilt beyond alone establish a reasonable doubt. trial, inquired When the case was called for the ready as to proceed. whether or not both sides were might said, say Court, Defense counsel “I to the off the (Not reported.) Attorney record. . . .” The State’s then said, ready “Both are and I would like to be sworn.” sides He then testified he had that attended the coroner’s inquest, testify inquest heard the witnesses at investigation had independent also made some of the cir- cumstances He himself. related the occurrence events him, gave as told to witnesses, the names of all the stated these facts could be established evidence that related, competent rested. The facts if true, fully justify the court’s decision in the case and *3 disposition. its
The stated, defense counsel then “The defendant rests.” The parties argument, record shows that both waived the involuntary found the defendant of man- slaughter judgment finding. entered on that Defend- probation. ant May 26, moved for On the matter came on petition on probation. the for No evidence offered side, argued either attorneys pro- but both the merits of probation bation. The report officer’s was filed that morning probation with a recommendation for and a reviewing “short sentence.” circumstances, After the the court then why stated that he reason he saw no should grant probation, impose that “I think I but should as a probation very jail condition of decisive sentence a state farm be, sentence. Now what that I don’t year.” know . . . but can’t be 1 less than The defense said, might then “I wonder if we see the Court in cham- Attorney.” Court, bers ? With the “I State’s will be glad you. things to talk to I want to all take these in con- transpired sideration.” Whatever have in chambers admitting reported, the but order its result was year Illi- at the with a term of nois State Farm at Vandalia. testimony pro
The statement has no tendency bative value has no substantive many fact is much too Evidence under the broad. received name; change exceptions to rule does not its hearsay. is, nevertheless, admissible and it it is still It Originally stigmatized probative have value. does sibling family, general dubiety about gossip arose admissiblity. accuracy and it was denied and its truth its Through legislative rules of permissive and restrictive decisions, necessity, experience evidence, judicial circum mankind, passage of time and where made are establish under which the stances statements accuracy out truth and probability of its its against weighs heritage unreliability, ad the rule its steadily such missibility fact that been eroded. The has no effect has is received without nothing quality its inherent adds Harrison, 185 NE2d 25 Ill2d value. hearsay rule was and is purpose fundamental by subjecting the quality the evidence to evaluate party cross-examination the assertion to source opportunity against Absent the it is offered. whom appropriate ob of an and in the face cross-examination proffered objection must be sustained jection, the People Carpenter, rejected. discussion See evidence Ill2d 116, 190NE2d 738. 897, II, it is ALR2d stated: § *4 general rule, supported the the appears to be “It authority, overwhelming weight where inad- objec- hearsay admitted without evidence is missible determining in may properly considered tion, be it being regard only question to facts, weight thereto.” be accorded much how
72 487, Commission, Ill 404 In of Cicero Industrial Town 360, it 89 NE2d is stated: although incompetent, Testimony, and
. . and considered if received without be given in probative if it were its natural effect as law admissible. . . .” aptly Poluski v. Glen of this rule is in rationale stated ALR2d, Co., pp A
Alden Coal Pa 911, 912, in words: these Hearsay may accurately portray a
“. . . evidence given ex- The reasons which set circumstances. portrayal truth its clude such do detract from legal bar- These reasons are the accurateness. which, law, riers which have been erected may justice, parties move aside. in the interest of competent reasoning, this the evidence then Under probative as it to the full extent of value such all have under the circumstances.” objection, this evidence Received into evidence without have value. How much? The trial does examined, weighed in which tested and it. the crucible accuracy and him, its presented it he found authenticity found that without blemish felt and beyond guilt was sufficient fantasy con- fictional reasonable doubt. It would be day anyone evi- this clude that the courtroom including and his presented, the defendant dence was counsel, disputed doubted or but that the recitation accurately truthfully occurrence events did state Nothing unsavory reputa- record —save the facts. this tion conclusion. —weakens accurate. his were vision was clear and scales court’s unique appraised record its unusual This must background. charged involun- The indictment factual *5 tary manslaughter through operation of motor vehicle in a reckless manner. It thus clear that spectre wrongful pending, aof death action either im- pending lurking spell or in the hinterlands casts it over proceedings. forthrightness, this With commendable it arguments so indicated on oral There was in this court. Attorney, was no to the of the State’s hearsay, there no motion to strike it as there was motion for a verdict of not insuf- because its ficiency. argument Both on the sides waived issue guilt. probation; There a motion to for admission hearing there of- was a on that motion with neither side fering any evidence, arguing proba- with both for sides tion, only being presented issue wheth- basic part er or as of the not there should be confinement so, long. disen- order and if how length jail In chantment in the sentence. came absence, doubt but this case would there little have been laid to rest trial court. in the only an court, now this seeks discharge It absolute or a new trial. in alternative universally recognized ac in almost State that this necessity may by stipulation proof of cused waive the any People have part all case which the or alleged Having so, complain against him. he cannot done stipulated into the in this he has court of evidence which 324, 321, Hare, 185 NE2d record. 25 Ill2d 310, Citing Polk, Ill2d 167 NE2d People v. 345; 185; Pierce, People v. People v. 387 Ill 57 NE2d Malin, Stipulated be Ill NE2d 349. facts they are hearsay, accepted are the truth because but as open as stipulated treated either court are agree the mutual the defendant as admissions traveling parties It would ment of the as the truth. case on a treadmill return this by everyone. accepted proof true Neither facts remotely suggested by court is trial court nor At- recited the State’s the defendant the facts *6 pro- torney untrue. The occurrence are to the as events ceedings attempt dispose an un- patently purportedly pleasant pleasant in a manner. matter While adversary proceeding, in truth and in on face an it was agreement “agreed hearing.” There no fact an jail probation either as to or sentence. Attorney did probation, officer recommended the State’s only attorneys de- it, the oppose not and both discussed sirability necessity jail There of or the sentence. betrayal by the was no of the defendant State. seduction beyond recognition reality the warps It to assert acquiescence in, to, approval of or a waiver consent weight admissibility defendant of either the of or the at- tributable to this is not shown this record. only jail procedure result, Both the and the save agreed sentence, mutually were in effect in fact to. require simple justice process, play Neither due fair nor procedure and the us exonerate this defendant from the submit, knowingly, willingly, we result to which he intentionally doing, excom- subscribed. we do not so proceedings from criminal either the rules of municate guilt requirement evidence or the that the defendant’s beyond impose established a reasonable doubt. We require him onerous defendant. burden We him in the procedural available to use the tools complain complaining can’t in court. He before planting garden joined he of the weeds in the which here, hoe. The elects, he to use the if he did judgment affirmed. is
Affirmed. concurring.
TRAPP, J., dissenting.
CRAVEN, J.,
CRAVEN, J., dissenting: Although it is difficult to conceive of criminal case charged in which there is no evidence of the crime nor guilt hearsay, pure defendant’s other than this is My colleagues sitting such a case. court, affirm the trial jury, finding guilty, without agree record in such an inconceivable I cannot state. with either the result reached nor route traveled. is, course,
It pro- fundamental a criminal ceeding presumed guilt the accused innocent until his proof upon prose- established. burden of beyond cution to establish all reasonable doubt the fact responsibility and the crime defendant’s criminal shift, proof for its commission. The burden of does *7 by replace- and inaction the can never be a defendant prosecution. ment for affirmative on the burden the charged involuntary In this case the defendant with manslaughter, being 38, chapter Ill Rev section 9-3 of charge being 1965, specifics the de Stats of the fendant, “acting manner, in on October a reckless LeCrone, with an automo struck and killed Nellie bile, justification.” entered The defendant without lawful May plea guilty. on The cause for of not was set jury trial. Both the de The defendant waived ready they prosecution were and announced that fense request, attorney, at his proceed. was state’s testimony, in and sworn testified. His case, follows: County. Attorney On the . I this “. . am State’s McCoy, October, 1966, eighth who is Orville gentle- proceeding, is the in this and who sitting in the Court counsel table here man at the southernly driving in a Room, an automobile was Monticello, apparently headed toward direction from morning. at- in I ten o’clock Bement at about Be- inquest, held in which was tended the Coroner’s third, heard the witnesses ment, and on November testify inquest. indepen- I at that also made some investigation concerning dent circumstances driving McCoy incident. Mr. was While southernly he line of the direction crossed the center wrong driving pavement on the he was so that having narrowly an pavement, and side missed Scrimager, accident with a Mrs. who was forced off the road in order to avoid a head-on collision with being by McCoy. The next car the car driven Mr. being by daughter driven of Mrs. LeCrone being by McCoy while the car driven Mr. was also a head-on on the left-hand side of there was the road car, car LeCrone collision between his and the My aas result of Mrs. LeCrone died. that collision investigation brought further out the fact that be- McCoy fore he had in a Mr. left Monticello been tavern, Tavern, local The Corner and had two shots whiskey chasers, beer and this matter was Jury presented re- to the Grand indictment manslaughter. indicting involuntary him turned by evidence, which These could be facts established hearsay evidence, by LeCrone, Michael William passenger car, LeCrone Clif- who was highway Scrimager, ford and saw who was on the McCoy driving fashion, Mr. in an erratic Susan highway, Scrimager driving who was also highway order to avoid a col- forced off *8 Blickensderfer, McCoy, by Donald lision with Mr. investigated acci- Trooper, who who was State Margaret by occurred, A. Camden who it dent after Nellie the automobile in which the driver of all I care to passenger, is was a LeCrone say time.” at this by objection narrative recitation the state’s to
No question by attorney counsel and no defense was made prosecuting at- propriety of the to the was raised as offered testifying. torney’s No other evidence 77 People none was offered the defense. The only pertinent thing in the record attributable to the defense relevant to the proceeding merits of the is the phrase one rests, that “the defense . . . .” Both sides argument waived and the court found the defendant guilty. foregoing
The is the entire record other than those portions relating the record proceed- to the ings, and those are irrelevant the issue this case as I see it. here, only issue, hearsay issue and the is whether
evidence, objection unsupported by admitted without any any character, other support evidence of kind or will finding in a criminal case. I think it will not.
Hearsay
evidence is excluded when
is made
because
is not reliable evidence.
It is indeed and in
prominent member,
fact
patriarch,
if hot
gossip
family.
weakness,
or rumor
“Its
its in
intrinsic
competency
satisfy
mind
of the existence of the
fact,
might
practiced
and the frauds which
be
its
under
support
hearsay
totally
cover combine to
the rule that
Queen
Hepburn,
L
inadmissible.”
Ed
US
language
(1813).
apt
Mr.
This is the
Chief Jus
addition,
inability
subject
tice John
Marshall.
cleansing
to the
of cross-examination is
effect
rejection.
judicial
one of the fundamental
for its
reasons
Carpenter,
See
28 Ill2d
This was, The effect of the waiver means case waived. admitted and evidence is weight, admitted, its Once what considered. it’s enough reliability Certainly worth, ? it is not what is its guilt beyond a reasonable doubt. jurisdic- great majority applicable rule to the is stated: tions
“Hearsay evidence, objection, admitted without value, probative has been held have given be considered and natural ef- fect, subject any suggestion infirmative due to weakness, its inherent material establish a issue, support finding, fact sustain a ver- judgment. However, dict or such evidence should be given only weight entitled, to which it object weight the failure to to the evidence adds intrinsically jurisdictions if it had none. In some although hearsay evidence, been held has that admit- objection, probative force, ted without is without incompetent issue, establish a material fact in finding and will not sustain a or sustain verdict judgment unsupported by when other evidence.” 88 CJS, Trial, (Citations omitted.) 153. § See also 30 Jur2d, Evidence, 1103; Am Jones, Evidence, § § (5th 1958); subject ed and the annotation on the in 79 ALR2d 890.
Although many cases are cited and discussed in the annotation, suggests hearsay support none alone will felony a criminal conviction. The relevant Illinois cases certainly do not lead one to that conclusion. Barkley, App 541, Grier v. 182 Ill the court held evidence to the effect that loan was made
by a husband to his deceased wife in consideration of signing her proof contract to sell certain land was not though of such fact even the evidence was admitted with objection. out Solfisburg, speaking
Mr. Justice Appellate District, Looby Buck, Court Second App2d 20 Ill (2nd 155 NE2d 1959), Dist observed that “A statement a witness whose is based not upon personal knowledge upon but no ten has dency anything.” Wigmore cited 2 The (3rd ed, 1940), on Evidence § *10 407, People Harrison,
In 25 185 v. Ill2d NE2d 244 recognized (1962), unreliability hearsay the court of probative value enhanced observed that was not by objection. the fact that it received without was Appellate case,
One Illinois Arkansas Sweet Potato Exchange Wignall-Moore Co., 34, App Ill Growers’ v. 249 unobjected hearsay held that to to es sufficient graded rating potatoes. In v. tablish the of some hearsay Jones, (1943), 382 48 evi Ill NE2d 364 corporate dence to held to existence was es sufficient fact. tablish that by pre- proof of
In cases where the burden
sufficient,
hearsay may
ponderance
evidence,
of
fact,
by
fact
the trier of
to establish a
if believed
sup-
controversy.
hearsay may
appeal
On
be sufficient
Carraway
Johnson,
judgment.
63
port a civil
Wash2d
However,
quantum
proof
if the
IWhile cases, Georgia York Texas, New and some as evidenced support value and will has no that suggests cited that fact, finding case has been no can, source, unaided some hearsay, whatever that guilty finding of evidence, support a reliable residuum felony in a case. rec- fact that majority opinion discusses possibly posture because unorthodox
ord is such pending or im- wrongful either death a civil action bearing me, on the issue and That, pending. has procedure certainly here does not the unorthodox excuse pleaded not employed. here The defendant wrongful A prosecution. proof on the the burden of case, alter contemplated, death actual or does way. any proceeding, criminal nor affect it nothing justifies conclu I find in the record anything. “stipulated” the defendant sion object to the narrative statement failure to object admissible, is not a but failure renders such The failure of the stipulation as to its truth. *11 imposed, a object when have been reflex, as to make cannot be translated so matter equivalent stipula a passive conduct active and the To do truth of narrative statement. tion as to the guilty effectively nullify plea and to so is plea nolo con pro or a provisional a forma create criminal plea, are alien tendere both of which Grabowski, 12 Ill2d jurisdiction. People v. of this law (1958). NE2d undisposed motion for a is in this case There trial, alleging grounds there therefor that as the new beyond a prove a failure to beyond guilt rea doubt. Failure reasonable trial, grounds and even a new for doubt is sonable for a new trial case back like to send this if we would doing start, precluded from we would be fresh point Mr. thorough discussion of this so. See petition opinion on English supplemental in the Justice 281, 241 Brown, App2d rehearing People 99 Ill v. (1st 1968). NE2d 653 Dist attorney did not see regrettable state’s
It is
orally
argue
matter
or to
to file
brief
fit either
judgment of
failure leaves
court. This
before this
argu-
support of a brief
trial court without
dual
in the
least,
and,
part
casts this
ment
at
jus
judge.
could
role
advocate and
This failure
well
tify a
without
of the merits. See
reversal
consideration
(2nd
People
Spinelli,
App2d
v.
83 Ill
Esther Defendant-Appellee. Kennedy, 10,964. No. Gen. Fourth District. 12, 1968.
November