*1 one raised question 1882 deed. principal was whether was devoted the evidence largely knowledge in the second deed actual grantee adversely This decided question plain- deed. prior for deny- further ground was mentioned tiffs. Laches there the cases relied relief. neither of upon ing element of misconduct on the defendants part such of the deed alleged alleged suppression before us. complaint our is conclusion that the decree circuit court erroneous and that it should be Logan
reversed. The decree is reversed and the cause is remanded with directions to overrule the motion to dismiss com- and to the defendants to plaint require answer.
Reversed and remanded, directions.
(No. 32995 . People of of Illinois, Defendant Er the State
ror, vs. Plaintiff Joseph Siciliano, Error. Opinion Sept. 23, rehearing Jan. filed 195 4 Refiledafter 1955. *2 in error. Bellows, of for Chicago, A.
Charles of Attorney General, Springfield, Castle, Latham Attorney, of Waukegan, State’s (Fred Nelson, C. Robert Sidney for the of G. H. counsel,) Block, Leach, People. court:
Mr. delivered the opinion Fulton Justice Plaintiff error, Siciliano, charged Joseph returned indictments in two separate of bribery the crime By County. agreement Lake grand juryA tried together. were consolidated causes error found court of circuit in both charged form as in manner and bribery guilty in arrest trial, a new for motions indictments, denied, release upon probation judgment, to imprisonment and the sentenced the defendant than term of not less for a Penitentiary Illinois State the sen- in each case, two nor more than five years years tences to run assignments Several concurrently.
are the conten- here, consideration presented including tion that the evidence does not sustain convictions failed defendant prove guilty crimes beyond a reasonable doubt. Attention charged will first be of the case. given phase
The first indictment charged gave *3 one Harold an Evans, of the Division inspector of Foods and Dairies of the of of the Department Agriculture State of the sum of Illinois, January to induce 5, 1951, $25 a Evans, officer, to fail to public his sworn duty perform in connection of certain inspection meat products, to allow and permit sale of meat illegal to-wit, products, adulterated beef to be sold and and to dispensed beef, keep error from protect plaintiff arrest and punish- ment for the unlawful sale of adulterated beef. The second indictment charged in error plaintiff gave Evans $25 on February 15, 1951, to induce to Evans fail to perform his sworn duty connection with the inspection of horse- meat to be sold as beef, and to keep protect plaintiff error from arrest and punishment for the unlawful sale of horsemeat falsely represented as beef. to principal proof sustain these charges of
testimony Harold Evans, a reluctant witness, who testi- fied after only he had claimed his privilege self in- against crimination and had been granted immunity by
584 (Ill. Criminal Code. of the division I of under section 35 testimony 1953, chap. par. Rev. Stat. elected defendant, who by not contradicted Evans that during period testified take the stand. not to Evans he was employed late to January from 1952 Dairies of Department Foods and the Division of as an As such of Illinois inspector. of the State Agriculture where to duty premises it was his inspect inspector in the counties of McHenry or sold food was produced with the In connection performance Lake. examine the establish to only duties he was not supposed cleanliness, ments for but was to required pick up samples involved for and send them products inspection office of the late Chicago „analysis. Department that one Warren Knorr a meat appears operated near Zurich in packing processing plant Lake Lake known as the County Central Market and Provision Com this In Decem pany. Evans inspected plant 1949. ber of and Knorr were in a tavern Evans together Zurich when in error there Lake came advised that he Evans into the horsemeat proposed go business in the theretofore plant Knorr. operated by Evans said then stated that it could be a big that witness operation; would be well for what he paid did and that he asked Evans with him.” “go On along this occasion says Evans Siciliano bill slipped $20 into his package cigarettes, which kept, Evans although he told error he was not interested.
It further from appears Evans’s that there- after Siciliano and others did operate meat processing near plant Zurich under Lake the name of *4 Packing Company. Plaintiff in error and Evans sev- eral on which meetings, occasions it that appears Evans out sought in by plaintiff error. explaining what he Evans contemplated in doing, plaintiff error told him could they use horsemeat blended with beef, cod testified that malee etc., hamburger. Evans fat, in Wauconda on he in error in a restaurant met plaintiff and Tony time King at which January 5, 1951, John this that on associates Rossi, Siciliano, present; busi- occasion there further about conversation Further ness and that plaintiff Evans gave $25. in mid- relates a in the same restaurant meeting at which in February again time 1951, talked about his or business and $20 Evans gave $25. and detailed Only Siciliano were Evans present. Evans other and more or conversations which indicate meetings less continuous contact between him and error. testified that as a result these he
Evans meetings took no food from County sample Packing Lake Company and made no on or the reports Siciliano Packing same he Company, this visited the though during period Lake several in- Packing Company occasions, it for cleanliness spected and saw meat there in- products what cluding be and appeared Dur- sausage hamburger. the same ing interval he visited other meat packing processing plants counties "from McHenry he meat gathered samples connection with the performance duties as an .of It further inspector. ap- that in pears to its prior operation by plaintiff witness had visited error, the same plant taken samples analysis. testimony of as to Evans his duties as inspector corroborated by Christopher Beebe, chief chemist Division of Foods and Dairies and Evans’s Beebe superior. testified that it was the duty of an in- spector Department to food inspect establishments pick up samples follow them through a witness in court when cases came to court. Beebe also testified, when later recalled by counsel for error, it was not unlawful to slaughter horsemeat State Illinois nor was it unlawful to process and combine it with beef as as there long was no but misrepresentation,
586 beef and repre- mix horsemeat to unlawful it was that is defined since hamburger it as hamburger, sent fat does cent and to exceed not per with spices beef dis- If sold and of horsemeat. for the presence not provide and only. beef spices it must contain as "hamburger tributed the to and of is bribery giving of the offense The gist by or valuable money other thing or accepting receiving to him the per influence with respect officer to a public Patillo, duty. (People of official formance it in the indictments the laid charges proving that was the to Evans prove incumbent upon valuable officer; that or other money thing a public him and by in error to accepted Evans by plaintiff given of were for the influencing that the payments purpose that his official duties. fact him in the of performance is were made as testified nowhere by the Evans payments in it that at the times question nor is denied denied Evans with the duties set forth a officer charged public But error contends that evidence above. "the of that were to short made payments falls proving influence of those performance duties, par Evans of the fact that there was no view evidence ticularly to do or by Evans to refrain any specific agreement to the duties of relating from his office. doing anything be-, there no evidence of is a specific agreement Though error it seems tween Evans abundantly made that clear to payments Evans by accepted him influence were calculated to him and that accom they their as indicated plished purpose uncontradicted that evidence no food were taken samples from the plant This, and no made. reports with the coupled testimony in error asked Evans go along with him him he and told be would well paid for what he makes did, out a clear case is bribery. not suggested that plain tiff error could have had any other reason for making sort payments Evans, testimony un made stands fact, were, that the payments Evans testimony credibility The weight contradicted. it was by them, If believed jury. matters for doubt, charges a reasonable establish, beyond ample its This court not substitute the indictments. will laid in a from con unless for that of appears opinion that there is reasonable sideration of all *6 is the of the accused that the verdict doubt of the or guilt Ulrich, Ill. People result of or passion prejudice. v. 411 People Hinderhan, v. 316; 435. 405 the course of the trial the of jurors During regular panel which to hear the case became exhausted rea reported by the son of the court, challenges, following provisions of of section the Act, Rev. (Ill. 1953, Stat. Jurors 13 the ordered sheriff to summon ten chap. 78, par. 13,) additional jurors. as persons report This was prospective first discovered by counsel for in error when some of the examining jurors summoned this manner voir dire, and he upon immediately the challenged array of the on the supplemental panel ground should have directed the clerk to draw the names of any additional jurors on the needed, of relying sec provisions tions 8 and of the Jury Commissioners Act. Rev. (Ill. 9 Stat. 1953, chap. 78, pars. The court denied 31 the is conceded challenge. that has a population large enough require under the operate Jury Commissioners Act insofar the as provisions of that act but counsel apply, for the contend that the act last mentioned contains no provisions with the dealing situ ation when the arising regular becomes panel exhausted by reason of the exercise of challenges a trial; that during the only statute dealing that is section contingency 13 of the Act, which the provides court shall Jurors direct the sheriff to summon a sufficient number of per sons the having qualifications of jurors to fill the panel when the regular panel' becomes exhausted by reason of amenda not Act Commissioners Jury
challenges. must be regarded Act but the earlier of tory Jurors Johnson, 2 Ill. (People legislation. merely supplemental Commissioners Jury the is no There provision 2d 165.) the of section to supersede is designed Act which Jurors Act, pro Commissioners Jury Act. Section 9 are if more jurors manner of summoning vides for to meet not designed month, needed during ex becomes the regular panel when arising contingency rather to trial, actual but due to during hausted challenges a full at start a method insuring panel provide in its scope purpose is case, comparable any given Rev. (Ill. Act. Stat. with section 8 Jurors that the court is our conclusion prop chap. 78, par. 8.) It. Act summoning of the followed section erly Jurors and that event the jurors additional followed. not procedure prejudiced who, several witnesses called presence State their refused to jury, testify them. true incriminate This was testimony might who' was witness, Evans, immunity granted principal *7 It true of witnesses heretofore related. was also Charles Nick and all the Katsis, Lazar, called Wray, by John in Counsel for takes the error People. plaintiff position that it error the was reversible to permit Attorney State’s to call witnesses of the who, jury, refused presence to on the testify ground their in- testimony might criminate is difficult to see how the court, them. the in trial, conduct of the could orderly possibly what anticipate witnesses claim constitutional may immunity. If counsel in is correct theory, his then would be incumbent on court in any hearing a crim- testimony inal case first to hear all the testimony each in witness chambers him to the take before.permitting witness stand and before the testify jury. For how could it be deter- mined in at advance what in his if point at testimony, all, by hearing than other his claim privilege might a witness none are and no cases We know testimony? entire his claims privilege a witness fact that that the holding cited testimony course of the self incrimination against us before record error. reversible constitutes ipso facto the wit examine was careful trial court shows constitutional once the jury out of the presence ness immunity Evans, the case was claimed. privilege jury testified willingly. he thereafter was granted, as the as well on this fully procedure, instructed was not any witness by effect that claim of privilege No of the defendant. taken evidence of guilt be the witness these When is claimed in instructions. error him out then examined claimed the court Wray privilege, that the witness of the of the suggested presence the recalled by He never be withdrawn temporarily. the witness questions After several People. preliminary the court Nick Katsis claimed constitutional privilege the jury. examined him immediately out presence driver, a truck examination developed Katsis, .This had hauled the the meat for error and court the ruled that the showed that most he since could be with was a misdemeanor since charged time had such a could be elapsed during charge his claim was not well taken. «Witness then brought, pro ceeded to further testify before The witness jury. claimed his on that he privilege Lazar was then under indictment and the immediately excused him. Counsel relies People Bennett, case of to sustain his posi tion in this But the facts of that case are respect. not at like those all case now before In that us. case one in the same charged county having participated same crime with defendant, in though separately was called a witness dicted, repeatedly questioned as to details of the crime. He alleged *8 590 of the
compelled again
again
presence
Attorney
claim his
State’s
constitutional privilege
and innu-
insinuation
was able to
suggest
implication,
the crime
endo that witness and defendant
committed
us
defendant was on trial. The record before
reason to
shows that the trial court did
within
everything
once the
of witness
defendant
con-
protect
rights
was claimed. We cannot
re-
stitutional
predicate
privilege
versible error
fact
at
in their
on
mere
some point
testimony certain witnesses
objected
testifying
that their
incriminate
them.
might
the course of his
the witness Nick
During
testimony,
at the
Katsis,
Attorney,
was called
request
State’s
as a court’s
after which the
witness,
Attorney
State’s
cross-examine
This
permitted to
is also
him.
assigned
error. Katsis
a
was called as
court’s
after
only
witness
the witness had
manifested most remarkable
lapse
Plaintiff in
memory.
error contends that the
erred
court
in its action because Katsis was not an
eyewitness
because his testimony was not material to the
The.
issues.
power
court to call witnesses is not limited to the
calling
eyewitnesses.
(People
Gibson,
v.
Ill. 371,
385
381; People
Touhy,
v.
Ill.
332, 349-350.)
court
call a
may
witness for whom the
Attorney
State’s
cannot
¿shown
vouch where it is
that otherwise there
be a
might
of justice.
Bennett,
miscarriage
(People v.
601;
Ill.
People
Laster,
v.
little
or no in
Though
formation was obtained from Katsis, the questions were
material
certainly
to the
issues,
they related to the
delivery
adulterated meat sold as
and under
hamburger
the second indictment it was
for the
competent
prove
defendant had
in the sale
engaged
of horse-
meat
as beef.
represented
The record shows that a proper
foundation was laid for
Katsis as a
calling
court’s witness.
(People
Curran,
fore us shows that statement to reopen not to motivate court was sufficient in refus- its discretion and the court did not abuse case, to do so. ing
Plaintiff in instruction effect error tendered an should be in nor jurors any way influenced, not their decision stories that have affected, by may newspaper come to their attention; should such they disregard matters and decide the case sworn solely evidence from the witness stand. This instruction was re- coming fused. The record does not content of show news- story are paper case, we unable to concerning say *10 that the instruction Other instruc- requested necessary. tions to direct that the verdict given ample must be based only evidence and the law upon ap- plicable thereto.
Careful consideration has been to the contention given certain remarks prejudiced by and conduct of the trial We have examined the judge. record in all mentioned particulars and find argu- ment is without merit. view the obvious reluctance of certain of the witnesses and the difficulties encountered, be said may fairly court manifested commend- able restraint. judgment circuit court of is Lake County
affiimed. Judgment affirmed.
Per Curiam : After allowance of a petition rehear- on November ing 15, this case has been reconsidered and the is foregoing reaffirmed opinion and readopted.