THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES S. WHITE, Appellant.
No. 46504.
Supreme Court of Illinois
November 27, 1974
59 Ill. 2d 416
Opinion filed November 27, 1974.
Thomas F. Londrigan and J. H. Weiner, of Londrigan, Potter & Billington, of Springfield, for appellant.
William J. Scott, Attorney General, and C. Joseph Cavanagh, State‘s Attorney, both of Springfield (James B. Zagel and John F. Podliska, Assistant Attorneys General, of Chicago, of counsel), for the People.
MR. JUSTICE RYAN delivered the opinion of the court:
The defendant was a member of the Sangamon County Board of Supervisors in October, 1970. At that time he applied for and was issued liquor licenses by the State of Illinois and by the city of Springfield. The application form prepared by the Illinois Liquor Control Commission which the defendant filled out and signed under oath contained the question: “Are you, or is any other person, directly or indirectly interested in your place of business, a public official as defined in Sec. 2(14) Art. VI of the Illinois Liquor Control Act?” In the blank space provided following the question defendant inserted the word “no.” This question was only one of many contained in the questionnaire relating to persons ineligible to receive a liquor license under the provisions of seсtion 2 of article VI of the Illinois Liquor Control Act
Section 32-2 of the Illinois Criminal Code
“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 questiоn, which he does not believe to be true.” (Emphasis added.)
It is the italicized portion of this section on which the primary dispute has centered. The trial court felt that this phrase must be interpreted as meaning, “which he believes to be false,” whereas the appellate court held that this clause means precisely what it says and that it is not required that the indictment charge and the State prove
Section 116-2 of the Code of Criminal Procedure
An indictment for perjury must set forth the alleged false statements either verbatim or in substance because the words used “are both the offense and the means by which the offense is committed.” (People v. Aud, 52 Ill. 2d 368, 370.) However, the alleged false statement must be a statement of fact and not a conclusion, opinion or deduction drawn from given facts. That the conclusion, opinion or deduction is erroneous or is not a correct construction or а logical deduction from the facts cannot constitute false swearing. (People v. Polk, 21 Ill. 2d 594; 60 Am. Jur. 2d Perjury sec. 8 (1972); 70 C.J.S. Perjury sec. 5 (1951); Annot., 66 A.L.R.2d 791 (1959).) The defendant contends that the question on which the perjury charge in this case is based did not call for a factual answer but rather called for a conclusion and that the answer of the defendant, though it may have been an erroneous answer did not constitute the offense of perjury. We agree and find that the indictment which sets forth the precise question and answer thereto does not charge the defendant with the offense of perjury.
Count II of the indictment in question charged:
“JAMES S. WHITE, while an assistant supervisor of Capitol Township and a member of the county board of Sangamon County, Illinois, committed the offense of
PERJURY in that he, while under oath in a matter where by law such oath is required, made a false stаtement, which he did not believe to be true, to wit: answered “No” to the question numbered 19 (F) contained in an application for license to the Illinois Liquor Control Commission and affidavit, which said questiоn was in the words as follows: ‘Are you, or is any other person, directly or indirectly interested in your place of business, a public official as defined in Section 2(14) Art. VI of the Illinois Liquor Control Act?‘; which said аnswer to said question was material to the issue or point in question in that Article VI Section 2(14) Illinois Liquor Control Act, as amended, (Ill. Rev. Stat. 1969, Chapter 43, Para. 120(14)) provides: ‘No license of any kind issued by the State Commission or any locаl commission shall be issued to: (14) any *** member of a county board; ***.’ ”
To properly assess the nature of the defendant‘s answer of the single word “no” to the question, the entire section of the statute referred to must be considered. The indictment mentions only “any *** member of a county board” as being a person ineligible to receive a license. However section 2(14) names many clаsses of persons who are ineligible and reads in full:
“Any law enforcing public official, any mayor, alderman, or member of the city council or commission, any president of the village board of trustees, any member of the village board of trustees, or any president or member of the county board; and no such official shall be interested in any way, either directly or indirectly, in the manufacture, sale or distribution of alcoholic liquor;”
It should be noted that the question to which the defendant answered “no” asked if he is “a public official as defined in section 2(14) Art. VI of the Illinois Liquor Control Act.” (Emphasis added.) Although there are many classes of officials named in this paragraph as being ineligible, including members of county boards, the only use of the term “public official” in this paragraph is any law enforcing public official. Although the members of the several classes of persons named in this paragraph are normally considered to be public officials, again, we
Thus the defendant in answering the question involved had to decide whether the Illinois Liquor Control Commission was attempting to ascertain whether an applicant was a membеr of any class of persons ineligible to receive a license or whether the Commission was attempting to ascertain only membership in certain specific classes referred tо in the questions. The question could have been much more precisely worded. It could have specifically asked if the applicant was a mayor, alderman, president or member оf a county board, etc. Or it could have inquired if the applicant held an office or position listed in section 2(14) of article VI of the Illinois Liquor Control Act. However, the type of catch-all quеstion propounded required the defendant to interpret it and to conclude, at his peril, whether the Commission wanted to know if he was a public official as defined in section 2(14), that is, a “law еnforcing public official” or if he held the office of any of the public officials named in the paragraph. The defendant cannot be convicted of perjury for a truthful answer to а question subject to various interpretations. As stated by the Supreme Court of the United States: “Precise questioning is imperative as a predicate for the offense of perjury.” (Bronston v. United States, 409 U.S. 352, 362, 34 L. Ed. 2d 568, 576, 93 S. Ct. 595.) That court аlso stated with regard to in-court questioning that “The burden is on the questioner to pin the witness down to the specific object of the questioner‘s inquiry.” (409 U.S. at 360, 34 L. Ed. 2d at 575.) We think that the same burden rests upon those who prepare written questions which are to be answered with “yes” or “no” answers. The questions must be stated in such a precise way as not to require interpretation or construction by those who are required to answer them under oath. The question asked of this defendant is fundamentally defective and the indictment based upon the answer thereto is insufficient to charge the crime of perjury.
The judgment of the appellate court is reversed and the judgment of the circuit court of Sangamon County is affirmed.
Appellate court reversed; circuit court affirmed.
MR. JUSTICE SCHAEFER, dissenting:
It seems to me that the statute and the application form are clear, and that the judgment of the appellate court, which reinstated the verdict of the jury, was correct. The question whether the defendant was “a public official as defined in Sec. 2(14) Art. VI of the Illinois Liquor Control Act” did not call for a conclusion. It called for a statement of fact as to whether or not the defendant was one of the class of public officials defined in that section. He was, but he swore that he was not.
All of the categories of positions mentioned in section 2(14) are public offices, and all the persons holding those positions are public officials. The prohibition applies to all of them: “*** and no such official shall be interested in any way ***.” It is impossible, in my opinion, to read the statute without realizing that a “member of the county board” is one of the public officials it defines.
MR. JUSTICE DAVIS joins in this dissent.