delivered the opinion of the court:
The defendant, Gilbert Crawford, was indicted jointly with his brother, George Crawford, by the grand jury of Sangamon County, on a charge of burglary. The trial court granted a severance to the brother, who pleaded guilty. Gilbert Crawford was tried before a jury and upon a finding of guilty was sentenced to a term of not less than 2 nor more than 20 years in the penitentiary. From this judgment defendant prosecutes this writ of error.
Defendant contends that there was a fatal variance between the indictment and the proof with respect to the location of the alleged crime. He also contends that there were numerous errors committed by the court: in denying a continuance; making prejudicial comments on evidence; permitting reference to other offenses; admitting hearsay evidence; holding a witness called by the court in contempt and arresting him in the presence of the jury; limiting the right of cross-examination; permitting cross-examination of a defense witness about other offenses; quashing a subpoena for police records; refusing to issue process for a witness; and calling a witness as the court’s witness without laying a proper foundation.
The People contend that there was no variance between indictment and proof, deny all suggestions of error'during the trial, and argue that the defendant was proved guilty beyond all reasonable doubt.
The indictment charged that the alleged offense occurred at a building located “three and one-half miles south of the city of Bradfordton” in Sangamon County. The People’s witnesses testified that Bradfordton was not a city. The trial court took judicial notice that Bradfordton is a village, and held the word “city” to be surplusage. Regardless of whether Bradfordton is a city or a village, or unincorporated, we cannot agree that there was a fatal variance between a material allegation and the proof. There is no suggestion that more than one “Bradfordton” was located in Sangamon County. Following the precept that an averment in an indictment may be treated as surplusage if it can be omitted without vitiating the indictment, we are of the opinion that the words “the city of” are unnecessary, superfluous, and may be disregarded. People v. Osborne,
We turn next to the contention that defendant was denied a fair trial in that the trial court refused new counsel a continuance to prepare his case. It is true that a defendant’s right to defend by counsel as guaranteed by section 9 of article II of the Illinois constitution includes the right to reasonable time in which counsel may prepare the defense. (People v. Blumenfeld,
We shall consider together the various events occurring upon the trial on which defendant predicates error. During the course of the trial the People called a deputy in the recorder’s office for the purpose of establishing the corporate ownership of the property alleged to have been burglarized. During the cross-examination there was a colloquy between counsel and the court regarding questions directed to the ownership of the property. The State’s Attorney objected to questions seeking to demonstrate that ownership of property was not among the corporate purposes of the Archer Co-operative Farmers Association. The court stated: “I think that has been proved. Objection is sustained.” It was improper for the court to make a statement interpreting the evidence because that is the province of the jury. (People v. Bouderioyni,
The People also called alleged accomplice John Miller who testified that he had been present when the defendant acquired certain tools allegedly used to effect entrance and to force a safe in a building. When asked when defendant acquired the tools, Miller answered: “It was after we hit Harrison Smith’s Refrigeration.” Upon objection the court declared a recess and on the following day the defendant moved for a mistrial, which motion was denied. It is clear that proof of a distinct offense unrelated to the crime for which the defendant is placed on trial is not admissible. (People v. Black,
Donald Crawford, another brother of the defendant, was called as the court’s witness at the request of the State’s Attorney. He refused to answer questions on the ground that the evidence would tend to incriminate him, and thereafter the State’s Attorney read the immunity statute to the witness. (Ill. Rev. Stat. 1959, chap. 38, par. 580a.) The court stated that the witness had been granted immunity and, upon the witness’s continued refusal, he was arrested in the presence of the jury and taken to jail. Thereafter a police officer was called and on redirect examination was permitted to read a statement made by Donald Crawford, which had been used before the grand jury in obtaining the indictment of defendant. This statement, taken outside the presence of the defendant, was introduced in evidence. Defense counsel requested the right to examine Donald Crawford concerning the contents of the statement, but this request was denied.
The law is well settled that statements, or declarations of a witness in corroboration of his version of the facts, whether oral or written, are as a general rule inadmissible in evidence except where they are part of the res gestae or made in the presence of defendant. (People v. Bennett,
The People seek to excuse the trial court’s refusal to permit examination of Donald Crawford in relation to his statement on the ground that defendant did not seek to have a subpoena issued out of the clerk’s office, but rather requested the judge to permit such examination. We think it is apparent that the trial court, by its actions, intended to foreclose defendant from an opportunity to obtain the testimony of Donald Crawford with regard to this statement.
Other errors were complained of during the trial of this cause which the People claim were not prejudicial to the defendant. Because of the view we take of the case, and the fact that such errors are unlikely to occur upon a new trial, we have not considered them. We have examined the entire record and find that the errors we have discussed, taken together, lead to the conviction that defendant received less than the fair trial to which he was entitled. We, therefore, hold that it is necessary to reverse the judgment of the trial court and remand the cause for a new trial.
Reversed and remanded.