People v. Dixon

• Citation: 177 N.E.2d 206,23 Ill.2d 136
• Decision Date: 22 September 1961
• Docket Number: No. 36438,36438
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Paul DIXON, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 206

177 N.E.2d 206

23 Ill.2d 136

PEOPLE of the State of Illinois, Defendant in Error, v. Paul DIXON, Plaintiff in Error.

No. 36438.

Supreme Court of Illinois.

Sept. 22, 1961.

Bernard B. Brody, Chicago (Richard H. Devine, Chicago, of counsel), for plaintiff in error.

William G. Clark, Atty. Gen., and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and John T. Gallagher and M. Robert Ostrow, Asst. State's Attys., Chicago, of counsel), for defendant in error.

KLINGBIEL, Justice.

The defendant, Paul Dixon, and one John Streigel were tried by the court without a jury in the criminal court of Cook County for the crime of burglary. Streigel entered a plea of guilty after the State had presented its evidence, and the trial proceeded as to the defendant, resulting in a finding and judgment of guilty. The case is now here on a writ of error brought by the defendant Dixon alone.

One of the defendant's principal contentions is that the trial judge erred in denying defendant's motion for the exclusion of witnesses. The record shows that prior to the introduction of any evidence defendant's counsel moved to exclude witnesses. The trial judge denied the motion and said, 'Well, I don't like to do that.' The question of whether denial of a defendant's timely motion to exclude all witnesses in a criminal case constitutes reversible error has never been squarely presented to this court, although in the early case of Errissman v. Errissman, 25 Ill. 136, Reprint page 119, we held that the exclusion of witnesses in a civil case was within the discretion of the court and further held that we would not inquire whether that discretion was judiciously exercised. In People v. Reed, 333 Ill. 397, 164 N.E. 847, the defendant moved that all witnesses be excluded. The court allowed the motion except as to one witness, whose testimony was material. We held that exclusion of witnesses was discretionary, although we pointed out that such a motion is seldom denied. We held that under the circumstances of that case, no abuse of discretion had been shown. In the capital case of People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371, the trial court entered an order excluding witnesses, but permitted a police officer, who was a material witness, to remain in the courtroom throughout the trial. We held that the exclusion of witnesses was a matter within the sound discretion of the court and that the exercise of such discretion would not be disturbed unless a clear abuse, or prejudice to the defendant was shown. There are expressions in other cases, not squarely involving a denial of such a motion, that the exclusion of witnesses is discretionary. Cf. People v. Winchester, 352 Ill. 237, 185 N.E. 580.

The view that exclusion of witnesses is discretionary seems to be the rule in the great majority of jurisdictions. (See 53 Am.Jur., Trial, sec. 31; 6 Wigmore, Evidence, 3rd ed., sec. 1839, p. 359; Annotation, 32 A.L.R.2d 358.) However, in his discussion of the rule, Professor Wigmore, while recognizing the majority rule, is strongly of the opinion that exclusion should be allowed as a matter of right. He says: (pp. 354, 357) 'But when all allowances are made, it remains true that the expedient of sequestration is (next to cross-examination) one of the greates engines that the skill of man has ever invented for the detection of liars in the court of justice. Its supreme excellence consists in its simplicity and (so to speak) its automatism; for, while cross-examination, to be successful, often needs the rarest skill, and is always full of risk to its very employers, sequestration does its service with but little and from the examiner, and can never, even when unsuccessful, do serious harm to those who have invoked it. * * * It seems properly to be demandable as of right, precisely as is cross-examination. In the first place, it is simple and feasible. In the next place, it is so powerful and practical a weapon of defense that no contingency can justify its denial as being a mere formality or an empty sentimentality. In the third place, in the case when it is most useful (namely, a combination to perjure), it is almost the only hope of an innocent opponent. After all is said and done, the fact remains (as Sir James Stephen has declared, out of a lengthy experience as a criminal judge) that successful perjury is always a possible feature of human justice. No rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing...