People v. McCoy

• Decision Date: 12 November 1968
• Docket Number: Gen. No. 10931
• Citation: 101 Ill.App.2d 69,242 N.E.2d 4
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Orville McCOY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 4

242 N.E.2d 4

101 Ill.App.2d 69

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Orville McCOY, Defendant-Appellant.

Gen. No. 10931.

Appellate Court of Illinois, Fourth District.

Nov. 12, 1968.

Hagin Harper, Champaign, for appellant.

No appearance for appellee.

SMITH, Presiding Justice.

Convicted in a bench trial of involuntary manslaughter for conduct arising out of an automobile accident, the defendant pleaded not guilty, waived a jury trial, was found guilty by the court and admitted to probation.One of the probationary terms was a one-year sentence to the Illinois State Farm at Vandalia.Defendant appeals not only from the judgment of guilty, but also from the order granting probation and 'denying the defendantthe State's recommendation that a thirty-day jail sentence be imposed'.His motion for new trial attacks the judgment of guilty of the ground that 'the State did not prove the guilt of the defendant beyond a reasonable doubt'.

On oral argument in this court, defense counsel suggested that we should treat the 'not guilty' plea as a tacit 'guilty' plea and clearly indicated that the spectre of a wrongful death action was either pending, impending or working in the hinterlands and that it casts its spell over this entire proceedings.Patently in this court, we cannot treat a not guilty plea as a 'tacit' plea of guilty.'The law of Illinois does not recognize a 'provisional or Pro forma' plea.* * * People v. Miller, 264 Ill. 148, 106 N.E. 191.'People v. Grabowski, 12 Ill.2d 462, 464, 147 N.E.2d 49, 50.There was a not guilty plea in the trial court and that is where it must remain on this record on review.

Defendant's motion for new trial attacks the judgment of guilty on the ground that 'the State did not prove the guilt of the defendant beyond a reasonable doubt.'In his brief to the court accompanying the motion for new trial, he sets up as the sole ground that the only evidence heard by the court was hearsay evidence; that such evidence has no probative value, and that accordingly there was no evidence upon which the court could find (1) that a crime was committed or (2) that the accused did it.The sole question therefore is whether uncontradicted hearsay testimony received without objection and standing alone may establish guilt beyond a reasonable doubt.

When the case was called for trial, the court inquired as to whether or not both sides were ready to proceed.Defense counsel said, 'I might say to the Court, off the record * * *.'(Not reported.)The State's Attorney then said, 'Both sides are ready and I would like to be sworn.'He then testified that he had attended the coroner's inquest, heard the witnesses testify at that inquest and had also made some independent investigation of the circumstances himself.He related the occurrence events as told to him, gave the names of all the witnesses, stated that these facts could be established by evidence that is not hearsay and rested.The facts related, if competent and true, fully justify the court's decision in the case and its disposition.

The defense counsel then stated, 'The defendant rests'.The record shows that both parties waived argument, the court found the defendant guilty of involuntary manslaughter and entered judgment on that finding.Defendant moved for probation.On May 26, the matter came on on the petition for probation.No evidence was offered by either side, but both attorneys argued the merits of probation.The probation officer's report was filed that morning with a recommendation for probation and a 'short sentence'.After reviewing the circumstances, the court then stated that he saw no reason why he should not grant probation, but that 'I think I should impose as a condition of this probation a very decisive jail sentence or a state farm sentence.Now what that should be, I don't know * * * but it can't be less than 1 year'.The defense then said, 'I wonder if we might see the Court in chambers?With the State's Attorney'.The Court, 'I will be glad to talk to you.I want to take all these things in consideration'.Whatever may have transpired in chambers is not reported, but its result was an order admitting the defendant to probation with a term of 1 year at the Illinois State Farm at Vandalia.

The statement that hearsay testimony has no probative value and has no tendency to prove a substantive fact is much too broad.Evidence received under the many exceptions to the hearsay rule does not change its name: it is still hearsay.It is, nevertheless, admissible and it does have probative value.Originally stigmatized as a sibling of the gossip family, a general dubiety arose about its accuracy and its truth and it was denied admissibility.Through permissive and restrictive legislative rules of evidence, judicial decisions, necessity, the experience of mankind, the passage of time and where the circumstances under which the statements are made establish that the probability of its truth and its accuracy outweighs its heritage of unreliability, the rule against admissibility has been steadily eroded.The fact that such testimony is received without objection has no effect on its inherent quality and adds nothing to its probative value.People v. Harrison, 25 Ill.2d 407, 185 N.E.2d 244.The fundamental purpose of the hearsay rule was and is to evaluate the quality of the evidence by subjecting the source of the assertion to cross-examination by the party against whom it is offered.Absent the opportunity for cross-examination and in the face of appropriate objection, the objection must be sustained and the proffered evidence rejected.See discussion inPeople v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738.

In 79 A.L.R.2d 897, II, § 3, it is stated:

'It appears to be the general rule, supported by the overwhelming weight of authority, that where inadmissible hearsay evidence is admitted without objection, it may properly be considered in determining the facts, the only question being with regard to how much weight should be accorded thereto.'

In Town of Cicero v. Industrial Commission, 404 Ill. 487, 89 N.E.2d 354, 360, it is stated:

'* * * Testimony, although hearsay and incompetent, if received without objection is to be considered and given its natural probative effect as if it were in law admissible. * * *'

The rationale of this rule is aptly stated in Poluski v. Glen Alden Coal Co., 286 Pa. 473, 133 A. 819, 820;79 A.L.R.2d, p. 911, 912, in these words:

'* * * Hearsay evidence may accurately portray a given set of circumstances.The reasons which exclude such a portrayal do not detract from its truth or accurateness.These reasons are the legal barriers which have been erected by the law, and which, in the interest of justice, the parties may move aside.Under this reasoning, the evidence is then competent to the full extent of such probative value as it may have under all the circumstances.'

Received into evidence without objection, this evidence does have probative value.How much?The trial court examined, tested and weighed it.In the crucible in which it was presented to him, he found its accuracy and its authenticity without blemish and felt and foun that it was sufficient to prove the guilt of the defendant beyond a reasonable doubt.It would be fictional fantasy to conclude that anyone in the courtroom on the day this evidence was presented, including the defendant and his counsel, doubted or disputed but that the recitation of the occurrence events did accurately and truthfully state the facts.Nothing in this record--save the unsavory reputation of hearsay testimony--weakens this conclusion.The trial court's vision was clear and his scales were accurate.

This record must be appraised in its unusual and unique factual background.The indictment charged involuntary manslaughter through the operation of a motor vehicle in a reckless manner.It is thus clear that the spectre of a wrongful death action either pending, impending or lurking in the hinterlands casts it spell over this proceedings.With commendable forthrightness, it was so indicated on oral arguments in this court.There was no objection to the testimony of the State's Attorney, there was no motion to strike it as hearsay, there was no motion for a verdict of not guilty because of its insufficiency.Both sides waived argument on the issue of guilt.There was a motion for admission to probation there was a hearing on that motion with neither side offering any evidence, with both sides arguing for probation, and with the only basic issue presented being whether or not there should be confinement as a part of the probation order and if so, how long.The only disenchantment came in the length of the jail sentence.In its absence, there is little doubt but that this case would have been laid to rest in the trial court.

In this court, the defendant now seeks only an absolute discharge or in the alternative a new trial.It is almost universally recognized in this State that an accused may by stipulation waive the necessity of proof of all or any part of the case which the People have alleged against him.Having done so, he cannot complain in this court of evidence which he has stipulated into the record.People v. Hare, 25 Ill.2d 321, 324, 185 N.E.2d 178, 179.Citing People v. Polk, 19 Ill.2d 310, 167 N.E.2d 185;People v. Pierce, 387 Ill. 608, 57 N.E.2d 345;People v. Malin, 372 Ill. 422, 24 N.E.2d 349.Stipulated facts may be hearsay, but are accepted as the truth because they are stipulated to in open court and are treated either as admissions by the defendant or as the mutual agreement of the parties as to the truth.It would be traveling on a treadmill to return this case to the trial court for proof of facts accepted as true by everyone.Neither in the trial court nor in this court is it remotely suggested by the defendant that the facts recited by the State's Attorney as to the occurrence events are...