People v. Moses

• Decision Date: 20 March 1957
• Docket Number: No. 34218,34218
• Citation: 142 N.E.2d 1,11 Ill.2d 84
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Frederick MOSES, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 1

142 N.E.2d 1

11 Ill.2d 84

The PEOPLE of the State of Illinois, Defendant in Error, v. Frederick MOSES, Plaintiff in Error.

No. 34218.

Supreme Court of Illinois.

March 20, 1957.

Rehearing Denied May 20, 1957.

Euclid Louis Taylor and Howard T. Savage, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Decatur, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and Edward Egan, Chicago, of counsel), for the People.

SCHAEFER, Justice.

Frederick Moses, the defendant in this case, was indicted with William Perkins and Edward Gaston in the criminal court of Cook County for the crime of armed robbery. Moses was tried separately. A jury found him guilty and he was sentenced to imprisonment in the penitentiary for a term of not less than ten nor more than twenty years. The case is here on writ of error.

The principal issue at the trial was the identity of Moses as a participant in a tavern hold-up on September 11, 1953. The proprietor of the tavern, one of his employees, and one of the dozen or so patrons who were there at the time identified him as one of the robbers. His defense was an alibi, testified to by a woman who owned another tavern that Moses managed for her, her 17-year-old son, an uncle of Moses who worked part time for Moses at the tavern, and an employee of the city of Chicago who was not related to Moses, but frequented his tavern. Moses took the stand and denied participation in the hold-up, or knowledge of it.

The car that was used in the hold-up was identified as a cream colored Cadillac or Buick. Moses owned a cream colored Cadillac, and was arrested in it with Gaston and Perkins. Gaston, who had pleaded guilty and was serving his sentence, testified that he, Perkins and a third man, John Davis, had taken the defendant's car without his knowledge and had committed the robbery. He testified that Moses did not take part in the crime and had no knowledge of it. The defendant contends that the evidence did not establish his guilt beyond a reasonable doubt, but we do not pass on that question because the case must be tried again.

Gaston's testimony on direct examination exonerated Moses. On cross-examination he was asked whether he did not that morning state to the prosecutors in the presence of penitentiary guards that Moses participated in the crime. He answered in the negative. Defendant contends that the court erred in overruling his objections to these questions.

Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. People v. Smith, 391 Ill. 172, 176, 62 N.E.2d 669. Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to that effect should be given upon request. (McCormick, Evidence, 73; 3 Wigmore on Evidence, sec. 1018.) It is therefore not hearsay. We have followed the orthodox rule of The Queen's Case, 2 B. & B. 313, and have required that before a witness may be impeached by his prior inconsistent statement he must be alerted concerning it in order to avoid unfair surprise and to give him an opportunity to explain. People v. Perri, 381 Ill. 244, 249, 44 N.E.2d 857; 3 Wigmore on Evidence, secs. 1025-1029. Although repeated questions should be avoided, the questions in this case were addressed to different portions of the alleged statement, and were not so repetitive as to be open to objection on that account. Terrell v. United States, 4 Cir., 6 F.2d 498, on which defendant relies, is not in point. The questions by the judge in that case were obviously not designed to lay the foundation for subsequent impeachment.

Defendant also contends that the court erred in permitting the prosecution to examine Gaston about his previous convictions without offering any formal evidence of those convictions. While a defendant may be impeached upon the ground of his prior conviction of other infamous crimes only by introduction of the records of the prior conviction, People v. Bennett, 413 Ill. 601, 110 N.E.2d 175, a witness, other than the defendant, may be cross-examined as to his prior conviction of other infamous crimes to impeach his credibility. People v. Baker, 8 Ill.2d 522, 525-526, 134 N.E.2d 786; People v. Halkens, 386 Ill. 167, 53 N.E.2d 923. The cross-examination was proper.

Defendant's next contention raises a more serious problem. Three witnesses for the prosecution who identified the defendant as one of the robbers, also stated that they talked to police officers on the day of the robbery, and gave them such description of the robbers as they could. Defendant's counsel had reason to believe that the statements made to the police officers by the witnesses on the day the crime was committed differed from their testimony, and he subpoenaed certain police department records. The trial judge ordered that the documents be produced and some of them were turned over to counsel for the defendant. Two records, however, both of them reports of investigating police officers made on the day of the robbery, were regarded by the trial court as 'interdepartmental records which are not public records and are therefore not subject to subpoena.' These two documents were inspected by the judge, but they were not made available to defense counsel. Defendant contends that this ruling deprived him of a fair trial.

At early common law the accused was not permitted to require production of such statements or documents. (6 Wigmore on Evidence, sec. 1859g.) The view expressed by Judge Cooley, however, has come to prevail: 'The state has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrust-worthy persons.' People v. Davis, 52 Mich. 569, 573, 18 N.W. 362, 363. So it is now held that an accused person is entitled to the production of a document that is contradictory to the testimony of a prosecution witness. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447; United...