People v. Polk

• Decision Date: 26 April 1961
• Docket Number: No. 36110,36110
• Citation: 174 N.E.2d 393,21 Ill.2d 594
• Parties: PEOPLE of the State of Illinois, Plaintiff in Error, v. Trannie POLK, Defendant in Error.
• Court: Illinois Supreme Court

Page 393

174 N.E.2d 393

21 Ill.2d 594

PEOPLE of the State of Illinois, Plaintiff in Error, v. Trannie POLK, Defendant in Error.

No. 36110.

Supreme Court of Illinois.

April 26, 1961.

William L. Guild, Atty. Gen., and John J., Hoban, State's Atty., Gelleville (Fred G. Leach, Asst. Atty. Gen., of counsel), for plaintiff in error.

Kassly, Weihl, Carr & Bone, East St. Louis (Rex Carr, East St. Louis, of counsel), for defendant in error.

SOLFISBURG, Justice.

This cause is before this court on writ of error by the People of the State of Illinois from an order of the circuit court of St. Clair County, Illinois, dated April 22, 1960, quashing the indictment returned against Trannie Polk charging him with perjury while testifying before a St. Clair County grand jury in October of 1959. The circuit court held that the matter being investigated had been outlawed by the Statute of Limitations and, therefore, the defendant did not commit perjury.

As appears from the indictment, the defendant, a member of the East St. Louis Police Department, was called as a witness in a grand jury investigation of 'alleged irregularities and unlawful acts alleged to have been committed by members of the East St. Louis Police Department.' Apart from this, the record fails to indicate more precisely the scope of the investigation.

The defendant was examined on October 23, 1959, by the grand jury concerning a robbery which took place at the Paramount Club on September 17, 1955. An indictment was returned on December 22, 1959, alleging that the defendant falsely swore that he did not persuade certain witnesses to change their identification of one of the robbers of the Paramount Club. These are the precise questions and answers:

'Q. I will ask you to state whether or not, you called Isaac Stewart, Rudolph Marian and Robert James to the East St. Louis Police Station on the 26th day of April, 1956? A. I think they came down to the station on that day if it was the day Eddie Baker was brought back from Chicago.

'Q. Is it not true that you persuaded these three men, Isaac Stewart, Rudolph Marian and Robert James, to say that they could not identify the prisoner Eddie Baker as one of the men who robbed the Paramount Club on the 17th day of September, 1955? A. No I did not.

'Q. Are you now saying that you did not persuade these three men to change their previous identification of Eddie Baker? A. I am saying that I did not ask them men to do that.'

and the indictment continued in this language:

'Whereas, in truth and in fact, the said Trannie Polk, did persuade Isaac Stewart, Rudolph Marian and Robert James, to change their previous identification of Eddie Baker as one of the persons who participated in the robbery of the Paramount Club on the 17th day of September, 1955, and to say that they could not identify the said Eddie Baker, and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say that the said Trannie Polk, on the 23rd day of October, 1959, while testifying before the Grand Jury aforesaid, did, in manner and form aforesaid, commit wilful and corrupt perjury against the peace and dignity of the People of the State of Illinois and contrary to the form of the Statute in such case made and provided.'

Defendant filed a motion attacking the power and authority of the grand jury to investigate the matter about which defendant was interrogated; attacking the failure of the indictment to show that the grand jury had the power and authority to conduct such an investigation; alleging that the indictment on its face showed that the defendant swore to a matter not material to an investigation within the power and authority of the grand jury to conduct; and attacking the sufficiency of the indictment itself to charge defendant with the crime of perjury; asserting that the alleged testimony of defendant is insufficient upon which to predicate a charge of perjury.

The circuit court of St. Clair County allowed defendant's motion, selecting as its basis for the order that the matter being investigated had been outlawed by the Statute of Limitations and therefore the defendant did not commit perjury; that, in effect, the grand jury lacked the power and authority to make inquiry of the defendant about an incident on which the Statute of Limitations had run.

Neither the Illinois constitution nor the legislature has attempted to define the powers of the grand jury. It has its origin in the common law and has existed for many hundreds of years. Its construction, organization, jurisdiction and method of proceeding were all well known features of the common law before the organization of the State of Illinois and have been recognized and adopted in all our constitutions and in legislation as it existed at the organization of the State. People ex rel. Ferrill v. Graydon, 333 Ill. 429, 432, 164 N.E. 832. While the grand jury is a necessary constituent part of a court having general criminal jurisdiction (People v. Sheridan, 349 Ill. 202, 181 N.E. 617), its powers are not dependent upon the court but are original and complete. Its duty is to diligently inquire into all offenses which shall come to its knowledge whether from the court, the State's Attorney, its own members, or from any source, and it may make presentments of its own knowledge without any instruction or authority from the court. People ex rel. Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832.

Although we have stated a court cannot limit the scope of the grand jury's investigation (People ex rel. Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832), it is equally true that a grand jury has no right or jurisdiction to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved, or where it otherwise lacks jurisdiction of the subject matter. Pankey v. People, 1 Scam. 80; People v. Rogers, 348 Ill. 322, 180 N.E. 856, 82 A.L.R. 1124.

It appears from the perjury indictment here before us that the subject matter of the grand jury investigation had been an investigation of 'alleged irregularities and unlawful acts alleged to have been committed by members of the East St. Louis Police Department, in the City of East St. Louis in said County of St. Clair * * *.' While the perjury indictment does not specifically allege that the investigation being conducted was in relation to a specific criminal offense, there is, on the other hand, no showing in the record that there was not an alleged offense against the criminal law of the State of Illinois which was the subject of investigation at that time. In the absence of any showing to the contrary, the presumption will be indulged that the investigation by the grand jury was one that it had the right and power to conduct. People v. Sheridan, 349 Ill. 202, 181 N.E. 617; People v. McCauley, 256 Ill. 504, 100 N.E. 182; Mackin v. People, 115 Ill. 312, 3 N.E. 222. Our decision in Pankey v, People, 1 Scam. 80, is not in point as there the record clearly showed the subject matter under investigation by the grand jury to be civil in nature, and not criminal. See also 22 A.L.R. 1366.

It is defendant's position that, because he was asked a question or questions relative to a robbery which was no longer an indictable crime because of the Statute of Limitations, his false swearing was not material to any matter within the power of the grand jury to investigate and hence not perjury.

Nowhere in the record is there any indication, either in the charge to the grand jury or the testimony heard by it prior to the alleged false answers, that the subject matter of the grand jury investigation was barred from prosecution by the Statute of Limitations. The record, moreover, in no way shows that activities occurring in 1955 could not under the law of Illinois, of themselves, or as part of a course of conduct, be indictable offenses. E. g. People v. Konowski, 378 Ill. 616, 621, 39 N.E.2d 13; People v. Barrett, 405 Ill. 188, 90 N.E.2d 94; see 102 U. of Pa. L.Rev. 630. The Statute of Limitations is a defense which may or may not be urged by a defendant. Furthermore, there may have been a tolling of the Statute of Limitations by absence from the State, which of course may destroy such a defense.

Notwithstanding the fact that the grand jury's investigation may have ultimately revealed that prosecution of such remote activity was barred or otherwise not itself indictable, defendant's testimony given at that inquest was nonetheless material for the purposes of the investigation. Mackin v. People, 115 Ill. 312, 3 N.E. 222.

In the Mackin case the court had for consideration an indictment charging perjury, wherein the judge presiding in the criminal court charged the grand jury to inquire into matters arising out of a certain election in the 4th day of November 1884, where the point in question was whether certain false and imitated election ballots had been unlawfully substituted for genuine ballots used at the election. Upon that inquiry it was alleged that it became material whether defendant did employ persons to print ballots and that he did obtain from the printers a package of ballots in imitation of the ballots used in the election under investigation. The defendant denied before the grand jury that he was so involved. On the trial the court instructed the jury that in determining whether the matters sworn to were material to the question under investigation by the grand jury it was not necessary for the People to show that a crime had actually been committed. In sustaining the indictment the court (115 Ill. at page 323, 3 N.E. at page 226) said: '* * * and that it is sufficient to show the grand jury were investigating an alleged crime, and that such evidence inquired into of defendant, by the grand jury, was material evidence in such investigation of such alleged crime. It sufficiently appears from the averments of the indictment, the offense the grand jury had been charged to investigate, and which...