People v. Walker
| Decision Date | 27 September 1963 |
| Docket Number | No. 37694,37694 |
| Citation | 28 Ill.2d 585,192 N.E.2d 819 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Clifford Edward WALKER, Appellant. |
| Court | Illinois Supreme Court |
Kenneth A. Green and Thomas J. Logue, Mattoon, for appellant.
William G. Clark, Atty. Gen., Springfield and Ralph D. Glenn, State's Atty., Charleston for appellee.
A jury in the circuit court of Coles County found the defendant, Clifford Edward Walker, guilty of perjury, and he was sentenced to the penitentiary for a term of not less than three nor more than ten years. The most serious of the contentions that he advances upon this appeal, and the only one that we find it necessary to consider, centers about his claim that in the proceedings that led to his conviction his constitutional privilege against self-incrimination was violated.
The circumstances are unusual. The defendant had pleaded guilty to an indictment that charged him with the burglary of the Presbyterian Church in Mattoon, and a hearing upon his application for probation was held on May 26, 1961. At that hearing the defendant was sworn and testified that certain statements which he had given to the police were true. Included in those statements was the assertion that on February 19, 1961, he, together with Russell A. Tomer and Thomas M. Shatto, had burglarized St. John's Lutheran Church, also in Mattoon.
On May 31, 1961, the defendant was called to testify before the Coles County grand jury, and under oath he again testified that he, together with Russell A. Tomer and Thomas M. Shatto, had burglarized St. John's Lutheran Church on February 19, 1961.
Russell A. Tomer was subsequently indicted for the burglary of St. John's Lutheran Church, and that case came on for trial on March 26, 1962. At that time the defendant Walker was in the penitentiary and a writ of habeas corpus ad testificandum was issued to compel his attendance. When he was called as a witness he asserted his privilege against self-incrimination. On motion of the prosecutor the court entered an immunity order which provided that 'this Order shall forever be a bar to any indictment, information or prosecution against said witness for any felony or misdemeanor shown in whole or in part by such testimony or evidence except for perjury committed in the giving of such testimony.'
After the immunity order was entered, the defendant testified that he was not with Shatto and Tomer on February 19, 1961, and that they did not enter St. John's Lutheran Church at that time or at any other time. The prosecutor was then permitted to examine him as a hostile witness, and he was pressed as to whether the statements he made under oath in connection with his application for probation and before the grand jury were false. He admitted that they were, saying, 'At that time I would have involved anyone in it.'
Shatto was called as a witness at Tomer's trial. He, too, claimed his privilege against self-incrimination, was granted immunity and he also denied the burglary of St. John's Lutheran Church. A directed verdict of not guilty was returned in favor of Tomer, and judgment was entered upon that verdict.
Thereafter the present proceeding was commenced against the defendant Walker. The first count of the indictment returned against him charged him with perjury at his probation hearing on May 26, 1961, asserting that he falsely stated that he, Shatto and Tomer had participated in the burglary of St. John's Lutheran Church. The second count charged that he committed perjury before the grand jury on May 31, 1961, when he gave similar testimony. The third count charged that he committed perjury on March 26, 1962, at Tomer's trial, when he stated that he and Tomer did not burglarize St. John's Lutheran Church. The fourth count charged perjury by contradictory statements under oath on May 26, 1961, and on March 26, 1962, and the fifth count charged perjury by contradictory statements on May 31, 1961, and on March 26, 1962.
At the trial it was proved that each of the three statements charged in the indictment was made by the defendant under oath. The prosecution did not attempt, however, to show which of the statements was false, and offered no rpoof to show that St. John's Lutheran Church had actually been burglarized. Tomer was called as a witness by the defendant and denied that he broke into the church at any time. All counts of the indictment were submitted to the jury and a general verdict of guilty was returned.
Before we reach the defendant's claim that his constitutional privilege against self-incrimination was violated, it is appropriate that we consider the People's suggestion that his privilege was waived by his voluntary testimony at the probation hearing and before the grand jury. It is true that the defendant testified voluntarily both at his probation hearing and before the grand jury, although it does not appear that he was advised of his privilege on either of these occasions. But the doctrine of waiver is limited to the particular proceeding in which the voluntary testimony was given. The view that prevails, apparently without dissent, is thus stated by Wigmore. 'His voluntary testimony before a coroner's inquest, or a grand jury, or other preliminary and separate proceeding, e. g. in bankruptcy, is therefore not a waiver for the main trial; nor is his testimony at a first trial a waiver for a later trial.' VIII Wigmore on Evidence, 3rd ed. sec. 2276; see cases collected, 36 A.L.R.2d 1403.
In Samuel v. People, 164 Ill. 379, 45 N.E. 728, one who had initiated a prosecution by making an affidavit endorsed upon the back of an information, swearing to the truth of the charge, was held not to have waived his privilege when called to testify as a witness at the trial. The court stated, 'The doctrine applies only to a case where the...
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Table of Cases
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Privileges
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