Opinion
Nos. 11343, 11344 cons. Affirmed in No. 11343 Reversed in No. 11344.
December 22, 1971.
APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, JR., Judge, presiding.
Morton Zwick, Director of Defender Project, of Chicago, (Bruce L. Herr, of counsel,) for appellant.
Robert J. Bier, State's Attorney, of Quincy, (Matther A. Hutmacher, Assistant State's Attorney, of counsel,) for the People.
Defendant was found guilty in a jury trial of armed robbery and sentenced to a term of from 3-10 years in the state penitentiary. Subsequently, defendant was indicted for perjury allegedly committed during his trial for armed robbery. Defendant was found guilty of testifying falsely as to the time that he left a certain apartment on the night of the robbery. The perjury conviction resulted in a sentence of from 1-5 years in the state penitentiary. The two sentences were to run concurrently.
On appeal, defendant contends that the judge failed to give defendant a reasonable opportunity to poll the jury in the trial for armed robbery. Defendant asserts in a separate appeal that the perjury conviction should be reversed because the evidence failed to prove beyond a reasonable doubt that the defendant made the perjurious statement; that the statement uttered by the defendant was an expression of belief rather than fact and thus not perjury; and that the evidence failed to prove beyond a reasonable doubt that the statement allegedly uttered by defendant was false. The two appeals have been consolidated.
At the close of the trial, the jury returned with a verdict. The original abstract filed with this court indicated that following the announcement of the verdict by the clerk, the judge discharged the jury explaining to them that their duties were fulfilled and that they need not return unless notified. Prior to oral argument, the appellee made a motion for leave to file a Supplemental Record and Supplemental Affidavits. The addition to the record shows that following the announcement of the verdict and before the dismissal of the jury, the judge made this statement: "Ladies * * * is there anything, gentlemen?" No response was made to this question. Defendant objected to the additional record asserting that the motion to supplement the record was untimely and that appellant's abstract and brief were prepared and filed with this court in reliance on the first certified record. It was also argued that the inserted material was ambiguous.
At oral argument defense counsel conceded the accuracy of the supplemental statement and asserted that its importance would depend on the interpretation given it. This court allowed the addition to the record. Supreme Court Rule 329; Ill. Rev. Stat. 1969, ch. 110A.
After dismissal of the jury the judge asked counsel for motions, and defense counsel made a motion for probation. At that time defense counsel made no objection or request for polling the jury nor did he file a post-trial motion asserting the denial of the right to poll the jury.
• 1-3 The rule in Illinois is that defendant does have the right to poll the jury. However, defendant waives this right by failure to make a timely request that the jury be polled. ( People v. Stevenson, 107 Ill. App.2d 441, 246 N.E.2d 309.) The prosecution contends that defendant did have a reasonable opportunity to poll the jury and that in failing to make the necessary request at the time of the trial or in a post-trial motion he waived his right to poll the jury. In this case, defense counsel could easily have made a request for polling in response to the judge's question directed to counsel, prior to discharge of the jury. However, defendant made no effort to exercise his right to poll the jury. A request for polling could have been made any time after the verdict was announced and before the jury left the courtroom. There was no error committed by the trial judge. The defendant did not take advantage of his opportunity to request a poll of the jury and thereby waived the opportunity to do so.
The conviction and sentence in the armed robbery case, No. 11343, is affirmed.
The defendant asserts that the evidence failed to prove beyond a reasonable doubt that he uttered the alleged perjurious statement. The indictment charged defendant with perjury when he "stated he did not leave an apartment of Cynthia Cramer in Quincy, Illinois, until approximately the hour of 10 P.M. on February 26, 1969." This was based upon defendant's response to a question on direct examination by defense counsel which was as follows: "Mary Kay came by and picked me up around * * * the news was on * * * I couldn't be positive on the time. I think it was during the news. I am not sure what station was on. I think it was Channel 10." Defendant did not specifically state the time at which he left the house. The time was essentially deduced from the testimony of the court reporter who testified that the news was broadcast at 10 P.M. every evening. Since the robbery occurred between 9:45 and 10:00 P.M. defendant could not have been at the scene of the crime if he had not left Cynthia Cramer's house until 10 P.M. The time of defendant's departure became a crucial factor in his case. The existence of an alibi depends upon this time element.
• 4-6 Although the perjury indictment need not contain the exact words of the alleged false testimony, the case law in Illinois would require the prosecution to prove that defendant's statement was substantially as alleged in the indictment. The prosecution failed to make this proof. The court reporter conceded that she wasn't sure to which news defendant referred and that news broadcasts were televised at various times in the evening. The statement "I left while the news was on" cannot be found substantially the same as "I left at 10:00 P.M." The perjury conviction must be reversed.
General No. 11343 affirmed. General No. 11344 reversed.
TRAPP, P.J., and SMITH, J., concur.