dissenting:
The evidence in this case was sharply conflicting. The witnesses for the State, Louis Dopson and John Rooth, testified that on May 29, 1970, they were playing dice with the defendant and his wife on the front steps of defendant’s home. An argument ensued and the defendant, A. C. Washington, shot the complaining witness, Dopson, in the leg. The defendant and his wife both denied playing dice with the State’s witnesses on the day in question. They testified that Dopson had been drinking and had demanded money from the defendant’s wife. An argument followed. When Dopson drew a knife and moved toward the defendant, the latter got a rifle and shot him. A passerby testified that she saw Dopson with a knife in his hand and tire defendant with a rifle. She said they appeared to be arguing.
When a case is close on the facts, and a decision depends and must be determined upon conflicting testimony, the evidence presented to the jury must be exceptionally free from any error which might be likely to influence or tilt or swing the balance in favor of one party or the other. This is particularly true when the State has the burden of proving the defendant guilty beyond a reasonable doubt.
In rebuttal the trial court permitted the State over objections to introduce the defendant’s 1960 burglary conviction in order to impeach his credibility. Prior to the introduction of this evidence there was a conference in the judge’s chambers. The court reviewed the recent case of People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695. In that case our Supreme Court recognized that the prejudicial effect of evidence of prior criminal convictions is unmistakable. The Court also noted the Advisory Committee comment to Rule 609, “Impeachment by Evidence of Conviction of Crime,” that, “the most significant feature of the rule is the requirement that the evidence of conviction be excluded if the judge determines that its probative value is outweighed by the danger of unfair prejudice.” People v. Montgomery, 47 Ill.2d 510, 517, 268 N.E. 2d 695, 699.
In Luck v. United States, 348 F.2d 763, the Court stated that in exercising its discretion, the trial court should consider a number of factors, such as the nature of the prior crime, the length of the criminal record, the age and circumstances of the defendant, “and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth.” (p. 769) All of these factors were held to be relevant in Montgomery. It does not appear from the record in the case at bar, however, that the trial court considered any of them. In the instant case, the trial judge merely noted that the defendant was released from prison slightly less than ten years before the prior conviction was offered into evidence, and allowed the proof of the prior conviction to be admitted.
It is significant to note that the defendant pled guilty to a burglary charge ten or eleven years previous to the present conviction. I do not believe the prior conviction was relevant to his credibility in this case. Surely the charge was not similar to the present indictment. He served his time and since then there have been no felony convictions against him. As stated in Gordon v. United States, 383 F.2d 936, cert. den. 390 U.S. 1029, the rationale in Luck was that because of the potential for prejudice, the admission of prior convictions for impeachment purposes was discretionary with the trial court. “We contemplated the possibility of allowing some convictions to be shown and some excluded; examples are to be found in those which are remote and those which have no direct bearing on veracity, and those which because of the peculiar circumstances at hand might better be excluded.” Gordon v. United States, 383 F.2d 936, 939.
As pointed out in a footnote to Gordon, “It must be remembered that the prior conviction involved in Luck was a guilty plea. The relevance of prior convictions to credibility may well be different as between a case where the conviction of the accused was by admission of guilt by a plea and on the other hand a case where the accused affirmatively contested the charge and testified, for example, that he was not present and did not commit the acts charged. In the latter situation the accused affirmatively puts his own veracity in issue when he testifies so that the jury’s verdict amounted to a rejection of his testimony; the verdict is in a sense a de facto finding that the accused did not tell the truth when sworn to do so.” Gordon v. United States, 383 F.2d 936, 940.
This was a close case on the evidence. In my opinion, the admission of a conviction over ten years old which was not relevant to the present charge erroneously influenced the jury to the prejudice of the defendant. I believe this case should be reversed and remanded, and at the new trial the admission of the prior conviction should be denied.