Although it is difficult to conceive of a criminal case in which there is no evidence of the crime charged nor of the defendant’s guilt other than pure hearsay, this is such a case. My colleagues affirm the trial court, sitting without a jury, in finding the defendant guilty, with the record in such an inconceivable state. I cannot agree with either the result reached nor the route traveled.
It is, of course, fundamental that in a criminal proceeding the accused is presumed innocent until his guilt is established. The burden of proof is upon the prosecution to establish beyond all reasonable doubt the fact of the crime and the defendant’s criminal responsibility for its commission. The burden of proof does not shift, and inaction by the defendant can never be a replacement for the affirmative burden on the prosecution.
In this case the defendant is charged with involuntary manslaughter, being section 9-3 of chapter 38, Ill Rev Stats 1965, the specifics of the charge being that the defendant, “acting in a reckless manner, on October 8, 1966, struck and killed Nellie LeCrone, with an automobile, without lawful justification.” The defendant entered a plea of not guilty. The cause was set for trial on May 11, 1967. The defendant waived jury trial. Both the defense and prosecution announced that they were ready to proceed. The state’s attorney, at his request, was sworn and testified. His testimony, the only testimony in the case, is as follows:
“. . . I am State’s Attorney of this County. On the eighth of October, 1966, Orville McCoy, who is the defendant in this proceeding, and who is the gentleman sitting at the counsel table here in the Court Room, was driving an automobile in a southernly direction from Monticello, apparently headed toward Bement at about ten o’clock in the morning. I attended the Coroner’s inquest, which was held in Bement, on November third, and heard the witnesses testify at that inquest. I also made some independent investigation of the circumstances concerning this incident. While Mr. McCoy was driving in a southernly direction he crossed the center line of the pavement so that he was driving on the wrong side of the pavement, and narrowly missed having an accident with a Mrs. Scrimager, who was forced off the road in order to avoid a head-on collision with the car being driven by Mr. McCoy. The next car was being driven by a daughter of Mrs. LeCrone and while the car being driven by Mr. McCoy was also on the left-hand side of the road there was a head-on collision between his car and the LeCrone car, and as a result of that collision Mrs. LeCrone died. My further investigation brought out the fact that before Mr. McCoy left Monticello he had been in a local tavern, The Corner Tavern, and had two shots of whiskey with beer chasers, and this matter was presented to the Grand Jury and an indictment returned indicting him for involuntary manslaughter. These facts could be established by evidence, which is not hearsay evidence, by Michael William LeCrone, who was a passenger in the LeCrone car, by Clifford Scrimager, who was on the highway and saw Mr. McCoy driving in an erratic fashion, by Susan Scrimager who was also driving on the highway, and was forced off the highway in order to avoid a collision with Mr. McCoy, by Donald Blickensderfer, who was a State Trooper, who investigated the accident after it occurred, by Margaret A. Camden who was the driver of the automobile in which Nellie LeCrone was a passenger, and that is all I care to say at this time.”
No objection to this narrative recitation by the state’s attorney was made by defense counsel and no question was raised as to the propriety of the prosecuting attorney’s testifying. No other evidence was offered by the People and none was offered by the defense. The only pertinent thing in the record attributable to the defense relevant to the merits of the proceeding is the one phrase that “the defense rests, . . . .” Both sides waived argument and the court found the defendant guilty.
The foregoing is the entire record other than those portions of the record relating to the probation proceedings, and those are irrelevant to the issue in this case as I see it.
The issue here, and the only issue, is whether hearsay evidence, admitted without objection and unsupported by any other evidence of any kind or character, will support a finding of guilty in a criminal case. I think it will not.
Hearsay evidence is excluded when objection is made because it is not reliable evidence. It is indeed and in fact a prominent member, if hot the patriarch, of the gossip or rumor family. “Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay is totally inadmissible.” Queen v. Hepburn, 11 US 290, 3 L Ed 348 (1813). This is the apt language of Mr. Chief Justice John Marshall. In addition, the inability to subject hearsay to the cleansing effect of cross-examination is one of the fundamental reasons for its judicial rejection. See People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963).
This rule is a rule of evidence. It can be, and in this case was, waived. The effect of the waiver means only that the hearsay evidence is admitted and may be considered. Once it’s admitted, what is its weight, its worth, what is its reliability ? Certainly it is not enough to prove guilt beyond a reasonable doubt.
The rule applicable to the great majority of jurisdictions is stated:
“Hearsay evidence, admitted without objection, has been held to have probative value, and should be considered and given its natural probative effect, subject to any infirmative suggestion due to its inherent weakness, and may establish a material fact in issue, support a finding, and sustain a verdict or judgment. However, such evidence should be given only the weight to which it is entitled, and the failure to object adds no weight to the evidence if intrinsically it had none. In some jurisdictions it has been held that hearsay evidence, although admitted without objection, is without probative force, is incompetent to establish a material fact in issue, and will not sustain a finding or sustain a verdict or judgment when unsupported by other evidence.” 88 CJS, Trial, § 153. (Citations omitted.) See also 30 Am Jur2d, Evidence, § 1103; 4 Jones, Evidence, § 984 (5th ed 1958); and the annotation on the subject in 79 ALR2d 890.
Although many cases are cited and discussed in the annotation, none suggests that hearsay alone will support a criminal felony conviction. The relevant Illinois cases certainly do not lead one to that conclusion.
In Grier v. Barkley, 182 Ill App 541, the court held that hearsay evidence to the effect that a loan was made by a husband to his deceased wife in consideration of her signing a contract to sell certain land was not proof of such fact even though the evidence was admitted without objection.
Mr. Justice Solfisburg, speaking for the Appellate Court Second District, in Looby v. Buck, 20 Ill App2d 156, 155 NE2d 641, 644 (2nd Dist 1959), observed that “A statement by a witness whose testimony is based not upon personal knowledge but upon hearsay has no tendency to prove anything.” The court cited 2 Wigmore on Evidence (3rd ed, 1940), § 657.
In People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1962), the court recognized the unreliability of hearsay and observed that its probative value was not enhanced by the fact that it was received without objection.
One Illinois Appellate case, Arkansas Sweet Potato Growers’ Exchange v. Wignall-Moore Co., 249 Ill App 34, held that unobjected to hearsay was sufficient to establish the graded rating of some potatoes. In People v. Jones, 382 Ill 603, 48 NE2d 364 (1943), hearsay evidence as to corporate existence was held sufficient to establish that fact.
In cases where the burden of proof is by the preponderance of the evidence, hearsay may be sufficient, if believed by the trier of fact, to establish a fact in controversy. On appeal hearsay may be sufficient to support a civil judgment. Carraway v. Johnson, 63 Wash2d 212, 386 P2d 420. However, if the quantum of proof required is “substantial evidence,” hearsay alone is not sufficient. There must be a residuum of legal evidence or evidence of some probative value. William H. Van Vleck, Inc. v. Klein, 50 Misc2d 622, 271 NYS2d 64.
In Benjamin v. Benjamin (Mo), 370 SW2d 639 (1963), the court indicated that if a social worker report, admittedly hearsay, had been the only basis of a child custody award, the court would seriously consider reversal.
While I may not be in accord with the minority view, as evidenced by Texas, Georgia and some New York cases, that hearsay has no probative value and will not support a finding of fact, no case has been cited that suggests that hearsay, whatever the source, can, unaided by some residuum of reliable evidence, support a finding of guilty in a felony case.
The majority opinion discusses the fact that this record is in such an unorthodox posture possibly because of a civil action for wrongful death either pending or impending. That, to me, has no bearing on the issue and certainly does not excuse the unorthodox procedure here employed. The defendant here pleaded not guilty and the burden of proof was on the prosecution. A wrongful death case, actual or contemplated, does not alter the criminal proceeding, nor affect it in any way.
I find nothing in the record that justifies a conclusion that the defendant “stipulated” to anything. The failure to object to the narrative statement of hearsay renders it admissible, but such failure to object is not a stipulation as to its truth. The failure of the defendant to object when objection should have been imposed, as a matter of reflex, cannot be translated so as to make passive conduct active and the equivalent of a stipulation as to the truth of the narrative statement. To do so is to effectively nullify the plea of not guilty and to create a provisional or pro forma plea or a nolo contendere plea, both of which are alien to the criminal law of this jurisdiction. People v. Grabowski, 12 Ill2d 462, 147 NE2d 49 (1958).
There is in this case an undisposed of motion for a new trial, alleging as the grounds therefor that there was a failure to prove the defendant guilty beyond a reasonable doubt. Failure to prove guilt beyond a reasonable doubt is not grounds for a new trial, and even if we would like to send this case back for a new trial with a fresh start, we would be precluded from doing so. See the thorough discussion of this point by Mr. Justice English in the supplemental opinion on petition for rehearing in People v. Brown, 99 Ill App2d 281, 241 NE2d 653 (1st Dist 1968).
It is regrettable that the state’s attorney did not see fit either to file a brief or to argue this matter orally before this court. This failure leaves the judgment of the trial court without the support of a brief and argument and, in part at least, casts this court in the dual role of advocate and judge. This failure could well justify a reversal without consideration of the merits. See People v. Spinelli, 83 Ill App2d 391, 227 NE2d 779 (2nd Dist 1967); People v. Keeney, 96 Ill App2d 323, 238 NE 2d 614 (4th Dist 1968). Two reasons exist, therefore, that in my view compel a reversal. I find none that justify an affirmance. Accordingly, I dissent.