Opinion
Gen. No. 66-106.
February 28, 1967.
Appeal from the Circuit Court of Christian County; the Hon. BILL J. SLATER, Judge, presiding. Judgment reversed and cause remanded.
Broverman Broverman, of Taylorville, for appellant.
Rolland F. Tipsword, State's Attorney of Christian County, of Taylorville, for appellee.
Defendant appeals from the judgment of the Circuit Court of Christian County entered on a jury verdict finding him guilty of the offense of permitting premises occupied by him, and under his control, to be used as a gambling place (c 38, § 28-3, Ill. Rev Stats 1965). The complaint charges that in the premises described, "dice were thrown for money." The court fined defendant $500 and ordered him to pay the costs of court.
The evidence shows that defendant operates a tavern near Taylorville. Cecil Weller, an agent for the Illinois State Police Crime Section, and Carroll McGrew, a State Policeman, testified that on March 25, 1966, they were engaged in investigating gambling in the Taylorville area. In the course of their duties they entered defendant's tavern and found a dice game, known as 6-5-4, being played on the end of the bar. Defendant was not participating in the game, but was working behind the bar, and served drinks to the players. Without revealing their identity, they participated in the game, and later reported the results of their investigation to the State's Attorney of Christian County. On May 5, 1966, Mr. Weller signed the complaint upon which this action is based.
Defendant argues a number of grounds for reversal, only one of which need be discussed.
Defendant, testifying in his own behalf, stated that he did not recall ever having seen the two witnesses, denied owning a dice cup, and denied that 6-5-4 was ever played in his tavern.
After the defendant rested his case, The People called Cecil Weller as a rebuttal witness, and over defendant's objection he was permitted to testify that during the noon recess defendant approached him in the hall outside the courtroom, asked him why he signed the complaint, and upon being told that the witness was acting in the line of duty, defendant stated that "every tavern had dice and shot dice for drinks and the juke box."
Carroll McGrew, also called in rebuttal, testified to having been present at the time, that he heard the conversation between Weller and defendant, and that defendant said "that they do that in all the taverns."
[1] "Rebutting evidence is that which is produced by a plaintiff to explain, repel, contradict or disprove the evidence given by the defendant." The People v. Bell, 328 Ill. 446, 451, 159 N.E. 807.
[2] We have examined the entire record and fail to perceive in what respect the testimony was in rebuttal of anything brought out by the defendant, and hold that it was, therefore, improperly admitted. Cook Rathborne Co. v. Sanitary Dist. of Chicago, 177 Ill. 599, 603, 52 N.E. 870. Because we deem its admission to be prejudicial error, the judgment of the Circuit Court of Christian County is reversed, and the cause is remanded for a new trial.
Judgment reversed and cause remanded.