The opinion
Mr. JUSTICE JONES, specially concurring:
While I agree with the majority in the result they reach in this case I disagree with the dicta in the opinion in which the majority finds error in the giving of the accomplice instruction, IPI Criminal No. 3.17.
In its remarks condemning the giving of the accomplice instruction the majority disregarded the plain statement of the supreme court in People v. Touhy, 361 Ill. 332, 353 , 197 N.E. 849 :
“No reason is advanced, and none is apparent, why one who is in fact an accomplice should not have his testimony scrutinized carefully before it is relied on, no matter on which side of the case he testified.”
Rather than follow the plainly worded statement of Touhy, the majority chose to follow People v. Howard which held it to be error to give the accomplice instruction where the accomplice gave testimony exonerating the defendant. The conclusions of the Howard case regarding the accomplice instruction were also dicta since the court found that the witnesses were not really accomplices at all, the court stating that “The so-called accomplices did not so testify (that defendant was involved in the crime with them), and the effect of the instruction could only have been confusing and prejudicial.”
The majority cites Howard for the proposition that * ° the general basis for the rule is the unique relationship between the prosecution and an accomplice. From the relationship, there may exist a strong potential motivation to testify falsely for the accomplice who seeks, hopes or expects lenient treatment by the State in return for favorable testimony.” The proposition is, of course, true. But it cannot be accepted as a statement of the sole basis or motivation for the testimony of an accomplice. In rejecting the applicability of the rule of the Touhy case the majority quote a comment from the Howard case which concludes: “A complete examination of the subject was not considered by the court.” In my opinion it is the court in Howard that has erred by failing to make a “complete examination of the subject.” They considered only the motivation that compels an accomplice to testify for the State and inculpate a defendant. Such a view is much too restrictive to be considered a “complete examination of the subject.”
A more comprehensive view is found in the following from United States v. Nolte (5th Cir. 1971), 440 F.2d 1124 , 1126:
“While a defendant has the right to have an accomplice testify in his behalf, it is the better practice, although not required, for courts to give a cautionary instruction concerning the testimony of an accomplice. Caminetti v. United States, 1917, 242 U.S. 470, 495 , 37 S. Ct. 192 , 61 L. Ed. 442 ; Holmgren v. United States, 1910, 217 U.S. 509, 524 , 30 S. Ct. 588 , 54 L. Ed. 861 . The policy behind the practice is obvious: to alert the jury to the possibility of perjured testimony. When an accomplice testifies for the prosecution he may have an interest in prevaricating in favor of the prosecution to obtain favors or even immunity. Washington v. Texas, supra, 388 U.S. at 22-23, 87 S. Ct. 1920 . On the other hand, when one accomplice testifies for another, there is always the chance that each will try to ‘swear the other out of the charge.’ Id. at 21, 87 S. Ct. at 1924 .
Nolte insists, however, that the instruction may only be given when an accomplice testifies for the prosecution, and not when he testifies in behalf of the defendant. We disagree. It is clear that an accomplice’s credibility may be suspect, regardless of whether he testifies for the prosecution or the defense.”
IPI Criminal No. 3.17 is itself neuter as to its application to testimony of an accomplice irrespective of whose instance produces that testimony. The committee note likewise holds no restriction in its application.
The role of accomplice is acquired by participation in the particular crime, not by the posture in which the role player takes the witness stand. An accomplice may be called to testify by the State, by a co-defendant, as a court’s witness or in his own stead. By whomever called he may either implicate or exonerate the defendant, or he may give testimony which would do both. Generally, an accomplice will give testimony favorable to the party who calls him to testify but by no means is this a rule of universal application. In the case under consideration the accomplice, Michael, was called by the State but he gave testimony which the defendant thought was favorable to him. In People v. Legear, 29 Ill. App. 3d 884 , 331 N.E.2d 659 , the accomplice witness, Ippolito, called by the defendant, exonerated defendant of the crime of burglary but implicated him in the crime of theft, both charges being prosecuted in the same trial.
In the final analysis the fact that a witness is an accessory to the crime in question is a matter of credibility. The factors which affect credibility are operative when an accessory testifies favorably for a defendant as well as when he testifies adversely to a defendant. The majority, the Howard case, and People v. O’Neal, 44 Ill. App. 3d 133 , 358 N.E.2d 47 , indicate that the sole motivation behind the testimony of an accomplice is the furtherance of an agreement with the prosecution. This position belies the reality that the accessory may be motivated by factors other than his relationship with the prosecution and his hope of obtaining favorable consideration therefrom. His impulse may well be, and often is, to exonerate his co-defendant. It is unrealistic to expect a fellow accused to be a stranger or an enemy of the accessory; more likely it is one with whom the accessory has a close and intimate relationship, and the impulse to help such persons would in some circumstances be as natural as to help themselves. I do not suggest that there is an honor among thieves but only say that the motivation of an accessory as a witness to testify this way or that is as diverse as the personalities who populate the prisons of the State.
The majority also place reliance on People v. O’Neal which followed the rule of People v. Howard. Again, the holding in O’Neal is dicta for that court found that the accessory instruction should not be given because the alleged accessory witness, Stuckey, was in fact not an accessory because he did not implicate defendant in the crime. It stated:
“These cases [Touhy and Legear] do not control in a case where the so-called accomplice does not testify that he and defendant were involved in the commission of a crime. As the court stated in People v. Howard: * 6 The effect of the instruction could only have been confusing and prejudicial. 6 ” ° The judicial comment by way of instruction tended to unfairly discredit the principal evidence favoring defendant.’ ” 44 Ill. App. 3d 133, 135 , 358 N.E.2d 47, 49 .
I believe the proper rule for giving the accomplice instruction is that announced in Touhy, Nolte, and Legear. As stated in the latter case:
“However, we believe that a close examination of the circumstances of each case is necessary in order to determine the sensible application of the rule when the giving of the instruction is claimed to be reversible error. Whether an accomplice testifies for the defendant or for the State his credibility may be suspect, and the trial judge should have judicial discretion to decide whether to advise the jury to accept the accomplice’s testimony with caution.” 29 Ill. App. 3d 884, 892 , 331 N.E.2d 659, 665 .
I would affirm the trial court in its giving of the accomplice instruction in this case.