WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
This case comes here on a writ of error to the criminal court of Cook County. The defendant was indicted for unlawfully selling, dispensing and possessing narcotic drugs, pleaded not guilty, waived trial by jury and after a trial by the court was found guilty of unlawful sale as charged and was sentenced for an indeterminate term of one to five years in the State penitentiary. His application for probation was denied.
The defendant, appearing here pro se, makes eleven assignments of error by which he contends that prejudicial and inadmissible evidence was admitted, that he was denied a public trial, that the court's examination of the chief State's witness was prejudicial, and that the evidence did not sustain the finding of guilty. Defendant also alleges error in the summary denial of his application for probation.
The State argues that no rights of the accused were denied and that the evidence sustains the conviction.
Even though there were three counts in the indictment which charged three separate offenses, as above stated, the evidence was offered, the case tried, and the conviction obtained, on the count of the indictment which charged the defendant with selling a large amount, to-wit: six capsulefuls of a certain narcotic drug, to-wit: opium, that is to say, heroin, to one Alice Spriggs, on June 28, 1952. At the opening of the trial, defendant, by his counsel, filed a written motion to suppress six capsules of white powder as evidence. In the motion it was contended that said capsules were obtained by unlawful search and seizure. It appeared from the evidence taken on the motion to suppress, that the arresting officer had known Alice Spriggs as a dope addict for about a year, that on June 26 and 27, 1952, he had seen her enter a hotel in Chicago at about 4:00 A.M. with men other than the defendant. On June 28 he saw her enter the hotel about the same time with the defendant. Upon checking the register he found them registered under the name of Mr. and Mrs. Lopez. The hotel manager and said officer then went to the room. Upon demand, and after some delay, during which they heard a screen open and close, they were admitted. Nothing was said by the defendant and Spriggs, and the officer searched and found the six capsules and two needles and two syringes on the window sill. The officer had neither a search nor an arrest warrant. The court reserved its ruling on said motion and at the close of all the evidence sustained the motion to suppress six capsules of white powder as evidence.
Alice Spriggs testified that she had known the defendant for a year; that she was sick and needed some heroin, and that she met the defendant about 11:00 A.M. on June 27; that the defendant approached her, said he had some heroin, bought a syringe, rented a room at the hotel in question where they both used the heroin; and that she paid the defendant three dollars for the heroin. She further testified that they met again at 5:00 P.M. and the same procedure took place, and she paid him six dollars; that she again met him by prearrangement at about 2:00 A.M. on June 28, paid him fifteen dollars for six capsules and then went to the room with him; that he was getting ready to cook the heroin when there was a knock on the door; that he then put the capsules on the window sill where they were found by the arresting officer. It was then stipulated that the police chemist, if called as a witness, would testify that the six capsules contained heroin.
Later in the trial, the court recalled Alice Spriggs and personally questioned the witness. She testified that she took heroin several times a day for six months, was familiar with the effect of heroin, and that the effect of the shots taken on June 27 was that of heroin. The court then sustained the motion to suppress the evidence of the six capsules. The defendant testified in his own behalf and denied all charges of the indictment relating to unlawfully dispensing, possessing and selling narcotics.
It is unnecessary for us to pass upon the legality of the search resulting in the seizure of the six capsules in question as the trial judge suppressed this evidence. Proceeding to the question of whether the evidence, in the absence of the chemical analysis of the six capsules, is sufficient to sustain the verdict we are met with a change in theory by the State from the trial to this appeal. Defendant was indicted and charged in three counts respectively with selling, dispensing and possessing "a large amount, to wit: six capsulefuls of a certain narcotic drug, to wit: opium, that is to say, heroin" on June 28, 1952. The State offered evidence of the six capsules containing heroin, but this evidence was suppressed and the court was without authority to consider it. (People v. Macklin, 353 Ill. 64.) Spriggs testified over objection that she had purchased heroin in undisclosed amounts from the defendant on the previous day. As to these transactions the trial judge recalled Spriggs for the purpose of discovering if the effect of the injections taken on the previous day was that of heroin. The defendant questions the propriety of this interrogation. As this involves a question of abuse of discretion, we set forth the pertinent parts of the examination:
"Q. You are familiar with what is the reaction of taking a shot of heroin?
A. Well, if you don't get it you are sick, if you are an addict, and when you get your fix, why you get normal again.
Q. It augments your feelings, you know when you hit the proper place, and the drug that works, you know how it works?