WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1955.
Shirley Hamby was indicted in the criminal court of Cook County for the unlawful sale of heroin to Vivian Barrymore. She pleaded not guilty, waived a trial by jury, was tried by the court and found guilty. Her application for probation was denied, and she was sentenced to a term of two to five years imprisonment in the State Reformatory for Women at Dwight.
We consider first her contention that the evidence did not establish her guilt beyond a reasonable doubt. Vivian Barrymore and officer Sims, the arresting officer, testified for the prosecution. Their testimony was that Vivian Barrymore, an admitted narcotic addict, was arrested on the morning of March 25, 1954; that she cooperated with the arresting officers, who supplied her with five marked one-dollar bills to buy narcotics; that she went to defendant's apartment and bought heroin from the defendant and paid her the marked money. She then left defendant's apartment and turned over to the waiting police officers the glacine bag containing heroin which she received from the defendant. Before she went to defendant's apartment, her clothing was thoroughly searched, and after the search she was continuously in police custody. She was not carrying any narcotics when she entered defendant's apartment. Defendant admitted that she received the five one-dollar bills from the prosecuting witness, but testified that she received them in partial payment of a loan made several days earlier.
The contention that the evidence was insufficient to establish guilt beyond a reasonable doubt rests upon certain discrepancies in the testimony of Vivian Barrymore and officer Sims, and upon the fact that Vivian Barrymore was an admitted narcotic addict. Defendant urges that the evidence shows that Vivian Barrymore was not adequately searched before she went to the defendant's apartment, and suggests the possibility that she brought with her the heroin which she later turned over to the police officers. Vivian Barrymore was arrested in the course of a narcotic raid. She testified that when she was arrested she was in bed, and that she was told "to get up and get dressed, so I told them I did not have any clothes on, I had a slip on, so he says, `Well, step out into the kitchen.'" Officer Sims testified, "Vivian was in bed when we entered. I told her to get up, and she told us she had nothing on. She was in bed." Thereafter she went into the kitchen and the arresting officers searched each item of her clothing before handing it to her. They found narcotics in her skirt. Later that morning she led the police to the defendant's apartment where she purchased the heroin. The search was adequate, in our opinion, and such discrepancies as there are in the testimony concerning it are not serious.
Upon Vivian Barrymore's direct examination there was no description of the circumstances surrounding her arrest and the search of her clothing. The details of the episode were brought out upon cross- and redirect-examination. Upon her cross-examination, she testified that when she first saw Sims and Bryson no policewoman was with them. When she was then asked, "Prior to your going into this defendant's home, had any police matron or any policewoman searched you?" she answered, "Yes." The questioning continued: "What policewoman searched you? A. I didn't have to be searched because I was in bed when they come. Q. I said did any police matron or any policewoman search you before you went to the home of this defendant? A. No. Q. And the only search that was conducted was conducted by these police officers, isn't that right? A. That's right." Defendant argues that this testimony shows that she deliberately perjured herself by saying she had been searched by a policewoman or police matron, "which would tend to indicate a more thorough search than that purportedly conducted by the two male arresting officers only later changing this testimony to an incomplete delineation about her not having `to be searched because I was in bed when they come * * *' then later changing to the positive statement that she was not searched by any police woman but the only search conducted was that conducted by the male arresting officers." Her testimony shows clearly that she was searched only by the arresting officers and not by a policewoman. Her first statement to the contrary appears to have been an inadvertent response which she quickly corrected. It does not indicate perjury.
It is true that Vivian Barrymore was, by her own testimony, a narcotics addict, and that fact has an important bearing upon her credibility. (People v. Crump, 5 Ill.2d 251, 261.) It is also true that while she was not technically an accomplice (People v. Abair, 102 Cal.App.2d 765, 228 P.2d 336,) her situation was sufficiently similar to that of an accomplice to warrant close scrutiny of her testimony for that additional reason. It does not follow, however, that her testimony must necessarily be disbelieved. She was corroborated by officer Sims, and as to her presence in the defendant's apartment by the defendant herself. The credibility of her testimony was a matter for determination by the trial court.
The defendant denied that she sold any narcotics to Vivian Barrymore. She testified that she had previously found Vivian Barrymore using narcotics in her apartment and had ordered her out; that Vivian Barrymore owed her money, and that she admitted Vivian Barrymore to her apartment on the day in question because she said she had brought some money to apply upon her indebtedness. The weight to be given the defendant's testimony was also for the trial court to determine. In our opinion the evidence was sufficient to establish the defendant's guilt beyond a reasonable doubt.
The defendant also argues that the trial court erred in denying her motion for probation without hearing evidence in mitigation and aggravation, and without requiring an investigation by a probation officer. The record shows that no evidence in aggravation was offered, and that the defendant made no attempt to offer evidence in mitigation. The argument is thus reduced to the narrower proposition that whenever an application for probation is made, there must be an investigation by a probation officer before the judge can act upon the application.
After both sides had rested the following occurred:
"The Court: Finding guilty of unlawful sale of narcotics. I don't believe either of them." [Referring to the defendant and a witness who had testified in her behalf.]
"Mr. Evins: Application for probation.
"The Court: Two to five years in the ...