WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HENRY W. DIERINGER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 22, 1959.
A jury in the criminal court of Cook County found the defendant, Mack Thomas, guilty of selling narcotics, and he was sentenced to a term of not less than five nor more than ten years in the penitentiary. On this writ of error he contends that he was twice put in jeopardy for the same offense, and that his rights under section 10 of article II of the Illinois constitution and under the fourteenth amendment to the constitution of the United States were thereby violated.
About two weeks before the trial at which the defendant was convicted, he had been placed on trial upon the same indictment in the same court, but before a different judge and jury. Before the prosecution's first witness had concluded his testimony, a juror was withdrawn and a mistrial was declared. At the second trial the defendant's motion to dismiss on the ground of former jeopardy was denied. The only question before us is the correctness of this ruling, and the answer to that question turns upon an appraisal of the circumstances under which the mistrial was declared.
At the first trial the prosecution's first witness, Shamery Williams, had testified that the defendant had sold narcotics to him on the date mentioned in the indictment. On cross-examination he had reluctantly testified that he was a narcotics addict and that he had previously served one term in the penitentiary for unlawful possession of narcotics, and another term for an offense that he chose not to describe. He had testified that he had dispensed narcotics to a girl and to another man, apparently shortly before he was arrested with the defendant, Mack Thomas. He had also testified that he did not know how he got out of jail, although he "guessed" that he had been released on bond. He then said, "A man cannot be sure about anything until it is all over." The following then occurred:
"Mr. Doherty: [Defense counsel] Q. Now, about 4:15 yesterday, I approached you, did I not, and asked you to tell me what you were going to testify to?
Q. And didn't I introduce you to an investigator from the Public Defender's office?
Mr. Kallick: [Assistant State's Attorney] Objection.
The Court: The objection will be sustained.
The Witness: I told you whatever I wanted to say I would say on the witness stand.
The Court: The objection will be sustained. Both remarks will be stricken. It is not incumbent upon any witness to talk to the Public Defender or anybody else.
Mr. Doherty: I am aware of that, if the Court please.
The Court: That is so that it should not create ...