Writ of error to the Criminal Court of Cook County; the Hon.
RICHARD B. AUSTIN, Judge, presiding. Judgment affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant sued out a writ of error from the Supreme Court of Illinois to the circuit court of Cook County, criminal division, to review the conviction by the court without a jury of the defendant for possession of narcotic drugs in violation of the Uniform Narcotic Drug Act. The defendant was sentenced to serve not less than five years nor more than ten years in the Illinois State Penitentiary. The Supreme Court of Illinois transferred the case to this court.
The defendant contends that the State failed to prove beyond a reasonable doubt that he was guilty of the possession of narcotic drugs, and that People's witness, John D. Endriz, should not have been allowed to testify since his name was not included in the list of witnesses served upon defendant's attorney.
The testimony offered on behalf of the People and that offered on behalf of the defendant is in many respects contradictory and for that reason we will summarize the testimony of each.
The People's testimony was substantially as follows:
William Mattingly, a federal narcotics agent, testified that on the afternoon of November 12, 1958, a fellow narcotic agent, Ralph Eckhardt, drove him and an informer, James Dunn, also known as "Stainless Steel," to 47th and South Park in Chicago, Illinois. Mattingly and the informer went into a Walgreen's Drug Store at the above intersection around 5:00 p.m., and Eckhardt proceeded on with the car. Mattingly and the informer met with the defendant's wife, Dorothy, shortly thereafter, and at about 5:30 the defendant entered the drug store. The defendant offered to obtain "some stuff" for Mattingly and promised that "the price will be right," $90 for 1/2 ounce of heroin. Mattingly balked at the price and the defendant stated "it's high this time but later on it will be cheaper, after I get to know you and do business with you." Mattingly then gave $90 to the defendant in currency, the numbers of which bills had been previously recorded. After Mattingly gave the defendant the money, the defendant and his wife, the informer and Mattingly went by cab to the vicinity of 35th and South Park. Eckhardt had been observing what transpired in Walgreen's Drug Store from a clothing store on the south side of 47th. Eckhardt trailed the cab to 35th and South Park. Mattingly, defendant's wife and the informer entered Stelzer's restaurant at that location at about 6:00 p.m. The defendant remained outside. Eckhardt, having parked his car, also walked into Stelzer's restaurant and seated himself at a bar stool where he could see but not hear the others. At about 8:30 p.m. the defendant entered the restaurant and joined the others. The defendant then passed a brown manila envelope to Mattingly under the table. Agent Eckhardt was still seated at the bar at the time. Mattingly then returned to his office in the Federal Building and met with Agent Eckhardt. He and Eckhardt initialed the envelope that Mattingly received from the defendant. Mattingly thereupon conducted a field test of a portion of the white-powder contents of the envelope. The test indicated that the white powder was an opiate. The envelope was then initialed by Mattingly and Eckhardt and dated "11-12-58" by Eckhardt and noted "Ill." by Mattingly. At one point in his testimony, Mattingly stated that the informer also initialed the envelope. He later said that this was incorrect. The envelope was placed in a locked cabinet in the Narcotics Bureau, from which it was removed on November 13 by Mattingly. The envelope was then placed in another envelope which was then sealed and delivered to the laboratory of federal chemist John Endriz by Mattingly. On November 18, Endriz broke the seal and removed the original envelope upon which he placed his initials and the laboratory number "7731." Chemical tests disclosed the contents to be diacetylmorphine hydrochloride commonly known as heroin. The remaining contents of the original envelope were placed in a third envelope which was sealed and stapled to the second envelope. All three envelopes were initialed by Endriz and his fellow chemist John W. Fonner, and were then returned to the office vault.
Mattingly further testified that on November 18, 1958 he was in defendant's home for about three hours, and that the defendant, his wife, and the informer, "Stainless Steel," were also present. The meeting had been prearranged by the informer. Mattingly testified that on this date he gave the defendant $350.00 for the purchase of narcotics. During the time he was present at the home Mattingly admitted that he was involved in an altercation with defendant's wife, and that he "pulled" his pistol on her.
During the trial the three envelopes heretofore referred to were admitted into evidence without objection.
The informer did not testify at the trial as the two narcotics agents did not know his whereabouts at the time.
Narcotics agent Eckhardt's testimony was substantially the same as that of Mattingly. He testified that while sitting at the bar in Stelzer's Restaurant he saw the defendant reach under the table. After the others left the restaurant Eckhardt also left and returned to the office where he met Mattingly. They initialed the package that Mattingly had as evidence and placed it in the cabinet; the following morning the first envelope was placed in another envelope and delivered to the chemist's office. Eckhardt also initialed the second envelope. He further testified that on November 18, 1958 he had the building in which the defendant lived under surveillance and that he saw Mattingly go into the building with the defendant but did not see Mattingly leave. Eckhardt remained in the area for four or five hours. There is a slight discrepancy as to how long Mattingly was in the building with the defendant on this date, but it is of no importance in this case.
The defendant testified that he was a former addict but was not addicted in November, 1958. He knew the informer "Stainless Steel" for about two weeks at that time. He did not know Mattingly before November 12, 1958. He arrived home on November 12 to find that Mattingly and "Stainless Steel" were there. "Stainless Steel" introduced him to Mattingly, who at the time used the assumed name of Bill Jennings. They asked the defendant for some narcotics. The defendant testified that he told them that he could not get any for them; that Mattingly kept trying to convince the defendant that it would be to the defendant's advantage to deal with them. The defendant also testified that he told Mattingly that he had been a former addict and that he didn't want to get involved with narcotics. Mattingly then showed him some money and the defendant said he would call a friend of his and attempt to obtain for him an "ounce of pure" which had been requested by Mattingly. The defendant then stated that he pretended to make a phone call, and shortly thereafter told Mattingly that he could get him the narcotics requested for $350 in about twenty minutes. The defendant took the $350 from Mattingly and left the house with the understanding that he was going to purchase narcotics. The defendant testified that a little while later he called his wife and told her to gather their things together and slip out of the house. The defendant testified that he did not return to his house that evening and that he did not transfer any narcotics to Mattingly. The defendant stated that the next time he saw Mattingly was on December 12, 1958 when Mattingly arrested him. There was a hearing before United States Commissioner Pike. The defendant claimed that he had never seen the People's exhibits before and such exhibits were not presented in the hearing before the Commissioner. He further testified that he saw Mattingly again on January 15, 1959 in the Federal Narcotics Bureau where he had gone to pick up his clothes. He said that his wife told him that Mattingly took the clothes on November 12, 1958. The defendant testified that on the date he picked up his clothes he offered to pay the $350.00 back to Mattingly but that Mattingly told him he didn't want the money back and he wanted the defendant to help him get three narcotic dealers. He also testified that Mattingly promised him the case against him would be dismissed if defendant cooperated with him. The defendant denied that he at any time intended to obtain narcotics for Mattingly and stated that he feared for his life if he was placed in the position of an informer. Defendant also denied either that he was in the Walgreen's Drug Store on 47th and South Park on November 12, 1958, or that he saw Mattingly or "Stainless Steel" at any other place on that date except in his home.
Mrs. Webb, defendant's wife, testified and substantially corroborated her husband's testimony. She also stated that after Mattingly left their home on the morning of November 13 he again returned at about 10:00 a.m. with about four other police officers and stayed until around noon. She stated that she had an altercation with Mattingly and he treated her in an abusive manner. According to Mrs. Webb, Mattingly took all of her husband's clothes, and said that he was going to take the clothes until he got the money, her husband, or the narcotics.
At the close of Mrs. Webb's testimony a stipulation to the effect that the defendant had pleaded guilty to an armed robbery charge in 1952 and was found guilty was admitted without objection.
The State's evidence tends to show that Mattingly paid the defendant $90 and received one-half ounce of heroin therefor on November 12, 1958, and on November 18, 1958 he gave the defendant $350 in defendant's home to purchase an "ounce of pure." The defense evidence is to the effect that on November 12, 1958 Mattingly, together with others, came to the defendant's home and Mattingly then gave the defendant $350 to get an "ounce of pure"; that he did not deliver the narcotics to Mattingly and that ...