Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. ALFONSE F. WELLS, Judge,
presiding. Judgment reversed.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Eloise Johnson, and the co-defendant, Harold Bell, were jointly indicted for knowingly selling a narcotic drug to a police informer, Ronald Smith, otherwise than as authorized by the Uniform Narcotic Drug Act. The co-defendant pleaded guilty to the indictment and was sentenced to the Illinois State Penitentiary for a term of from ten years to ten years and one day. *fn1 The defendant pleaded not guilty, waived a jury and after a bench trial was found guilty and sentenced to the Illinois State Reformatory for Women at Dwight, Illinois, for a term of from ten to eleven years. From this judgment the defendant appeals.
The defendant contends that the judgment should be reversed for the following reasons: there was no evidence that the defendant sold a narcotic drug to the informer; the trial court erroneously admitted into evidence certain conversations between the co-defendant and the state narcotics inspector and other conversations between the informer and the co-defendant in all of which conversations the co-defendant implicated the defendant; and, finally, because the contents of the packages involved in the separate sales were comingled, there was a failure of proof that the packages involved in the sale for which the defendant and co-defendant were jointly indicted contained a narcotic drug.
The record reveals that what was involved here was a "controlled buy" of narcotics. On the evening of January 8, 1963, Mitchell Ware, an inspector for the Illinois Division of Narcotics Control, drove to the vicinity of 35th Street and Michigan Avenue in Chicago with the informer, an admitted narcotics user who was paid for each case on which he worked. *fn2 He had searched the person of the informer and had determined that he was not carrying any money or narcotics. He gave the informer twenty-one dollars consisting of one $10 bill, one $5 bill and six $1 bills. The bills had been dusted with a powder which illuminates when placed under a fluorescent light and their serial numbers had been recorded.
On two occasions that evening, the informer entered the DeCortez Tavern alone. Each time he purchased narcotics with the dusted and recorded money. The indictment of the co-defendant alone was based on the informer's first visit to the tavern. The informer testified that on that first visit, he met the co-defendant, had conversation with him about obtaining narcotics, gave him the $5 bill and five of the $1 bills in exchange for which the co-defendant gave him two white paper packages containing a white powder. He testified further that after he left the tavern, he returned to the official car and gave the inspector the two packages. The inspector testified that he kept a surveillance on the informer from the official car which was parked in an alley across from the tavern entrance; that the informer, on this first visit, spent about five minutes in the tavern; and that he then returned to the car and gave the inspector the two paper packages.
The informer made a second visit to the tavern and it was on the basis of that visit that the defendant and co-defendant were jointly indicted. During this second visit, the inspector again undertook surveillance of the informer from his parking place in the alley across from the tavern. The informer testified that he walked into the tavern and asked the co-defendant for two more packages of narcotics. The informer said that he saw the defendant sitting behind the co-defendant in a both; that he gave the co-defendant the dusted and recorded $10 bill; that the co-defendant in turn gave the bill to the defendant who then got up and went to the washroom; that the defendant returned and gave the co-defendant two folded pieces of paper containing a white powder which the co-defendant in turn handed to the informer. The informer then left the tavern, returned again to the official car and gave the two packages to the inspector.
The inspector testified that he opened all the packages involved in both sales; that he field tested their contents; that the test was positive; and that he weighed the powder, and poured all of it into a single manilla envelope which he sealed and gave to another inspector. The other inspector testified that he delivered the envelope to the chemist employed by the United States Government, who, it was stipulated, would testify that the white powder in the envelope was heroin.
The inspector testified that, using the informer's description of the defendant and co-defendant, other police officers made the arrests in the tavern on the evening in question. The defendant's purse was found to contain five of the dusted and recorded bills, including the $5 bill and four of the $1 bills. In addition, traces of the luminous powder were found on the defendant's purse and hands. The dusted and recorded $10 bill was found in the co-defendant's possession.
The co-defendant and the defendant herself were the only witnesses for the defendant. The co-defendant testified that the second time the informer was in the tavern, he took the informer's money and then he and the informer went to the washroom where he gave the informer two packages. The co-defendant stated that he subsequently gave the money to a man named Bowman. He denied that he received anything from the defendant or that he had given the defendant any of the money he had received from the informer. The defendant testified that she had not received any money from the co-defendant and that she had not given him the packages. She said that shortly before the police arrived the man named Bowman had given her the money, which was found in her purse, to hold for him.
At several points in the record, it appears that testimony concerning certain conversations which implicated the defendant were admitted over the defendant's objection that they were hearsay. On direct examination, the informer testified that the co-defendant told him that he (the co-defendant) had to get one package of narcotics from the defendant. When the inspector was called by the State in rebuttal, he testified that the co-defendant told him, outside the presence of the defendant, that he (the co-defendant) had gotten the narcotics from the defendant and that he was dealing for her.
From a careful review of the entire record, it is our opinion that the evidence did not prove, beyond a reasonable doubt, that there was a sale of narcotics by the defendant to the informer within the meaning of the Uniform Narcotic Drug Act under which the defendant was indicted and convicted. That statute provides in relevant part that:
It is unlawful for any person to . . . sell . . . any narcotic drug, except as authorized in this Act. (Ill Rev Stats 1963, c 38, § 22-3.)
The statute defines "sale" as . . . traffic in, barter, exchange, or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, broker, agent, servant or employee. (Ill Rev Stats 1963, c 38, § 22-2(1).)
The State argues that the evidence in the case at bar supports a finding that there was a sale by the defendant to the informer. The State contends that the record shows that the defendant had participated in the sale to the informer, but that it is unnecessary to show the particular capacity in which she acted. It also contends that the record shows that the defendant was an important actor in a common design between the defendant and the co-defendant to sell narcotics to the informer. We do not agree. We do not ...