Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALPHONSE F. WELLS, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
After a jury trial, defendant, Samuel Edward Mason, was found guilty of the illegal sale of narcotics. He was sentenced to the penitentiary for a term of from ten years to life.
A prior conviction for the same offense was reversed in People v. Mason, 28 Ill.2d 396, 403, 192 N.E.2d 835 (1963), because "the trial court cut off all inquiry on subjects with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error." The cause was remanded for a retrial, and the evidence in both trials was substantially the same.
Defendant contends in the instant appeal (1) that he was unduly restricted in his right of cross-examination; (2) that statements of the State's Attorney to the jury were prejudicial and influenced the jury contrary to the weight of the evidence; (3) that the apparent prejudice of the trial court so affected the jury as to cause its verdict to be returned against the defendant; and (4) that the reversal of the judgment of conviction of the defendant in the first trial became the law of the case and requires that the conviction now appealed from be reversed and the defendant discharged.
The principal witness for the State was Inspector Carl H. Henry of the Illinois State Division of Narcotic Control. He testified that on December 15, 1959, at about 4:00 p.m., an informer brought the defendant to him while he was seated alone, in civilian clothing, in an unmarked State automobile parked at 39th and Ellis in Chicago. Henry was under the surveillance of Narcotic Inspectors Manson and Patch, who were in another parked automobile. During the presence of the informer, Henry told the defendant he would like to purchase three packages of heroin for $15. Defendant "was presently awaiting a source of supply," and they made an agreement to meet later that evening. At 9 o'clock, Henry, alone in the car, returned to the same intersection, again under the surveillance of Inspectors Manson and Patch, and the defendant and the informer reappeared. Henry gave defendant $15 in marked money and received three envelopes from defendant. An agreement was then made for another purchase around 3:30 in the morning. After this, Henry "rendezvoused" with the other two inspectors and a field test was made of one of the packages of white powder.
Inspector Henry further testified that at 3:30 on the morning of December 16, he returned to the same place, with Inspectors Patch and Manson in surveillance. After a half hour, defendant reappeared and entered the automobile. Henry told the defendant that he "wanted $20 worth, or four bags," and gave defendant "$20 of pre-recorded, officially advanced funds." Defendant said to wait and he would return with the drugs. Defendant then entered a building which was adjacent to where Henry was parked. Fifteen minutes later, defendant returned, "accompanied by another negro male. He leaned into the car, handed me the four packages. At that time the male that was with him stuck his head into the vehicle to look at me. As he did, he stated, to the best of my recollection, `oh, my God, man, what have you done?'" They both backed up very abruptly and went into the building.
Henry then drove from the intersection and again "rendezvoused" with Inspectors Patch and Manson. They all got into one State vehicle and drove back to the vicinity of 39th and Ellis, where they saw the defendant and the other man walking on Ellis. Inspectors Patch and Manson got out of the car and placed the defendant under arrest. About fifteen minutes had elapsed from the time of the second sale until the time defendant was arrested.
On cross-examination, Henry testified that he was then residing in California and was a salesman for a brewing company. He was interrogated at length as to his various places of employment since leaving the Narcotic Division. He said that he had resigned for "personal reasons." He denied that he had been discharged because he had been "charged with the commission of rape" or because of his personal conduct. He admitted the charge of rape had some connection with his resignation.
The State's other witness was Inspector Thomas E. Manson. At the time of the trial, he was "a customs agent for the United States Treasury Department, Customs Service" and had been so employed for two years. He testified that on each of the three occasions described by Henry, he was parked with Inspector Patch near Henry's car, and that they could see Henry's car at all times. At the afternoon meeting, they were parked on the street about 25 or 30 yards away, and on the other two occasions they were parked in a vacant lot about 40 yards away. Manson identified the defendant as the person who approached the car on all three occasions, and said that he and Henry had "mutually" identified the defendant walking down the street on the morning after the third meeting.
On cross-examination, Manson stated that he had maintained "surveillance" from the inside of his parked vehicle, and "I saw a motion of hands. I can't say it was money or whatever it was, I couldn't see that closely. I saw people in conversation and I saw a movement of hands. . . . I couldn't physically see what it was that was transferred." He saw defendant "from thirty feet, on one occasion, thirty yards on one occasion, and forty yards on two occasions."
Neither the informer nor Inspector Patch testified, although Manson identified a man in the court room as "Samuel Patch," his "fellow officer on surveillance that night." No narcotics and none of the marked money were found in a search of the defendant and his apartment. A stipulation was entered into "that the material contained in the People's Exhibit was in fact a narcotic drug commonly known as heroin."
Defendant Mason testified that he was 40 years of age and lived and worked in the Pershing Hotel at the corner of 39th and Ellis, and that he was arrested by Inspectors Manson and Patch on Ellis Avenue in the middle of the 3800 block. "They jumped out of the car and approached me with their pistols." He was going north on Ellis and was headed for a bar at 36th and Ellis to get a drink. He denied that he ever sold narcotics or that he was involved in any of the transactions described by Henry and Manson. He had never seen either of them before he was placed under arrest. He testified that he had never been arrested, had no record and never had anything to do with narcotics.
Initially, we consider defendant's contention that he "was unduly restricted in his right of cross-examination," and "that the widest latitude should be allowed the defendant in cross-examination for the purpose of establishing bias." He further asserts that the cross-examination of the State's witness Henry "was unduly restricted in that it prevented the defendant from impeaching the witness, discrediting his testimony and pointing out the contradictions existing between his testimony and that of his partner."
In defendant's previous trial, the trial court had sustained objections to questions directed to Henry and Patch to show that they had both been suspended by the State Narcotics Bureau. In reversing defendant's conviction, the Supreme ...