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People v. Gassaway

DECEMBER 9, 1965.




Writ of error to the Criminal Court of Cook County; the Hon. BURTON M. BERGSTROM, Judge, presiding. Affirmed.


The Criminal Court of Cook County, at a bench trial, found the defendant, Robert E. Gassaway, guilty of unlawful possession and sale of narcotics. He was sentenced to a term of imprisonment for not less than fifteen years nor more than life.

On May 18, 1959, the defendant, then 22 years of age and a narcotics addict, was in the office of the United States Commissioner in Chicago, Illinois. At that time he was approached by one Manolo, a special employee of the Federal Bureau of Narcotics who had assisted the Bureau previously in narcotic cases. Manolo told the defendant that he was "sick," in need of narcotics, and asked the defendant if he could provide him with narcotics. The defendant replied that he was also in bad condition, and that he could not provide Manolo with narcotics because he got what he wanted for himself from other people. Manolo again asked the defendant if he could help him and the defendant replied that maybe he could get some stuff. The defendant then gave his phone number to Manolo and told the special employee to contact him.

The next day the defendant received a telephone call and was asked by the caller if he could obtain narcotics. There was a conflict in the testimony as to who placed this call. The defendant testified that Manolo called him, stated he was quite sick, and asked the defendant to help him. However, Joseph M. Arpaio, a Federal Narcotics Agent, testified that it was he who placed the call, and that he told the defendant that he was a friend of Manolo's and was interested in doing business. This was confirmed by another agent, William J. Olivanti, who testified that he was present when Arpaio, not Manolo, called the defendant.

During the course of this phone conversation the defendant told the caller to proceed to 144th Street and Western Avenue, and upon arrival to call again for further directions. Manolo and Arpaio proceeded as the defendant directed, and when they arrived at the location Arpaio called the defendant by telephone and was instructed to drive to 144th and Harrison Streets. Upon arrival there, the defendant approached and entered the auto, and the three men proceeded to a poolroom in Robbins, Illinois. The defendant testified that Arpaio told him that he was a big time dealer, that Manolo worked for him selling drugs, and that he would start the defendant into business.

The defendant tried to find a man named Tony, who was supposedly selling the narcotics. Arpaio testified that defendant said that he had a partner named Tony in Robbins, and that the defendant could handle the business. The defendant was unable to locate Tony, and the three men drove to a new location and parked the auto. The defendant took $25 from Arpaio and disappeared from view. A few moments later he came back and stated that he had the stuff. The defendant had five bags of heroin, weighing a total of one-thirtieth of an ounce.

Another conflict occurred in the testimony with respect to whether or not Arpaio promised the defendant any payment in return for his services. The defendant claimed that Arpaio promised him one of the bags of heroin, but gave him only part of a bag after Manolo had used a portion of it, while Arpaio said that he did not promise to give the defendant any of the heroin, nor did he give him any, but that the defendant retained one bag and told Arpaio that he was keeping it for his services.

On June 2, 1959, Arpaio again attempted to purchase narcotics through the defendant but was unsuccessful.

Olivanti and Arpaio arrested the defendant on June 16, 1959. At that time the defendant stated that "I'm not a big peddler, I'm just trying to make a little money." The trial and subsequent conviction followed the arrest.

The defendant bases his appeal on three separate grounds. He contends: (1) that upon arrest he was not taken before a judge or magistrate without unnecessary delay, and his subsequent confession was obtained during an illegal detention and therefore its receipt into evidence was a violation of his federal and Illinois constitutional rights; (2) that the evidence shows that the action of the federal agents and their informer induced the defendant to possess and sell narcotics and constituted entrapment as a matter of law; (3) that the sentence imposed by the trial court, fifteen years to life in the penitentiary, was unduly severe, unwarranted, and otherwise erroneous.

We find that the trial court did not err in finding the defendant guilty as charged, and in imposing a sentence of from fifteen years to life.

Defendant's first contention on appeal was disposed of by the Supreme Court of Illinois upon transfer of the case to this court. The transfer order stated:

"It is claimed that we have jurisdiction on the ground that a constitutional question is presented by the admission in evidence of an oral confession. The defendant does not claim that the confession was obtained by threats, promises or violence, but argues that it was inadmissible because it was obtained while he was in custody and before he was taken before a Magistrate. The argument is based upon the federal rule which we have declined to follow (People v. Bush, 29 Ill.2d 367). The constitutional issue is no longer fairly debatable. The motion of the defendant in error is allowed and the cause is transferred to the Appellate Court for the First District."

Based upon the Bush case, supra, and the above order, we find that the trial court correctly admitted into evidence a confession by the defendant that he was not a big peddler but merely wanted to make a little money. The trial court interpreted this confession to show that the defendant was not duped into ...

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