Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ALFONSE F. WELLS, Judge, presiding. Judgment
reversed and cause remanded with directions.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT. This is an appeal from a conviction for the unlawful sale of narcotics, after a jury trial, with sentence in the Illinois State Penitentiary for a term of ten (10) years to life.
The indictment reads as follows:
The Grand Jurors chosen, selected, and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on the 16th day of September 1963 at and within said County, William O. Wolfe, committed the offense of sale of a narcotic drug in that he knowingly sold to Leon Robinson otherwise known as Bill Jones for lawful money of the United States of America, otherwise than as authorized in the Uniform Narcotic Drug Act of said State of Illinois then in force and effect, a quantity, (the exact quantity of which is unknown to said Grand Jurors,) of a certain narcotic drug, to wit, opium, that is to say, heroin.
Prior to the trial, defense counsel filed a motion to suppress evidence. The only witness to appear at the hearing was Detective Arnold, one of the arresting officers. Defense counsel made several efforts during the hearing to obtain an informer's identity but the court refused to order the name of the informer disclosed and further refused to order the informer to testify at the hearing to suppress. The motion to suppress was denied.
During the trial, Detective Arnold made statements, which were inconsistent with his testimony at the hearing on the motion to suppress. At the hearing, he testified that he saw the money change hands but at the trial he stated he could not see what, if anything, was exchanged. He also stated at the hearing that the informer did not beckon to defendant to come out of a restaurant, but stated at the trial that the informer tapped on the window of the restaurant as a signal for defendant to come out. He further stated at the hearing that defendant came out of the alley, but at the trial testified that defendant came out of the restaurant, not out of the alley. He also stated at the hearing, that he signaled Officer Jackson to make the arrest by tipping his hat while seated in a car, but testified at the trial that he signaled Officer Jackson by waving his hand outside the car window. He also stated at the hearing that he drove south after he saw defendant stoop down and pick up something, but at the trial testified that he drove past defendant and parked the car, before he saw defendant bend over and pick up something. Finally, he stated at the hearing that Officer Jones was standing on 47th Street midway between South Park and Forrestville just before the arrest, but at the trial testified that Officer Jones was standing on the northwest corner of 47th Street and South Park.
At the trial, three officers claimed they witnessed the transaction between the informer and defendant. One of the officers stated that he saw the passing of the money and another object. Another officer said he saw the hands of the informer and defendant meet. The third officer did not see any exchange.
The informer was produced at the trial. On direct examination, the informer testified that he received a package of narcotics from defendant for eight dollars; that he then signaled the officers; and that they made the arrest and found the previously identified money in defendant's possession. On cross-examination, he testified that defendant had sold heroin at a time prior to the incident charged in the indictment. This answer was allowed to stand over defense objection.
Defendant took the stand and stated that he did not sell any narcotics to the informer. He admitted ownership, but testified that he gave the package to the informer for safekeeping.
The People, in rebuttal, introduced the record of defendant's prior plea of guilty to burglary and larceny to impeach defendant's testimony.
The jury returned a verdict of guilty. The hearing in mitigation and aggravation consisted of a recital of defendant's criminal record and an argument by defense counsel for mercy from the court. The court sentenced defendant to a term of ten years to life. This is an appeal from that conviction and sentence.
Defendant's theory of the case is (1) that the indictment contained fatal defects in that (a) the indictment did not name the place of the offense other than that it occurred in Cook County, (b) the indictment did not state the statute alleged to have been violated and (c) said defects were not waived by defendant; (2) that defendant did not receive a fair hearing on the motion to suppress evidence in that (a) defense counsel was not permitted to examine the informer at the hearing on the motion to suppress and (b) the only witness to testify proved himself not to be a credible witness and (3) that defendant was prejudiced at the trial (a) by testimony that defendant had sold narcotics prior to the offense for which he was being tried and (b) by use of a guilty plea to impeach defendant's testimony.
We find no merit in part (a) of defendant's first contention. The case at bar falls directly within the purview of the Supreme Court's opinions in People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97 (1965) and People v. Petropoulos, 34 Ill.2d 179, 214 N.E.2d 765 (1966).
In support of part (b) of his first contention, defendant points out that the Code of Criminal Procedure chapter 38, section 116-2, Ill Rev Stats (1963) chapter 38, paragraph 116-2, states that the indictment shall cite the statutory provision alleged to have been violated. Defendant points out that the indictment in the instant case did not cite the statutory provision but only charged defendant with violation of the Uniform Drug Act and that this was inadequate in that the Uniform Drug Act consists of numerous sections (49 in all). We find no merit in defendant's contention. There is only one section in the Uniform Drug Act pertaining to narcotics violations and ...