Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding. Judgment
of conviction reversed and cause remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT. CHARGE
Unlawful sale of narcotic drugs *fn1 and conspiracy to sell same.
After a jury verdict finding defendant guilty on both charges, the court entered judgment on the charge of unlawful sale and sentenced defendant to life imprisonment. *fn2
(1) Defendant was not proved guilty beyond a reasonable doubt.
(2) It was reversible error to admit testimony of an informer concerning prior narcotic transactions with the defendant.
EVIDENCE ON BEHALF OF STATE
Police Officer William Demke
On July 29, 1964, he participated in a conversation at the 11th District Police Station with Officers Simpson, Nadile and Kelly and an informer named Buonauro. Thereafter, the officers made a thorough search of Buonauro's person and clothing to ascertain whether or not he carried any narcotics. Satisfied that he did not, the officers then gave Buonauro $23 in bills the numbers of which had been prerecorded. The bills had also been powdered with a fluorescent substance. Buonauro then accompanied the policemen to the vicinity of Loomis and Madison Streets where he pointed out a man on the southwest corner; the man was defendant. Buonauro then walked across the street and conversed with him. The officers stationed themselves in a restaurant directly across the street where they were able to observe both men. Following a short conversation which the officers could not hear, Buonauro stood by as defendant walked approximately fifteen feet over to another man, said a few words to him, also unheard by the officers, and returned to Buonauro. This second man was co-defendant Herbert Martin. Buonauro walked over to Martin and the two of them then went west on Madison Street while defendant Baxter remained on the corner. Officer Demke then followed Buonauro and Martin and, from a position on the opposite side of the street, observed them enter a liquor store. By the time Demke crossed the street Buonauro and Martin had emerged from the store, whereupon Buonauro handed Demke a tinfoil package. Demke then arrested Martin and, after the arrival of Officer Simpson, Martin was searched and found to have a five dollar bill, four singles, some change and a pack of cigarettes in his possession. Demke then field tested the contents of the tinfoil package which Buonauro had given him and found the substance to be an opium derivative. Simpson entered the liquor store and, when he returned to the car, they all proceeded again to Madison and Loomis Streets where they picked up Officer Nadile who had defendant Baxter in his custody.
He had been a narcotics addict for ten years and, in fact, had used narcotics on the morning of the trial. He also admitted convictions for several criminal offenses. On July 29, 1964, Buonauro met the above-mentioned officers at the police station. After being searched, he was given a ten dollar bill which was marked with indelible pencil and the serial number of which was recorded by the police officers. He was also given an additional thirteen dollars. Buonauro then accompanied the officers to Loomis and Madison Streets where he observed defendant Baxter on the southwest corner of the intersection and walked up to him. He had seen defendant every day for about three months prior to that time. Over objection of defense counsel, Buonauro was then permitted to testify that he had seen defendant on those occasions "for buying narcotics mostly," and that he had bought those narcotics from defendant. On the instant occasion Buonauro asked defendant if he had any "stuff" *fn3 and the latter queried whether Buonauro had any money. Buonauro showed defendant the ten dollar bill. Defendant then said, "wait a minute," and walked over to a man with whom Buonauro was not acquainted, although he had seen him on Madison Street before. He identified this man as Martin. When defendant returned he told Buonauro: "This guy has got one bag, if I wanted to buy it to go ahead with him." Buonauro then went to Martin and asked him if he had a bag. Martin exposed a tinfoil package and Buonauro exposed his ten dollars. The two men then walked about a half block and entered a liquor store where Martin took the ten dollars from Buonauro and purchased a pack of cigarettes. The clerk in the store put the ten dollars in the register and returned the change to Martin. Upon leaving the store, Buonauro signaled the officers and Martin was arrested. Buonauro returned the unused thirteen dollars to Officer Simpson.
On cross-examination Buonauro denied that he had ever been paid by the police for his services as an informer. He also denied telling defendant, in the presence of Officer Pates, that "they have got the ...