Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. EDWARD E. PLUSDRAK,
Judge, presiding. Judgment of conviction affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 5, 1966.
Unlawful sale of narcotic drugs 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 a term of fifteen to thirty years. *fn1
(1) It was error to permit one of the State witnesses to testify because his name had not been furnished to the defense in an oral list of witnesses.
(2) It was further error for the court to refuse to compel the witness to answer defense counsel's questions after the court had given the defense permission to interrogate the witness prior to the time he took the stand.
(3) The sentence is excessive.
(1) After a timely motion by the defense for a list of the State's witnesses, the State provided the defense with an oral list of witnesses that did not include the name of Robert Buonauro, an informer. At the trial the State offered Buonauro as a witness, and, over defendant's objection, the court indicated that the witness would be permitted to testify. However, the defense was given a period of time to interrogate Buonauro prior to his taking the witness stand. Following this period of interrogation, defense counsel reported to the court that Buonauro had refused to answer his questions and that the court should therefore compel him to do so. The court refused.
It has been consistently held that discretion reposes in the trial court to permit witnesses to testify notwithstanding the absence of their names in the list of witnesses furnished by the State, and that, unless defendant can show that he has been prejudiced by surprise or otherwise, the trial court's exercise of this discretion will not be disturbed. People v. Poland, 22 Ill.2d 175, 184, 174 N.E.2d 804; People v. Weisberg, 396 Ill. 412, 71 N.E.2d 671; People v. Hopkins, 29 Ill.2d 260, 266, 194 N.E.2d 203; People v. Webb, 60 Ill. App.2d 365, 375, 376, 208 N.E.2d 639; People v. Brown, 68 Ill. App.2d 17, 25, 214 N.E.2d 465. Defendant recognizes this principle as announced in the line of cases referred to, but points out that all of these cases were decided under the law as it existed prior to adoption of the Code of Criminal Procedure of 1963. The old statute (Ill Rev Stats (1961), c 38, § 729) provided in pertinent part:
Every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment or the information, as the case ...