Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
CRIME CHARGED IN THE INDICTMENT
Unlawful possession of narcotics.
After a jury verdict of guilty, the court sentenced defendant to a term of five to fifteen years.
(1) The evidence was insufficient to support the verdict.
(2) The court erroneously refused to give a defense-tendered instruction on circumstantial evidence.
(3) The court erroneously received into evidence, over objection by the defense, a search warrant which had no relevance to the issues at the trial.
(4) The sentence imposed exceeds the statutory limitation.
Testimony of State Witnesses
A police informer made an affidavit in which he related that he had purchased narcotics from defendant in a house at 2255 S. Kostner Avenue in Chicago. A search warrant was issued and several State of Illinois narcotics inspectors, two of whom testified at trial, raided the house at about 3:00 p.m. on June 11, 1963. Defendant and a workman who was found repairing the attic were detained in the kitchen while the entire house was searched. In a rear bedroom off the kitchen, Inspector Kahn found a pair of dungaree type trousers, one pocket of which contained a small tinfoil packet which, when opened, was found to hold some white powder later proved to be a narcotic substance. The rear bedroom also contained ten men's suits and other men's clothing in a dresser on top of which were found an application for a dog license and other papers respecting defendant's dog, and a wallet containing money which admittedly belonged to defendant.
When confronted by the inspectors with the pants and tinfoil packet, defendant denied ownership of both. The officers then held the pants up to defendant and at the trial testified that they apparently fit. A belt was removed from the pants, put around defendant's waist and when tightened to his size, was in the notch most frequently used on the belt. No attempt was made to fit the belt or pants to the workman detained in the kitchen with defendant. A written report of the search and arrest mentioned neither the finding of narcotics in a pair of pants nor the fitting of the belt and pants to defendant. Defendant was never asked to try ...