Writ of error to the Criminal Court of Cook County; the Hon.
ALPHONSE F. WELLS, Judge, presiding. Judgment in indictment
63-972 reversed in part. Judgment in indictment 63-973 affirmed
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Unlawful sale of narcotic drugs (Indictment 63-972), and unlawful possession of narcotic drugs (Indictment 63-973).
Jury trial was waived. After hearing the evidence in Indictment 63-972, the court found defendant guilty and sentenced him to a term of ten to eleven years. It was then stipulated that the evidence heard at that trial be considered also as evidence in Indictment 63-973, and there was a further stipulation as to additional evidence. The court found defendant guilty of this charge also, and sentenced him to a term of two to three years, concurrent with the first sentence.
POINTS RAISED ON APPEAL *fn1
(1) The evidence did not establish defendant's guilt beyond a reasonable doubt.
(2) The court unduly restricted defendant's cross-examination of State witnesses.
Defendant does not seriously question the adequacy of the proof except as to the narcotic content of the substance sold or possessed. Admittedly, this is one of the elements of the crimes charged which the State has the burden of proving. In the case charging sale, the State sought to meet this burden by means of an oral stipulation in lieu of a chemist's testimony. The stipulation was that the police chemist, if called, would testify that the substance "purports to be" heroin. In the case charging possession, there was an additional stipulation that the chemist, if called, would testify that the substance was "found to be" heroin.
(1) Although we are mystified as to the reason for it, we have been impressed by numerous instances in recent years of the demonstrated nonchalance and inattention to detail on the part of prosecutors when introducing by stipulation the part of the State's case having to do with the chain of possession and chemical content of the substance seized in narcotics cases. The expedience of resorting to such a stipulation we do not doubt, but we cannot permit this informality of procedure to render the proof any less exact or complete than would be the case if the witnesses were to testify.
Our question, therefore, is whether proof that a substance "purports to be" narcotic constitutes proof beyond a reasonable doubt that it is narcotic. The answer must be that it does not. While it is true that under the generally understood meaning of the word, "purport," an object which purports to have a certain characteristic may, or perhaps usually does, in fact possess that characteristic, it does not always do so. In any given case the speciousness of a purported attribute is a definite possibility. And that ever-present possibility is, in our opinion, sufficient to raise a reasonable doubt as to the attribute claimed.
We are aware of no opinion bearing directly on this point, but there are two cases which we ...