Appeal from the Circuit Court of Cook County, First Municipal
Division; the Hon. JAMES OAKEY, JR., Judge, presiding. Reversed
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Essau Harges, was charged with (1) negligent driving; (2) driving without an operator's license, and (3) operating a vehicle while under the influence of intoxicating liquor. The jury found the defendant not guilty of negligent driving and of driving without an operator's license, but found him guilty of operating a vehicle while under the influence of intoxicating liquor. Upon judgment on the verdict, the defendant was sentenced to thirty days imprisonment, and he appeals.
The defendant contends, on appeal, that (1) the court erred in permitting the complaint to be amended; (2) that testimony of a breathalizer test was admitted without proper foundation; (3) that the verdict was contrary to the weight of the testimony; (4) that the court exhibited partiality in favor of the state; (5) that the tactics of the prosecutor were prejudicial and deprived him of a fair trial; (6) that the court permitted an untrue inference to be drawn by the jury in that it allowed the jury to believe that the defendant would not be imprisoned if a verdict of guilty was to be returned; (7) that the court failed to have a sworn officer in charge of the jury; and (8) that defense counsel was not permitted to poll the jury.
We will only briefly summarize the testimony elicited at trial as to the factual occurrences involved because we have decided to reverse and remand the case for a new trial. On the evening of February 26, 1965, Task Force Officers Young and Jones were patrolling in the area of Madison Street and Homan. Both officers testified at trial that as the defendant made a left turn, from Madison to Homan, he straddled the cement divider in the middle of Homan Avenue with his car. They followed the defendant's car into an alley behind 3300 West Monroe Street where the defendant stopped his car; the two officers then approached the defendant's car and found him sitting in the front seat with one, Frank Black. Officer Young testified that after he had informed the defendant of his traffic violation, he detected "an odor of alcoholic beverage on the Defendant." The defendant was then taken to the police station where he was given various tests, including a breathalizer examination, to determine the state of his sobriety. The breathalizer test showed a reading point .180 percent blood alcohol.
The defendant's version of the events leading up to his arrest for driving under the influence of intoxicating liquor was as follows: He had not been driving his car prior to his arrest, but rather he and Frank Black had purchased two quarts of beer and some whiskey and then consumed it in his car while the car was parked in the rear of his house; the police approached his car, asked him what he was doing there, and stated "it seems like you are drunk"; the police then asked for a bribe, and upon the defendant's refusal of this request he was arrested.
We are in accord with the defendant's contention that he was deprived of a fair trial by prejudicial tactics of the prosecutor during the course of the trial. The prosecutor asked the defendant, on cross-examination, about the events that occurred subsequent to his arrest, and in particular about what transpired in the Fillmore Police Station:
"Q. What did you observe at the Fillmore Police Station, did you see anything on the wall?
"A. Some signs in regard to the law, and it said something about your rights to legal counsel.
"Q. Have you ever seen Fillmore Station before?
"A. I have, do you mean before I was arrested?
"Mr. Bronstein: Objection to counsel's speech.
"Mr. Davidson (prosecutor): What is he ...