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People v. Gilmore

OCTOBER 31, 1968.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

DOROTHY GILMORE, APPELLANT.



Appeal from the Circuit Court of Cook County, County Department, Criminal Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment, as modified, affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from a conviction for an unlawful sale of a purported narcotic drug. The defendant, having waived her right to trial by jury, was sentenced to the Illinois State Reformatory for Women for a term of two to five years.

The defendant contends on appeal that (1) she was not proven guilty beyond a reasonable doubt; (2) the one-count indictment was fatally defective because it alleged two separate and mutually exclusive offenses; (3) the indictment was fatally defective because it alleged the wrong person as the victim of the sale, and (4) the sentencing procedure was unfair and improper.

The indictment charged the defendant with "the offense of sale of purported narcotic drug in that [the defendant] knowingly offered to sell a narcotic drug and knowingly sold to August Irby for lawful money . . . a quantity . . . of a certain nonnarcotic substance material, to-wit, purported heroin, in violation of Chapter 38, Section 22-3, of the Illinois Revised Statutes 1963. . . ."

The State's first witness was one Artis Irby who testified as follows: On December 30, 1965, he informed detectives Willis Nance and James Arnold that he could make a controlled purchase of narcotics. The officers gave Irby $24 in prerecorded currency and drove him to a location at 43rd Street and Calumet Avenue in Chicago where he met the defendant. Mr. Irby had known the defendant for about six years and admitted to having purchased heroin from her on prior occasions. The witness asked the defendant if she had any "stuff" and she replied affirmatively, took the $24, went into a building, and returned with a tinfoil package containing white powder. The package was immediately turned over to the police officers.

The two detectives testified that after the sale was made, they went to the apartment indicated by Irby and were told by one Robert Ward, the defendant's boyfriend, that the defendant was not in the apartment. The officers later returned and confronted the defendant in the apartment with the allegation that she had sold a narcotic drug to the informer, Mr. Irby. According to the officers, the defendant admitted to the sale and further stated that she had given the $24 to one Raymond "to cop some more jive with." Within a few minutes of the defendant's arrest, the police confronted Raymond, whereupon Raymond took the two officers to his apartment where the prerecorded currency was discovered. The package was taken to the Police Department's Crime Laboratory where its contents were found to be nonnarcotic.

The defendant testified in her own behalf and denied participation in the alleged sale but testified that she observed on that day a sale of narcotics from Robert Ward to two men known as Earl and Kid Harry. The defendant admitted that she had known the witness, Irby, for a period of eight years but denied seeing him at any time during December 30, 1965. There was additional testimony by the defendant that she was an addict and that she had been working with Robert Ward "as a team" for two to three weeks prior to her arrest.

At trial both the prosecution and the defense counsel stipulated that the subject matter of the alleged transaction did not contain any narcotic or dangerous drug.

The defendant's first contention is that she was not proven guilty beyond a reasonable doubt. It is her argument that the informer's testimony that the defendant said that she had some "stuff" and then gave him a packet of white powder provides no evidence of deceit or attempt to deceive the informer into believing that the nonnarcotic substance was in fact a narcotic substance. In the context of all of the evidence adduced at trial, it is impossible to accept this contention. There was testimony that Irby had purchased heroin from the defendant on earlier occasions. These earlier transactions support an inference that those earlier sales were part of a course of conduct which would induce the belief that what was now offered for sale was a narcotic drug. People v. Steele, 22 Ill.2d 142, 174 N.E.2d 848. Webster's Third New International Dictionary, unabridged (1966) gives "narcotics" as one of its definitions for the word, "stuff." The United States Court of Appeals, Ninth Circuit, when confronted with the meaning of the word "stuff" in a narcotics case said:

"Appellant argues that the use of the word `stuff' has no particular significance. It does in the dope trade. When appellant used the word in his conversation with Haley and it is examined within the context in which it was said, it carried a customary meaning peculiar to the illegal narcotics trade. . . ." Parente v. United States, 249 F.2d 752, 754.

The same Circuit in Enriquez v. United States, 293 F.2d 788, 795, held that it was not error to allow a witness to testify that the word "stuff" meant heroin:

"The trial judge below, however, could not have been on the Federal Criminal Bench of California a month before learning that `stuff' is a well-recognized synonym for narcotics of one type or another, usually heroin or some other opium derivative."

The attempt to deceive the victim was proven beyond a reasonable doubt.

The defendant also argues that the indictment was fatally defective because it joined in one count two mutually exclusive offenses and, as a result, the defendant was not properly advised of the charge against her. The text portion of the indictment clearly and unequivocally charged the defendant with the unlawful sale of a purported narcotic drug. However, for some unexplained reason, the indictment erroneously cited this offense as a violation of section 22-3 of chapter 38, Illinois Revised Statutes 1963. The cited section pertains only to offenses relative to narcotic drugs. The section pertaining to the sale of a purported narcotic drug which corresponds to the text of the indictment is section 22-40 of chapter 38. These two offenses are mutually exclusive for the obvious reason that a party cannot ...


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