Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Reversed and remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendant, Charles E. Gilmer, was indicted for the unlawful sale of narcotic drugs. He was tried before a jury, found guilty, and sentenced to serve not less than ten nor more than eleven years in the Illinois State Penitentiary. The defendant appealed from the judgment of the trial court and in this court argues:
1) His constitutional rights were violated when the prosecutor commented on suppressed evidence in his closing argument to the jury;
2) The prosecutor's closing argument was so improper and prejudicial that defendant was denied his right to a fair trial;
3) The defendant was denied his right to a fair trial when the trial judge admitted evidence that defendant committed a subsequent, unrelated offense; and
4) The evidence presented in the trial court was not sufficient to prove defendant's guilt beyond a reasonable doubt.
On May 11, 1966, two police officers met an informer at a gas station at 47th and State Streets in Chicago. The informer, John Preston (alias Allen Cole), had told the officers he knew where to illegally purchase narcotics. The police stripped and searched the informer to verify that he did not possess narcotics before making contact with the defendant, and he was given $25 in prerecorded bills, then taken to the vicinity of Michigan Avenue and 42nd Street, where he left the car and went to the southeast corner of 43rd and Michigan. The officers remained inside the unmarked police car from which they witnessed the meeting of the defendant and the informer.
When the two men started walking south on Michigan Avenue, Officer Arnold left the police car and followed them to the apartment building at 4420 South Michigan where the defendant lived. The two men went into the building and, according to the informer's testimony, went up to the defendant's apartment. The defendant asked if he was interested in purchasing narcotics, and the informer said he was. The defendant asked the informer how much money he had and when he was told, the defendant took the money and left the other man in the apartment while he went down the hall. When he returned he gave the informer a small tinfoil package which the informer turned over to Officer Arnold as soon as he left the building. This incident, from the time the men entered the apartment building, took from three to five minutes.
Officer Arnold field tested the contents of the packet which revealed the presence of opium; the two officers then entered the foyer of the apartment building where they arrested the defendant for the unlawful sale of narcotics.
The defendant was placed in Tier D-2 of Cook County Jail, awaiting trial. On November 19, 1966, the informer was also incarcerated in the Cook County Jail on a petty theft charge, and was also placed in Tier D-2. On December 8, court call slips were sent over for both men, notifying them they were to appear that day for defendant's trial. In his testimony the informer said that when the defendant discovered he was in the same tier, he and some of his cellmates beat the informer severely when the defendant told the informer, "I should kill you. You are supposed to go and testify against me today."
The defendant testified that the informer was beaten because the inmates believed he was in jail "getting information on everybody up here." The defendant further testified that he had seen the informer for the first time in his life in Cook County Jail, and that he had never struck the informer.
During his opening statement to the jury the State's Attorney referred to the beating of the informer, saying he "was beaten by the defendant and beaten severely." Defense objected and the objection was overruled. The defense again objected to the informer's direct examination in which he was allowed to relate to the jury the circumstances surrounding his beating at the jail. During direct examination the informer admitted he had been a narcotics user "back in the fifties."
The defendant further urges that the closing argument was so improper and prejudicial that he was denied a fair trial; that the trial court committed reversible error in admitting evidence about the beating of the informer, an offense of the defendant's subsequent to and unrelated to the offense charged in the indictment; and finally, the defendant contends that he was not proved guilty beyond a reasonable doubt, when the consideration of the suppressed currency is removed.
We shall consider the latter argument first, since if the defendant is correct in asserting that he has not been proved guilty beyond a reasonable doubt, the judgment must be reversed, while error on the other points would justify no more than a reversal of the judgment and a remand of the cause. Defendant's argument on this point is that the conviction rests on the uncorroborated testimony of an ...