Appeal from the Circuit Court of Kane County; the Hon. CARL
SWANSON, Judge, presiding. Reversed and remanded.
JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
In a trial by jury, the defendant was convicted of selling marihuana in violation of section 3 of the Uniform Narcotic Drug Act (Ill Rev Stats 1967, c 38, § 22-3). Specifically, the indictment alleged that he and a co-defendant, Timothy McMillan, sold marihuana to Inspector Joseph Grady of the Illinois Division of Narcotics Control on October 21, 1968, at or near the Meadowdale Shopping Plaza in Carpentersville, Kane County. The co-defendant, McMillan, was found guilty in a separate trial, and is not involved here.
This is a nonprobationary offense and the minimum sentence for this crime is ten years. The defendant was sentenced to a minimum of ten years and a maximum of ten years and six months. He is 19 years of age and it appears that this is his first conviction.
One of the defendant's contentions on appeal is that the evidence was not sufficient to support his conviction. We believe that it was sufficient. Briefly, the evidence of the People was that Inspector Joseph Grady of the Illinois Division of Narcotics Control met with a special employee of that Division, named Roger Stiller, on October 21, 1968. Grady and Stiller drove to an address in East Dundee, Kane County. This was a house where the defendant Meid lived with his parents. Stiller went into the house and came out with the defendant Meid and the co-defendant Timothy McMillan. Thereafter, according to Inspector Grady, there was considerable conversation between him and Meid as to whether Meid would sell him marihuana. The gist of it was that, while Meid expressed willingness to sell to Stiller, he refused to sell directly to Grady. Grady insisted that he wanted to purchase directly from Meid, so that he could satisfy himself about the quality of the marihuana. Finally, Grady, Stiller, McMillan and Meid left Meid's house and, in two cars, drove to the Meadowdale Shopping Center in Carpentersville. Meid mentioned to Grady that he had left a pound of marihuana approximately 300 yards from his house and that he could go over there and transfer it to Stiller, so that Grady could obtain it from Stiller later that evening.
The parties then left the shopping center and, in McMillan's car, drove to a Tastee-Freeze stand. During this trip, according to Grady, Meid opened the glove compartment of the car and extracted a package of marihuana and some cigarette paper. He rolled a marihuana cigarette and passed it around for the four occupants of the car to smoke.
The group then drove back to the shopping plaza parking lot and further discussion ensued. Finally, McMillan stated that he would take Grady over to the marihuana. According to Grady, the defendant Meid agreed to this procedure. McMillan and Grady then drove, in McMillan's car, to a field near the Meid residence. McMillan got out of the car, picked up a package from the side of the road, returned to the car and handed the package to Grady. The contents of this package were later tested and determined to be approximately 3 ounces of marihuana. Grady produced $100 in currency and McMillan told him to put the money on the dashboard of the car. McMillan then drove back to the shopping plaza where Meid and Stiller were sitting in Stiller's car. Meid approached McMillan's car, and stuck his head in the window. Grady told Meid that there was not enough marihuana, that its quality was not sufficient to warrant the price of $100, and that he was willing to pay only $80. According to Grady, Meid then stated that he wanted $90. Grady remonstrated further and Meid replied, "I'm in a hurry, $90.00 or nothing. Take it or leave it." Grady then took $10 back from McMillan and rejoined Stiller in the latter's car.
The defendant Meid testified in his own defense. His version of the evening's events coincided substantially with Grady's insofar as the comings and goings were concerned, and he even admitted that they did smoke the marihuana as described by Grady. However, he testified that he steadfastly refused to sell any marihuana to Grady, and that, in fact, he had expressed the suspicion that Grady was a narcotics agent. He conceded that McMillan ultimately agreed to sell to Grady, and that Grady and McMillan did depart for the apparent purpose of concluding a marihuana transaction, but he stated that he warned McMillan to have nothing to do with Grady and denied that he played any part in the transaction himself.
Considering the evidence in the light most favorable to the People, we believe the jury could properly have found that Meid did participate in the sale to Grady. There is the testimony of Grady that Meid referred to a "stash" of marihuana which he had secreted in a field near his home. Later, McMillan, in the presence of Meid, stated that he would take Grady to the place where the marihuana was. According to Grady, Meid expressed agreement with this. McMillan did in fact obtain the package from an area corresponding to the general description earlier given by Meid. Finally, there is the testimony of Grady that Meid participated in a discussion concerning the price of the marihuana and in fact demanded more money than Grady was willing to pay. All of this conduct on the part of Meid, is, we feel, sufficient to make him a principal in the sale.
The defendant argues that venue in Kane County was not proved, but we find that it was. Grady testified that he and Stiller went to the Meid home "in East Dundee, Kane County, Illinois," and referred to going to the "Meadowdale Shopping Plaza in Carpentersville, Illinois."
We can and do take judicial notice of the fact that Carpentersville, Illinois is located in Kane County. People v. Taylor, 121 Ill. App.2d 403, 257 N.E.2d 524 (1970).
Despite the fact that we feel the evidence was sufficient to support a conviction, we must reverse the case for what we regard as prejudicial error in the admission of evidence. During the direct examination of Inspector Grady, the following occurred:
Q. "Was there any further conversation in the vehicle before you left the Tastee-Freeze?"
A. "The conversation while we were there was mainly between Mr. Meid and Mr. McMillan. I believe Mr. Stiller took part in it. It was more or less loose conversation about general occurrences in the area.
"At one point Mr. Meid stated to, well, to Mr. McMillan well, Mr. McMillan, Mr. Stiller and myself, he had been more or less involved in a contest with another individual to see who could get the highest price for one marijuana cigarette."
MR. CHAPSKI: "If the Court please, I think this is only being used to prejudice my client, this type of testimony."
MR. KETCHAM: "Your honor, that is not true. We have a right to show these statements as statements against admission. I will be ...