APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. MEJDA, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
The defendant, Howard C. Hudson, was indicted for the sale of a narcotic drug in violation of Ill. Rev. Stat., ch. 38, par. 22-3. After a trial by jury, he was found guilty and was sentenced to the Illinois State Penitentiary for not less than ten nor more than fourteen years.
On appeal, the defendant raises four points: (1) there was insufficient evidence to prove that the substance in question was cannabis sativa (marijuana) in accordance with the statutory definition of narcotic drugs; (2) reference by the State during trial to other crimes violated defendant's right to a fair trial; (3) the court failed to instruct the jury concerning the essential elements of the offense; and (4) the prosecutor's closing argument was inflammatory beyond allowable limits.
At trial, Donald Norton testified that he was an Inspector with the Illinois Division of Narcotics and had been so employed for seven and one-half years. He stated that he first met the defendant on October 10, 1966, at a restaurant called "The Hut" in Evanston, Illinois. Norton was seated in a booth with three other persons (Miller Riley, Rogers Nugent and Ann Croft) when the defendant approached and stated, according to Norton, "that I was supposed to do business with him that night and not the other two individuals I was with." Norton, who was operating undercover by the name of Danny, told the defendant that he was busy and might talk to the defendant later.
Norton stated that he next encountered the defendant on October 17, 1966. On that date, Norton and his partner, Inspector Charles McKissack, went into "The Hut" and saw the defendant sitting at the counter. McKissack was operating under the name of Chuck at this time. The three men exchanged greetings and sat in a booth. Norton testified that McKissack inquired about purchasing a "couple of cans" and the defendant quoted a price of $50.00 for two "large cans." The defendant then left the booth to make a telephone call. Norton stated that when the defendant returned from the telephone, he told them that "everything was mellow, and that we could cop," i.e., purchase drugs.
Norton testified that he next saw the defendant on October 27, 1966, and again on November 8, 1966, when the defendant was arrested.
On cross-examination, the witness testified that he was introduced to the defendant on October 10, 1966, by Ann Croft, who had supplied information to the State Division of Narcotics on prior occasions.
On redirect examination, Norton indicated that Miss Croft accompanied him to "The Hut" for purposes of introducing him to an individual named "Frog." When asked, "Who is `the Frog'?" the witness replied, "Howard Hudson."
John Carsten testified that he was a narcotics agent with the Illinois Division of Narcotics and had been so employed for three and one-half years. He indicated that he first met the defendant about 8:00 P.M. on October 27, 1966. Carsten was with Inspector McKissack in an unmarked state vehicle which they parked on the street in front of "The Hut." McKissack pointed out the defendant, who was standing in front of the restaurant. McKissack left the auto and engaged the defendant in conversation. Carsten stated that he then saw the defendant enter the restaurant, leaving McKissack on the street. A few minutes later, the defendant came out of the restaurant and then walked over to the car with McKissack. McKissack introduced Carsten to the defendant. Carsten stated that the two men got into the auto and he drove to the intersection of Church and Darrow Streets in Evanston. There, according to Carsten, the defendant instructed him to park near the intersection and left the vehicle for about twenty minutes. When he returned, the defendant said, "I am unable to find my man." Carsten made a U-turn and drove back to the intersection of Church and Darrow and the defendant said, "There he is now. Stop the car." Carsten indicated that he did not see this other individual but stopped the auto. The defendant got out and returned a short time later and said, "I have the stuff but left ." Carsten then testified that the defendant suggested that they go back to "The Hut" so they "could get the acid." Carsten, however, said: "As long as we have the pot in the vicinity here, let's pick it up now and we can go back to The Hut later." Carsten stated that he then drove around the block and again stopped the car. The defendant left the vehicle "and walked in between two houses into a gangway and returned a few seconds later. In his hand he had two Manila envelopes which he handed to Inspector McKissack." Carsten stated that McKissack then gave the defendant $20.00.
On cross and redirect examinations, Carsten testified that the defendant was not arrested on the night of October 27, 1966, because the defendant had agreed to deliver further amounts of marijuana in the future. No further sales were made, however.
State narcotics inspector Charles McKissack testified that he first met the defendant on October 17, 1966, at "The Hut" in Evanston, Illinois. He was introduced to the defendant by Inspector Norton.
McKissack stated that he next saw the defendant on October 27, 1966, at "The Hut." On this occasion, McKissack was with Inspector Carsten in an auto which they parked in front of "The Hut." McKissack saw the defendant standing in front of the restaurant and went over to speak with him. McKissack indicated that he spoke briefly with the defendant and asked: "Can you still do what you said you could do on the phone"? The defendant said "that he thought he could, but he would have to make a phone call first to find out if everything was all right." McKissack then testified that the defendant went into "The Hut" to make a phone call and, after completing his call, returned and said that everything was all right and "that we could come with him and he would take us to a place where we could buy marijuana." McKissack and the defendant then got into the auto and the defendant instructed Carsten, the driver, where to go. On one occasion, the defendant told Carsten to stop the car and left the two inspectors for a short time. When he returned, the defendant indicated that he couldn't find "the man." Carsten then made a U-turn and the defendant said, "There is the man," and instructed Carsten to again stop the car. McKissack stated that he saw a Plymouth or Dodge with a man in it. The defendant left the auto and disappeared into an alley. When he returned, according to McKissack, the defendant said, "Everything is mellow, we can cop." He then asked McKissack for the money and McKissack gave him twenty dollars. The defendant then went into the alley again and, about forty minutes later, came back in an auto with "the man." The defendant again disappeared for a few minutes and, upon returning, said: "I have hidden the marijuana, let's go get the LSD." McKissack then stated that Inspector Carsten suggested that they get the marijuana first and they did so. McKissack indicated that the defendant gave him the marijuana. Shortly thereafter, the defendant left the company of the inspectors. The inspectors then proceeded to their office and, after properly securing the substance supplied by the defendant, sent it to the Chicago Crime Laboratory for analysis.
On cross-examination, Inspector McKissack testified that when he first met the defendant on October 17, 1966, he engaged the defendant in a conversation "relative to my purchasing marijuana." He further stated that he did not arrest the defendant on October 27, 1966 [the date of the transaction]. The arrest was made on November 8, 1966, with the following law enforcement personnel participating: Inspector Norton, Detectives Marshall Barksdale and Davis Schram of the Evanston Police Department, Sergeant Jerry DcGross of the Evanston Police Department, and the witness, Inspector McKissack. Inspector Carsten did not participate in the arrest.
On redirect examination, McKissack testified that no arrest was made until November 8, 1966, because it was not until then that the inspectors had determined that the defendant would not be of use in the development of cases against other offenders in the area. McKissack also testified that he had a phone conversation with the defendant on October 26, 1966, and, in relating the conversation, stated: "Mr. Hudson answered the phone and I said, `This is Chuck.' And he didn't remember, or said he didn't. He said, `Chuck who'? I said, `Chuck, from Chicago. You remember, I was up there and bought some stuff from you the other day'"? ...