APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant James Cansler, on January 23, 1968, was found guilty by a jury of the unlawful possession and sale of narcotic drugs. He was sentenced to the penitentiary for a term of not less than 10 years and not more than 11 years.
The question presented to this Court is as to whether the prosecution is under a duty to furnish the present address of the informer, the contention being that the failure to do so is a denial of his right to a fair trial under the Due Process Clause of the 14th Amendment to the United States Constitution.
A brief resume of the facts is in order.
Paul Hemphill, an Illinois narcotics inspector testified that he went to the Cat and Fiddle tavern in Waukegan on the afternoon of December 5th, 1966. As the defendant and two women walked out of the tavern they were met by Hemphill who said "Hi Jim." Hemphill then told the defendant that he wanted to buy a $10.00 bag of Marijuana and all four got into Hemphill's car and drove to the 1400 block of Hervey Street in North Chicago. Cansler got out of the car, went into a building and returned with three tin foil packages which he gave to the narcotics agent, saying, "You will like this, it came from Mohammed." Hemphill gave him $30.00. They drove back to the Cat and Fiddle tavern and separated.
The defendant Cansler took the stand and testified in his own behalf. He confirmed the testimony of the narcotics inspector but stated that the four people went to North Chicago at the request of "Jessie Demus" one of the two girls. When they got to the 1400 block in question, at the request of Jessie Demus he went to a red garbage can and found a brown paper bag; that he returned to the car and gave it to Jessie Demus who in turn gave it to the narcotics inspector who gave her the money for it; and the packages were in shiny foil as described by the witness for the State. These were the only two witnesses who testified.
The name "Jessie Demus" does not appear on the back of the indictment, nor was the name furnished to the defendant upon his request for a list of the witnesses. The States' Attorney in argument stated that he did not know the name until it was brought out at the trial. No one appears to know the name of the other woman present, except that it might be "Mary."
Interestingly enough, the Defendant testified that he had known Jessie Demus "practically all my life." He further testified that he knew where she was "In the State Penitentiary for women in West Virginia."
• 1 The State is not required to call all material witnesses to a crime. (People v. Aldridge (1960), 19 Ill.2d 176, 166 N.E.2d 563; People v. Izzo (1958), 14 Ill.2d 203, 151 N.E.2d 329.) However, here the State contends that they did not know the name of the witness, Jessie Demus, also known as Jessie Davis. Defendant not only knew of her, he knew where she was at the time of trial.
Several Illinois cases deal with the concealment of a witness. In People v. Wilson (1962), 24 Ill.2d 425, 182 N.E.2d 203, the Supreme Court reversed the trial Court, where the material witness was put on a train and sent out of the State by Federal Narcotics agents. In really a companion case, People v. Williams (1968), 40 Ill.2d 367, 240 N.E.2d 580, defendant and a different offense, but involving the same purported informer who had been sent out of the State. However, in both of those cases, the informer, a Ruth Killingsworth, had set up the transaction in her apartment.
In People v. Bliss (1970), 44 Ill.2d 363, 255 N.E.2d 405, the Defendant was found guilty of unlawfully selling a narcotic drug. In this case the informer named was listed as James Wilson. At the trial he revealed that his real name was Patrick Judge. The Defendant there contended that his constitutional rights of due process were denied him by the State in concealing the true identity of the informer. However, the Defendant admitted that he had known the informer since childhood. The facts of the sale are most similar to the instant case, and the Court said:
"Defendant then detailed the movements of himself and Wilson in such a way that there was practically no difference in their testimony, the only difference being that defendant denied the delivery and sale of the drug to the informer. Defendant clearly recalled their trip together in defendant's automobile as described by Wilson, including the direction taken, distance traveled, area visited and their ultimate return to the neighborhood where the officers were waiting for Wilson. It appears, therefore, that there was no element of surprise on defendant's part in his confrontation with the informer at the trial. He distinctly remembered his contact with him at the time and place in question and was able to give an explanation of their movements consistent with his innocence."
In Bliss the Court further stated that Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 and People v. Williams, 40 Ill.2d 367, 240 N.E.2d 580 did not apply because the defendant was afforded trial confrontation and the opportunity for cross examination, and
"that defendant was aware of the identity of his accuser and had a clear recollection of the transaction in which he was charged ...