APPEAL from the Circuit Court of La Salle County; the Hon.
LEONARD HOFFMAN, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment of guilty of possession of explosives following a jury trial. He was sentenced to a term of not less than 3 nor more than 10 years in the penitentiary as a result thereof.
On appeal in this Court, defendant contends that he was not proven guilty beyond a reasonable doubt of the offense of possession of explosives in that it was never sufficiently established that defendant knew that another man intended to use the explosives to commit a felony. Defendant also contends that the remarks of the prosecutor in closing argument were prejudicial and of such nature as to deny defendant of a fair trial, and, additionally, that a jury instruction defining the offense of possession of explosives was so vague and ambiguous that it served to mislead the jury.
Four witnesses were called by the State. Robert Walker testified that on August 22, 1968, while he was serving as undercover agent for the Illinois Crime Commission, he met with the defendant at Marseilles, Illinois. This meeting had been arranged by an informer associated with Walker, one Frank Grudzinski, also known as Murphy. The purpose of the meeting was to complete a transfer of explosives from defendant Thomas to Robert Walker. In the course of the conversations between Walker and defendant, Walker testified that defendant Thomas asked him if he had any use for dynamite and blasting caps and Walker stated that he did. At the trial, Walker was interrogated as to whether Thomas was told what Walker wanted the dynamite and blasting caps for. Walker answered, "Yes. I said I was going to blow up a restaurant in Chicago." Thereafter, Walker stated that he asked defendant Thomas how powerful the dynamite was, and the defendant Thomas said that it was 70% nitro, two and a half inches in diameter, and 18 inches long. Walker stated that Thomas then said that "if you would tape one of the sticks of the dynamite to the wall of the tavern" they were in, "it would blow off the front of the place."
After this conversation, the three men traveled to a house in Marseilles from which defendant obtained a quantity of explosives and transferred them to the automobile of Walker. The other three prosecuting witnesses included a Mr. Ewert, an agent of Walker's who observed the meeting as between the parties and verified that it took place; and Frank Kasky and Robert Boese who were called to establish the fact that the materials transferred to Walker by defendant were actually explosive compounds. Frank Grudzinski (also known as Murphy) did not testify.
Defendant testified in his own behalf and stated that Grudzinski had indicated that the man wanted the explosives to remove some fish from a lake in northern Illinois. Defendant stated that acting on this belief he obtained the explosives from a friend. He also denied that he had any information that the explosives might be used for destroying a restaurant in Chicago.
• 1, 2 As we have indicated, Walker told defendant that he was going to use the explosives to blow up a restaurant. He also asked defendant how powerful the dynamite was and was told that if it was taped to the wall of the tavern they were in it would blow off the front of the place. There was, therefore, sufficient evidence which if believed by a jury would indicate that defendant Thomas knew the purpose to which the dynamite and blasting caps were to be put. The record also showed that the type of dynamite involved would regularly be used in the course of the business of a commercial blaster. Since it is the function of a jury to weigh testimony and determine the credibility of witnesses, unless the verdict is such as to raise a reasonable doubt of guilt, the reviewing court should not disturb it (People v. Tribbett, 41 Ill.2d 267, 242 N.E.2d 249). We do not believe that the finding of the jury in this case, on the basis of the record, was contrary to the evidence, and consequently do not believe we would be justified in disturbing such finding.
• 3 Defendant also objects to the closing argument of the prosecutor and contends that it denied defendant a fair trial. The record shows that in the course of argument on behalf of defendant, defendant's counsel referring to Grudzinski (also known as Murphy) said:
"Now, I ask you, ladies and gentlemen, where was Frank Grudzinski? He could have been brought back here to testify. Yes, sir, he certainly could. But he was not here. He did not appear here to testify in this court room, and he is the only man who had who could have contradicted the testimony of Sam Thomas.
I ask you, why didn't they bring him back in here and let him testify, and let him contradict the defendant? What is wrong with the prosecution who will not bring in the most interesting witness of the case?
What were they afraid of?
No, ladies and gentlemen, they would rather try to impress you with some high-sounding titles of some law enforcement officials from Chicago with clean hands. They don't work with clean hands. They work with informers, so that they will be so that they will get a deal in the case.
I believe and we all believe in law and order, but this is the prostitution of law and order, ladies and gentlemen; this is damnable. It should be condemned, and you are here and you can condemn it.
They came down here from Chicago and made phone calls and used trickery they are clever; this is their business. And they have failed, because they are immoral. They can't follow that commandment given to Moses, `Thou Shalt Not Lie.' And ...