APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, John Warren, was charged with the offense of possession of marijuana. After a trial without a jury in the circuit court of Cook County, defendant was found guilty of that charge. He was placed on unsupervised probation for one year and was permitted to return to New Jersey to finish school. His sole contention on appeal is that he was not proved guilty of the crime beyond a reasonable doubt.
Officer John Keane of the Chicago Police Department was the sole witness for the State. He testified that on September 23, 1974, he stopped a vehicle which he had observed being driven recklessly. After the officer stopped the vehicle, he observed defendant sitting on the passenger side in the rear of the vehicle with an open bag containing crushed green plants on the floor between his feet. The officer arrested defendant and seized that bag and another bag from under the front seat. It was stipulated that the two bags together later tested out as containing roughly two pounds of marijuana.
Defendant, 25 years old, was the sole witness for the defense. He stated that he was in the vehicle as the result of an inquiry made of the driver about a young lady whom he had met. The driver did not know the girl but offered to give defendant a ride to the bus stop. At the time the officers stopped them, two other passengers were in the automobile. Defendant was seated behind the driver. He further testified that he never had his legs straddled over a bag nor did he ever have possession of any marijuana. The officers recovered one bag only after they lifted up the back seat and searched under the front seat. Defendant did not see a second bag recovered.
The following colloquy ensued after closing arguments by the prosecutor and defense counsel:
"THE COURT: I don't know. I'm trying to put myself in the position, you know, you try to judge the credibility of evidence and what would you do with a bag of marijuana if the police were outside the car, leave it sit out there or hide it?
STATE'S ATTORNEY: They have two bags, your Honor, it's not a nickle bag
THE COURT: All he saw was one.
STATE'S ATTORNEY: The other pound is up under the front seat.
THE COURT: Well the one he saw is the one that made him make the arrest. It's the one that he saw sitting between his legs as he looked in the back seat of the car.
Now, if you had some contraband and the police were outside of your car what would you do with the contraband? Secrete it.
STATE'S ATTORNEY: If I could.
THE COURT: You would make some effort to. You could just put your foot on ...