People v. Barney

Citation232 N.E.2d 481,89 Ill.App.2d 180
Decision Date27 November 1967
Docket NumberGen. No. 50723
CourtUnited States Appellate Court of Illinois
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee. v. Napoleon P. BARNEY, Defendant-Appellant.

Gerald W. Getty, Public Defender, Chicago, for appellant, Shelvin Singer, James J. Doherty, Chicago, of counsel.

John J. Stamos, State's Atty., Chicago, for appellee, Elmer C. Kissane, Robert A. Novelle, Chicago, of counsel.

ADESKO, Justice.

Defendant, Napoleon P. Barney, was charged with unlawful possession of narcotics. He was found guilty in a bench trial and sentenced to five to eight years in the Illinois State Penitentiary. He prosecutes this appeal contending (1) the evidence does not establish that defendant knowingly possessed narcotics; (2) that possession was not proven beyond a reasonable doubt; (3) that use for impeachment purposes of defendant's prior conviction for unlawful sale of narcotics should not have been allowed because that conviction was pending on appeal; and (4) that the aggravated penalties provision was improperly invoked.

A police officer assigned to the Vice Control Division, Narcotics Unit, observed defendant standing on a corner in the company of two men and a woman. As the officer, who was known to the defendant, aproached the group, the defendant saw him and turned to walk away. When the officer was about eight-feet away from defendant, he saw him throw away a gum package. The package was retrieved and inside were four tinfoil packages which field tested positive and were later proven to contain heroin. After picking up the package, the officer approached defendant and exhibited the narcotics to him. Defendant told the officer, 'This is for my own use, but I am not selling any narcotics.' He was placed under arrest.

The defense version of what happened makes one wonder if the defendant and the officer are talking about the same occurrence. Defendant testified that he was standing in front of his apartment building with five or six other persons. As the officer approached them, the group dispersed. The officer walked past defendant to the curb, stooped over, arose with a package in his hand and accused defendant of possession of narcotics. This officer was the same person who testified against defendant in a prior trial where defendant was found guilty of sale of narcotics. He now wanted defendant to inform on other suspected violators of the narcotics laws. When the defendant refused, he was placed under arrest.

We deal first with defendant's first two arguments, reasonable doubt of his guilt and that the evidence does not show he knowingly possessed narcotics. This court will not substitute its judgment on the matter of credibility of witnesses and the weight to be given their testimony. The trial judge saw and heard the testimony and unless his judgment rests on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, we will not substitute our judgment even though the evidence below is conflicting and irreconcilable. People v. Smith, 57 Ill.App.2d 74, 206 N.E.2d 463 (1965), cert. denied, 383 U.S. 910, 86 S.Ct. 895, 15 L.Ed.2d 665 (1965). The trial judge chose to believe the police officer's testimony with respect to possession of the narcotics. The officer observed defendant discard the package containing the heroin and related the admission of such possession.

It is argued that a person would not have thrown away a package if he knew it contained narcotics. However, the defendant recognized the police officer coming toward him and undoubtedly did not wish to be caught with narcotics on his person. We cannot say that the trial judge erred in finding the defendant guilty as charged.

Defendant's next argument is that introduction of his prior conviction for impeachment purposes was erroneous, since that conviction was pending on appeal. If the defendant chooses to take the stand, he opens the door to the introduction of prior convictions for the purpose of affecting his credibility. People v. Webb, 80 Ill.App.2d 445, 225 N.E.2d 679 (1967); Ill.Rev.Stat.1965, c. 38, § 155--1. In we Webb case, a division of our district was presented with this precise issue of introduction for impeachment purposes of a prior conviction pending on appeal. The court stated:

'The defendant also argues that a prior conviction on which appeals are pending cannot be used for the...

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9 cases
  • Sanchez v. State
    • United States
    • Wyoming Supreme Court
    • June 7, 1988
    ...Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284 (1974); People v. Hoffman, 25 Ill.App.3d 261, 322 N.E.2d 865 (1974); and People v. Barney, 89 Ill.App.2d 180, 232 N.E.2d 481 (1967). It should be recognized that challenge to a facially constitutional sentence as contended to be substantially inval......
  • People v. Ledferd
    • United States
    • United States Appellate Court of Illinois
    • April 3, 1968
    ...Supreme Court Rule 615, should modify the sentence by deleting the requirement that it run consecutively. 1 In People v. Barney, 89 Ill.App.2d 180, 232 N.E.2d 481 (1st Dist. 1967), the court approved the use of a prior conviction on appeal that was ultimately reversed for purposes of impeac......
  • People v. Logan
    • United States
    • United States Appellate Court of Illinois
    • June 24, 1976
    ... ...         Two Illinois cases have been called to our attention where a sentence has been overturned because the sentencing judge considered the defendant's prior convictions which had subsequently been overturned. In People v. Barney, 89 Ill.App.2d 180, 232 N.E.2d 481, a defendant was given an enhanced sentence under a statute calling for an enhanced sentence for a subsequent offense. Pending appeal, the prior conviction, which was the basis for the enhanced penalty, was reversed. The sentence for the subsequent offense was ... ...
  • People v. Coty, 80-1249
    • United States
    • United States Appellate Court of Illinois
    • March 30, 1982
    ... ... Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287), 1 but argues that the rule does not apply to a subsequently reversed conviction. He states that although in People v. Barney (1967), 89 Ill.App.2d 180, 232 N.E.2d 481, the reviewing court approved the use of a prior conviction for impeachment which was on appeal at trial but subsequently reversed, the court there simply applied the general rule and did not specifically consider the fact that the conviction was reversed ... ...
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