People v. Biloche

• Decision Date: 23 March 1953
• Docket Number: No. 32383,32383
• Citation: 414 Ill. 504,112 N.E.2d 162
• Parties: PEOPLE v. BILOCHE.
• Court: Illinois Supreme Court

Page 162

112 N.E.2d 162

414 Ill. 504

PEOPLE v. BILOCHE.

No. 32383.

Supreme Court of Illinois.

March 23, 1953.

Rehearing Denied May 18, 1953.

Wilfred Biloche, pro se.

Ivan A. Elliott, Atty. Gen., and John Gutknecht, State's Atty., Chicago (John T. Gallagher, Rudolph L. Janega and Arthur F. Manning, Chicago, of counsel), for the People.

DAILY, Justice.

Wilfred Biloche, plaintiff in error, was tried without a jury in the criminal court of Cook County and found guilty of the crime of 'unlawful sale of a narcotic drug.' He was sentenced to the penitentiary for a term of two to five years and has sued out this writ of error to review his conviction. Appearing pro se, he has assigned many errors, chief of which are: (1) That improper evidence was admitted at his trial; (2) that the evidence was insufficient to support a finding of guilt; (3) that the judgment of conviction was based on perjured testimony; (4) that plaintiff in error was compelled to give evidence against himself; and, (5) that the court erred in overruling his motions for new trial and in arrest of judgment.

Recourse to the record reveals that police officer Albert Kroll was the only witness who testified for the prosecution in presenting its case in chief. He testified that on the night of September 6, 1951, at approximately 10:00 P.M., he and his partner, officer Emmett McMorrow, observed one Wallace Manning, who was familiar to them, walking in the vicinity of Ashland Avenue and Thirteenth Street in the city of Chicago. The officers followed him in their car and, when Manning halted in an areaway beside an apartment building at 1341 Washburne Avenue, the officers parked their car, which bore no official markings, at the curb on the opposite side of the street some twenty to thirty feet away. Within a few minutes, the plaintiff in error came out of the door of the apartment and engaged in a conversation with Manning. He was heard to say: 'I will take care of that,' after which he reentered the building. Kroll testified that when this occurred, he and his partner left their car, crossed the street and concealed themselves behind a parked car some three feet from the areaway where Manning was standing. When plaintiff in error returned to the street, Kroll saw him hand Manning a small white object, which the officer had occasion to believe was narcotics, and in turn Manning handed plaintiff in error three one dollar bills. As the exchange was completed, the officers came around the parked car and each seized one of the men. Kroll testified that as he and his partner approached, Manning dropped a small white object and ground it into the sidewalk with his foot and that when plaintiff in error was seized he had three one dollars bills crumpled in his hand. The witness took custody of the bills, placed identifying marks on them and, at the trial, they were introduced in evidence.

Continuing his testimony, officer Kroll stated that Manning and plaintiff in error were searched for weapons on the street, then taken into the apartment which connected with the doorway plaintiff in error had used, explaining that they were taken inside at once to secure them against an attempt to escape. He testified that his partner then left to call a patrol wagon, while he remained to guard Manning, plaintiff in error, and woman who had admitted them to the apartment. In the direct examination of officer Kroll which followed the disclosures related above, he was asked: '* * * did you have occasion to return to the sidewalk where you first observed Biloche and Manning?' and he replied: 'We did.' He was then asked: 'What, if anything, did you do at that time and place, officer?' to which he responded: 'We found one capsule of heroin just where he was standing and there was another capsule there but it was ground up.' When asked: 'Did you have occasion to recover that one capsule?' his reply was: 'We did.' When being cross-examined about these matters, Kroll admitted that he had not returned to the areaway himself but that his partner had done so, and had, on his return to the apartment, told the witness in the presence of plaintiff in error and Manning, that the capsule was found where the men had been standing. Also, while being cross-examined, Kroll was asked if he had not spent about thirty to forty-five minutes searching the apartment and in questioning the woman who was present there. His response was: 'I don't think we were up there more than three or four minutes. The narcotics were right on top of the dresser.'

Returning to officer Kroll's testimony on direct examination, he testified that when Manning and plaintiff in error were first apprehended, the former admitted that he had come to the Washburne Avenue address to buy narcotics, but that plaintiff in error denied that he had sold any, stating that he had been on his way to a store when arrested. The following day, Kroll and McMorrow questioned the two men at police headquarters with no other persons present. As a result of the questioning, Manning made a written, signed statement, which recites that it was given of his own free will, wherein he admitted that he was a narcotics addict; that he paid $1.50 a capsule for heroin and used one daily; that he had paid Biloche $3.00 in front of 1341 Washburne Avenue for two caspules just prior to the time of their arrest the previous evening; that Biloche had come out of the house located at 1341 Washburne Avenue; that he had made one previous purchase of narcotics from Biloche at the same place; and that he had been directed to Biloche by another addict named Mix. Plaintiff in error was present when this statement was given and on two occasions was asked if he had anything to say about Manning's accusation. His first reply was: 'He is lying,' and at the conclusion of the statement he said he had nothing to say. The questions directed to plaintiff in error were included in the signed statement of Wallace Manning and when the statement was offered into evidence the court ruled that only those questions and answers participated in by plaintiff in error were admissible.

From officer Kroll's testimony it was also learned that the capsule found had been taken to the crime laboratory, and the court admitted in evidence, on stipulation of the parties, a laboratory report which analyzed the contents of the capsule as heroin.

The first witness for the defense was Wallace Manning, who, in direct contradiction to his signed statement, testified that he was not a narcotics addict and that he had not known plaintiff in error previous to the time of their arrest. He denied buying narcotics from plaintiff in error, stating that at the time of the arrest he was walking home from work and had stopped plaintiff in error on the street to ask him for a match with which to light a cigarette. He told of being seized and searched by the officers and professed never to have had more than fifty-two cents on his person that evening. He confirmed that the officers had taken him and plaintiff in error into the apartment and stated that after they had been there thirty-five minutes, officer McMorrow left, then returned fifteen minutes later announcing that he had found a capsule on the sidewalk. When cross-examined, he admitting making and signing the statement previously described, but testified that it was untrue and that it had been given under duress. In regard to the latter claim his first version was that the officers had threatened to beat him but had not struck him; however, upon being asked the question again by defense counsel, he stated that Kroll had slapped him twice at a time when no other persons were present. Following the witness's cross-examination, his previous conflicting statement was offered and received into evidence over objection.

Plaintiff in error took the stand in his own behalf, and his version, too, was that Manning had stopped him on the street for a match at the time he was arrested. He denied having three dollars in his hand and stated that the officers had taken it from his pocket. He, likewise, told of being taken into the apartment of a woman, claimed to be unknown to him, and stated that the officers had spent forty-five minutes searching the apartment and questioning the woman before officer McMorrow left to call a patrol wagon. He said that when McMorrow returned to the apartment he said: 'Look what I found on the sidewalk.' Plaintiff in error further testified that he lived at 1329 South Central Park and denied living at 1341 Washburne Avenue or that he received mail there. He explained his presence in the vicinity of the Washburne Avenue address by stating that he was returning from a movie and had taken a short cut through the areaway adjacent to 1341. Further, he told of being present at the time Manning gave his statement and of his telling the officers that the statement was a lie. On the stand he reiterated his denial that he had ever sold narcotics to Manning or any other person.

In rebuttal, the People called officer McMorrow who testified that he was with Kroll when plaintiff in error was arrested; that plaintiff in error had three one dollar bills in his hand when arrested; and that mail addressed to plaintiff in error at 1341 Washburne Avenue had been found in the apartment. He further testified that he had remained in the apartment only three or four minutes before returning to the areaway where the arrest had taken place. Both he and Kroll, who was also called in rebuttal, denied that Manning had ever been threatened or struck when his statement was given.

The record discloses that the proofs were closed at this point and plaintiff in error's counsel presented his argument to the court. At its conclusion the court found plaintiff in error guilty as charged in the indictment and denied motions for a new trial and in arrest of judgment. A colloquy followed between the court and counsel relative to the sufficiency of the...