People v. Burage
Decision Date | 30 November 1961 |
Docket Number | No. 35762,35762 |
Citation | 178 N.E.2d 389,23 Ill.2d 280 |
Parties | PEOPLE of the State of Illinois, Defendant in Error, v. Robert L. BURAGE, Plaintiff in Error. |
Court | Illinois Supreme Court |
Nathan G. Brenner, Jr., Chicago, for plaintiff in error.
William G. Clark, Atty. Gen., and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and John T. Gallagher and Rudolph L. Janega, Asst. State's Attys., Chicago, of counsel), for defendant in error.
Defendant, Robert L. Burage, who was indicted in the criminal court of Cook County for unlawful possession and sale of narcotic drugs, was found guilty after a jury trial and sentenced to the penitentiary for a term of ten to fifteen years. He prosecutes this writ of error for review.
No evidence was introduced for the defense and the uncontradicted testimony of prosecution witnesses reveals that a purchase of narcotics was made from defendant by Inez Anderson, a Chicago policewoman, then working in co-operation with Federal agents. She was given funds and taken to the apartment of an informer employed by the Federal people, while other agents kept the building under surveillance from the outside. Defendant came to the apartment in response to a telephone call by the informer and, after some conversation in which he stated he had a good connection for narcotics, left the apartment to purchase some aspirin for the informer and Mrs. Anderson. Upon his return he made a telephone call, after which the three waited in the apartment for two hours until defendant received a call. At this, he requested and received $520 from policewoman Anderson and departed. He returned a few minutes later, handed her four packets of powder and then left again. Federal agents outside, in the meantime, had seen defendant go to a waiting automobile and receive something from the driver and, after he had re-entered the building for a short time, saw him enter the car and drive away. Mrs. Anderson immediately delivered the packets of powder to the waiting agents, and a field test disclosed that it was heroin.
During the trial of the cause defendant's counsel sharply cross-examined policewoman Anderson and, in one instance, pressed her for the details of any conversation she had heard between defendant and the informer while they were in the apartment. To this question the witness responded: 'I remember him stating that he had a nice girl friend now and he was going straight since he got out of the pen and he wasn't going to dirty her up.' Defendant's counsel immediately moved for a mistrial, which motion was denied, but did not ask that the answer be stricken or request at any time that the jury be instructed to disregard it.
The defendant contends here that the trial court erred in refusing to grant a mistrial because of the improper remark of the witness, and that there was a lack of proof to sustain the jury's verdict. Neither contention has convincing force.
While it may be agreed that the reference to defendant's prior incarceration in the penitentiary was completely incompetent and irrevelant, the State is not responsible for questions asked by the attorney for the accused, and neither is it responsible for the answers to such questions by the State's witnesses. (People v. Henry, 3 Ill.2d 609, 122 N.E.2d 159; People v. Maciejewski, 294 Ill. 390, 128 N.E. 489; People v. Singer, 288 Ill. 113, 123 N.E. 327.) If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain. (People v. Singer, 288 Ill. 113, 123 N.E. 327; People v. Maciejewski, 294 Ill. 390, 128 N.E. 489; People v....
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...or to strike it and have the jury instructed to disregard it; therefore, there can be no error in failing to do so. (People v. Burage (1961), 23 Ill.2d 280, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 82 S.Ct. 651, 7 L.Ed.2d 555.) Furthermore, defendant's claim of surprise is negated......
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