People v. Robinson

• Decision Date: 18 September 1958
• Docket Number: No. 34404,34404
• Citation: People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (Ill. 1958)
• Parties: The PEOPLE of the State of Illinois, Defendant in Error. v. Howard ROBINSON, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 65

153 N.E.2d 65

14 Ill.2d 325

The PEOPLE of the State of Illinois, Defendant in Error. v.Howard ROBINSON, Plaintiff in Error.

No. 34404.

Supreme Court of Illinois.

Sept. 18, 1958.

Moore, Ming & Leighton, Chicago (George N. Leighton, Chicago, of counsel), for plaintiff in error.

Latham Castle, Atty. Gen., and John R. Dean, State's Atty., Danville (Fred G. Leach, Decatur, and Louis B. Sunderland, Springfield, of counsel), for the People.

DAILY, Chief Justice.

By separate indictments returned to the circuit court of Vermilion County, the defendant, Howard Robinson, was charged, first, with the unlawful sale of opium, a narcotic drug, to Thomas Foster, and, second, with a similar sale to John McKenzie, Jr.He was tried by a jury under the latter indictment and, when a verdict of guilty was returned, defendant waived a jury trial under the Foster indictment and stipulated that the evidence would be the same under both charges.Thereafter, the court entered a finding of guilty in the Foster matter and, after denying post-trial motions made in the jury case, entered judgments in both cases and sentenced defendant to serve two concurrent terms of not less than ten nor more than fifteen years in the penitentiary.This writ of error is prosecuted to review the two judgments of conviction.

With respect to both indictments, which charge that the unlawful sales of narcotics were made on March 12, 1956, defendant now contends that the prosecution failed to prove his guilt beyond a reasonable doubt, claiming in particular that the evidence fails to show either a 'sale' or that the powder transferred was a narcotic, and that the testimony of Foster, McKenzie and one George Norris, upon which his convictions were largely based, was unworthy of belief.The record reveals that defendant and Foster had been acquainted for approximately a year prior to March, 1956, and that the latter has been a registered narcotics addict since 1951.McKenzie, 29 years old, had known defendant five or six years and had been using heroin two or three times a week over a period of five months.Norris had been acquainted with defendant for nine years and had used heroin about a week before March 12, 1956.At the request of the prosecution, and over the objection of defendant, the witnesses named were called as court's witnesses after the State's Attorney had advised the court that all three were being held on criminal charges, that he believed them unwilling to co-operate, and that, under the circumstances, he felt the prosecution should not be compelled to vouch for the witnesses' veracity and integrity.

Foster, McKenzie and Norris all testified that, although there had been no prearrangement, they were assembled with defendant in the room of Norris at a Danville hotel either late on the night of March 11, 1956, or early in the morning hours of March 12.According to Norris defendant had asked for and received permission to use the room to 'cap up,' and it was the testimony of all three that defendant filled a number of capsules with a white powder which he had carried in a cellophane container and had processed through a sifter.When this operation was completed, McKenzie, according to his testimony, bought a capsule of the powder from defendant for two dollars and laid the money on a table.Norris confirmed that McKenzie had received a capsule from defendant and, although he stated he saw no money change hands, both he and Foster told of seeing two dollars on the table.Neither professed to know what happened to the money but both agreed that someone had taken it from the table.Foster testified that he, too, got one of the capsules from defendant, promising he would pay two dollars later, that he immediately prepared and used its contents by injecting it into his arm with a needle, and that he then loaned his paraphernalia to Norris who took a similar injection using a capsule obtained from defendant.Norris agreed that he had obtained a capsule from defendant and injected the contents into his arm, but testified that he borrowed the equipment used from McKenzie.

After the events related, the four men went to an eating place for an hour or less, then returned to the vicinity of the hotel.McKenzie left the group to walk home and, on his way, stopped on a creek bridge where he emptied the contents of the capsule he had purchased into an empty cigarette package, then proceeded to inhale the powder through his nose.He further testified that he was familiar with the taste of heroin, which he described as bitter, and in referring to his reaction after using the powder purchased from the defendant, he said: 'I got the bitter taste and I got drowsy and spit up a little.'Foster and Norris, who had taken their capsules of powder by injection, both described their reactions as being the same as those that had followed their previous use of heroin by injection.An expert witness for the prosecution conceded that some non-narcotic drugs had the same appearance and taste as heroin, but pointed out that such drugs would not produce narcotic reactions, such as described, and was of the opinion that an addict would get to know a narcotic by its taste.An expert for the defense, however, stated positively that it was not possible for a person to identify a narcotic drug by taste.

Defendant took the stand in his own behalf and, while he admitted knowing his accusers, categorically denied the alleged events of March 11, 1956, or that he had ever sold narcotics to them.The proprietress of the hotel, using a receipt book as a reference, denied that Norris had been a guest in the hotel on March 11, and another witness, for whom McKenzie worked from time to time, contradicted McKenzie's testimony that he had been employed by the witness on the day of the crime.Two witnesses, one of whom was defendant's mother, testified that McKenzie's reputation for truth and veracity was bad and that they would not believe him under oath.

From the record before uswe cannot agree with the present claim that there is no evidence establishing either a 'sale' by defendant, or that the powder he transferred was in fact a narcotic.With respect to the latter charge defendant's argument to this court assumes that such proof could only be accomplished directly by a chemical test of the powder in question.No authority has been cited in support of such a stringent rule, nor has any been found.On the other hand, leading authorities agree that the general rules of evidence apply in the prosecution of drug and narcotic cases.17A Am.Jur., Drugs and Druggists, sec. 34;72 C.J.S.Poisons§ 7c.Judicial notice will be taken that heroin, even when found in a compound, is a derivative of opium.SeeUnited States v. Pisano, 7 Cir., 193 F.2d 355, 31 A.L.R.2d 409.Thus the only issue raised by defendant's assignment of error is whether the proof establishes the powder referred to by the witnesses was heroin.While the evidence relating to the nature and identity of the powder obtained from the defendant is in part circumstantial, this jurisdiction has long been committed to the principle that a conviction may be based on circumstantial evidence, and it has been broadly stated in many cases that there is no legal distinction between direct and circumstantial evidence as to the weight and effect thereof.People v. Botulinski, 383 Ill. 608, 50 N.E.2d 716;People v. Fedora, 393 Ill. 165, 65 N.E.2d 447;People v. Gavurnik, 2 Ill.2d 190, 117 N.E.2d 782.In other words, as is stated in People v. Susanec, 398 Ill. 507, 513, 76 N.E.2d 33, circumstantial evidence is legal evidence and when it is of such convincing nature that it satisfies the jury of the guilt of the defendant, the verdict must be sustained by the reviewing court.

Circumstantial evidence is indirect proof of the principal facts of a case, which principal facts can only be inferred from one or more circumstances directly established.In the instant case it was directly established that three persons, all acquainted with the preparation and use of narcotic drugs, saw defendant process a white powder using methods and paraphernalia commonly used in the preparation of narcotic drugs for sale.Additionally the record establishes that all three occurrence witnesses thought they were receiving heroin from defendant and each used procedures and paraphernalia commonly used to introduce narcotic drugs into the body.Apart from these aspects which tend to show indirectly that the powder was heroin, there is direct evidence which supports the jury's conclusion.McKenzie testified that he got the distinctive bitter taste of heroin when he inhaled the powder, and all three of the principal witnesses related that their physical reactions from the use of the powder obtained from defendant were the same as the reactions which had followed their previous use of heroin.That the reactions described were narcotic reactions was verified by the prosecution's expert who also testified that an addict would come to know a narcotic by its reaction.Insofar as intoxicating liquor (seePeople v. Olive, 248 Ill.App. 220;People v. Madruh, 226 Ill.App. 27), or poisonous drugs (seeState v. Buck, 88 Kan. 114, 127 P. 631, 42 L.R.A.,N.S., 854;State v. Hyde, 234 Mo. 200, 136 S.W. 316), are concerned, courts have recognized that lay or inexpert witnesses may have, by use, observation, or experience, sufficient knowledge of the appearance, odor, taste, characteristics and effect of intoxicating liquor or drugs to enable them to identify and distinguish them.By analogy, we think it feasible that a narcotic addict would, as the People's expert testified, come to know a narcotic drug by its reaction upon him.From a consideration of all the evidence, direct and circumstantial, it is our opinion that both the jury and the court were justified in finding that the powder in question was a narcotic drug as charged in the indictments.

Defendant's...