{ "id": 2556438, "name": "People of the State of Illinois, Defendant in Error, v. Sebastian M. Ortega, Plaintiff in Error", "name_abbreviation": "People v. Ortega", "decision_date": "1967-04-28", "docket_number": "Gen. No. 51,008", "first_page": "49", "last_page": "53", "citations": [ { "type": "official", "cite": "83 Ill. App. 2d 49" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "97 NE2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "409 Ill 63", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310922 ], "pin_cites": [ { "page": "68-69" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0063-01" ] }, { "cite": "129 NE2d 709", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708271 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0494-01" ] }, { "cite": "214 NE2d 289", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill App2d 317", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5290561 ], "pin_cites": [ { "page": "319-320" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0317-01" ] }, { "cite": "223 NE2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378454 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0349-01" ] }, { "cite": "174 NE2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789651 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0142-01" ] } ], "analysis": { "cardinality": 399, "char_count": 6284, "ocr_confidence": 0.64, "pagerank": { "raw": 2.0252625016220618e-07, "percentile": 0.7459205150570555 }, "sha256": "2d522a6d2dbcb23604edf1994e3cedd1d91634da6481bfd8c1c35fa3bfdce62f", "simhash": "1:56f6397af324ba79", "word_count": 1043 }, "last_updated": "2023-07-14T21:35:59.641079+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Defendant in Error, v. Sebastian M. Ortega, Plaintiff in Error." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE ENGLISH\ndelivered the opinion of the court.\nOffenses Charged\nUnlawful sale of narcotic drugs (Indictment 63-972), and unlawful possession of narcotic drugs (Indictment 63-973).\nJudgments\nJury trial was waived. After hearing the evidence in Indictment 63-972, the court found defendant guilty and sentenced him to a term of ten to eleven years. It was then stipulated that the evidence heard at that trial be considered also as evidence in Indictment 63-973, and there was a further stipulation as to additional evidence. The court found defendant guilty of this charge also, and sentenced him to a term of two to three years, concurrent with the first sentence.\nPoints Raised on Appeal\n(1) The evidence did not establish defendant\u2019s guilt beyond a reasonable doubt.\n(2) The court unduly restricted defendant\u2019s cross-examination of State witnesses.\nEvidence\nDefendant does not seriously question the adequacy of the proof except as to the narcotic content of the substance sold or possessed. Admittedly, this is one of the elements of the crimes charged which the State has the burden of proving. In the case charging sale, the State sought to meet this burden by means of an oral stipulation in lieu of a chemist\u2019s testimony. The stipulation was that the police chemist, if called, would testify that the substance \u201cpurports to be\u201d heroin. In the case charging possession, there was an additional stipulation that the chemist, if called, would testify that the substance was \u201cfound to be\u201d heroin.\nOpinion\n(1) Although we are mystified as to the reason for it, we have been impressed by numerous instances in recent years of the demonstrated nonchalance and inattention to detail on the part of prosecutors when introducing by stipulation the part of the State\u2019s case having to do with the chain of possession and chemical content of the substance seized in narcotics cases. The expedience of resorting to such a stipulation we do not doubt, but we cannot permit this informality of procedure to render the proof any less exact or complete than would be the case if the witnesses were to testify.\nOur question, therefore, is whether proof that a substance \u201cpurports to be\u201d narcotic constitutes proof beyond a reasonable doubt that it is narcotic. The answer must be that it does not. While it is true that under the generally understood meaning of the word, \u201cpurport,\u201d an object which purports to have a certain characteristic may, or perhaps usually does, in fact possess that characteristic, it does not always do so. In any given case the speciousness of a purported attribute is a definite possibility. And that ever-present possibility is, in our opinion, sufficient to raise a reasonable doubt as to the attribute claimed.\nWe are aware of no opinion bearing directly on this point, but there are two cases which we believe support our conclusion.\nIn People v. Steele, 22 Ill2d 142, 174 NE2d 848, the Supreme Court affirmed the defendant\u2019s conviction for the unusual crime of offering to sell a narcotic drug and then delivering a nonnarcotic substance. Ill Rev Stats, 1959, c 38, \u00a7 192.28-38; now c 38, \u00a7 22-40. The indictment described the delivered nonnarcotic substance as \u201ca certain purported narcotic drug.\u201d Obviously, if the defendant in that case had delivered a narcotic drug, he would not have been guilty of the charge brought against him; and, just as obviously, if the words, \u201cpurported narcotic,\u201d described the genuine article, the indictment itself would have failed to charge the crime in question.\nAn oral stipulation quite similar to the one in the instant case was employed in People v. Green, 36 Ill2d 349, 223 NE2d 101, where the charge was the unlawful possession of narcotics. There the language incorporated into the stipulation referred to cigarettes which \u201cpurported to be\u201d marijuana cigarettes, or were \u201csupposed marijuana cigarettes.\u201d A conviction in the trial court was reversed in the Supreme Court by an order entered September 15, 1959, on the basis of a confession of error by the Attorney General on this point.\nWe conclude, therefore, that there was a failure to prove one of the essential elements of the crime in the case charging sale of narcotics, and the conviction should be reversed. People v. Brown, 66 Ill App2d 317, 319-320, 214 NE2d 289, and cases there cited. We feel that we cannot, under that indictment, find defendant guilty of a reduced charge of delivering a nonnarcotic substance under section 22-40 since that charge does not appear to be an included offense in the sale of narcotics. The element of deceit which is an essential to the former crime, does not enter into the latter.\nIn the case charging possession of narcotics, we consider the additional stipulation (set forth above) sufficient to cover the point which was missed in the other case, and that conviction should, therefore, be affirmed.\n(2) In view of what we have written, it is unnecessary to review defendant\u2019s contention in regard to trial errors so far as they relate to the first indictment. The point is made as to both indictments, however, that the court erred in restricting repeated attempts by defense counsel to question the police witnesses about a man named Mario Compos who had been at the scene of defendant\u2019s arrest but had not been arrested. The informer in the case had testified that he did not know Compos and had never heard of him. Under all the circumstances of this case we find no clear abuse of the court\u2019s discretion in determining the latitude to be allowed on cross-examination. People v. Moretti, 6 Ill2d 494, 526, 129 NE2d 709; People v. Provo, 409 Ill 63, 68-69, 97 NE2d 802.\nDecision\nThe judgment in Indictment 63-972 is reversed.\nThe judgment in Indictment 63-973 is affirmed.\nReversed in part.\nAffirmed in part.\nDRUCKER and McCORMICK, JJ., concur.\nAppeal was taken to the Supreme Court which transferred the case here.", "type": "majority", "author": "MR. PRESIDING JUSTICE ENGLISH" } ], "attorneys": [ "William R. Yowell, of Chicago, for plaintiff in error.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State\u2019s Attorneys, of counsel), for defendant in error." ], "corrections": "", "head_matter": "People of the State of Illinois, Defendant in Error, v. Sebastian M. Ortega, Plaintiff in Error.\nGen. No. 51,008.\nFirst District, Fourth Division.\nApril 28, 1967.\nWilliam R. Yowell, of Chicago, for plaintiff in error.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State\u2019s Attorneys, of counsel), for defendant in error." }, "file_name": "0049-01", "first_page_order": 55, "last_page_order": 59 }