{ "id": 1594825, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Raymond C. Nelson, Defendant-Appellant", "name_abbreviation": "People v. Nelson", "decision_date": "1969-04-21", "docket_number": "Gen. No. 51,229", "first_page": "396", "last_page": "405", "citations": [ { "type": "official", "cite": "109 Ill. App. 2d 396" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "322 Ill 416", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5173788 ], "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill/322/0416-01" ] }, { "cite": "243 NE2d 196", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "41 Ill2d 323", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2854107 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0323-01" ] }, { "cite": "237 NE2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "40 Ill2d 4", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857846 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0004-01" ] }, { "cite": "164 NE 840", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1929, "opinion_index": 0 }, { "cite": "333 Ill 451", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216655 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/ill/333/0451-01" ] }, { "cite": "122 NE2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "4 Ill2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701393 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/4/0396-01" ] }, { "cite": "32 Ill2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2838755 ], "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0253-01" ] }, { "cite": "220 NE2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "35 Ill2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378640 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/35/0189-01" ] }, { "cite": "190 NE2d 797", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill2d 30", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363036 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0030-01" ] }, { "cite": "192 NE2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361754 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0355-01" ] }, { "cite": "178 NE2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "23 Ill2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797257 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/23/0306-01" ] }, { "cite": "243 NE2d 594", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "102 Ill App2d 171", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2533157 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/102/0171-01" ] }, { "cite": "223 NE2d 115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "36 Ill2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377598 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/36/0435-01" ] } ], "analysis": { "cardinality": 708, "char_count": 15005, "ocr_confidence": 0.592, "pagerank": { "raw": 8.802587177096001e-08, "percentile": 0.49637372680801084 }, "sha256": "ae8e33e4f03bfd8484cf2560bcb5c25c2d2a7167040efd63c6070dbb3a6a5231", "simhash": "1:8260c825734a6e3b", "word_count": 2550 }, "last_updated": "2023-07-14T17:08:29.509800+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Raymond C. Nelson, Defendant-Appellant." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE ADESKO\ndelivered the opinion of the court.\nRaymond C. Nelson was charged in an indictment with the crime of unlawful possession of a narcotic drug. After a jury trial, the defendant was found guilty and sentenced to the penitentiary for a term of not less than five nor more than six years. On appeal to this court, the defendant contends that the State failed to prove beyond a reasonable doubt that he had constructive possession and knowledge of the narcotics; that the court improperly instructed the jury; and that the indictment upon which he was convicted failed to charge a crime, in that it failed to allege that he knowingly possessed narcotics.\nThe evidence presented at the trial shows that on February 2, 1965, at approximately 1:43 p. m., Officers Arnold and Williams executed a search warrant at 4940 South Indiana Avenue, Chicago, Illinois, Apartment 232, naming as an occupant the defendant, Raymond C. Nelson. When the officers entered the apartment the defendant was clothed in his shorts and T-shirt, and appeared to have just gotten out of bed. Officer Arnold observed that the bed in the bedroom was ruffled, as if someone had slept in it. A search of the apartment revealed men\u2019s clothing in both rooms of the apartment. On a small table in the bedroom was a brown leather pouch, along with defendant\u2019s wallet and several coins, in which Officer Williams found seven foil wrapped packages, each package containing a white powdered substance. A field test was performed and such powder was tentatively identified as heroin. The defendant denied that the pouch or its contents were his and denied any knowledge of its contents. The defendant dressed himself and was searched, but no narcotics were found on his person. The clothes defendant put on were taken from a closet in the bedroom and other areas of the apartment. The officers and the defendant then proceeded to the police station. The tinfoil packages were brought to the Chicago Police Department\u2019s Crime Laboratory, where their contents were found to contain heroin.\nIda Foster, the manager of the aforementioned building testified that the apartment in question was rented to one Jean Osley, a married woman but not living with her husband, and she produced a rent receipt for the period of January 19, 1965, to February 19, 1965, made out to Mrs. Osley. Written on the rent receipt next to Jean Osley\u2019s name was the word \u201cDope\u201d which the witness stated she wrote to identify Mrs. Osley from another woman named \u201cJean\u201d who resided in the building and also because she had reason to believe that Mrs. Osley was a dope addict. Mrs. Foster also stated that she saw the defendant in the apartment on one occasion, but to her knowledge the defendant did not reside in the building.\nDosie Clark, the defendant\u2019s uncle, stated that from December 1964, to February 1965, the defendant lived with him and five other persons at 4941 South Indiana Avenue. Defendant had his own separate room where he kept his clothes and personal effects and ate his meals there during this period.\nThe defendant, testifying on his own behalf, stated that he resided at 4941 South Indiana Avenue which was directly across the street from the building at 4940 South Indiana Avenue where he was apprehended. On February 1, 1965, he left home about 10:00 a. m., and went to the corner of 47th Street and Indiana Avenue where he met several of his friends. At about 12:00 p. m., he and his friends went to a tavern located at 209 East 47th Street where he drank until approximately 4:00 p. m. Defendant then left the tavern and went to the cleaners to pick up his overcoat and upon leaving the cleaners met several more of his friends, who along with defendant, went drinking for about four to five more hours. It was nearly midnight when defendant left the tavern, and he was, as he stated, \u201cintoxicated.\u201d Due to the late hour defendant was reluctant to go home, as he feared he would wake the children, and while walking in the vicinity of his apartment, he met Mrs. Osley who told him he could stay at her apartment. The defendant had been acquainted with Mrs. Osley since April, 1964, knew her to be a prostitute and had visited her on several occasions prior to the day of his arrest. When defendant and Mrs. Osley arrived at her apartment there was a man already present in the apartment and defendant, after being offered the couch in the kitchen, went to sleep. The next day, Mrs. Osley woke him and told him she was going to the store. Later the police arrived and arrested him.\nDefendant denied he was living in the apartment or kept any of his clothes there, denied he had any narcotics when he entered the apartment and denied any knowledge that narcotics were present in the apartment during the time he was there. The jury returned a verdict of guilty. During the hearing on aggravation and mitigation, it was revealed that during the period of July, 1951, to January, 1964, the defendant had been convicted on nine separate occasions of various violations of the Narcotic Drug Act. Defendant was then sentenced to the Illinois State Penitentiary for a term of not less than five, nor more than six years.\nDefendant contends that the State failed to establish the crime of possession of narcotics in that the prosecution did not prove beyond a reasonable doubt that the narcotics were in the immediate and exclusive control of the defendant and that the defendant had knowledge of the fact of such possession. Defendant argues that no constructive possession was proven and relies upon People v. Pugh, 36 Ill2d 435, 223 NE2d 115 (1967), a case whose facts are somewhat similar to the case at bar. In the Pugh case, the facts were as follows:\nTwo police officers executed a search warrant for the premises in question. After they gained entry, they found Mr. Pugh clad in his shorts and T-shirt under the blankets in bed. One of the officers searched the room where Mr. Pugh had been sleeping and found that part of the molding in the room had been hinged. In a compartment behind the molding the officers found a .38 caliber snub-nosed revolver, some money and several packages of narcotics. Mr. Pugh testified that he did not live in the apartment, that he had been in it for about 6 hours, that the apartment belonged to Patricia Plunkett, and that he had no knowledge of the presence of narcotics in the room.\nThe Supreme Court indicated that since there was no evidence that the defendant rented or lived in the apartment, the State failed to prove beyond a reasonable doubt that the narcotics were under defendant\u2019s control. The court also pointed out that the items were hidden in the apartment and it could not be inferred that the narcotics found were in Pugh\u2019s constructive possession.\nDefendant also relies upon People v. Robinson, 102 Ill App2d 171, 243 NE2d 594 (1969), and argues that his above contention falls within the scope of the holding of that case. In Robinson, the State did not show actual possession of the narcotics by the defendant, but attempted to show that the defendant was in control of the premises, and therefore the defendant had constructive possession of the narcotics. Yet the evidence introduced was far short of any persuasive force and weight to conclude or infer that the defendant was in possession of the premises, and the police officers themselves testified that the narcotics could have belonged to any one of the four occupants of the apartment.\nIn the instant case, the narcotics were not hidden but were found in open view on a night stand in the bedroom next to defendant\u2019s wallet and loose change. There were men\u2019s clothing found in the apartment and Officer Williams testified that when the defendant dressed himself, he took his suit and two coats from the closet in the bedroom. It was shown defendant visited the apartment previously and was seen in the building by Mrs. Foster on several occasions. These facts most certainly distinguish the Pugh case from the case at bar, and we are of the opinion that the narcotics found in the bedroom were in the constructive possession of the defendant. See also People v. Nettles, 23 Ill2d 306, 178 NE2d 361 (1962); People v. Galloway, 28 Ill2d 355, 192 NE2d 370 (1963); People v. Holt, 28 Ill2d 30, 190 NE2d 797 (1963).\nThe defendant next contends it was reversible error to give the State\u2019s Jury Instruction No. 9 to the jury over defendant\u2019s objection. Such jury instruction reads as follows:\n\u201cThe Court instructs the jury in the language of the statute that it is unlawful for a person to possess or have under his control a quantity of narcotic drugs except as authorized by law.\u201d\nTo support his contention, the defendant cites People v. Truelock, 35 Ill2d 189, 220 NE2d 187 (1967). There, the Court affirmed the conviction by saying that it was error giving the above instruction, but not reversible error. The Court said:\n\u201cWe agree that the trial court erred in giving the objected to instruction and form of a jury verdict in this case. Without proof that a defendant has knowingly possessed a narcotic drug, a defendant cannot be convicted of the crime of unlawful possession of narcotic drugs, and the jury in this case should have been so instructed. However, we do not think that the error in this case requires reversal. \u2018Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant\u2019s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.\u2019 \u201d (People v. Ward, 32 Ill2d 253,256.)\nThe identical jury instruction was considered in People v. Galloway, 28 Ill2d 355, 192 NE2d 370 (1963) and, as pointed out in People v. Lyons, 4 Ill2d 396, 122 NE2d 809 (1955) and People v. Kessler, 333 Ill 451, 164 NE 840 (1929), it is not necessarily reversible error to give such an instruction where facts and circumstances as presented in the instant case have been proved.\nThe defense also argues that it was reversible error to refuse their Jury Instructions Nos. 12, 13 and 14 which read:\n\u201cDefense\u2019s Instruction No. 12 Refused:\n\u201cThe Court instructs you that to commit the crime of unlawful possession of narcotic drugs, the defendant must have immediate and exclusive control of narcotics and must have knowledge of the presence of these narcotics.\n\u201cDefense\u2019s Instruction No. 13 Refused:\n\u201cIf you find from the evidence on February 2nd, 1965 Raymond Nelson had immediate and exclusive control of narcotics and had knowledge of the presence of these narcotics, you should find Raymond Nelson guilty.\n\u201cDefense\u2019s Instruction No. 14 Refused:\n\u201cIf, however, the State has not proven beyond all reasonable doubt that on February 2, 1965 Raymond Nelson had immediate and exclusive control of narcotics and that he had knowledge of the presence of these narcotics, you should find Raymond Nelson not guilty.\u201d\nThe defendant\u2019s entire defense was based on the fact that the defendant was not in immediate possession of the narcotics and had no \u201cknowledge\u201d of their existence. The above instructions sought to explain that immediate and exclusive control and knowledge of the presence of the narcotics were essential elements of the crime charged, and had to be proved before defendant could be convicted. In the instant case, the narcoties were found on a table next to the defendant\u2019s wallet and loose change. Men\u2019s clothing was found in the apartment where the woman who rented it lived alone, and the defendant visited the apartment on several other occasions other than the day of his arrest. Under these circumstances, the defendant\u2019s knowledge and control of the narcotics could be inferred, and therefore the instructions offered rightfully refused.\nDefendant\u2019s objection to the indictment is based upon the fact that although the charge sets forth a violation of the Uniform Narcotic Drug Act (DI Rev Stats 1965, c 38, par 22-1 et seq.), the indictment does not use the word, nor allege, that the defendant \u201cknowingly\u201d possessed a narcotic drug, pursuant to the holding in People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968). In People v. Bussie, 41 Ill2d 323, 243 NE2d 196, (1969), the Supreme Court has settled this issue arising out of their recent pronouncement in the Mills case:\n\u201cIt is undisputed that knowledge is an essential element in the chain of proof of the crimes of possession or sale of narcotics. Here both indictments were couched in the language of the Uniform Narcotic Drug Act and we held, in People v. Mills, . . . that such an indictment is sufficient even though it lacks an averment that the defendant committed the violation with knowledge. We noted in Mills that three sister jurisdictions which had adopted the Uniform Narcotic Drug Act prior to its adoption in Illinois have held that \u2018knowledge or scienter is implicit in the language of the statute and thus it does not have to be alleged separately.\u2019 We hold therefore that the indictments in question are valid.\u201d\nIn the Mills case, supra, the Supreme Court clearly set forth its interpretation of the indictments:\n\u201cIn charging Mills with the \u2018offense of possession of a narcotic drug\u2019 which he \u2018unlawfully possessed and had under his control\u2019 the indictment twice uses a form of the technical term \u2018possession\u2019 which is defined in section 4-2 of the Criminal Code to incorporate knowledge: \u2018Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient time to have been able to terminate his possession.\u2019 (Emphasis added.) It is the law in this State that \u2018Where a word is so used in one portion of the statute as to have a clearly defined meaning, the same word when used in another portion of the same statute will be given the same meaning . . . .\u2019 (People v. Talbot, 322 Ill 416, 422.) Accordingly we find that the defendant must be held chargeable with notice that the term \u2018possession\u2019 used in the indictment implicitly meant knowing possession, and therefore we hold that the indictment returned against Mills was valid although it did not expressly allege that he had knowledge of the narcotics found within his control.\u201d\nSince the indictment in the instant case and the Mills case are almost identical, the Mills case is controlling here and the rule is clear that an indictment is valid even if the word \u201cknowingly\u201d is not used.\nThe judgment of the Circuit Court of Cook County is affirmed.\nJudgment affirmed.\nMURPHY and BURMAN, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE ADESKO" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.", "John J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Raymond C. Nelson, Defendant-Appellant.\nGen. No. 51,229.\nFirst District, First Division.\nApril 21, 1969.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.\nJohn J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0396-01", "first_page_order": 402, "last_page_order": 411 }