{
  "id": 2927989,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Julius Rutili, Defendant-Appellant",
  "name_abbreviation": "People v. Rutili",
  "decision_date": "1973-05-09",
  "docket_number": "No. 56884",
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  "last_updated": "2023-07-14T15:22:35.785791+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Julius Rutili, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE JOHNSON\ndelivered the opinion of the court:\nUpon a trial by jury, defendant was convicted of the crime of unlawful sale of narcotic drugs and was sentenced to the penitentiary for a term of from one to five years. He appeals, contending that he was not proven guilty beyond a reasonable doubt and that his right to a fair trial was prejudiced by certain actions of the court and prosecution.\nThe evidence shows that William Passmore, a police informer and narcotic addict, came to defendant\u2019s drugstore on January 9, 1970. Defendant, a registered pharmacist, was on duty. Passmore told the defendant that he was sick and asked the defendant to help him. Defendant said, \u201cWill codeine help you?\u201d Passmore said, \u201cYes.\u201d Thereafter, the drugs in question were passed from the defendant to Passmore who immediately delivered them to police officers who were waiting and observing the transaction. Shirley Krause, a chemist with the Chicago Police Crime Laboratory, testified that on January 12,1970, she examined the white powder chemically and instrumentally and that in her opinion, \u201cThe white powder contained codeine.\u201d The weight of the substance prior to the tests was 3.55 grams.\nThe defendant contends that the State\u2019s evidence failed to establish that the substance allegedly sold contained a sufficient concentration of codeine to render it a proscribed narcotic drug rather than an exempt medicinal preparation. Therefore, he was not proven guilty beyond a reasonable doubt. Ill. Rev. Stat. 1969, ch. 38, sec. 22 \u2014 2\u201417(4), in effect at the time of defendant\u2019s indictment and trial, provided that codeine was a narcotic drug.\nSection 22 \u2014 3, the statute of which defendant was found guilty of violating, provided: \u201cIt is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug except as authorized in this Act * *\nAnd section 22 \u2014 12 provided:\n\u201cExcept as otherwise in the Act specifically provided, this Act shall not apply to the following cases:\n(1) Prescribing, administering, dispensing or selling at retail any medicinal preparation that contains in one fluid ounce, or if a solid or semi-solid preparation, in one avoirdupois ounce, \u00b0 *\n(c) not more than one grain of codeine or any of its salts.\u201d\nIn People v. Williams (1962), 23 Ill.2d 549,179 N.E.2d 639, 642-43, the Illinois Supreme Court had occasion to rule upon the respective burdens of proof regarding the medicinal preparation exemption of the predecessor to section 22 \u2014 12 identical to section 22 \u2014 12 in all pertinent respects. (The statute at issue was Ill. Rev. Stat. 1957, ch. 38, par. 192 \u2014 28\u201412.) The court noted that another section of the statute provided that it shall not be necessary for the State to negative any exception, excuse, proviso or exemption, and that the burden of proof of such exception, etc. shall be upon the defendant. (Ill. Rev. Stat. 1957, ch. 38, par. 192 \u2014 28\u201439; 23 Ill.2d 549, 179 N.E.2d 639, 643.) This provision existed at the time of defendant Rutili\u2019s indictment and trial as section 22 \u2014 44 of the 1969 Code.\nThe court reversed defendant Williams\u2019 conviction where the substance had been shown to be a medicinal preparation produced by a reputable pharmaceutical company, holding that under these circumstances, a reasonable doubt had been created as to whether the substance was a proscribed narcotic drug as opposed to coming within the exemption, and from that point on the State had the burden\u2019 of proving that the concentration of the narcotic, morphine sulphate, exceeded the limits of the statutory exemption. The court stated:\n\u201cWhile literal application of the last clause of the section [i.e., of par. 192.28 \u2014 39, currently sec. 22 \u2014 44 of the 1969 statutes, placing on the defendant the burden of bringing himself within the exemption] suggests that the burden was upon the defendant to prove, by chemical analysis, that the substance contained a concentration of the narcotic within the permissible limits, to so hold would lead to some rather startling results. Almost any medicine cabinet in the average American home is likely to house medicinal preparations containing some opium or morphine. It seems unlikely that the legislature would have intended that a citizen could be convicted upon mere proof of possession of such a preparation unless he assumed the burden of establishing by a chemical analysis that the preparation contained a concentration of narcotics within the permissible limitations. And, if this legislature did so intend, there would be obvious questions as to the validity of the statute.\" (23 Ill.2d 549, 554-555, 179 N.E.2d 639, 643.)\nThe court continued:\n\u201cIt is a fundamental principle of Anglo-American law that in all criminal prosecutions the burden is upon the State to establish the guilt of the defendant beyond a reasonable doubt. To apply the statute in this situation as requiring the defendant to prove affirmatively beyond a reasonable doubt, or even by a preponderance of the evidence, that the medicinal preparation possessed by him contained no greater concentration of morphine than that permitted by law would run counter to this fundamenal principle. We believe that the statutory provision which states that the burden of proof of the exemption shall be upon the defendant must be applied to this situation in such a way that it does not conflict with the principle that places upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Thus, if there is in this record evidence sufficient to raise a reasonable possibility that the defendant comes within the exemption thus creating a reasonable doubt of his guilt, the defendant has met the burden of proof imposed upon him by the statute * * *, [W]here, as here, the substance possessed by the defendant has been shown to be a medicinal preparation produced by a reputable pharmaceutical company, a reasonable doubt as to the defendant\u2019s guilt has been created, and the conviction cannot be sustained in the absence of evidence proving that the concentration of narcotics in the preparation exceeded that permitted by the statute. The evidence was insufficient to prove the defendant guilty beyond a reasonable doubt.\u201d (Emphasis added.) 23 Ill.2d 549, 555-556, 179 N.E.2d 639, 643.\nThe Illinois Appellate Court has recently construed the rule of the Williams case to require the State to prove that the substance was not an exempt one even where the reasonable possibility that it fell within the exemption arose from evidence adduced from a prosecution, rather than a defense witness. In People v. Woessner (1971), 132 Ill.App.2d 58, 268 N.E.2d 508, the court reversed where, although there was a stipulation to the chemist\u2019s report that the substance was marijuana from which the resin had not been extracted, a State\u2019s witness testified that he, defendant, and another had smoked some of the substance, and that all agreed \u201cthat the marijuana, if it were in fact marijuana, was not very good.\u201d (132 Ill.App.2d 58, 268 N.E.2d 508, 509.) The court noted that the stipulated report \u201cwould be sufficient for conviction under the authorities if there were no evidence sufficient to raise a reasonable possibility that the substance tested came within the statutory exceptions\u201d (132 Ill.App.2d 58, 268 N.E.2d 508, 510), and went on to hold:\n\u201cIn our opinion, a reasonable possibility that the substance allegedly sold through defendant\u2019s participation was not the proscribed narcotic, but rather, a harmless substance, was raised, by the testimony of the State\u2019s witnesses who qualified their reference to the material by suggesting that it was of low quality \u2018if it were in fact marijuana.\u2019 The burden then * * * returned to the State and was not met by any evidence [that the substance was a proscribed narcotic not within the exceptions].\u201d 132 Ill.App.2d 58, 268 N.E.2d 508, 510.\nHere, since defendant was undisputedly a registered pharmacist with no previous criminal record and no history of having committed any past narcotic law violations, the record raised a reasonable possibility that the substance in question was a medicinal preparation falling within the exemption of section 22 \u2014 12. Thus, it was incumbent on the State to prove that the substance contained more than the permitted concentration of codeine, that is, more than one grain of codeine per ounce of substance. The record merely showed that there was 3.55 grams of substance which \u201ccontained codeine,\u201d with absolutely no evidence as to the percentage or concentration of codeine within the 3.55 grams of \u201csubstance.\u201d\nUnder the law as set forth in the foregoing cases, the State failed to sustain its burden of proof, and defendant was not proven guilty by evidence, beyond a reasonable doubt.\nSince the judgment of the trial court must be reversed because of the insufficiency of the evidence, it is unnecessary for us to consider the other contentions made by the defendant.\nThe judgment of the criminal court of Cook County is reversed.\nJudgment reversed.\nADESKO and DIERINGER, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE JOHNSON"
      }
    ],
    "attorneys": [
      "Julius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, all of Chicago, for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago, (Elmer C. Kissane and James E. Staruck, Assistant State\u2019s Attorneys, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Julius Rutili, Defendant-Appellant.\n(No. 56884;\nFirst District (4th Division)\nMay 9, 1973.\nJulius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, all of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, (Elmer C. Kissane and James E. Staruck, Assistant State\u2019s Attorneys, of counsel,) for the People."
  },
  "file_name": "0948-01",
  "first_page_order": 970,
  "last_page_order": 974
}