WRIT OF ERROR to the Circuit Court of Douglas County; the Hon.
RODNEY A. SCOTT, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The grand jury of Douglas County indicted the defendant, Lewis Rosenfeld, together with Marvin Goldfarb and Barry Goldberg, upon charges that they unlawfully "possessed or had under their control," a narcotic drug, marihuana. Goldberg and Goldfarb pleaded guilty, and when the defendant's case came on for trial their applications for probation were pending. The defendant was found guilty after a jury trial, and was sentenced to imprisonment in the penitentiary for not less than two nor more than ten years. On this writ of error he asserts that the indictment was defective, that he was prejudiced by erroneous rulings on the admission and exclusion of evidence, that an erroneous instruction was given, that the conduct of the trial judge was improper and that the evidence did not establish his guilt beyond a reasonable doubt.
We consider first the validity of the indictment returned against the defendant and his companions. It charged, in the disjunctive, that they had "possessed or had under their control" marihuana. The defendant urges that it was therefore void for uncertainty and that the trial judge erred in denying his motion to quash it. The use of the disjunctive "or" may indeed render an indictment defective if it deprives the defendant of notice of the specific nature of the charge made against him, or impairs the certainty that is requisite if double jeopardy is to be avoided. (The Confiscation Cases (1873) 87 U.S. 92, 104, 22 L.ed. 320.) But the fact that two words, intimately associated in their meaning, are stated disjunctively, does not render an indictment uncertain. Blemer v. People, 76 Ill. 265; People v. Farrell, 349 Ill. 129.
In the context of various statutes, it has been held that the terms "possess" and "have under control" are synonymous, or so nearly so that their disjunctive use does not give rise to uncertainty. (Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710. Phillips v. State, 154 Neb. 790, 49 N.W.2d 698; Smith v. R.F. Brodegaard & Co. 77 Ga. App. 661, 49 S.E.2d 500.) In urging that we should hold otherwise, the defendant relies on United States v. MacKenzie, 170 F. Supp. 797 (D. Me. 1959). In that case it was assumed without discussion that the terms "possession, custody or under control" are necessarily separate and distinct, and a disjunctive indictment was held bad. But our own decisions have construed the word "possess" so broadly (e.g., People v. Fox, 24 Ill.2d 581; People v. Jackson, 23 Ill.2d 360; People v. Mack, 12 Ill.2d 151,) that there can be no sharp delineation between "possessing" and "having under control." As the defendant points out in arguing another proposition, "* * * the touchstone is control. It is the party who has control who has possession." The indictment fairly apprised the defendant of the charges against him and obviated any danger of double jeopardy, and the motion to quash it was properly overruled.
The defendant and his companions were apprehended under unusual circumstances. The automobile in which they were riding was involved in an accident, and thereafter marihuana was discovered in the car by the State police. Goldberg and Goldfarb, who lived in New York, had driven to Dayton, Ohio, by prearrangement, to meet the defendant. Goldfarb testified that in the course of a telephone conversation with the defendant during which the meeting was arranged, the defendant stated that he had heard about a field of marihuana from a friend of his. The three men then drove to Muncie, Indiana, where they had arranged to meet one Barry Edelson, a friend of the defendant's, who lived in Decatur, Illinois. Goldfarb testified that the defendant identified Edelson as the source of his information about the field of marihuana. Edelson did not meet them at Muncie, and the three then drove on to Edelson's home in Decatur, arriving there about 10:30 P.M.
With Edelson driving, the four men went at once to a highway outside of Decatur where a patch of marihuana was growing along the roadside. There Edelson, Goldberg and Goldfarb got out of the car and picked some marihuana plants. The defendant, who had driven from Muncie to Decatur, did not get out of the car at that point. The other three men returned to the car, separated the plant from the stalk, and placed some of the marihuana in a cottage cheese container and the balance in a grocery bag, or shopping bag. They then took Edelson home and the defendant and his two companions left at once on their return trip.
Not far from Decatur they were involved in an automobile accident, as a result of which all three were hospitalized. The defendant testified that at the time of the accident Goldberg went back to the car, secured the paper bag and disposed of its contents while they were waiting in the emergency room at the hospital. State trooper Donald Bierman testified that he examined the automobile after the accident and noticed the cottage cheese container and its contents but did not know what it was. Goldfarb wanted to ascertain the extent of the damage to the car and Bierman drove him to the garage to which it had been taken. His suspicions were aroused when Goldfarb took the cottage cheese container from the glove compartment, climbed into the back seat and furtively attempted to push its contents under the seat. Bierman retrieved the contents and took Goldfarb into custody. The arrest of Goldberg and the defendant followed. Analysis of the substance established that it was marihuana.
The most significant of the defendant's objections to the rulings of the trial court upon the admission of evidence relates to a statement that he made in the presence of the State's Attorney and the sheriff on the day that he was arrested. The statement was reduced to writing, but the defendant did not sign it. In it the defendant said that he and his two companions had smoked marihuana in his apartment in Dayton, and that while they were in Decatur the three men and Edelson smoked two pipes of marihuana which Edelson supplied. The statement also contained the following: "We planned to meet Barry Edelson in Muncie, Indiana, and we drove to the latter city but he was not there We originally planned just to meet him there to visit with him. When we arrived in Muncie and he was not there we called him and were informed that he had access to some marihuana so we decided to drive to Decatur to see him and to get the marihuana."
The defendant contends that the references to the smoking of marihuana and to the purpose of the trip to Decatur, were unrelated to the charge of possession, and he argues that it was prejudicial error to admit them. We do not agree. While it was undisputed that there was marihuana in the car in which the three men were riding, it has been the defendant's position, both upon the trial and in this court, that its possession was not brought home to him. Evidence concerning the purpose of the trip to Decatur was relevant to show a common design or plan from which, at the least, the jury could infer the defendant's guilt as an accessory before the fact. And evidence of the joint use of marihuana by the three men, during the course of a joint expedition to obtain an additional supply, was relevant because it tended to characterize their possession as joint possession.
The defendant's statement was thus properly admissible in evidence against him, and despite defendant's contention to the contrary, the record shows that it was actually admitted in evidence in the course of the presentation of the case for the prosecution. Due apparently to an oversight on the part of the prosecutor, however, the statement was not read to the jury at that time and when he sought leave to read it to the jury immediately after the prosecution's case had been closed, permission to do so was denied. Thereafter the defendant testified, and on cross-examination he was asked several questions about the statement and about the use of narcotics by the three men both in Dayton and in Decatur. The defendant objected vigorously to this cross-examination and in this court he urges that it was prejudicial error to overrule his objections. During the prosecution's case on rebuttal the defendant's statement was read to the jury.
Since, as we have held, the admissibility of the defendant's statement was not limited to its use for impeachment purposes, the issues that the defendant raises concern only a deviation from the normal order of proof. Such a deviation may result in prejudice so serious as to require the reversal of a conviction. (See People v. Crump, 5 Ill.2d 251.) In the present case, however, it does not appear that the defendant was prejudiced. He could hardly have been surprised, since the written statement had been admitted in evidence as an exhibit, and as the trial actually developed, he was afforded a full opportunity to deny or explain its prejudicial aspects. See Tucker v. People, 122 Ill. 583, 593; People v. Cunningham, 300 Ill. 376, 380.
On direct examination of the defendant the following occurred:
"Q. At anytime from then on did you consider that cottage cheese container ...