Appeal from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. Rehearing denied and opinion modified January 8, 1969.
After a jury trial the defendant was convicted of possession of marijuana in violation of chapter 38, section 22-3 of Illinois Revised Statutes 1963, and sentenced to the Illinois State Penitentiary for a period of not less than five nor more than seven years.
CONTENTION ON APPEAL: That the defendant was not proved guilty beyond a reasonable doubt; that defendant was not proved guilty beyond a reasonable doubt because of the failure of any State witness to identify him in open court; that the trial court improperly limited the cross-examination of certain State witnesses by the defendant; that the closing argument of the prosecutor was prejudicial; that the prosecutor improperly commented to the jury on the defendant's failure to testify; and that there was reversible error in the instructions given by the court and its refusal to instruct as requested by the defendant.
EVIDENCE: On February 17, 1966, several agents of the Federal Bureau of Investigation went to 165 North 22nd Avenue, Melrose Park, Illinois. Agent Ramon Stratton, who had been with the F.B.I. for 15 years, knocked on the rear door of the lower level of the house, and presented a search warrant to Mrs. Elizabeth Ciconte (whom Stratton believed to be the mother of the defendant) who answered the door. The second floor of the building in question has an entrance separate and distinct from the first floor, and Mrs. Ciconte went with the agents to the second floor where she unlocked the door to a large room. There the agents observed a number of articles of clothing, principally men's, but also some women's clothing, items of wood and workmen's tools, and cardboard cartons. Stratton found a blue-gray overnight case in which was a brown paper sack containing one or two pounds of a green seed, a tobacco can, a measuring spoon, over 100 small brown manila envelopes, and a jar containing over 100 capsules or pills. Under the bed was a cardboard carton inside which was a large amount of stalks, crushed green plants and seeds, approximately three pounds in weight. There was also a plastic bag with more than a pound of a crushed green plant and seeds, samples of which were taken. Stratton also found about 300 automobile ignition keys and a billfold which contained a driver's license issued to James Angelo Ciconte at 165 North 22nd Avenue, together with a number of other personal identification cards in the name of James Angelo Ciconte.
The next day, February 18, Stratton saw the defendant in apartment 705 at 18 East Elm Street, in Chicago. The defendant showed him a copy of the search warrant which Stratton had left at the Melrose Park house the day before, and Stratton also saw the automobile keys, various tools, and the same wallet he had seen the day before at the Melrose Park address, containing the driver's license and identification cards of James Angelo Ciconte. The automobile keys were in a small corrugated box, as they had been when Stratton saw them the previous day in Melrose Park.
On cross-examination Stratton stated that he did not see any workmen on the premises in Melrose Park, but the building appeared to be undergoing repairs. He stated that he knew the tools he saw at 18 East Elm Street were the same ones he had seen the day before in Melrose Park because he had marked them.
On redirect examination Stratton testified that at the Elm Street apartment there was one pair of men's shoes, one pair of socks, one pair trousers, one or two shirts, one jacket and one outside jacket, and three pairs of gloves, at the time the defendant was arrested. Fingerprints of the defendant were found on items in the room.
Special Agent James L. Mahan testified that there were two entrances to the second floor of the Melrose Park house one at the front and one at the rear; that there was an unmade bed in the room with sheets and covers on it. He testified to the finding of the light blue-gray case and its contents, and to the finding of a large cardboard box under the bed in which were two or three pounds of a greenish type plant. He also testified to the finding of the tools, the automobile keys which he said were on a wire ring in a cardboard box and the billfold with the driver's license and identification cards of James Angelo Ciconte.
Donald Norton, an inspector with the Illinois Division of Narcotics, testified as a witness for the State that he had received from Agent Stratton three manila coin envelopes (People's Exhibits 2, 3 and 4) containing the crushed green plants.
Sergeant Charles Vondrak, a chemical analyst for the Chicago Police Crime Laboratory, testified that the crushed green plants found in the exhibits contained cannabis sativa, commonly referred to as marijuana, from which the resin was not removed.
The State's last witness was Ronald Gunderson, who testified he knew the defendant on February 17, 1966, and had known him for a year or two before that. He stated he had visited the defendant ten or fifteen times in Melrose Park, at which times he had observed men's clothing and knives in the second floor bedroom; that the defendant collected knives. He had never seen anyone else sleeping in that room, but had seen defendant's mother and sister in the basement of the house. Gunderson testified that he had been convicted of armed robbery, but was not now a narcotics addict.
At the close of the State's case the court denied defendant's motion for a directed verdict. The defendant did not take the stand or offer any evidence. The case was submitted to the jury which found the defendant guilty as charged.
OPINION: The defendant first raises the point that the State failed to prove him guilty beyond a reasonable doubt and argues that under the evidence in the case the State did not sustain the burden of showing that no one other than the defendant was responsible for the presence of the marijuana found on the premises. People v. Fox, 24 Ill.2d 581, 182 N.E.2d 692, lays down the rule that in order to support a conviction of the crime of possession of narcotic drugs the State must prove not only that the defendant had knowledge of the presence of the narcotics, but also that they were in the immediate and exclusive control of the accused. The court said at page 584:
"By the same decisions it is settled that actual physical possession is not required and that possession may be constructive as well as actual.
"Constructive possession, it is said in Rodella v. United States, (9th cir) 286 F.2d 306, 311, is that which exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion. In the same case, where the constructive possession of a cache of narcotics was at issue, the following also appears (p 312): `The Restatement of Torts, § 216, defines "possession of a chattel" as being where a person has physical control of a chattel with intent to exercise control in his own behalf, or, one who has had such physical control with such intent to ...