Appeal from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding. Cause remanded with
This is an appeal from the Circuit Court of St. Clair County from a judgment entered upon a jury verdict finding the defendant, David T. Garner, guilty of the offense of illegal possession of a narcotic drug.
It appears from the record that on the evening of January 20, 1967, the defendant was arrested in an apartment that he occupied in East St. Louis, Illinois, by three narcotic agents for the State of Illinois and an Assistant State's Attorney of St. Clair County, Illinois. The arresting agents had in their possession at the time of the arrest a warrant for the arrest of the defendant, the validity of which is not questioned on this appeal.
The agents were admitted to the apartment by the defendant's stepdaughter. The defendant's wife arrived at the apartment shortly after the arrest of the defendant. The apartment consisted of a living room, two bedrooms and a kitchen. The defendant was located in the front bedroom where he was found dressed only in his underwear. The narcotic agents testified that the defendant was advised of his constitutional rights at the time of the arrest, and that they then proceeded with a "search incidental to the arrest." The defendant's clothing was first searched and then a chest of drawers in a corner of the room was searched. Other than the bed, the chest was the only other article of furniture in the room. In the top drawer of the chest of drawers one of the agents found a small aluminum foil package and two paper match boxes containing a grayish-green plant which subsequent analysis revealed to be marijuana. One of the agents then testified over repeated objection that he presented the tinfoil package to the defendant and said: "Do you know what this is?"; that the defendant replied: "Yes, it is pot," and that the agent then asked him: "Is it yours?," and that the defendant admitted after a short space of time that it was his. The agent further testified that the defendant appeared to be under the influence of alcohol or a drug at the time of the arrest.
The defendant, testifying in his own defense, denied making this confession. The defendant also presented testimony through his wife that other persons, including herself and another man, frequently used this particular drawer of the chest to store their belongings. She further testified that some of the contents of the drawer belonged to her former husband, now deceased, and her children likewise used the chest of drawers.
The defendant alleges in his effort to reverse the judgment that: (a) the indictment was defective in that it failed to set forth the elements of the offense charged and failed to cite the exact statutory provision alleged to have been violated; (b) that the trial court erred in admitting the oral confession without first conducting a preliminary hearing; (c) that the court erred in admitting the evidence obtained as a result of the search and seizure; and (d) that the State failed to sustain their burden of proving that the defendant was in possession of the drug within the meaning of the statute.
The gist of the defendant's first allegation of error is that the indictment is fatally defective in that it fails to set forth the nature and elements of the offense charged, fails to set forth the element of knowledge and fails to cite the correct statutory provision.
We note that the indictment is drafted in the language of the statute. It has repeatedly been held that an indictment which charges an offense in the language of the statute is sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he is charged. People v. Bussie, 41 Ill.2d 316, 243 N.E.2d 196; People v. Patrick, 38 Ill.2d 255, 230 N.E.2d 243 (1967); People v. Gold, 38 Ill.2d 510, 233 N.E.2d 702 (1967); People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697 (1968). We believe that the indictment meets this test. The indictment alleged ". . . illegal possession of a narcotic drug, to wit: Marijuana. . . ." There is nothing complicated about the offense; the words of the statute particularize the offense. We have no doubt that the indictment was sufficiently clear to enable him to prepare a defense.
The defendant's second point, attacking the indictment, is that the necessary element of knowledge is not set forth. In the recent case of People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697 (1968), the Court held, in reply to the same argument:
"Accordingly we find that the defendant must be held chargeable with notice that the term `possession' 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."
See also People v. Bussie, supra.
The third point concerning the indictment raised by the defendant is that the wrong statutory provision is cited in the indictment. The defendant argues that section 22-3 of chapter 38 should have been cited, rather than section 22-40, as is cited in the indictment.
We note that article 22 of the Criminal Code (c 38, Ill Rev Stats), pertains to the Uniform Narcotic Drug Act; that section 22-3, which is a portion of that Act, is the violation section; and that section 22-40 is the penalty section. We further note that the penalties set forth in section 22-40 encompass the violations set forth in section 22-3, and that these violations are based upon definitions found elsewhere in the article, in this case, section 22-2-17(3), which is the definition for the substance commonly known as marijuana. We can hardly see how the defendant was prejudiced so long as the indictment focused his attention on the Uniform Narcotic Drug Act, and in this case the penalty section.
It has also been held that where the indictment adequately informs the accused of the nature and elements of the charge against him, failure to cite the proper statutory provision alleged to have been violated is not a basis for ...