Appeal from the Circuit Court of Cook County; the Hon. IRWIN
N. COHEN, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Raymond 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.
The 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's clothing in both rooms of the apartment. On a small table in the bedroom was a brown leather pouch, along with defendant's 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's Crime Laboratory, where their contents were found to contain heroin.
Ida 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's name was the word "Dope" which the witness stated she wrote to identify Mrs. Osley from another woman named "Jean" 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.
Dosie Clark, the defendant's 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.
The 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, "intoxicated." 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.
Defendant 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.
Defendant 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 Ill.2d 435, 223 N.E.2d 115 (1967), a case whose facts are somewhat similar to the case at bar. In the Pugh case, the facts were as follows:
Two 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 snubnosed 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.
The 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's 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's constructive possession.
Defendant also relies upon People v. Robinson, 102 Ill. App.2d 171, 243 N.E.2d 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.
In the instant case, the narcotics were not hidden but were found in open view on a night stand in the bedroom next to defendant's wallet and loose change. There were men's 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 Ill.2d 306, 178 N.E.2d 361 (1962); People v. Galloway, 28 Ill.2d 355, 192 N.E.2d 370 (1963); People v. Holt, 28 Ill.2d 30, 190 N.E.2d 797 (1963).
The defendant next contends it was reversible error to give the State's Jury Instruction No. 9 to the jury over defendant's objection. Such jury instruction reads as follows:
"The 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."
To support his contention, the defendant cites People v. Truelock, 35 Ill.2d 189, 220 N.E.2d 187 (1967). There, the Court affirmed the conviction by saying that it was error giving the above ...