APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
GERRITY, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants were convicted of the misdemeanor of Keeping a Gambling Place *fn1 and were each fined $135. They appeal and contend that their guilt was not established beyond a reasonable doubt and that the court considered matters not in evidence.
Initially, defendants were charged with several gambling offenses, including the offense of which they were convicted, and resisting arrest. The proceeding commenced as a preliminary hearing regarding the felony gambling charges under Ill. Rev. Stat. 1969, ch. 38, par. 28-1(a) (5) & (10). Prior to the preliminary hearing the court denied defendants' motion to quash a search warrant and to suppress evidence. At the close of the preliminary hearing the court found no probable cause on the felony charges. The prosecution and defendants then stipulated that the evidence adduced at the preliminary hearing, other than hearsay, would be admitted at the trial on the misdemeanor charge of being a Keeper of a Gambling Place. Defendants rested after the presentation of the prosecution's case in chief. Defendants were found guilty of Keeping a Gambling Place and not guilty as to the charge of resisting arrest.
Officer Bernard Martin, on behalf of the prosecution, testified in the preliminary hearing as follows: On December 21, 1969, he went to the premises located at 219 West 23rd Street with Officer Nick Ahrens. They gained entrance to the basement through the rear door and "found the two defendants, Paul Zivalich and Frank Roti, moving around the basement quite rapidly." On a table they found a Chicago Daily Tribune Sports Section and a quantity of blank water-soluble paper. In a bucket of water next to the table they recovered a quantity of water-soluble paper which had numbers on it. In response to the question whether there were any records of bets, the witness replied: "What I consider markings that they use for bets, yes" and related that he considered them "half bets." This water-soluble paper is used for sports wagers. Only two pieces of the water-soluble paper had legible notations. While the officers were on the premises, the telephone rang on four occasions and they answered and took some bets. At the time they entered the basement they observed defendants run from the table to the bucket of water. The basement appeared to be "lived in," but no key to the premises was recovered. The soluble paper and newspaper were admitted into evidence.
On cross-examination the witness testified that on the water-soluble paper in evidence, the number "eleven" was written, and in a circle the digits "25," and at the bottom the name "Bill." At this juncture of the proceedings, the court found no probable cause as to the felony gambling charges. After a jury waiver and plea of not guilty to the charges of resisting arrest and Keeping a Gambling Place, trial was commenced. The parties stipulated to the evidence presented on the preliminary hearing, other than hearsay. The only other evidence presented was Officer Nick Ahrens' testimony concerning the charge of resisting arrest. At the close of the prosecution's evidence both sides rested, and the court found defendants not guilty of resisting arrest, but guilty of being Keepers of a Gambling Place. The record reflects that the court expressly found that no records of bets were found on the premises and ruled there was no probable cause to believe defendants possessed wager records.
• 1 In People v. Perry, 34 Ill.2d 229, 232, our Supreme Court had occasion to enunciate the elements of corpus delicti of the statute at bar as follows:
"By the express terms of the statute under which defendant was charged, (Ill. Rev. Stat. 1961, ch. 38, par. 28-3) it was necessary for the prosecution to prove three elements beyond a reasonable doubt. First, that defendant owned, occupied or controlled the building at 114 Center; second, that the building was used for purposes of gambling; and third, that defendant "knowingly" permitted such use."
Similarly, in the case before us, the prosecution had the burden to prove the following three elements beyond a reasonable doubt: First, that the basement in which defendants were arrested was either owned, occupied or controlled by them; second, that those premises were used for the purpose of gambling; and third, that defendants "knowingly" permitted such use.
• 2 Defendants argue that the State failed to prove beyond a reasonable doubt that the basement apartment in which they were arrested was owned or occupied by them or under their control. The trial record reveals no evidence of defendants' ownership. Also, we feel that considerably more than mere presence is connoted by the term "occupied." The determining issue, therefore, is whether the record adequately shows that the basement was under the control of the defendants.
In support for their argument, defendants cite People v. Hornstein (1965), 64 Ill. App.2d 319, 211 N.E.2d 756. In that case the evidence clearly showed that one co-defendant exercised considerably more dominion over the premises than the other, thereby undermining the contention that both were "in control." In the instant case, neither defendant can rely on such an evidentiary imbalance, for virtually identical evidence was adduced against each.
Defendants also cite several gambling and possession of narcotics cases holding that proof of one's mere presence is insufficient to establish one's exclusive control over premises. People v. Pugh (1967), 36 Ill.2d 435, 223 N.E.2d 115; People v. Lucas (1969), 109 Ill. App.2d 303, 248 N.E.2d 706; People v. Robinson (1969), 102 Ill. App.2d 171, 243 N.E.2d 594.
• 3 Defendants minimize the fact that none of these cases concerned a prosecution under section 28-3 and are to that extent distinguishable. While that distinction may seem overly technical, a close analysis reveals its substance. In the cases cited, exclusive control of premises is a fact circumstantially relied upon to establish a Prima facie case of knowing possession of narcotics or gambling apparatus. "Control" is relevant only to the extent that it tends to prove the ultimate fact of knowing possession. Accordingly, a conclusive showing of "control" is essential before the inferred fact can be judicially recognized. In contrast, in a prosecution under section 28-3, "control" is the ultimate issue, and the sufficiency of proof thereon need not be measured by its tendency to prove any other fact beyond "control" itself. We therefore feel that a lesser quantum of proof will suffice to establish "control" under section 28-3 than is necessary in possession cases. We note that a contrary interpretation would virtually immunize a carefully compart-mentalized gambling operation from the sanctions of section 28-3, a result certainly not envisioned by the framers of that statute.
• 4 In the case before us, defendants were the only two occupants of a small basement apartment. At the time the police officers entered the apartment, defendants were seen running from a table to a full bucket of water. Upon the table and in the bucket were found water-soluble slips of paper. While these facts might not support a conclusion of knowing possession of the various items within ...