People v. Galloway

• Decision Date: 27 May 1963
• Docket Number: No. 37617,37617
• Citation: 28 Ill.2d 355,192 N.E.2d 370
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Joseph GALLOWAY, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 370

192 N.E.2d 370

28 Ill.2d 355

The PEOPLE of the State of Illinois, Defendant in Error, v. Joseph GALLOWAY, Plaintiff in Error.

No. 37617.

Supreme Court of Illinois.

May 27, 1963.

As Modified on Denial of Rehearing Sept. 26, 1963.

Julius L. Sherwin and Theodore R. Sherwin, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Edward J. Hladis and Ronald W. Olson, Asst. State's Attys., of counsel), for defendant in error.

DAILY, Justice.

This writ of error is prosecuted by defendant, Joseph Galloway, who was sentenced to the penitentiary for a term of five to eight years after a jury in the criminal court of Cook County had found him guilty of unlawfully possessing narcotic drugs. Seeking reversal, he contends that he was not proved guilty beyond a reasonable doubt, that the prosecutor made unfair and prejudicial remarks in the presence of the jury, that improper evidence was admitted, and that the jury was improperly instructed.

Shortly after 1:00 P.M. on December 1, 1960, five narcotics investigators employed by the State of Illinois, having obtained a search warrant, were admitted to an apartment located at 6359 S. Stewart Avenue in Chicago. Upon their entry defendant was found in the bathroom, clad only in shorts, while his wife and a woman named Dorothy Files were in a front room. Also present were defendant's children aged 4, 2 and 1 years. After reading the search warrant the officers started a systematic search of the apartment and one found a sifter, measuring spoons and a pie tin in a paper sack on a kitchen shelf. As the result of both search and voluntary disclosure by defendant it was also discovered that there was approximately $4000 secreted in various parts of the apartment. Another officer found in a bedroom dresser drawer a small coin envelope containing a white powder. This envelope was in a packet of letters and papers some of which were addressed to and belonged to the defendant. A field test of the powder disclosed that it was a derivative of opium and a subsequent chemical analysis established that it was a mixture of heroin and milk sugar. Defendant was confronted with the discovery and, according to one officer, dropped his head and made no reply when asked if the envelope was his. Another officer testified that defendant denied ownership of the envelope in reply to a question asked by said officer. The defendant's wife, in response to a similar question, denied that it was hers or that she had ever seen it before. Dorothy Files who was visiting the wife, was questioned briefly and permitted to leave, after which defendant was placed under arrest.

To support a conviction of the crime of unlawful possession of narcotic drugs the People must prove not only that the accused had knowledge of the presence of the narcotics, but also that they were in his immediate possession and control. (People v. Smith, 20 Ill.2d 345, 169 N.E.2d 777; People v. Matthews, 18 Ill.2d 164, 163 N.E.2d 469.) At the same time, however, we have adopted the view that actual physical possession is not required to be proved, it being sufficient if constructive possession is established, and further, because the element of knowledge is seldom susceptible of direct proof, have held that knowledge may be proved by evidence of acts, declarations or conduct of the accused from which it may be fairly inferred that he knew of the existence of the narcotics at the place where they were found. (People v. Embry, 20 Ill.2d 331, 169 N.E.2d 767; People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.) In particular, in cases such as we have here, it is our view that 'where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury * * * a reasonable doubt as to his guilt.' (People v. Nettles, 23 Ill.2d 306, 308-309, 178 N.E.2d 361, 363.) Whether there is possession and whether there is knowledge are both questions of fact to be determined by the jury, or by the court where a jury is waived, and, as in the case of other factual determinations committed to a jury in criminal proceedings, its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.

The record before us contains neither direct proof of knowledge, nor proof of actual physical possession by defendant, and it is his contention that there is no proof which permits, beyond a reasonable doubt, either an inference of knowledge or a finding of constructive possession. We find, however, not a lack of evidence, but merely a conflict in evidence, and that the conclusions and inferences to be drawn therefrom rest completely upon which witnesses the jury chose to believe.

Defendant, supported by his wife, testified that he did not live in the apartment at the time of the search, but that he resided in a single room at 6501 S. Wentworth Avenue. In substance, it was their further testimony that they had lived separate and apart for about six months prior to the date of defendant's arrest; that defendant came to his wife's apartment from time to time to visit the children, to take a bath and to count his money; that he received his mail there; that he kept no clothing there; and that defendant paid the expenses of the apartment. Explaining the presence of the large sum of money and his personal papers found in the apartment, defendant testified that he did not trust banks and that his valuables were not safe at the place where he roomed. In connection with his possession of $4000 it was brought out on cross-examination that defendant was unemployed and drawing compensation of $30 a week at the time of arrest, and that prior to his unemployment he had worked for two years as a liquor store clerk for a salary of $70 a week.

As opposed to the defense testimony, officers who participated in the search testified that they had found a large quantity of men's clothing in the apartment, as well as the money, mail and personal papers admittedly belonging to defendant, that it appeared defendant and his wife occupied the same bedroom, and that defendant, when furnishing information for an arrest report, had given his address at 6359 S. Stewart Avenue.

Considering the People's evidence and the frailties and improbabilities inherent in the testimony of defendant and his wife, we are of the opinion there is credible evidence from which the jury could with reason conclude that the premises upon which the narcotics were found were under the control of defendant. The same evidence gives rise to an inference of knowledge and possession which, under the circumstances of the case, is sufficient to establish his guilt beyond a reasonable doubt.

During his opening statement the prosecutor referred to the large...