The People v. Mills

Mr. Justice Schaefer, dissenting:

The defendant moved to dismiss the indictment, (1) because it “does not allege, nor attempt to allege, that the defendant ‘knowingly’, possessed” the narcotic drug and (2) because “Knowledge is an essential element of unlawful possession of narcotics.” The motion was denied. It was renewed after verdict and was again denied. Because I believe that the motion should have been granted, I am unable to concur in the judgment of the court.

In its brief the State reluctantly concedes that “knowledge is probably an essential part of the proof of the offense of unlawful possession of narcotics.” (Emphasis supplied.) It contends, however, that “[sjince this indictment was generally in the words of the statute, it needed state no elements of the offense which have been read into the statute by our courts.” The problem in this case, however, is not whether an indictment must allege elements of an offense which have been read into the statute by the courts, but whether an indictment must comply with the requirements established by the General Assembly in the Code of Criminal Procedure.

Section 22 — 3 of the Criminal Code provides: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.” (111. Rev. Stat. 1963, chap. 38, par. 22 — 3.) The State’s argument is that because section 22 — 3 does not in terms refer to knowing possession, the indictment need not charge that element of the offense.

But the sufficiency of the indictment is not to be determined by looking at section 22 — 3, or at the decisions of courts of other States under similar statutes. It is governed by the Illinois Code of Criminal Procedure, which explicitly states what an indictment must contain. Curiously, the opinion of the majority does not mention that statute.

Section hi — 3 of the Code of Criminal Procedure governs the content of a “charge”, whether it is a complaint, information or indictment. It provides:

“(a) A charge shall be in writing and allege the • commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the time and place of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” Ill. Rev. Stat. 1965, chap. 38, par. III — 3.

Prior to the enactment of the present Code of Criminal Procedure, the statute governing the form of an indictment had provided, “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” (Ill. Rev. Stat. 1959, chap. 38, par. 716.) The comments of the drafting committee concerning section 111 — 3 show that the change was deliberate: “(a) The charge must tell the accused the nature and cause of the accusation against him (111. Const, art. II, § 9). Two general methods of drafting the charge formerly existed. The offense could be charged in the language of the statute or the facts which constitute the crime could be set out. * * * Subsection (a) is designed to clarify and make uniform the method to be used in the charge. The five requirements will cover all situations and will satisfy the constitutional requirement.” (S.H.A. chap. 38, § hi — 3.) With the enactment of section m — 3 of the Code of Criminal Procedure, therefore, the practice of charging offenses in the language of the statute became permissible only when the statute “* * * clearly and definitively sets forth all of the essential elements of the crime * * People v. Patrick, 38 Ill.2d 255, 258 .

In the case before us section 22 — 3 does not set forth all of the elements of the offense with which the defendant was charged. Section 4 — 1 of the Criminal Code states, “A material element of every offense is a voluntary act * * (Ill. Rev. Stat. 1963, chap. 38, par. 4 — 1.) Section 4 — 2 provides: “Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have been able to terminate his possession.” (Ill. Rev. Stat. 1963, chap. 38, par. 4 — 2.) The terms of the statute thus make knowing possession a material element of this offense.

The majority asserts that “the technical term ‘possession’ * * * is defined in section 4 — 2 of the Criminal Code to incorporate knowledge * * I can not agree. Section 4 — 1 states that a voluntary act is a material element of every offense, and section 4 — 2 explains when possession is a voluntary act. It says: “Possession is a voluntary act if the offender knowingly procured or received * * (Emphasis added.) To me this means that possession is not a voluntary act unless the offender knowingly procured or received the thing possessed. I can not, therefore, accept the majority’s conclusion that “the term ‘possession’ used in the indictment implicitly meant knowing possession * *

While the issue of statutory construction must necessarily be discussed in technical terms, the underlying question is fundamental. The ease with which an innocent person could be framed by placing a packet of heroin in his overcoat pocket without his knowledge is obvious. As applied to the present case, if I were not satisfied that the indictment is fatally defective I would still be unable to hold that the defendant’s guilt was established beyond a reasonable doubt. What is shown is that the defendant went into a tavern, sat down on a bar stool, removed a small package from beneath the plastic cover of the bar stool, held the package in his hand and then put it back under the cover. This sounds just like what I would do if I became aware of a foreign object under the cover of a bar stool on which I was sitting. In this record there is no proof that the defendant put the package there, or was aware of its presence until he sat on it.

In my opinion the judgment should be reversed because the indictment failed to charge a material element of the offense, and I therefore find it unnecessary to consider the other questions discussed in the opinion.

Mr. Justice Klingbiel joins in this dissent.