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The People v. Hightower

OPINION FILED MARCH 23, 1953.

THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

MOSE HIGHTOWER, PLAINTIFF IN ERROR.



WRIT OF ERROR to the Criminal Court of Cook County; the Hon. A.L. MAROVITZ, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 18, 1953.

This case comes to this court on a writ of error to review a judgment of the criminal court of Cook County based on a jury verdict finding defendant, Mose Hightower, guilty of dispensing narcotic drugs in violation of section 23 of the Uniform Narcotic Drug Act of this State. Ill. Rev. Stat. 1951, chap. 38, pars. 192.1-192.28.

The court sentenced defendant to serve in the penitentiary not less than twenty-five years and not more than fifty years, since the jury also found defendant had previously been convicted of violating certain sections of the Federal narcotic laws.

Defendant's motions to quash the indictment, to strike certain portions from the indictment, for new trial, for judgment of acquittal notwithstanding the verdict, and for arrest of judgment were denied by the trial court. The indictment charged defendant had dispensed narcotic drugs in Cook County in violation of the statute and also charged he was the same person previously indicted and convicted in the Federal court for violation of the Federal statutes pertaining to narcotics. Specifically, the proof showed defendant entered a plea of guilty to four counts of the Federal indictment and served a term of three years in a Federal penitentiary. Defendant now attacks the constitutionality of the Illinois Uniform Narcotic Drug Act. He further urges that section 23 of the act is inapplicable to this case. Other errors assigned relate to proof and alleged prejudicial conduct during the trial.

The evidence in this case shows that one Langford was arrested in his apartment in Chicago by police officers who found narcotics in his possession. The officers then proceeded to the apartment of one Williams where narcotics were also found. These officers waited at the Williams apartment and caused him to call the defendant on the telephone several times. No response to these calls was received from the defendant because he was not there at the time. Two different numbers were called and both were listed at the same address, 3735 South Cottage Grove Avenue in Chicago. The defendant operated a cleaning store, record shop and livery service at the South Cottage Grove address. After several hours the defendant telephoned to Williams at his apartment where the officers were. One of the officers listened to the phone conversation wherein the defendant stated he had just returned to his shop and asked Williams what he had wanted. Williams stated that he had called him four or five times trying to get in touch with him. Williams then asked the defendant how the merchandise was and stated that he needed some. The defendant replied, "I have not got any right now, but bring over the bread what you got." Williams testified that "bread" meant money and that he did have $210 for the defendant which he had received from Langford for narcotics. Langford testified he had been in the penitentiary for the possession of narcotics and that Williams told him he was working for Hightower, the defendant. Williams also testified he was working for the defendant. No narcotics were found at the South Cottage Grove address by the officers, nor were any found on the person of the defendant. Within his rights, the defendant made no statement and did not testify. The officers identified themselves at defendant's establishment in the presence of several persons who appeared to be customers there and thereupon much confusion and commotion resulted.

The seized capsules and powders coming from the possession of Langford and Williams, and testified to by Williams as having come from the defendant, were properly preserved and identified. The chemist testified they contained heroin, a narcotic. An authenticated copy of the defendant's previous conviction was introduced into evidence and the deputy United States Marshal who delivered defendant to the Federal penitentiary identified him as being the same person. Defendant's evidence consisted of the testimony of two witnesses introduced for impeachment purposes only.

Defendant now contends that section 23 of the Illinois Uniform Narcotic Drug Act is unconstitutional because it was not passed by the legislature in accordance with the constitution of this State. The Illinois constitution provides, by article IV, section 13, that "Every bill shall be read at large on three different days, in each house." We have carefully examined House Bill 544 as first proposed, which was read at large in the House of Representatives. Upon the second reading the act as first proposed was amended to read as it now presently appears. The bill then went to a third reading in the House and had three readings in the Senate in present form. Defendant's contention that the bill as finally passed is a complete substitution of the original bill is without merit. Certain words were deleted from the original bill proposed and certain other minor changes were made by certain insertions and modifications in certain words and terms therein. It is a rule in this State that amendments germane to the subject matter may be made without the proposed act, as amended, being read three times in each house. In order to come within the rule that an amendment need not be read three times in each house, it must be germane to the general subject of the bill as originally introduced. (Giebelhausen v. Daley, 407 Ill. 25, at 46.) We find that the amendment is germane to the general subject of House Bill 544 as originally introduced.

Defendant further contends that this section of the act is unconstitutional for the reason that it is vague, indefinite and susceptible to many diverse interpretations. This section reads as follows:

"Whoever violates this Act by selling, prescribing, administering, or dispensing any narcotic drug, shall be imprisoned in the penitentiary for a term of not less than 1 year nor more than 5 years for the first offense. Whoever violates this Act by possessing, having under his control, manufacturing or compounding any narcotic drug shall be fined for the first offense not more than $5,000.00, or be imprisoned for a period of not less than 1 year nor more than 5 years, or both. For any subsequent offense the violator shall be imprisoned in the penitentiary for any term from 2 years to life.

"Whoever violates this Act by selling, prescribing, administering, or dispensing any narcotic drug to any person under 21 years of age, shall be imprisoned in the penitentiary for any term from 2 years to life.

"Whoever is authorized in this Act to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, who violates this Act by failing to comply with any provision prescribed in this Act for the exercise of such authority, for a first offense, shall be fined not more than $1000 or be imprisoned in the county jail for a term of not more than 1 year, or both; and for any subsequent offense, shall be fined not more than $3000 or be imprisoned in the penitentiary for a term of not more than 5 years, or both.

"Any offense under this Act shall be deemed a subsequent offense if the violator shall have been previously convicted of a felony under any law of the United States of America, or of any State or Territory or of the District of Columbia relating to narcotic drugs."

It is evident from a reading of this section that the crime of possession, etc., of any narcotic drug is a misdemeanor, because it allows a fine. (People v. Bain, 359 Ill. 455.) Although no place of confinement is mentioned in the statute, it is an accepted rule of statutory construction that the omission of place of confinement in a penal statute raises a conclusive presumption that the confinement should be in the county jail. (24 Corpus Juris Secundum 1246, par. 2000.) There is no merit in defendant's claim that the punishment fixed for possession of narcotic drugs is indeterminate. Section 2 of the Sentence and Parole Act (Ill. Rev. Stat. 1951, chap. 38, par. 802,) provides for the imposition of an indeterminate sentence except for crimes ...


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