Error to the Circuit Court of Sangamon County; the Hon. CREEL
DOUGLASS, Judge, presiding. Reversed and remanded for a new
Plaintiff in error, Graydon Bowlby, in the Circuit Court of Sangamon County was adjudged by a jury to be guilty of a violation of Section 37 of the Uniform Narcotic Drug Act. (Ill. Rev Stats, c 38, § 22-39.) He was sentenced to the penitentiary for a period of not less than one year nor more than three years.
The cause was transferred to this court by the Supreme Court of Illinois, which thus indicated that no substantial constitutional question is involved.
On this writ of error he contends that the indictment is fatally defective, that the trial court erred in instructing the jury and ruling on the admissibility of certain evidence, and that the evidence did not establish his guilt beyond a reasonable doubt.
The indictment in three counts respectively charged that the plaintiff in error on December 6, 1961, in Sangamon County, Illinois, "unlawfully, feloniously, wilfully, and knowingly obtained a certain narcotic drug, to wit: Cosanyl, by using a false address"; "unlawfully, feloniously, wilfully, and knowingly obtained a certain narcotic drug, to wit: Cosanyl, by fraud, deceit, misrepresentation, and subterfuge"; and "unlawfully, feloniously, wilfully, and knowingly obtained a certain narcotic drug, to wit: Cosanyl, by the concealment of a material fact."
In addition, the plaintiff in error was afforded a bill of particulars detailing the location and name of the drugstore from which he obtained the Cosanyl, the agent from whom he obtained the same, that the drug was obtained by him, Graydon Bowlby, and that the alleged false address as stated in the Exempt Narcotic Book was 222 West Allen.
Pertinent provisions of the Uniform Narcotic Drug Act necessary to this decision follow.
Section 12 of the Act (Ill. Rev Stats c 38, § 22-12) provides in part as follows: "Except as otherwise in this Act specifically provided this Act shall not apply to the following cases: (1) Prescribing, administering, dispensing, or selling at retail of any medicinal preparation that contains in one fluid ounce, or if a solid or semisolid preparation, in one avoirdupois ounce . . . (c) Not more than one grain of codeine or any of its salts, and not more than one of the drugs named above in clauses (a), (b) and (c)." (Emphasis supplied.)
Section 37 of the Uniform Narcotic Drug Act (Ill. Rev Stats c 38, § 22-39), in part reads as follows: "(1) No person shall obtain or attempt to obtain a narcotic drug . . . (a) By fraud, deceit, misrepresentation, or subterfuge; or . . . (c) By the concealment of a material fact; or (d) By the use of a false name or the giving of a false address. . . . (7) The provisions of this Section shall apply to all transactions of Section 12 of this Act, in the same way as they apply to transactions under all other Sections." (Emphasis supplied.)
In alleging that the indictment is fatally defective, plaintiff in error contends that he was not fully apprised of the nature of the charge. He states that the allegations of the indictment are inconsistent in that he is charged with obtaining Cosanyl, which he contends is not a narcotic drug, and at the same time he is charged with obtaining a narcotic drug.
In support of this contention principal reliance is placed upon two Ohio Appellate Court decisions, namely, Folenius v. Eckle, 109 Ohio App. 152, 164 N.E.2d 185.
The indictments in both Ohio cases are identical, charging that the defendant "did unlawfully obtain a narcotic drug, to wit: paregoric, a tincture of opium, by the giving of a false name, contrary to Section 3719.17 of the Revised Code of Ohio. . . ." The court in each instance found from the evidence that paregoric was a medicinal preparation excepted from the provisions of the Act by Section 3719.15 (which provisions are similar to Section 12 of the Uniform Narcotic Drug Act (Ill. Rev Stats c 38, § 22-12)), and therefore was not a narcotic drug under Section 3719.17 of the Revised Code of Ohio.
The courts in those cases stated that Section 3719.15 of the Revised Code of Ohio made it a criminal offense to procure a narcotic drug by the use of a false name. The comparable section of the Uniform Narcotic Drug Act is found in Section 37 of the Illinois Act (Ill. Rev Stats c 38, § 22-39), which section not only makes it unlawful so to obtain a narcotic drug, but by Subsection 7 thereof also makes it unlawful so to obtain or attempt to obtain the exempt medicinal preparations referred to under Section 12 of the Illinois Act (Ill. Rev Stats c 38, § 22-12).
The Supreme Court of Illinois in People v. Williams, 23 Ill.2d 549, 179 N.E.2d 639 (1962), had for consideration a case wherein the defendant was convicted of the ...