Appeal from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Samuel Jackson was found guilty by a jury of the sale and possession of narcotics. He was sentenced to life imprisonment for the sale and to a concurrent term of ten years to ten years and one day for the possession. Jackson had a prior conviction for a narcotics offense and the life imprisonment sentence imposed upon him was mandatory under Illinois law. Ill Rev Stats 1965, c 38, § 22-40.
Jackson sold heroin to John Genarella, a police informer, and Thomas Spanos, a police officer. They approached him in Genarella's automobile as he was walking along Madison Street, Chicago, at 10:00 p.m., December 27, 1965. Genarella and Jackson were acquainted, and after greeting each other Genarella told him that he and his friend each had $20 and wanted to purchase narcotics. Jackson entered the car, told them where to drive and asked for the money. Spanos gave him $40 in marked bills. After being driven to two places and absences of five and forty minutes, he returned with heroin. He got in the car, told Genarella to drive away and handed Spanos a tinfoil wrapper containing the heroin. He asked where they were going and Genarella replied to his apartment to use the drug and Jackson asked to go along. Genarella drove to a prearranged place and parked the car. A police officer who was waiting approached and told Jackson he was under arrest. Jackson dropped a tinfoil package between his legs; it was recovered by the officer and identified as heroin. None of the marked bills were found on the defendant.
Jackson denied dropping any package in the car, but admitted selling the narcotics. His testimony in regard to the sale differed little from that of the State's witnesses, however he explained that he was an addict and had used narcotics since 1949, except for several periods of time serving sentences in the penitentiary. He said that he used heroin twice a day but had had none for three days prior to his arrest; that he was ill because of withdrawal, and that tears were welling in his eyes and he was dabbing them when Genarella and Spanos approached him. He testified that Genarella too looked as if he were ill and in need of narcotics; that, after first refusing, he agreed to obtain heroin for them when Genarella said he could share in it; that he bought the heroin for his own use and for Genarella's because of Genarella's illness.
The defendant raises a number of issues on appeal. His central theme is that, as a narcotics addict, he should not be convicted for acts which were impelled by that addiction. Tangential contentions are that the trial court erred in not accepting instructions which set up narcotics addiction as a legal defense to the charges of sale and possession of narcotics; that he was the victim of entrapment because the police induced his offenses by preying upon his need for narcotic drugs, and that the trial court erred in not giving the jury instructions which espoused this concept.
A further contention related to his addiction is that the State failed to prove that he was sane at the time the offenses were committed; that he was legally insane at that time because he was suffering from a mental defect caused by withdrawal symptoms, which so overwhelmed him that he did not have substantial capacity to appreciate the criminality of his conduct and made him incapable of conforming his conduct to the requirements of the law.
It is also contended that certain trial errors were prejudicial, and that a sentence of life imprisonment for the sale of narcotics is cruel and unusual, in violation of the 8th and 14th Amendments of the Constitution of the United States and section 11 of Article II of the Constitution of Illinois.
The principal theory of Jackson's defense is based on the cases of Robinson v. California, 370 U.S. 660 (1962), and People v. Davis, 27 Ill.2d 57, 188 N.E.2d 225 (1963). In Robinson the defendant was convicted under a State statute making it a criminal offense for a person to be addicted to the use of narcotics. The reviewing court characterized the statute as one making the "status" of addiction a criminal offense whether or not the addict had been guilty of antisocial behavior. The court held that a state could not punish an addict who had not committed some state prohibited act without violating the 8th and 14th Amendments of the United States Constitution. In People v. Davis the Illinois Supreme Court followed Robinson and held invalid statutory provisions making it a criminal offense to be under the influence of, or be addicted to, the unlawful use of drugs.
The distinction between the status of addiction and the criminal acts of an addict was made clear in the cases of Powell v. Texas, 392 U.S. 514 (1968), and People v. Nettles, 34 Ill.2d 52, 213 N.E.2d 536 (1966), cert denied 386 U.S. 1008 (1967). In Powell a chronic alcoholic was convicted of the offense of being drunk in a public place. The Supreme Court stated that the State of Texas had not punished a mere status, as California did in Robinson v. California, but had convicted the defendant, not for being a chronic alcoholic, but for being drunk in public on a particular occasion. The court said that this was ". . . a far cry from convicting one for being an addict, being a chronic alcoholic, being `mentally ill, or a leper . . .'" and added that "The entire thrust of Robinson . . . is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing. . . ." In People v. Nettles the defendant argued that the Illinois statute making possession of narcotics a criminal offense was unconstitutional when applied to a known narcotics addict. In rejecting this argument and upholding the statute, the court noted that Robinson v. California and People v. Davis ruled the statutes there in question invalid only insofar as they penalized the status or condition of addiction. The Powell and Nettles cases are controlling. Jackson is not being punished for being an addict; he was convicted and sentenced for the prohibited acts of selling and possessing narcotic drugs.
Our conclusion in reference to the defendant's principal theory disposes of the issue concerning the rejected instructions expounding that theory. To a lesser extent, it is also dispositive of the question of entrapment and the refused instruction on that subject issues which were founded, in part, on the collateral theory that the defendant's addiction made the prospect of sharing in the narcotics so alluring that it was a compelling inducement to his conduct.
[2-4] The contention that Jackson was entrapped as a matter of law is not tenable. The law of entrapment distinguishes between inducing a innocent man to do an unlawful act and merely affording him the opportunity or facility for committing the offense. People v. Gassaway, 65 Ill. App.2d 244, 212 N.E.2d 689 (1965). Bereft of the argument that his addiction created such an overwhelming craving for drugs that, as a matter of law, he was not responsible for his acts, the evidence disclosed no more than the ordinary narcotics transaction arranged by law enforcement officials with the aid of informers. Although these transactions border on entrapment and many aspects of them are repugnant, they are approved by the courts as a necessary police procedure to suppress illegal traffic in narcotic drugs.
The evidence of the State showed that Jackson readily acceded to the request that he procure narcotics. When asked by Genarella to purchase heroin, he wanted to know how much money he had. He made no suggestion that the heroin be shared until after he had delivered it to Spanos. Jackson knew where narcotics could be obtained, and when one source failed he found another. This does not indicate that he was induced into selling narcotics, but rather that he was willing to do so and, when afforded the opportunity, did not hesitate to commit a crime. Further, the evidence would indicate that he profited from the transaction. He did not testify that he received no commission as the middleman in the deal, and the fact that he had an additional packet of heroin in his possession suggests that he received this in lieu of money. If he did not, the possession of his own packet weakens his testimony that the reason he sold heroin to Genarella and Spanos was because he needed to share in it to ease his withdrawal pains.
The instruction given by the court on the subject of entrapment correctly set forth the law in Illinois. The refused instruction attempted to relate the law to the testimony and the theory of the defendant. The court was under no obligation to give more than one instruction on entrapment, and since the given instruction adequately covered the law, was fair to both sides and enabled the jury to accept either the defendant's or the State's version of the transaction, the court did not err in refusing the ...