State v. Brown
| Decision Date | 27 October 1964 |
| Citation | 25 Wis.2d 413,130 N.W.2d 760 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Frank J. BROWN, Jr., Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Walter J. Steininger, Milwaukee, for appellant.
George Thompson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, William J. McCauley, Dist. Atty., Milwaukee County, Milwaukee, for respondent.
Two questions are raised: (1) Is sec. 161.02(3), Stats., unconstitutional, and (2) is there sufficient credible evidence to sustain the conviction?
The defendant contends sec. 161.02(3) makes the excessive or the habitual use of narcotics a crime, while in fact such use is a disease and the criminal sanctions amount to cruel and unusual punishment in violation of the state and federal constitutions. The defendant relies on Robinson v. California (1962), 370 U.S. 660,82 S.Ct. 1417, 8 L.Ed.2d 758. After the printing of the defendant's brief, the same question was presented to this court and decided adversely to the contentions of the defendant. See Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, wherein it was held sec. 161.02(3) was constitutional and did not make drug addiction as such a crime. We pointed out the section established three offenses: (1) The habitual use, (2) the excessive use, and (3) a use except pursuant to a prescription. The latter offense embraces a single instance of use.
The defendant argues there is not sufficient credible evidence to sustain a conviction for habitual or excessive use of a narcotic. That may be but the argument is beside the point. He was not charged with either excessive or the habitual use of narcotics but was so charged and convicted of a use not pursuant to a prescription. While the evidence showed more than a single instance of use, it is not necessary to prove habitual or excessive use because the defendant was not so charged.
The defendant was arrested in Milwaukee on the night of June 26, 1962, by two detectives of the Milwaukee vice squad who were driving an unmarked car and observed him driving on the wrong side of the street. The defendant did not have a driver's license. After the arrest for this traffic violation the officers searched Brown's person but no hypodermic needles or other accessories used by dope addicts were found. A search of his auto produced two half-empty bottles of a narcotic cough syrup which can be purchased without a prescription. Brown was then taken to the vice squad room of the Safety Building and was told to remove his clothing and was examined. It was found he had nine needle marks on his left forearm, three of which were fresh. He was again interrogated about his use of narcotics.
At the trial one of the arresting officers testified the defendant admitted he used heroin intravenously during May and June in Milwaukee, the last injection being on June 21, 1962, and had purchased during that time about eight $5 bags of heroin. Another detective by the name of Brown testified he interrogated the defendant the following morning and the defendant agreed to sign a confession which the detective typed up. The confession was signed by the defendant and witnessed by Detective Brown and his partner Detective Lang, now deceased. The written confession recites it was fairly and voluntarily given without any threats or promises and states substantially what Detective Brown testified, namely, the use of heroin during the months of May and June, 1962, the last injection of heroin on June 21, 1962, in a room on North Eleventh street in the city of Milwaukee and the use of heroin by injection in the left arm by a needle and syringe.
The defendant on the stand admitted the use of heroin during the months of May and June but testified the injections took place only in Chicago, Illinois. He disputed the testimony of Detective Brown regarding the confession stating Brown did not type the confession and he did not sign it in the presence of either witness. The defendant claims he signed the...
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