People v. Wade

• Decision Date: 08 October 1971
• Docket Number: Gen. No. 70--141
• Citation: 274 N.E.2d 497,2 Ill.App.3d 902
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny WADE, a/k/a 'Jap', Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 497

274 N.E.2d 497

2 Ill.App.3d 902

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny WADE, a/k/a 'Jap', Defendant-Appellant.

Gen. No. 70--141.

Appellate Court of Illinois, Second District.

Oct. 8, 1971.

E. Roger Horsky, Ill. Defender Project, Elgin, for defendant-appellant.

Wm. R. Ketcham, State's Atty., Geneva, W. Ben Morgan, Leo Wotan, Jr., Asst. State's Attys., Elgin, for plaintiff-appellee.

GUILD, Justice.

This is an appeal from a finding of guilty at a bench trial for the crime of unlawful sale of a narcotic drug. The defendant on July 21, 1969 was sentenced to ten years and two days in the Illinois State Penitentiary.

Defendant on the 27th of November, 1968, sold a small amount (nickel bag) of marijuana to one Terry Reese. Reese had previously been arrested for possession of marijuana and had arranged with the police to make the purchase from the defendant. He was given a $5 bill with the initials of the police officer on the bill. He made the purchase and both the defendant and the informer were arrested. The item purchased was stipulated to as being marijuana of a weight 'less than one ounce' and the $5 was found in the possession of the defendant.

The sole ground raised in the appeal is that the classification of marijuana as a narcotic drug is 'unscientific, arbitrary and irrational.'

In People v. Van Riper, 127 Ill.App.2d 394, 262 N.E.2d 141 (1970) this court upon a re-hearing stated

'The argument that classification of marijuana as a narcotic drug with the severe penalty attached to its sale markes for unconstitutionality is not open for our consideration. We again refer to The People v. Gonzales, 25 Ill.2d 235, 184 N.E.2d 833 (1962).'

In the Van Riper case, Petitioner in Illinois Supreme Court opinion 43696 contended that

'The Illinois classification of marijuana as a narcotic is an arbitrary, unscientific, false and unconstitutional designation. Accordingly, the penalty feature of Chapter 38, Sec. 22--40 for sale of marijuana is unconstitutional.'

The Illinois Supreme Court denied the leave to appeal and Van Riper filed a petition for writ of certiorari to the United States Supreme Court. Van Riper v. Illinois, No. 1616, October Term, 1970. On June 14, 1971 the Supreme Court denied the petition for writ of certiorari, 403 U.S. 918, 91 S.Ct. 2228, 29 L.Ed.2d 695.

In view of the above the question poised by the defendant herein is controlled by People v. Gonzales, supra, and People v. Van Riper, supra.

It appears herein that the sale of marijuana was of a weight 'less than one ounce.' Reference is made to our supplemental opinion in People v. McCloskey, No. 70--190, wherein we stated the penalties under the new 'Cannabis Control Act' vary depending upon the amount of cannabis involved. And as...