People v. Yeargain

• Decision Date: 24 May 1954
• Docket Number: No. 32945,32945
• Citation: 119 N.E.2d 752,3 Ill.2d 25
• Parties: PEOPLE v. YEARGAIN.
• Court: Illinois Supreme Court

Page 752

119 N.E.2d 752

3 Ill.2d 25

PEOPLE v. YEARGAIN.

No. 32945.

Supreme Court of Illinois.

May 24, 1954.

Ivan Yeargain, pro se.

Latham Castle, Atty. Gen., John Gutknecht, State's Atty., Chicago (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, Jordan Jay Hillman, Chicago, of counsel), for the people.

MAXWELL, Justice.

Plaintiff in error, Ivan Yeargain, was on January 28, 1952, tried and convicted at a bench trial in the criminal court of Cook County for an unlawful sale of narcotic drugs to a minor, which offense was found to have been committed on October 30, 1951. His motions for a new trial and in arrest of judgment were denied and he was sentenced to the penitentiary for a term of not less than five nor more than fifteen years. He comes here by writ of error on the common-law record alone.

Plaintiff in error's sole contention is that the indictment upon which he was convicted fails to state an offense under the Uniform Narcotic Drug Act, (Ill.Rev.Stat.1951, chap. 38, par. 192.1 et seq.) hence the court was without jurisdiction and the judgment and sentence are void.

The indictment, consisting of two counts, charges in count 1, (omitting the formal parts,) that the defendant 'On the 30th day of October, 1951 in said county of Cook and State of Illinois aforesaid, unlawfully, feloniously, wilfully and knowingly sold for lawful money of the United States of America, otherwise than as authorized in the Uniform Narcotic Drug Act of the said State of Illinois, then in force and effect, a certain narcotic drug to wit: cannabis, sometimes called marijuana, in the form of five cigarettes to a certain person who then and there was under 21 years of age, to wit: Lee Parker who then and there was of the age of 18 years.' Court 2 is identical except that the word 'dispensing' was substituted for the words 'sold for lawful money of the United States of America.'

Plaintiff in error contends that this indictment is insufficient under the holding in People v. Sowrd, 370 Ill. 140, at page 143, 18 N.E.2d 176, at page 177, 119 A.L.R. 1396, wherein this court said, 'in order to constitute an offense under the latter act, (the 1935 statute,) it must appear that the marijuana alleged to be possessed was from the dried flowering or fruiting tops of the plant, and that the resin had not been extracted. Possession of marijuana is not a criminal offense unless it is of the specific quality and kind defined by the statute.' On the authority of this case plaintiff in error contends the instant indictment does not state an offense because the specific quality and kind of cannabis or marijuana as defined by the statute was not alleged.

Subsection 13 of section 1 of the Uniform Narcotic Drug Act, in force and effect in 1935, (Ill.Rev.Stat.1935, chap. 91, par. 157,) upon which the decision in People v. Sowrd was rendered, reads as follows: "Cannabis' includes the following substances under whatever names they may be designated: (a) The dried flowering or fruiting tops of the pistillate plant Cannabis Sativa L., from which the resin has not been extracted, (b) the resin extracted from such tops, and (c) every compound, manufacture, salt, derivative, mixture, or preparation of such resin, or of such tops from which the resin has not been extracted.'

Subsequent to that decision this subsection defining 'cannabis' was amended, and in 1951, at the time of the offense and indictment here, that subsection read as follows: "Cannabis' includes all parts of the plant Cannabis Sativa L.,...