(No. 40422.

#### The People of the State of Illinois, Appellee, vs. Henry Jackson, Jr., Appellant.

Opinion filed, June 21, 1968.

Ward, J., took no part.

Gerald W. Getty, Public Defender, of Chicago, (James R. Thompson, James J. Doherty, and Marshall J. Hartman, Assistant Public Defenders, of counsel,) for appellant.

William G. Clark, Attorney General, of Springfield, and John J. Stamos, State’s Attorney, of Chicago, (Fred G. Leach, Assistant Attorney General, and Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel,) for the People.

Mr. Justice Schaefer

delivered the opinion of the court:

After a trial before a judge of the circuit court of Cook County, the defendant, Henry Jackson, Jr., was found guilty of unlawful possession of narcotic drugs. (Ill. Rev. Stat. 1965, chap. 38, par. 22 — 3.) He was sentenced to imprisonment in the penitentiary for not less than three nor more than four years, the sentence to run concurrently with *144a designated Federal sentence. On this direct appeal he contends that his conviction and imprisonment constitute cruel and unusual punishment in violation of the eighth and fourteenth amendments to the constitution of the United States.

This contention is based upon a projection of Robinson v. California (1962), 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417, which held that the status or condition of narcotics addiction could not be made a criminal offense, punishable by imprisonment. The defendant argues that the decision in Robinson means that possession of narcotic drugs for self-administration “by an addict is an involuntary and compulsive incident of the disease of addiction,” which can not be punished.

In deciding Robinson, the Supreme Court observed, “A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders.” (370 U.S. at 664, 8 L. Ed. 2d at 762.) And in People v. Nettles (1966), 34 Ill.2d 52, cert, denied, 386 U.S. 1008, 18 L. Ed. 2d 448, this court rejected the same argument that the defendant now advances. The defendant would have us disregard what was said by the Supreme Court in Robinson, and overrule our decision in Nettles.

We do not reach the legal contentions urged by the defendant because the record in this case does not show that his possession of the heroin was the involuntary result of his addiction. At the hearing upon the defendant’s motion to suppress the evidence, two police officers testified that a reliable informer had told them that the defendant had just sold heroin to him, and that the defendant had narcotics in his shoe. They arrested the defendant at once and four tinfoil packages were found in his shoe. After the motion to suppress was overruled and the defendant had waived a jury trial, it was stipulated that the evidence heard on the motion to suppress should be considered as *145the evidence heard upon the trial, and it was further stipulated that the substance found by the police officers in the defendant’s shoe was heroin.

At the hearing on the motion to suppress, the defendant was asked on cross-examination, “You were addicted to narcotics on the date the police officers picked you up?” When the defendant’s attorney objected, the assistant State’s Attorney responded, “It’s a question that goes to his credibility.” The defendant’s attorney then stated: “It is not material to me whether he is addicted or not. It is a question of whether or not he has ever been convicted of anything which would impeach his testimony and since counsel has nothing like that he is using everything he has got.” The trial judge sustained the objection, ruling, “You may inquire as to the condition of the defendant at the time of his arrest.”

The record thus shows that in the trial court the defendant’s attorney had disclaimed any interest in his status as an addict, and the trial judge had limited the scope of the State’s attempted impeachment to questions concerning the defendant’s condition at the time of his arrest as it affected his testimonial capacity. Nevertheless, his present attorneys assert that the following passage at a later stage of the defendant’s cross-examination shows that his possession of the heroin was the involuntary result of his addiction :

> “Q. And you had 4 ten dollar bags, is that correct ?

> ' A. That is right.

> Q. And how big a habit did you have ?

> A. How big a habit did I have ?

> Q. Yes.

> A. It did enough for me to shoot what I had.

> Q. To shoot the four bags ?

> A. Yes, that is right.”

Apart from any doubts that might arise from the fact that these answers were elicited in an attempt to impeach the defendant, who was testifying in support of his motion *146to suppress (see Simmons v. United States (1968), 39 U.S. 377, 19 L. Ed. 2d 1247,) the defendant’s answers do not establish that his possession of the heroin was an involuntary result of physical dependence. Neither the amount nor the purity of the drug is shown, and the record contains nothing to show the frequency of its use.

The contention presently advanced on behalf of the defendant was waived, if not affirmatively rejected, in the trial court, and it is without factual basis in the record.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

Mr. Justice Ward took no part in the consideration or decision of this case.