{
  "id": 8499773,
  "name": "The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error",
  "name_abbreviation": "People v. Hustion",
  "decision_date": "1913-03-24",
  "docket_number": "Gen. No. 18,713",
  "first_page": "293",
  "last_page": "296",
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      "cite": "178 Ill. App. 293"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "88 Ill. 518",
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  "last_updated": "2023-07-14T19:56:36.464744+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Smith\ndelivered the opinion of the court.\nThe plaintiff in error was prosecuted in January, 1912, in the Criminal Branch of the Municipal Court of Chicago on an information alleging: \u201cEugene Hus-' tion, late of the said City of Chicago, heretofore, to-wit, on the 13th day of December, A. D. 1911, at the City of Chicago, aforesaid, did then and there unlawfully and wrongfully sell to Walter A. Bobo a quantity of cocaine without said Walter A. Bobo having in his possession a written prescription signed by a duly registered physician the said Eugene Hustion having been convicted of selling cocaine without a written prescription of a duly registered physician prior to December 1, 1911, in the Municipal Court of Chicago, contrary to the form of the statute in such case made \u2022and provided, and against the peace and dignity of The People of the State of Illinois.\u201d\nOn a trial before a jury a verdict was returned as follows: \u201cWe*, the jury, find the defendant, Eugene Hustion, guilty in manner and form as charged in the information.\u201d A motion for a new trial was denied and plaintiff in error sentenced to pay a fine of $300.00 and costs and committed to the Honse of Correction until paid.\nThe prosecution of the plaintiff in error was under section 32a, chapter 91, Medicine and Surgery, Hurd\u2019s Rev. Stat. 1911, in part as follows:\n\u201cIt shall he unlawful for any druggist or other person to retail, sell or give away any cocaine * * * except upon the written prescription of a duly registered physician, which prescription shall contain the name and address of the person for whom prescribed, and the date the same shall have been filled, and shall be permanently retained on file by the person, firm or corporation where the same shall have been filled, and it shall be filled but once, and of it no copy shall be taken by any person, and the original shall at all times be open to the inspection of the prescriber,\u201d etc.\nThe plaintiff in- error contends that the information stated no offense in that the statute under which he was prosecuted did not require the prescription to be in his possession. The point is well taken. Glenn v. People, 17 Ill. 105; Truitt v. People, 88 Ill. 518. The evidence is not preserved in the record before us and the question presented is, was an offense charged in the information. The counsel for the People argue: \u201cThe gist of the offense is the selling without a prescription, or, which comes to the same thing, not having a prescription, or identically the same thing, not having the prescription in possession.\u201d It is very true, as stated, that \u201cthe gist of the offense is the selling without a prescription,\u201d but that not having the prescription in possession is \u201cidentically the same thing\u201d we are unable to concede. For instance, suppose a duly registered physician had written a prescription for a patient, but for some reason not wishing to give same to the patient, left it with the druggist and thereunder the druggist sold and delivered the cocaine to the patient. It is not to be presumed that under such circumstances a court would hold the druggist guilty of a violation of the said statute. In Beasley v. People, 89 Ill. 571, the court say: \u201cUndoubtedly the general rule is, where an act is made criminal, with exceptions embraced in the same clause of the statute which creates the offense, so as to be descriptive of the offense intended to be punished, it is necessary, in the indictment stating the act had been done, to negative the exceptions so as to show affirmatively the precise crime defined has been committed. \u2019 \u2019\nIt is also urged by counsel for the People that \u201cEvery indictment or accusation of the grand jury shall be deemed sufficiently technical which states the offense in the language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.\u201d This is well settled law, but the trouble is that the prosecutor, probably with the statute before him, for some reason difficult to understand, inserted an element within the exception not required by the statute.\nIn our opinion the information stated no offense, and the judgment is reversed and the cause remanded.\n'Reversed and remanded.",
        "type": "majority",
        "author": "Mr. Presiding Justice Smith"
      }
    ],
    "attorneys": [
      "Archibald E. GueriN and Wallace Streeter, for plaintiff in error.",
      "Maclay HoyNe, for defendant in error; Zach Hoe-heimer, of counsel."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error.\nGen. No. 18,713.\n1. CRIMINAL i,aw \u2014 unlawful sale of cocaine. An information which charges that defendant unlawfully sold cocaine'to a certain person without such person \u201chaving in his possession a written prescription signed by a duly' registered physician,\u201d does not state an oj\u00edense, since the statute does not require the purchaser to have possession of the prescription.\n2. Ceimii\u00edal law \u2014 when indictment must negative exceptions. Where a statute making an act criminal includes exceptions in the same clause which creates the offense, it is necessary in the indictment to negative the exceptions so as to show affirmatively that the precise crime defined has been committed.\nError to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1912.\nReversed and remanded.\nOpinion filed March 24, 1913.\nArchibald E. GueriN and Wallace Streeter, for plaintiff in error.\nMaclay HoyNe, for defendant in error; Zach Hoe-heimer, of counsel."
  },
  "file_name": "0293-01",
  "first_page_order": 311,
  "last_page_order": 314
}