delivered the opinion of the court:
Defendant, . Carl T. Lewerenz, a licensed physician, prosecutes four separate writs of error to the criminal court of Cook County for the review of four judgments convicting him of offenses against narcotic drug laws. We have consolidated the writs for consideration and opinion.
During April, 1961, four indictments were returned against defendant. The first charged him with unlawful sale of narcotic drugs, to-wit doloрhine hydrochloride, to Eugene Nicolleti on March 27, 1961; the second charged a similar unlawful sale to Robert Lopez on March 23, 1961; the third charged a conspiracy, on March 27, 1961, to sell Nicollеti a narcotic drug otherwise than as provided in the Uniform Narcotic Drug Act; and the fourth charged a similar conspiracy to sell to Lopez on March 23, 1961. Lopez and Nicolleti were policemen who had gone to defendant’s office and made the alleged purchases.
A jury found defendant guilty of the unlawful sale to Nicolleti charged in the first indictment, after which judgment was entered on the verdict and defendant sentenced to the penitentiary for a term of 10 to 12 years. Thereafter, defendant waived jury trials under the three remaining indictments and stipulated that all evidence adduced at the trial under the first indictment should be considered as the evidence in the remaining cases. It was also stipulated that the rulings and motions in the first trial should be considered the same in the other сases. Upon consideration of the record thus stipulated, the trial court found defendant guilty of each of the three remaining charges and, in each case, imposed a sentence to the penitentiary for a term of 10 to 12 years, each of which was ordered to be served concurrently with the other and with the sentence imposed at the conclusion of trial under the first indiсtment.
Review and reversal is sought of all four judgments. We may say at once, however, that the judgments entered under the conspiracy indictments must be reversed, inasmuch as the People confess thеre is no evidence in the record to sustain them. This leaves for our consideration only the judgments entered under the indictments charging unlawful sales to Nicolleti and Lopez. As to these judgments it is defendant’s contention that numerous and prejudicial trial errors denied him a fair trial and require reversal.
At the jury trial under the first indictment Officer Nicolleti gave testimony which, if believed by the jury, established that defendant had consciously, intentionally and unlawfully sold him a narcotic drug on March 27, 1961, after Nicolleti had represented that he was a narcotics addict and that he had been referred to defendаnt as one who would “take care” of addicts. Thereafter, over defendant’s objections, the court allowed Officer Lopez to testify to an alleged similar sale to him on March 23, 1961, that is, the crime charged in the second indictment. Defendant, invoking the rule that it is improper to admit evidence of one crime to prove another unless it has some direct tendency to prove the crime charged, insists that the admission of such evidence was prejudicial error. On the basis of the stipulations entered into as to the second indictment, defendant also asserts that evidence of the sale to Nicolleti was improperly permitted to stand as evidence in the record upon which he was convicted of the sale to Lopez.
In prosecutions for offenses involving narcotics, authorities are in accord that evidence of. other offenses is inadmissible unless it comes within one. of the recognized exceptions to the general rule, i.e., where it is a part of the • res gestae, or where it helps to disclose motive, intent, premeditation, guilty knowledge, malice or a common plan or scheme. (See: 22A C.J.S., Criminal Law, sec. 691(25) and cаses there cited.) Within the rule, we have held that in a prosecution for a sale of narcotics on a specified date, (the situation of the instant case,) the sale of narcotics on a prior date may not be shown to convict the accused of the crime charged. (People v. Rivas,
The trial court also permitted the prosecution to prove, over defendant’s objection, that at the time of his arrest defendant had refused to make a statement on advice of counsel. This, too, was prejudicial error in both cases. As pointed out in People v. Rothe,
-Defendant next assigns as error the refusal of the 'trial court' to admit evidence whereby he sought to establish" that his purchase of narcotics and the stocks he maintained wеre so minimal as to negate any possibility of a flow of narcotics from his office, and that the prices he charged for dolophine and tranquilizers were customary charges in the medicаl profession, thus negating a motive of profiteering at the expense of narcotic addicts. We are of the opinion that this evidence should have been admitted. The statute providеs that a physician may prescribe, furnish, or administer narcotic drugs to a patient when the patient is suffering from a disease, ailment or injury, provided that the physician in good faith believes that such condition requires such treatment. (Ill. Rev. Stat. 1959, chap. 38, par. 192.28 — 11.) Tht evidence in question was relevant and material as tending to establish the defendant’s good faith in furnishing the narcotic drugs.
Complaint is next made thаt the prosecutor’s final argument went beyond the evidence in the record, and that it was replete with improper remarks calculated to prejudice and inflame the jurors. Both chargеs are substantiated by the record. The prosecutor argued that officers Nicolleti and Lopez had been directed to defendant’s office by an addict-informer, but we find no direct proof that this was so. Further, the argument played up the prior sale to Lopez to the hilt to support insinuations that defendant had been habitually involved in criminal activities, and also dwelt upon many irrelеvant matters aimed at disparaging defendant and ridiculing his profession. It requires neither minute analysis nor extensive review of authority to determine that such argument was extremely prejudicial. Cf. People v. Stanko,
We also find, as defendant contends, that remarks of the trial judge in the presence of the jury were a source of prejudice which denied him a fair and impartial trial. On no less than sixteen occasions during trial, usually when defendant’s counsel made what appear to be normal and brief objections to evidence, the court characterized his efforts as “speeches,” ruled that “the speech is stricken,” and in some instances admonished counsel not “to make any speeches to me before the jury.” In no instance does the characterizatiоn or attitude appear to be justified and their constant repetition could not have done other than to convey to the jury a hostile attitude toward the defense. A fair trial is guaranteеd to all persons, innocent or guilty, and it is the duty of the trial court to uphold this guaranty. (People v. Black,
Other errors are assigned but sincе they are of such nature that they will not likely recur upon a new trial no beneficial purpose can be served by further extending this opinion to discuss them. For the reasons stated, the judgments enterеd under the conspiracy indictments are reversed without remanding, while the judgments entered under the indictments charging sales to Nicolleti and Lopez, respectively, are reversed and the causes remanded for new trials.
Nos. 36725 and 36726 judgments reversed.
Nos. 36723 and 36724, reversed and remanded.