MR. JUSTICE WHITE, dissenting.
If appellant's conviction rested upon sheer status, condition or illness or if he was convicted for being an addict who had lost his power of self-control, I would have other thoughts about this case. But this record presents neither situation. And I believe the Court has departed from its wise rule of not deciding constitutional questions except where necessary, and from its equally sound practice of construing state statutes, where possible, in a manner saving their constitutionality.  [p686]
I am not at all ready to place the use of narcotics beyond the reach of the States' criminal laws. I do not consider appellant's conviction to be a punishment for having an illness or for simply being in some status or condition, but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest and in violation of the California law. As defined by the trial court,  addiction is the regular use of narcotics and can be proved only by evidence of such use. To find addiction in this case, the jury had to believe that appellant had frequently used narcotics in the recent past.  California is entitled to have its statute and the record so read, particularly where the State's only purpose in allowing prosecutions for addiction was to supersede its own venue requirements applicable to prosecutions for the use of narcotics and in effect to allow convictions for use [p687] where there is no precise evidence of the county where the use took place. 
Nor do I find any indications in this record that California would apply § 11721 to the case of the helpless addict. I agree with my Brother CLARK that there was no evidence at all that appellant had lost the power to control his acts. There was no evidence of any use within 3 days prior to appellant's arrest. The most recent marks might have been 3 days old or they might have been 10 [p688] days old. The appellant admitted before trial that he had last used narcotics 8 days before his arrest. At the trial, he denied having taken narcotics at all. The uncontroverted evidence was that appellant was not under the influence of narcotics at the time of his arrest, nor did he have withdrawal symptoms. He was an incipient addict, a redeemable user, and the State chose to send him to jail for 90 days rather than to attempt to confine him by civil proceedings under another statute which requires a finding that the addict has lost the power of self-control. In my opinion, on this record, it was within the power of the State of California to confine him by criminal proceedings for the use of narcotics or for regular use amounting to habitual use. 
The Court clearly does not rest its decision upon the narrow ground that the jury was not expressly instructed not to convict if it believed appellant's use of narcotics was beyond his control. The Court recognizes no degrees of addiction. The Fourteenth Amendment is today held to bar any prosecution for addiction regardless of the degree or frequency of use, and the Court's opinion bristles with indications of further consequences. If it is "cruel and unusual punishment" to convict appellant for addiction, it is difficult to understand why it would be any less offensive to the Fourteenth Amendment to convict him for use on the same evidence of use which proved he was an addict. It is significant that, in purporting to reaffirm the power of the States to deal with the narcotics traffic, the Court does not include among the obvious powers of the State the power to punish for the use of narcotics. I cannot think that the omission was inadvertent. [p689]
The Court has not merely tidied up California's law by removing some irritating vestige of an outmoded approach to the control of narcotics. At the very least, it has effectively removed California's power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond this, it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment. I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances. But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another case.
Finally, I deem this application of "cruel and unusual punishment" so novel that I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.
I respectfully dissent.
^ . It has repeatedly been held in this Court that its practice will not be
- to decide any constitutional question in advance of the necessity for its decision . . . or . . . except with reference to the particular facts to which it is to be applied,
Alabama State Federation v. McAdory, 325 U.S. 450, 461, and that state statutes will always be construed, if possible, to save their constitutionality despite the plausibility of different but unconstitutional interpretation of the language. Thus, the Court recently reaffirmed the principle in Oil etc., Workers Unions v. Missouri, 361 U.S. 363, 370:
- When that claim is litigated, it will be subject to review, but it is not for us now to anticipate its outcome. "‘Constitutional questions are not to be dealt with abstractly.' . . . They will not be anticipated, but will be dealt with only as they are appropriately raised upon a record before us. . . . Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress." Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, at 746.
^ . The court instructed the jury that
- The word "addicted" means strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. . . . To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually.
^ . This is not a case where a defendant is convicted "even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there." The evidence was that appellant lived and worked in Los Angeles. He admitted before trial that he had used narcotics for three or four months, three or four times a week, usually at his place with his friends. He stated to the police that he had last used narcotics at 54th and Central in the City of Los Angeles on January 27, 8 days before his arrest. According to the State's expert, no needle mark or scab found on appellant's arms was newer than 3 days old, and the most recent mark might have been as old as 10 days, which was consistent with appellant's own pretrial admissions. The State's evidence was that appellant had used narcotics at least 7 times in the 15 days immediately preceding his arrest.
^ . The typical case under the narcotics statute, as the State made clear in its brief and argument, is the one where the defendant makes no admissions, as he did in this case, and the only evidence of use or addiction is presented by an expert who, on the basis of needle marks and scabs or other physical evidence revealed by the body of the defendant, testifies that the defendant has regularly taken narcotics in the recent past. See, e.g., People v. Williams, 164 Cal.App.2d Supp. 858, 331 P.2d 251; People v. Garcia, 122 Cal.App.2d Supp. 962, 266 P.2d 233; People v. Ackles, 147 Cal.App.2d 40, 304 P.2d 1032. Under the local venue requirements, a conviction for simple use of narcotics may be had only in the county where the use took place, People v. Garcia, supra, and, in the usual case, evidence of the precise location of the use is lacking. Where the charge is addiction, venue under § 11721 of the Health and Safety Code may be laid in any county where the defendant is found. People v. Ackles, supra, 147 Cal.App.2d, at 42-43, 304 P.2d at 1033, distinguishing People v. Thompson, 144 Cal.App.2d Supp. 854, 301 P.2d 313. Under California law, a defendant has no constitutional right to be tried in any particular county, but, under statutory law, with certain exceptions, "an accused person is answerable only in the jurisdiction where the crime, or some part or effect thereof, was committed or occurred." People v. Megladdery, 40 Cal.App.2d 748, 762, 106 P.2d 84, 92. A charge of narcotics addiction is one of the exceptions, and there are others. See, e.g., §§ 781, 784, 785, 786, 788, Cal.Penal Code. Venue is to be determined from the evidence and is for the jury, but it need not be proved beyond a reasonable doubt. People v. Megladdery, supra, 40 Cal.App.2d, at 764, 106 P.2d, at 93. See People v. Bastio, 55 Cal.App.2d 615, 131 P.2d 614; People v. Garcia, supra. In reviewing convictions in narcotics cases, appellate courts view the evidence of venue "in the light most favorable to the judgment." People v. Garcia, supra.
^ . Health and Safety Code § 11391 expressly permits and contemplates the medical treatment of narcotics addicts confined to jail.