Summary
upholding compensatory fine as consonant with Kentucky's contempt law
Summary of this case from Cabinet for Health & Family Servs. v. J.M.G.Opinion
No. CR 77-96
Opinion delivered October 24, 1977 [Rehearing denied December 5, 1977.]
1. EVIDENCE — LAY TESTIMONY CONCERNING CONTROLLED SUBSTANCE — COMPETENCY. — Where witnesses testified that defendant represented the substance he sold to be marijuana, that they had smoked marijuana hundreds of times and were familiar with its appearance, smell, taste and effect, that they smoked what they bought from defendant, and that it was marijuana, their lay testimony was competent evidence. 2. EVIDENCE — FAILURE TO PROVE OFFENSE ERRONEOUS SUBMISSION TO JURY. — The state failed to prove three counts of delivery of marijuana where its only witness testified that the substance defendant delivered did not look or smell like marijuana and had no effect when the witness smoked it; and the court was in error in submitting those three counts to the jury. 3. APPEAL ERROR — FAILURE TO ABSTRACT INSTRUCTIONS EFFECT. — In the absence of other error, the appellate court will not reverse because of appellant's contention that certain instructions enumerating the elements which the state had to prove should have been given, where neither party abstracted the court's instruction upon that point. 4. INSTRUCTIONS — PROFFERED INSTRUCTIONS CORRECT SHOULD BE GIVEN UPON RETRIAL. — Since appellant's proffered instructions appear to be correct statements of the law, they should be given upon retrial if not covered by other instructions. 5. TRIAL — ERRONEOUS SUBMISSION OF THREE COUNTS TO JURY — PREJUDICIAL EFFECT ON FOURTH COUNT. Where it appears that the erroneous submission of three counts of delivery of marijuana had a prejudicial effect as to the fourth count of possession with intent to deliver, the cause will be remanded for a new trial upon all four counts.
Appeal from Independence Circuit Court, Andrew G. Ponder, Judge; reversed.
Howell, Price, Howell Barron, for appellant.
Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
The appellant was charged by information with possession of marijuana with intent to deliver and by indictment with three counts of delivery of marijuana. The cases were consolidated for trial. The jury found Moser guilty upon all four charges and assessed the maximum penalty 10 years imprisonment and a $15,000 fine upon each offense. This appeal is from a judgment upon the verdict, the terms of imprisonment having been made to run consecutively. Five points for reversal are argued, but in view of the necessity for a new trial only three of the points require discussion.
First, the marijuana in question was not introduced in evidence and had not been available for chemical analysis, because the purchaser either smoked it or resold it. The appellant argues, with respect to the one charge of possession with intent to deliver, that the users should not have been permitted as lay witnesses, to testify that the substance which they smoked was marijuana.
This argument is not well taken. The witnesses testified in effect that Moser had represented the substance he sold to be marijuana, that they had smoked marijuana hundreds of times, that they were familiar with its appearance, its smell, its taste and its effect, that they smoked what was bought from Moser, and that it was marijuana. Under our decisions, this lay testimony was competent evidence. Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971); Hunter v. State, 180 Ark. 613 22 S.W.2d 40 (1929); Burris v. State, 172 Ark. 609, 290 S.W. 66 (1927). Indeed, if that were not the rule, the State could never obtain a conviction in a drug or liquor case if the contraband had been consumed or had otherwise become unavailable before it could be chemically analyzed.
Second, Moser is right in arguing that the State failed to prove the three counts of delivery of marijuana. Here the State's only witness evidently' surprised the prosecution by testifying that what he bought from Moser did not look like marijuana, did not smell like marijuana, and had no effect when he smoked it. He said he did not know what it was and could not say that it was marijuana. The court was in error in submitting those three counts to the jury.
Third, it is argued that the defendant's instructions five and six, enumerating the elements which the State had to prove, should have been given. Neither party has abstracted the court's instruction upon this point; so, in the absence of other error, we would not reverse the judgment for this reason alone, as we cannot say that the matter was not adequately covered by the court's instruction. The proffered instructions appear to be correct statements of the law, however, and should be given upon a retrial if not covered by another instruction.
The judgment must be reversed with respect to the three counts of delivery. As to the fourth count, charging possession with intent to deliver, we certainly cannot say that the jury was not adversely influenced by the erroneous submission of the other three counts. To the contrary, the imposition of the maximum penalty upon every count indicates that the error did have a prejudicial effect as to all four charges. The cause will therefore be remanded for a new trial upon all four counts.
Reversed and remanded.
We agree. HARRIS, C.J., and FOGLEMAN and HOLT, JJ.