Jefferson v. Com.

• Decision Date: 14 January 1974
• Citation: 214 Va. 432,201 S.E.2d 749
• Parties: Joseph JEFFERSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 749

201 S.E.2d 749

214 Va. 432

Joseph JEFFERSON v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Jan. 14, 1974.

JeRoyd W. Greene, Richmond (Greene, Buxton & Poindexter, Richmond, on brief), for plaintiff in error.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

PER CURIAM.

Joseph Jefferson was tried by a jury which found him guilty of distributing marijuana and fixed his punishment at confinement for five years in the State Penitentiary and payment of a $1,000 fine. We granted Jefferson a writ of error to the judgment order entered on the jury verdict.

The Commonwealth's evidence was that on August 24, 1972, Jefferson and a companion, Maxine Braswell, were seated in Jefferson's automobile parked at the curb on a Richmond street when James Thomas Mickens approached; that Jefferson handed a paper bag to Braswell who passed it through the car window to Mickens; and that police officers closed in one Mickens, seized the bag, subsequently determined to contain marijuana, and arrested Jefferson, Braswell and Mickens.

Jefferson, Braswell, Samuel Satchel and Mickens, testifying for the defense, denied the alleged transfer of the paper bag. Mickens testified that he had acquired the bag of marijuana from another person about a day and a half before this alleged offense occurred. On direct examination he testified that, after his arrest, he told the police that Jefferson and Braswell had nothing to do with the marijuana. On cross-examination Mickens said that he had made this statement to police officers Jones and Robinson. The Commonwealth subsequently put on Officer Jones as a rebuttal witness, who testified over defendant's objection that Mickens had stated only that Braswell had nothing to do with the marijuana.

There is no merit in Jefferson's contention that the trial court erred in permitting the Commonwealth to have Officer Jones testify to a prior inconsistent statement made by Mickens. Jefferson asserts that there was no proper foundation for impeachment, but no such foundation is required where a witness makes an issue of his prior statement by voluntarily testifying as to its contents. Mickens identified the time and place when he made the statement and the officers to whom he made it. The only question was what Mickens had stated. The trial court ruled correctly that one of the officers could testify in rebuttal that the statement was different from the version to which Mickens testified.

The ruling of the trial court on certain instructions, however, requires reversal of Jefferson's conviction. The Commonwealth's Instruction No. 8 ¹, which was given, and Jefferson's Instruction No. 'A' ², which was refused, were based on Code § 54--524.101:1 ³, Acts 1972, c. 798 (since amended by Acts 1973, c. 479).

The Attorney General, relying on the provisions of Code § 54--524.108 ⁴, argues that Instruction No. 8 was justified by the evidence or distribution, and that Instruction No. 'A' was properly refused for lack of evidence of an accommodation distribution. He insists that the burden was on Jefferson to prove that he came within the accommodation provision. We construe Code § 54--524.108 as inapplicable to this case.

Code § 54--524.101:1, as it read at the time of Jefferson's alleged violation, provided for two separate offenses. The first and more serious offense was distribution or possession with intent to distribute a controlled substance with intent to profit thereby or to induce use, addiction or dependency on the part of the recipient. The punishment upon conviction was imprisonment for not less than five nor more than forty years and a fine of not less than $1,000 and not more than $25,000. The second and lesser included offense was distribution or possession with intent to distribute a controlled substance as an accommodation to another and not with intent to profit thereby or to induce use, addiction or dependency. The punishment upon conviction of this offense was imprisonment for not less than one nor more than ten years, or, at the discretion of the trier of fact, for not more than twelve months and a fine of not more than $1,000. We find no statutory presumption that any distribution is for profit or to induce use, addiction or dependency.

As we pointed out in Walker v. Commonwealth, 212 Va. 289, 290--291, 183 S.E.2d 739, 740 (1971), the burden is on the...