State v. Woods

Decision Date11 May 1974
Docket NumberNo. 47271,47271
Citation214 Kan. 739,522 P.2d 967
PartiesSTATE of Kansas, Appellee, v. Lewis B. WOODS, Jr., Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The allegations of a complaint positively sworn to provide a magistrate with a sufficient basis for making the requisite finding of probable cause to issue a warrant for arrest.

2. An instruction of the trial court on a charge of unlawfully selling a narcotic drug which describes the drug as marijuana, Cannabis sativa L., is sufficient to properly inform the jury of the nature of the drug when the only evidence introduced at the trial concerns the sale of marijuana in the leafy vegetation form.

3. The possession of marijuana as proscribed in K.S.A.1971 Supp. 65-2502 and 65-2519(b) is not a lesser included offense in a prosecution for the unlawful sale of marijuana as proscribed in K.S.A.1971 Supp. 65-2502 and 65-2519a.

4. In a prosecution for the unlawful sale of a narcotic drug, Cannabis sativa L., commonly known as marijuana, the record on appeal is examined and it is held the judgment of conviction is affirmed.

Joel W. Meinecke, Topeka, argued the cause and was on the brief for appellant.

Larry McClain, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Gene M. Olander, Dist, Atty., were with him on the brief for appellee.

FROMME, Justice:

The defendant Lewis B. Woods, Jr. was charged with, convicted of and sentenced for selling a narcotic drug, Cannabis sativa L., commonly known as marijuana, to Richard Cheatum on November 6, 1971, in violation of K.S.A.1971 Supp. 65-2502 and 65-2519(b). This appeal followed.

The sufficiency of the evidence is not questioned and the facts are not in dispute. Messrs. Cheatum and Teeselink, agents of the Kansas Bureau of Investigation (KBI), were working out of the narcotics division of the bureau. They arranged a meeting with a suspect, Mr. 'Sly' Harding, at the suspect's residence for the purpose of purchasing drugs. Cheatum and Teeselink arrived at the Harding residence and were invited by 'Sly' Harding to be seated at a table. The defendant Woods, who was apparently in the house, entered the room and was introduced by his friend, 'Sly'. Woods and 'Sly' had a short discussion out of the hearing of the two agents. Then the defendant Woods removed two plastic bags of green vegetation from his coat pocket and placed them on the table. The green vegetation was used to roll cigarettes which were smoked by those present. Cheatum then asked 'Sly' how much he wanted for one 'lid', one plastic bag of marijuana. The defendant Woods volunteered that 'Sly' Harding should set the price. Agent Cheatum offered $10.00 for the lid. This offer was rejected and 'Sly' Harding suggested $12.00. This price was acceptable. Cheatum gave Harding $12.00 in cash and took one of the bags of marijuana from the table.

At the trial of the defendant agent Teeselink corroborated agent Cheatum's story and further testified he saw the defendant roll a marijuana cigarette which he handed to Teeselink just before the two agents left the Harding residdnce. The bag of green vegetation and the cigarette were taken to the KBI laboratory for testing. A forensic chemist who made both a visual and a chemical examination of these two exhibits testified at the trial. He made separate examinations of the contents of the bag and of the cigarette. His visual examination under a low power microscope disclosed the cystolith hairs, warty appearance, vein structure and heavy covering of hair on the leaves which he indicated were characteristic of the leaves of the marijuana plant. He testified that each separate exhibit was subjected to the Duguenois-Lavine test for tetrahydrocannabinal, which is the active chemical ingredient in marijuana. This ingredient was present in each test and its presence confirmed his opinion that the contents of the bag and of the cigarette were marijuana, Cannabis sativa L.

We turn to the points raised in this appeal. The defendant-appellant argues that this action should have been dismissed because the arrest warrant was improperly issued without probable cause. Cases are cited in which the validity of search warrants is drawn into question and the search warrants are held to have been invalidly issued because of lack of supporting information on which to find probable cause for the issuance of the search warrants.

No search warrant is involved here. When the complaint was filed by the assistant district attorney it was positively sworn to by him. K.S.A.1971 Supp. 22-2301 (now 1973 Supp.) provides that a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A.1971 Supp. 22-2302 (now 1973 Supp.) provides:

'If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . .' (Emphasis supplied.)

A properly verified complaint is generally considered sufficient authority from which a finding of probable cause may be made and on which a warrant may be issued. (State v. Carey, 56 Kan. 84, 87, 42 P. 371.) The statute 22-2302, supra, provides for the issuance of a warrant if the magistrate finds either from the verified complaint or from an affidavit filed with the complaint that there is probable cause. In State v. Addington, 205 Kan. 640, 472 P.2d 225, it is said:

'. . . The allegations of the complaint positively sworn to provided the magistrate sufficient basis for making the requisite finding of probable cause to issue the warrant. . . .' (p. 644, 472 P.2d p. 229.)

In State v. Larkin, 209 Kan. 660, 498 P.2d 37, it was pointed out that even though an arrest warrant may be issued upon a defective complaint, that standing alone, will not invalidate a subsequent conviction. In Larkin it is said:

'Appellant first complains he was taken into custody by virtue of an arrest warrant issued upon a defective complaint and therefore the trial court erred in denying his motion for discharge. Assuming arguendo, that his arrest may have been illegal, he fails to point out resulting prejudice. We have frequently held that an illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (Citation omitted.).' (p. 661, 498 P.2d p. 38.)

The allegations of a complaint positively sworn to provide a magistrate with a sufficient basis for making the requisite finding of probable cause to issue a warrant for arrest. In the present case the arrest warant was properly issued by the magistrate on a finding of probable cause supported by the allegations of a complaint positively sworn to by the assistant district attorney. Under such circumstances the sufficiency of the statements contained in a separate affidavit filed with the complaint become immaterial.

The defendant next contends that the trial court erred in failing to give the following the arrest warrant was properly issued by

'K.S.A. 65-2501(13). 'Cannabis' includes all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, and other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.'

This requested instruction includes the entire statutory definition of the prohibited drug in all of its various forms. The trial court instructed the jury that to establish the charge the state must prove that the defendant sold marijuana, Cannabis sativa L. The narcotic drugs controlled under this act are listed in K.S.A. 65-2501(18) (L.1957, ch. 338, § 1) as follows:

"Narcotic drugs' means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone and every other substance neither chemically nor physically distinguishable form them; . . .' (Emphasis supplied.)

An instruction of the trial court on a charge of unlawfully selling a narcotic drug which describes the drug as marijuana, Cannabis sativa L., is sufficient to properly inform the jury of the nature of the drug when the only evidence introduced at the trial concerns the sale of marijuana in the leafy vegetation form. The full statutory definition requested by the defendant would not have been helpful to the jury under the facts of the present case for the evidence of sale related to a bag of green vegetation. There was no evidence introduced at the trial concerning derivatives of the plant such as the resin, oil or cake as were included in the requested instruction. The requested instruction was quite properly refused under the facts of this case.

The defendant's final point if one of first impression in this court. He contends that the possession of marijuana is a lesser included offense in the offense of unlawfully selling marijuana. His entire argument is based upon this contention. He argues the trial court erred in failing to instruct the jury and include verdict forms on the lesser included offense of possession. He points out that it is the duty of the trial court to instruct the jury on all lesser crimes of which the accused might be found guilty under the information and upon the evidence adduced. K.S.A.1971 Supp. 21-3107(3) (now 1973 Supp.) provides:

'In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon...

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