Moser v. State, CR77-96
| Decision Date | 24 October 1977 |
| Docket Number | No. 2,No. CR77-96,CR77-96,2 |
| Citation | 557 S.W.2d 385,262 Ark. 329 |
| Parties | Winfred MOSER, Appellant, v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Howell, Price, Howell & Barron, Little Rock, for appellant.
Bill Clinton, Atty. Gen., by Robert J. Govar, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was charged by information with possession of marihuana with intent to deliver and by indictment with three counts of delivery of marihuana. 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 marihuana 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 marihuana.
This argument is not well taken. The witnesses testified in effect that Moser represented the substance he sold to be marihuana, that they had smoked marihuana 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 marihuana. 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 marihuana. Here the State's only witness evidently surprised the prosecution by testifying that what he bought from Moser did not look like marihuana, did not smell like marihuana, and had no effect when he smoked it. He said he did not know what it was and could not say...
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...the sentences be served consecutively indicates that the error did have a prejudicial effect as to all charges. See Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977). For these reasons, I concur with the majority to reverse the conviction for possession of drug paraphernalia and remand on......
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...may be sufficient to identify a controlled substance without resorting to expert chemical analysis. E.g. , Moser v. State , 262 Ark. 329, 330, 557 S.W.2d 385, 385–86 (1977). Viewed in the light most favorable to the State, e.g. , Barfield v. State , 2019 Ark. App. 501, at 1–2, 588 S.W.3d 41......
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...Johnson v. State, 6 Ark.App. 342, 642 S.W.2d 324 (1982); Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ark.App.1979); Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977). Appellant did not testify and there was no other evidence of any acts constituting entrapment. To warrant the giving of ......