Ashley v. State, Nos. 31050

• Docket Nº: Nos. 31050
• Citation: 241 N.E.2d 264, 251 Ind. 359
• Case Date: October 31, 1968
• Court: Supreme Court of Indiana

Page 264

241 N.E.2d 264 251 Ind. 359 Thomas Elmer ASHLEY, Appellant,
v.
STATE of Indiana, Appellee.
Joe TAYLOR, Appellant,
v.
STATE of Indiana, Appellee. Nos. 31050, 31051. Supreme Court of Indiana. Oct. 31, 1968.

[251 Ind. 361]

Page 265

George W. Brady, Richard Clapp, Muncie, Paul S. Brady, Muncie, of counsel.

John J. Dillon, Atty. Gen., Robert Hassett, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellants, with another, one Wendell D. Dorris, were charged by affidavit, in two counts, with violations of The Uniform Narcotic Drug Act, Burns' Ind.Statutes Anno. (1968 Supp.) Sections 10-3520 and 10-3538 being the relevant sections.

Section 10-3520, in pertinent part, reads as follows:

'10-3520. Acts prohibited.--It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, compound or use any narcotic drug or drugs except as authorized in the laws of the United States or of the state of Indiana, or for any person to be found in a public place under the influence of narcotic drugs.'

Section 10-3538, in pertinent part, reads as follows:

'10-3538. Penalties.--(a) (Omitted--not applicable here)

(b) Any person who shall possess or have under his control any narcotic drug with intent to barter or exchange with, or to sell, give or dispense, to any other person, the same or any part thereof, or to aid, abet, or directly or indirectly counsel, command, induce or procure the barter or exchange with the sale or gift to any other person the same or any part thereof, in violation of any section of this act, shall upon conviction, * * *.

(c) Any person who possesses or has under his control any narcotic drugs except as authorized under the laws of the United States or of the State of Indiana, shall upon conviction * * *.'

Count I of the Amended Affidavit charged that the appellants and Wendell D. Dorris

[251 Ind. 362] '* * * on or about the 11th day of OCTOBER, 1964 at and in the County of Delaware, State of Indiana, did * * * unlawfully POSSESS AND CONTROL A NARCOTIC DRUG, TO-WIT: CANNABIS SATIVA L., * * *.'

Count II of the Amended Affidavit charged that the appellants and Wendell D. Dorris

'* * * on or about the 11th day of OCTOBER, 1964 at and in the County of Delaware, State of Indiana, did * * * unlawfully POSSESS AND HAVE UNDER THEIR CONTROL A NARCOTIC DRUG, TO WIT: CANNABIS SATIVA L., WITH INTENT TO BARTER, EXCHANGE, SELL AND DISPENSE TO ANOTHER PERSON, TO-WIT: TO ANOTHER PERSON TO THIS AFFIANT UNKNOWN, * * *.'

Trial was had by jury resulting in a verdict of guilty. Each of the appellants filed a motion for a new trial alleging numerous grounds. The motions were overruled by the trial court. On appeal appellants assign as error the overruling of their motions for a new trial.

From the evidence most favorable to the appellee, adduced at the trial, it appears that on or about October 2, 1964, Captain Ernest Sutton of the Muncie Police Department drove a young woman to a house located in Muncie, Indiana. Captain Sutton parked across the street from the house. He gave the woman five (5) one dollar

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bills, and one (1) five dollar bill. The woman then got out of the car, crossed the street, and entered the house. She returned approximately five minutes later with a packet of what was subsequently identified as Cannabis Sativa L., commonly known as marihuana. She also gave to Captain Sutton five (5) one dollar bills.

The following evening, October 3, 1964, Captain Sutton met the same woman, and took her to the Muncie Police Department. Once there, he turned her over to policewomen Linda Elliott, who was directed to make a complete search of the woman. Officer Elliott accompanied the woman into another room in the building where, according to her testimony, she thoroughly searched the woman for the presence of marihuana. [251 Ind. 363] Finding no marihuana on the woman, Officer Elliott returned her to Captain Sutton.

Captain Sutton then took her to the same house to which he had taken her the previous evening. He gave her one (1) five dollar bill. The woman went into the house with the money and returned approximately five minutes later with another packet containing what was subsequently identified as marihuana.

Captain Sutton testified that this same procedure was followed on the night of October 10, 1964, and that the woman once again turned a packet of marihuana over to him after emerging from the house. Moreover, on this night Muncie police officers stood watch at the rear of the house while the woman was inside.

Thereafter, at approximately 4:00 a.m. on October 11, 1964, a contingent of police returned to the house, knocked at the door and were admitted by one Wendell Dorris. The police advised Dorris that they had a search warrant. Appellants, who were in the upstairs of the house, were brought downstairs by a uniformed officer. The search warrant was read to the three, and they were placed under arrest. The house was then searched, and six packets of marihuana were among the items confiscated.

The search warrant, issued on October 11, 1964, was based on affidavits of Captain Sutton and Officer Elliott, which in pertinent parts reads as follows:

'Linda Elliott being duly sworn upon her oath says that she believes and that she has good and reasonable and probable cause for believing, as hereinafter set forth, that there is concealed a quantity of cannabis including all parts of the plant Cannabis Sativa L., the seeds thereof, the resin extract from any part of said plant, a compound salt, derivative, mixture, or preparation of such plant including the drug known as American hemp, marihuana, Indiana hemp or hasheesh as used in cigarettes or in any other articles, compounds, mixtures, preparations or products whatsoever, the amount of which to this affiant is unknown, and that [251 Ind. 364] such cannabis as described hereinabove is possessed for the unlawful manufacture,...