Duin v. State
Decision Date | 16 March 1971 |
Docket Number | 3 Div. 79 |
Citation | 260 So.2d 599,47 Ala.App. 693 |
Parties | Gregg DUIN v. STATE. |
Court | Alabama Court of Criminal Appeals |
Gatewood A. Walden, Montgomery, Pierce, Duncan, Hill & Russell, Kansas City, Mo., for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
Howard C. Oliver, Montgomery, amicus curiae.
Selling marijuana: sentence fifteen years.
The jury found Duin guilty November 20, 1969. After adjudging him guilty the court remanded the defendant 'to jail to await the sentence of the law.'
On December 12 the defendant was again before the court, this time without counsel. (R. 6) After allocutus the court sentenced the defendant to fifteen years in the penitentiary.
The absence of counsel at sentencing is a denial of due process and hence error. Shellnut v. State, 280 Ala. 28, 189 So.2d 590; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d
There is no statutory form of indictment for any of the offenses involving marijuana. Hence Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, lays down the controlling law. In United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819, we find:
The indictment sub judice reads in part as follows:
'The Grand Jury of said County charge that, before the finding of this indictment, GREGG DUIN, whose name is to the Grand Jury otherwise unknown, did on, to-wit, October 26, 1969, willfully, unlawfully, and feloniously sell marijuana, cannabis Americana or cannabis Indicia, or a compound or mixture containing marijuana, cannabis Americana or cannabis Indicia, against the peace and dignity of the State of Alabama.'
It is to be noted that the foregoing fails to state to whom Duin sold. In view of the higher range of punishment, Code 1940, T. 22, § 258(b), as amended by Act 625, August 29, 1969, marijuana selling must now be charged separately from possession. See Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859.
In the absence of an excusing statute it is needful to allege the name of the vendee when selling is a part of an offense. 2 Dorman v. State, 34 Ala. 216; Grattan v. State, 71 Ala. 344; Jones v. State, 136 Ala. 118, 34 So. 236; Jones v. State, Okla.Cr., 321 P.2d 432.
The instant indictment was filed November 5, 1969. The defendant was arraigned with counsel November 11 and put to trial November 20. No demurrer was interposed.
At the close of the State's case appointed defense counsel moved to exclude the evidence on the sole ground that the testimony made out a case of entrapment. Since the evidence on this point admits of opposite conclusions we cannot ascribe error to the trial court's denial of the motion.
The defendant requested the affirmative charge in writing, both with and without hypothesis. Since the foregoing indictment would not, absent the identity of the seller, support a conviction the court erred in refusing either of these charges. Cagle v. State, 151 Ala. 84, 44 So. 381.
From Shelton v. State, 143 Ala. 98, 39 So. 377 ( ), we also quote:
'* * * As it (count 2 of the indictment) charged no offense, the defendant in his request for instructions had the right to ignore it altogether, since it would not support a judgment of conviction.
This being true, he had the right to have the court instruct the jury that they could not convict him under that count. The third written charge requested by defendant should have been given.'
The third written charge in Shelton was:
See 17 A.L.R. at 929, where cases on our statute 3 on charging on the effect of the evidence are collated; also 23A C.J.S. Criminal Law § 1145(2), n. 44, p. 361. Though reversed on another point, the opinion of Samford, J., in Coker v. State, 18 Ala.App. 550, 93 So. 384, seems sound in putting a request for the affirmative charge vis-a-vis a void count in an indictment on the same footing as a motion in arrest of judgment.
This latter manoeuvre in Alabama has been recognized as a 'delayed' demurrer. If it is permissible after verdict to raise the question of such a duplicitous averment, 4 then, a fortiori, why should not an earlier motion (which is in essence to dispense with the further time and cost of judge and jury) be more efficacious and hence more commendable?
See also Harmon v. State, 47 Ala.App. 1, 249 So. 369 ( ); Commonwealth v. Sheedy, 159 Mass. 55, 34 N.E. 84; McLaughlin v. State, 45 Ind. 338.
As above stated, there was on the instant record no error in denying the motion to exclude because of claimed entrapment. It was on this trial a jury question. No requested instructions were refused.
In view of the need for new trial any instructions written or oral should balance the aspects of entrapment. While entrapment conceptually rests on the formative mental element springing from a government agent, yet in the case of an unlawful sale there is the added factor of a need for a meeting of the minds of vendor and vendee. See Ala. Digest, Criminal...
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