Frank v. State

• Decision Date: 23 May 1967
• Docket Number: No. 1--52,1--52
• Parties: Milton F. FRANK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 117

199 So.2d 117

Milton F. FRANK, Appellant, v. STATE of Florida, Appellee.

No. 1--52.

District Court of Appeal of Florida, First District.

May 23, 1967.

Albert Datz, Jacksonville, for appellant.

Earl Faircloth, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

WIGGINTON, Acting Chief Judge.

Defendant has appealed a judgment of conviction and sentence based upon a jury verdict finding him guilty of unlawfully possessing narcotic drugs. The principal thrust of appellant's position is directed to the ruling of the trial court denying his request for a jury instruction on the issue of scienter.

The information on which appellant was tried contained two counts, the first charging him with the unlawful possession of morphine and the second with the unlawful possession of marijuana. The statute on which the prosecution was based is as follows, to wit:

'It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.' ¹

With respect to count one, the only evidence adduced at the trial tending to prove appellant's unlawful possession of morphine consisted of a powdery substance found on a playing card lying on a dresser in appellant's bedroom which could not be positively identified as morphine. Even though the jury convicted appellant on this count, the verdict was set aside and a new trial granted because of the insufficiency of the evidence to prove the offense alleged. The trial court's order granting the new trial on count one is not questioned on this appeal, so no further comment on this phase of the case will be made.

With regard to count two, the evidence reveals that appellant, together with another man, shared an apartment in the City of Jacksonville. Only appellant was present in the apartment at the time he was arrested and the premises searched. This search revealed a vial of marijuana between the mattresses of one of the beds in the bedroom, another vial of marijuana secreted in a vase, another vial concealed in the drawer of a night table in the bedroom, and two smoking pipes which, upon chemical analysis, revealed had been used for smoking marijuana. Appellant denied any knowledge of the presence of the marijuana in the apartment, and denied that the pipes in question belonged to or were ever used by him. Appellant's roommate had equal custody and control of the apartment, and equal access to the places where the contraband items were found.

At the conclusion of the trial appellant requested the court to charge the jury on the issue of scienter by the following instruction, to wit:

'The mere fact that a person is found to be in possession of a narcotic drug is not sufficient in and of itself to warrant your convicting such person of the crime of possessing that drug, unless you believe, beyond a reasonable doubt, that the person so charged knew that he was in possession of such narcotic drug.'

In denying the foregoing instruction requested by appellant, the trial court said:

'Well, this man is living in the small apartment and it was on the vanity right by him. (This statement has reference to the playing card on which was discovered some white powder assumed but not shown to have been morphine.) I am going to give the same Charge that I always give. It would be very difficult for the State to prove that this man had knowledge of it. It was his apartment and he was living there. It was found in his apartment. The pipe and vials and the powder, it was all there. It was out in the open. All right, bring the Jury in.'

During the course of his instructions to the jury, the trial court gave what was referred to in the above-quoted colloquy as his regular charge, as follows:

'The other essential which the State must prove beyond a reasonable doubt before you would be justified in finding the Defendant guilty of the second count of this information are that this Defendant did unlawfully possess a narcotic drug, to-wit, a quantity of cannabis, commonly known as marijuana.

'Gentlemen, possession is usually defined as having personal charge of or exercising the right of ownership, management, or control of the property in question.'

In the case of Cohen v. State ² appellant was prosecuted for violating the statute which condemned the selling of obscene periodicals. That statute, like the one here considered, merely prohibited the selling of any obscene book, magazine or periodical, but did not provide in so many words that knowledge of the obscene character of the periodical must be known to the accused. In interpreting that statute the Supreme Court in Cohen said that the statue impliedly included scienter or knowledge of the character of the matter as an element of the offense, and must be established by proof.

In State v. Scarborough ³ the Second District Court of Appeal construed the section of the uniform narcotic drug law which prohibits the obtaining or attempt to obtain a prescription for a narcotic drug by fraud, deceit, etc., or by a forged or altered prescription, etc. This statute likewise is silent with respect to the requirement of knowledge by the person charged that the prescription which they passed was forged, much as the statute now under consideration by us is silent with respect to any requirement of knowledge. In construing the statute, the court in Scarborough said:

'* * * Knowledge or scienter is implicit in the language of the statute and thus it does not have to be alleged separately.'

The case of Spataro v. State ⁴ decided by the Second District Court of Appeal is similar in many respects to the one which we now review. In Spataro, two women jointly occupied a house and shared the same bedroom. The house was searched during the absence of defendant but in the presence of her roommate, and a quantity of marijuana was found in a drawer of a dresser used exclusively by defendant and located in the bedroom jointly occupied by her. More marijuana was found in the clothes closet of the same room and in a suitcase beside the dresser. The evidence revealed other incriminating statements and circumstances tending to establish by inference that defendant knew of the presence of the marijuana in the home at the time it was discovered. In commenting upon the law with respect to scienter or knowledge, the Second District Court of Appeal said:

'The precise question which we must decide is whether or not such facts support the finding that the defendant unlawfully 'possessed' a narcotic drug within the meaning of § 398.03, Fla.Stat., F.S.A. This statute is a section of the Uniform Narcotic Drug Law, § 398.01, Fla.Stat., F.S.A., which has been adopted by 46 states, the District of Columbia and Puerto Rico. What constitutes 'possession' of a narcotic drug within the meaning of the Uniform Narcotic Drug Act is the subject of an extensive annotation in 91 A.L.R.2d, beginning at page 810. At this date, the Florida courts have not been called upon to define the word 'possess' as it is used in § 398.03, Fla.Stat., F.S.A. The Florida Supreme Court, however, construed the word 'possession' in a case dealing with the unlawful possession of intoxicating liquor in Reynolds v. State, 1927, 92 Fla. 1038, 111 So. 285. The definition that the Supreme Court gave to the word 'possession' in the Reynolds case is basically the same as that given by the state courts from other jurisdictions in interpreting the Uniform Narcotic Drug Act. The Reynolds case and the cases referred to in the annotation, sup...