Franklin v. State

• Decision Date: 18 November 1969
• Docket Number: No. 41,41
• Citation: 8 Md.App. 134,258 A.2d 767
• Parties: Conley Hal FRANKLIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 134

8 Md.App. 134

258 A.2d 767

Conley Hal FRANKLIN v. STATE of Maryland.

No. 41.

Court of Special Appeals of Maryland.

Nov. 18, 1969.

Carl Berenholtz, Charles B. Heyman, Baltimore, George B. Cavanagh, Baltimore, on brief for appellant.

T. Joseph Touhey, Asst. Atty. Gen., with whom were on brief Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., L. Robert Evans, Deputy State's Atty., for Baltimore County for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant Franklin was convicted by the court sitting without a jury of unlawfully possessing heroin in violation of Maryland Code, Article 27, Section 277 ¹ and sentenced to one year in the Baltimore County Jail. On this appeal he contends that the evidence was legally insufficient to support the conviction.

There was evidence showing that on the night of July 22, 1968 appellant was, in some manner not disclosed by the record, brought into the emergency room at City Hospitals in a semi-conscious state and unable to talk. The hospital physician then in attendance, Dr. Martin Levinson, testified that several hours after appellant's admission to the hospital he took a medical history from him; that appellant was then 'essentially fully conscious, but very sleepy'; and that appellant told him at that time 'that he had taken an overdose of heroin intravenously and that he had passed out following taking this overdose.' Levinson testified:

'Given the information that he gave us that he'd taken heroin, his condition was entirely compatible with having had an overdose of heroin.'

Dr. Levinson mentioned specifically the fact that appellant was 'bluish in color with some blue tinges around his mouth and extremeties,' and that his eyes 'were remarkable for the constricted pupils.' Dr. Levinson testified that many patients 'do have constricted pupils following an overdose of heroin.' On cross-examination the doctor testified that the symptoms exhibited by appellant could have been the result of extreme alcoholism but that he did not smell any odor of alcohol on the appellant. Levinson treated appellant for having taken an overdose of narcotics, after which appellant was arrested and charged with the present offense.

Appellant testified that he had been drinking heavily on the night in question; that he didn't remember being brought to the hospital and had no recollection of making any statements to the hospital physician. Asked on cross-examination if he took any kind of narcotics that night, he stated: 'If I did it was not to my knowledge.'

On this evidence, the trial judge, in finding appellant guilty of unlawful possession of narcotics, reasoned that his incriminatory statements to the hospital physician were tantamount to a confession of guilt, and that the confession was sufficiently corroborated by the medical findings so as to show that appellant 'did have an overdose of heroin.' ²

In maintaining that the evidence was insufficient to show that he unlawfully possessed heroin, as charged in the indictment, appellant argues that it is not a crime to be under the influence of narcotics; that appellant's statement to the physician that he had taken the overdose of heroin cannot, without more, establish the fact that he 'possessed' the heroin within the meaning of Section 277; that the evidence was just as consistent with a medical determination of extreme alcoholism as it was with a finding of heroin overdosage, particularly since there was no evidence of needle marks, nor was it shown by either direct or circumstantial evidence that he administered the drug to himself. Appellant points out that to sustain a conviction of possessing narcotics based on his own statement to the physician, coupled with medical findings compatible therewith, 'would substantially deter a user or addict from voluntarily submitting himself to a doctor or hospital for medical help, for it would mean that such person could be subjected to indictment trial and a finding of guilty, because he was under the influence of narcotics at the time he submitted himself for this medical attention.'

In Haley v. State, 7 Md.App. 18, 253 A.2d 424, we held on authority of Bryant v. State, 229 Md. 531, 185 A.2d 190, that the terms 'possession' and 'control,' as employed in Section 277, must be given their ordinary meanings; that the term 'control' meant 'to exercise restraining or directing influence over' and thus the term related to authority over what is not in one's physical possession; that the term 'possession' meant 'the act or condition of having in or taking into one's control or holding at one's disposal.' Once a narcotic drug is injected into the vein, or swallowed orally, we think it apparent that it is no longer within 'one's control' or held at 'one's disposal.' And it would likewise be beyond the taker's ability to exercise any restraining or directing influence over it. Consequently, once the drug is ingested and assimilated into the taker's bodily system, it is no longer within his control and/or possession in the sense contemplated by Section 277.

But evidence showing that a person has a prohibited narcotic drug within his system, while not per se constituting possession or control under Section 277, would tend to show circumstantially that he was in possession and/ or control of the drug prior to taking it. In Peachie v. State, 203 Md. 239, 100 A.2d 1, the police observed through a hole in the door Peachie and two others '(sitting) around a table on which was a glass of water containing tablets, three hypodermic syringes and needles, and a 'smoked-bottomed' teaspoon.' The arresting officer testified that he saw Peachie throw against the wall a hypodermic needle which he had in his hand, and a handkerchief which had on it several splotches of blood. The blood marks on the handkerchief were still wet. Peachie had fresh needle marks on him. Medical testimony established that capsules found on the table and the glass, teaspoon, and two of the syringes contained traces of opium derivatives. In affirming Peachie's conviction of possession of heroin, the court said (page 242, 100 A.2d page 2) '* * * The evidence that Peachie had a hypodermic needle in his hand and threw it away, along with a handkerchief containing fresh blood stains, and that he had fresh needle marks on his arm, would permit the inference that he had taken an injection of the drug just prior to the entry of the officers. This circumstantial evidence points clearly to the fact that he had administered the drug to himself. Of course, if that fact is assumed, it necessarily follows that he had possession and control of the instrument and its contents at the time of the injection, as well as an intent and purpose to administer the drug. * * *' (Emphasis supplied.)

In McCuen v. State, 3 Md.App. 73, 237 A.2d 785, involving a conviction for unlawful possession of narcotics by a prison inmate, we noted that although there was evidence showing that his cell was freely visited by other inmates, the fact that narcotics were found therein, coupled with the fact that at the time the narcotics were discovered the inmate defendant was under the effects of some kind of drug, constituted legally sufficient evidence to convict.

Unlike the facts in either Peachie or McCuen, the primary evidence in the present case of appellant's possession of narcotics stems, by way of an inference, from his own statement. As Section 277 does not by its terms purport to proscribe the 'use...