Hagendorfer v. State

• Decision Date: 24 May 1977
• Docket Number: 1 Div. 784
• Citation: 348 So.2d 1097
• Parties: Gabriel HAGENDORFER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1097

348 So.2d 1097

Gabriel HAGENDORFER v. STATE.

1 Div. 784.

Court of Criminal Appeals of Alabama.

May 24, 1977.

As Corrected On Denial of Rehearing June 28, 1977.

J. Michael Druhan, Jr., Mobile, for appellant.

William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

TYSON, Presiding Judge.

Gabriel Hagendorfer was charged by the indictment with unlawfully selling marihuana to William Womack, on June 12, 1976, contrary to the provisions of the Alabama Uniform Substances Act. ^1,2 The jury's verdict found the appellant guilty as charged, and the trial court entered judgment which set sentence at six years imprisonment in the penitentiary.

The appellant asserts four contentions on appeal which arise from the following testimonies at trial conducted November 8, 1976, in the Circuit Court of Baldwin County.

William H. Womack, a State Narcotic Agent with the ABC Board, and Roland Wayne Howell, a Deputy Sheriff with the Baldwin County Sheriff's Department, testified that they were together on the evening of June 12, 1976, when they first encountered the appellant, Gabriel Hagendorfer, near the baseball park in Pensacola, Florida. They had driven to this location from near Elberta in Baldwin County in the company of the appellant's brother, Billy Hagendorfer, and a girl named Mary Frank. Subsequently the officers followed the appellant back across the "Lillian Bridge" along U.S. Highway 98 until it intersected with County Road 87, just east of Elberta where the appellant turned off. The appellant was driving a Chevrolet Camero, and the two officers were following in an unmarked automobile. The appellant pulled up a couple of a hundred yards, stopped, and the two officers pulled up beside him. The appellant advised them, "It's right here," and proceeded to fill three plastic sandwich bags, commonly called "baggies," and the two officers paid him $45.00, two twenties, and a five dollar bill. He then handed the three bags of marihuana to the officers. This transaction took place between five and ten minutes, and occurred between 10:00 and 10:30 o'clock on the evening of June 12, 1976 (R. pp. 20-21).

The two officers shortly thereafter delivered the three plastic bags to Deputy Gene Kinsey, who placed them in a manila envelope and marked the envelope with his initials, then delivered this envelope to Chief Deputy Sheriff James W. Anderson, Jr.

The following morning, June 13, 1976, Deputy Larry Linder received the manila envelope from Chief Deputy Anderson about 9:00 a. m., and after examining it and finding that it contained three plastic bags of marihuana, he initialed the envelope and delivered it to State Toxicologist James L. Small at the Mobile office.

Mr. Small testified that he performed two scientific tests on the contents of the three plastic bags in addition to examining the substance through a microscope. Mr. Small testified that the total weight of the green plant material was 61.2 grams, and that it was marihuana.

The appellant presented the testimony of Mary Frank and his brother, Billy Hagendorfer, in addition to his own testimony, which did not vary from the testimonies of Officers Womack and Howell, except that the defendant's witnesses contended that the sale of the marihuana to Officers Womack and Howell took place in Florida before they crossed the Lillian Bridge into Baldwin County.

I

The appellant first contends that the State failed to prove a prima facie case in that the alleged marihuana was never admitted into evidence.

We have carefully examined this record and determined that the substance was marked for identification on motion of the District Attorney, Mr. Hendricks, as State's Exhibit 2, and was exhibited to the jurors with the statement from Mr. Hendricks, "We want to introduce these three packages, these three things in evidence here, and you can combine them." No objections were interposed by the appellant, nor was there an issue made at trial to this offer of this proof.

We are of the opinion that the State here established through the testimony of the several officers a prima facie case, and that venue of the offense was also properly established. Hill v. State, 56 Ala.App. 369, 321 So.2d 708, cert. denied 295 Ala. 405, 321 So.2d 713.

Moreover, the State Toxicologist, Mr. Small, and three of the officers identified the substance in question as marihuana. This was without objection or exception. We therefore, are of the opinion that the appellant's argument is not well taken. Gamble v. State, 48 Ala.App. 605, 266 So.2d 817; Simpson v. State, 51 Ala.App. 279, 284 So.2d 734; Hill v. State, supra; Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied 291 Ala. 792, 282 So.2d 359, and authorities therein cited.

Moreover, the appellant's own witnesses at trial identified the substance as marihuana. Thus, no error is shown.

II

The appellant also contends that there was a fatal variance between the indictment and proof on trial since the evidence established a sale to Deputy Sheriff Roland Howell "when the indictment charged the unlawful sale of marihuana to William Womack."

At the outset, we note there was no demurrer imposed to the indictment, nor was the sufficiency of this indictment raised at trial. Where, as here, the indictment follows substantially the language of the statute, but simply fails to set out the name of the vendee, such was nevertheless sufficient to support a judgment of conviction. Duin v. State, 288 Ala. 329, 260 So.2d 602, and authorities cited therein.

In the case at bar, however, the indictment simply averred the name of Agent Womack when the proof on trial affirmatively establishes that both officers participated in the purchase from the appellant, and each was handed at least one plastic bag of marihuana at the time of the alleged sale (R. pp. 20-22, and R. pp. 41-48).

We are of the opinion that this was one joint transaction, and the evidence was properly admitted as to the sale to the officers, Womack and Howell. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert denied 292 Ala. 743, 290 So.2d 213, and authorities therein cited.

III

The appellant asserts that there was a prejudicial comment in the presence of the jury by the district attorney just before the noon recess, wherein the following occurred (R. pp. 39-40):

"THE COURT: All right. Ladies and Gentlemen, we are going to recess for lunch. Let me caution you not to discuss this case with anyone, not even among yourselves. Do not allow anyone to discuss it in your presence. If they do, tell them you are on this Jury, and if they persist in discussing it with you or in your presence, please report that back to the Court. Let me caution you not to discuss this case with anyone.

"MR. HENDRICKS: Are you going to keep them together?

"THE COURT: No, sir. I have already discussed that with both of them. All right, Ladies and Gentlemen, you are excused. Let's try to get back here by 1:15.

"(WHEREUPON, A RECESS WAS HELD, AFTER WHICH THE FOLLOWING OCCURRED:)

This argument, however, overlooks the agreement between the attorneys that the jurors could separate (R. pp. 3-4), and in addition, there was no objection or other motion with reference to the comment of the district attorney above shown. Therefore, no ruling of the trial court was invoked. In brief, the appellant seeks to assert the invalidity of Title 30, Section 97, Code of Alabama 1940, as being violative of the Fourteenth Amendment to the Constitution of the United States (Appellant's brief, page 9).

In Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So.2d 645, writ den. 292 Ala. 757, 289 So.2d 649, we find the following discussion:

"Further, to warrant a court in decreeing a...