Halquist v. State

• Decision Date: 04 October 1972
• Citation: 489 S.W.2d 88
• Court: Tennessee Court of Criminal Appeals
• Parties: Joe HALQUIST, alias Joe Hopeless, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Page 88

489 S.W.2d 88

Joe HALQUIST, alias Joe Hopeless, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Oct. 4, 1972.

Certiorari Denied by Supreme Court Dec. 4, 1972.

John D. Lockridge, Knoxville, for plaintiff in error.

David M. Pack, Atty. Gen., Charles W. Cherry, Asst. Atty. Gen., Nashville, Joseph J. Nigro and John W. Gill, Asst. Dist. Attys. Gen., Knoxville, for defendant in error.

OPINION

OLIVER, Judge.

Represented by retained counsel throughout, the defendant is before this Court by his duly-perfected appeal in the nature of a writ of error contesting his conviction of unlawfully selling Lysergic Acid Diethylamide (LSD) and penitentiary sentence of not less than five nor more than six years.

We first consider his Assignment of Error challenging the sufficiency of the evidence to warrant and sustain the verdict. In examining this contention, we are bound by the well-established rule, settled by numerous decisions of the Supreme Court of Tennessee and this Court, that a verdict of guilt, approved by the trial judge, accredits the testimony of the State's witnesses, resolves all conflicts in the testimony in favor of the State and establishes the State's theory of the case; that under such a verdict the presumption of innocence which the law throws around an accused and which stands as a witness for him in his trial disappears, and upon appeal that presumption of innocence is replaced by a presumption of guilt; that this Court is not permitted to reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury and in favor of the innocence of the accused; that we may review the evidence only to determine whether it preponderates against the verdict; and that the defendant has the burden of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Morelock v. State, Tenn.Cr.App., 460 S.W.2d 861.

This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

The material evidence may be stated briefly. The evening of July 5, 1971, dressed in an old Army shirt, worn-out blue jeans, and socker shoes and sporting a mustache and long hair, a Knoxville Police Department undercover narcotics agent, Tom Key, went to an area on Cumberland Avenue in Knox County known as 'the strip,' near the University of Tennessee, in connection with his assignment of apprehending persons trafficking in drugs. He approached Mike Bledsoe and asked him if he had any drugs for sale. Bledsoe in turn introduced Key to the defendant and a John Hutchinson and told them that Key was 'all right' and that he wanted some 'grass,' the vernacular for marijuana. The defendant and this officer then walked to a nearby parking lot where the defendant offered to sell him a 'lid' of marijuana for $20 and a quantity of mescaline for $2.00. Because the defendant did not want to conduct the transaction at that place, he and Hutchinson and the officer got into the latter's Volkswagen bus and drove to an alley near the University Inn. There the officer offered to buy a 'dime bag,' the vernacular for $10 worth of marijuana, and the defendant sold him that amount of marijuana after some reluctance to halve his 'lid,' and also sold him a tablet represented as mescaline for $2.00. Tests conducted by the State toxicology laboratory in Nashville showed that the plant material was marijuana and that the mescaline tablet contained LSD. The defendant neither testified nor presented any evidence.

Surely it is unquestionable that he has failed to carry his burden of demonstrating here that the evidence preponderates against the verdict and in favor of his innocence.

At the close of its proof, the State elected to proceed only on the first count of the indictment which charged the defendant with selling LSD, and abandoned the second count which charged him with selling marijuana, and the jury was so instructed.

By his first four Assignments of Error the defendant attacks the sufficiency of the indictment, referring of course to the first count, contending that it is vague and general and states no offense under the law.

The first count of the indictment charges that the defendant 'On the 5th day of July 1971, in the State and County aforesaid, unlawfully, knowingly and feloniously did sell, barter and trade a quantity of Lysergic acid diethylamide (L.S.D.), the same being a controlled substance, in violation of Chapter 163 of the Public Acts of 1971 of the State of Tennessee, contrary to the statute and against the peace and dignity of the State.'

LSD is a controlled substance under TCA § 52--1413, Schedule I, and marijuana is a controlled substance under TCA § 52--1422, Schedule VI. The unlawful manufacture, delivery, sale, or possessing with intent to manufacture, deliver, or sell those and other controlled substances are proscribed and penalized by TCA §§ 52--1432--52--1434.

The defendant insists that the indictment is too vague and general and states no offense under the law of this State because it fails to state (1) the place where the alleged offense occurred, (2) the time of day when it occurred, (3) the name of the alleged purchaser, and (4) because inclusion of the terms 'barter' and 'trade' makes the indictment self-defeating because bartering and trading are not offenses under the statute. There is no merit in these contentions.

TCA § 40--1809 provides: 'It is not necessary for the indictment to allege where the offense was committed, but the proof shall show a state of facts bringing the offense within the jurisdiction of the county in which the indictment was preferred.'

The gist of the complaint that the indictment fails to state the time of day the sale of these substances was made is that this omission made it impossible to determine whether it charged one or two offenses, and that he was prejudiced by the evidence concerning his sale of marijuana charged in the second count which the State then dismissed after concluding its proof. As already noted, LSD and marijuana are in different classifications or schedules, and traffic in each carries a different penalty. Thus, the sale of each drug constituted a separate offense regardless of when the transactions occurred.

It is well settled in this State that if the different offenses charged in the different counts grow out of the same transaction, or if they be but different species of the same offense, the several counts may and should be joined in the same indictment. Galbreath et al. v. State, 187 Tenn. 669, 216 S.W.2d 689; Tenpenny v. State, 151 Tenn. 669, 679, 270 S.W. 989; Davis v. State, 85 Tenn. 522, 526, 3 S.W. 348; Foute v. State, 83 Tenn. 712; Kannon v. State, 78 Tenn. 386; Murphy v. State, 77 Tenn. 373, 377; Smith v. State, 76 Tenn. 386; Lawless v. State, 72 Tenn. 173; Hall v. State, 71 Tenn. 552, 558; Smith v. State, 70 Tenn. 614; Kelly v. State, 66 Tenn. 84; Ayrs v. State, 45 Tenn. 26, 28; State v. Lea, 41 Tenn. 175; Cash v. State, 29 Tenn. 111; Wright v. State, 23 Tenn. 194. In Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689, supra, the Court said: 'The insertion of several counts charging kindred offenses which the proof may develop to be a violation of one statute or another is a common and approved practice, and tends to a much more rapid dispatch of the business of the Court. We do not think such practice is either unfair or prejudicial to defendants.'

And where the several counts of an indictment are based upon the same transaction, the State cannot be required to elect to proceed upon one count or the other. Raine v. State, 143 Tenn. 168, 226 S.W. 189; Lawless v. State, supra.

Moreover, in this case the punishment for selling LSD is not less than five nor more than 15 years in the penitentiary. TCA § 52--1432(a)(1)(A). From the fact that the jury fixed the defendant's maximum imprisonment at only six years, it is manifest that he was not prejudiced by the fact that he was also charged with selling marijuana and the State dismissed that count at the conclusion of its proof.

The settled law of this State is that an indictment charging unlawful sale of whiskey is not defective for failure to allege the name of the person to whom the sale was made, Galbreath v. State, supra, nor if it charges that the sale of liquor was 'to a person to the grand jurors unknown,' State v. Carter, 26 Tenn. 158. See also: State v. Harris, 34 Tenn. 224. Unquestionably, the same principle is applicable where, as here, the indictment charges the unlawful sale of these particular controlled substances.

In Brown v. State, 121 Tenn. 186, 114 S.W. 198, our Supreme Court quoted approvingly from Keaton v. State, 36 Tex.Cr.R. 259, 38 S.W. 522:

"In our opinion it was the intention of the legislature to inhibit the sale of intoxicating liquors, in the broader sense of that term, including barter and exchange. This view is not only in consonance with the spirit of the statute itself, but is supported by the authorities heretofore referred to defining sales. The exchange in this case was but a mode of sale. Although the...