Hill v. State

• Citation: 348 So.2d 848
• Decision Date: 24 May 1977
• Docket Number: 4 Div. 521
• Parties: Jessie HILL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 848

348 So.2d 848

Jessie HILL v. STATE.

4 Div. 521.

Court of Criminal Appeals of Alabama.

May 24, 1977.

Rehearing Denied June 28, 1977.

Larry W. Roney, Phenix City, for appellant.

William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.

CLARK, Supernumerary Circuit Judge.

The indictment under which defendant-appellant was tried and convicted charged, inter alia, that he did "unlawfully sell marijuana, a controlled substance, in violation of Act Number 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Controlled Substances Act." Code of Ala., 1973 Cum.Supp., Tit. 22, § 258(25) et seq. The court sentenced him to imprisonment in the penitentiary for fifteen years.

There were only two witnesses for the State, one testifying as to the conduct of defendant upon which the State based its case, the other testifying in effect that the "controlled substance" involved was marijuana.

At the conclusion of the State's case, defendant moved to exclude the evidence. The motion was denied. Thereupon, defendant testified, disclaiming entirely his identity as the person identified by the witness for the State as Jessie Hill, the defendant.

The testimony of the State was brief and is stated concisely in appellant's Statement of Facts, which appellee in its brief "adopts and incorporates by reference."

According to the Statement of Facts and the testimony of State Trooper James Edward Jackson, Trooper Jackson went to Phenix City, Alabama, during the month of June 1976 and worked as an undercover agent to detect drug sellers or users in the Phenix City area. On or about June 12, 1976, Mr. Jackson, and a paid informant, Leonard Martin, approached a group of blacks on Tenth Avenue in front of a church. Martin had a conversation with an unidentified black who later called Jessie Hill; then Jessie Hill and Leonard Martin had a conversation. Then, Martin got into the back seat of an automobile which was operated by Mr. Jackson, and Jessie Hill "seated himself in the front seat on the passenger's side." Mr. Jackson told Hill that he wanted to buy some "grass." "Jessie Hill asked Jackson what was in it for him?" At that time, Jessie Hill directed Jackson to drive to Edmonds' Estates.

When they arrived at Edmonds' Estates, Jessie Hill got out and went to apartment A-8, knocked on the apartment door and talked with a person identified as Daniel Lee. Hill motioned for Jackson and Martin to join them in the apartment. Jackson and Martin introduced themselves to Daniel Lee and asked if he had any "grass." They then told him that they wanted to buy a "dime bag." Daniel Lee went back into another room and got marijuana and Jackson gave him $10.00 for it. In the meantime, Jackson gave Jessie Hill $5.00 for Jessie Hill to purchase a "nickel bag." Jessie Hill gave the $5.00 to Daniel Lee and Daniel Lee went back into the other room and brought Jessie Hill a "nickel bag" of marijuana. At that point, according to Jackson, Jessie Hill said, "To prove how good the stuff is we'll smoke one." Hill went into the kitchen and came back with a rolled "reefer," which was lit and the "reefer" was passed among Martin, Jackson and Hill who sampled the marijuana.

Daniel Lee lived in apartment A-8, Edmonds' Estates. As defendant, Jackson and Martin were leaving the apartment, Lee said to them, "that if it wasn't good stuff, that we could bring it back."

In determining whether there was sufficient evidence to present an issue of fact whether defendant sold marijuana as charged in the indictment, we must resolve the question whether his actions were such as to bring him within the language of Code of Alabama, Recomp. 1958, Tit. 14, § 14, as follows:

". . . and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."

Pertinent parts of the statute under which defendant was indicted and tried provide:

"Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain by fraud . . . controlled substances enumerated in schedules I, II, III, IV (and) V is guilty of a felony and upon conviction for first offense may be imprisoned not less than 2 nor more than 15 years and, in addition, may be fined not more than $25,000: except any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and upon conviction for the offense shall be imprisoned in the county jail for not more than one (1) year, and in addition, shall be fined not more than $1,000.00; but the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this section 258(47)(a)."

Code of Alabama, 1971 Cum.Supp., Tit. 22, § 258(47)(a).

There is no doubt, of course, that a jury issue was presented whether the facts as testified by the State's witness are true or whether, on the other hand, the testimony of defendant, who denied being with State Trooper Jackson, and Leonard Martin on the occasion narrated by Trooper Jackson, should have been accepted as true. The question now is whether the undisputed testimony of Officer Jackson presents an issue of fact for the jury to determine whether defendant aided or abetted Lee in making the sale. We must accept Officer Jackson's testimony as true, which the jury in its rightful province did, and as to such action we have no qualm.

Until recent years, legal texts and digests treated most of the problems we have today relative to drugs under the caption of "Poisons." Most comprehensive texts and digests now consider them under the title of "Drugs and Narcotics." Numerous authorities are to be found therein relative to the question whether one is guilty of illegally selling drugs or prohibited substances under circumstances where the sale is actually made by another. In 28 C.J.S. Supp., Drugs and Narcotics § 173, it is stated:

" § 173. Distribution or Sale

"a. In general

"b. Aiders and abettors

"a. In General

"A person may be guilty of selling a controlled substance or drug where he is a go-between, agent for the seller, or agent for the buyer, but not where he is merely the buyer.

"According to some authorities, a person who participates in a forbidden drug transaction is guilty of selling the drug whether he is a go-between, or an agent for the seller, or an agent for the buyer, at least where he has knowledge of the illegality of the substance being transferred.

"Other authorities hold, however, that a person is not guilty of selling drugs where he acts solely as the buyer's agent. Thus, a person is not guilty of selling drugs where he acted in the transaction only as the agent, servant, or employee of a law enforcement officer and received no benefit for himself, or where he facilitated the sale, but had no financial interest in it and was not employed by the seller. . . .

"Even where it is the rule that an agent of the buyer is not guilty of a sale, an intermediary who exacts a fee for his services will be guilty of making a sale; and an intermediary who possessed drugs for a short time, and then transferred them and took money is guilty of selling the drugs. Likewise, a person who makes a sale with the aid of an accomplice, or makes a sale jointly with an accomplice or knowing the intent of an accomplice encourages him to make a sale violates the statute which prohibits a sale. A person who acts as agent of the seller may be guilty of the offense of selling a narcotic or controlled substance even though he was acquainted with the buyer and did not share in the proceeds of the sale.

". . .pro

"b. Aiders and Abettors

"A person who actively assists the commission of the offense is guilty as an aider and abettor of possession or sale of a controlled substance or narcotic.

"Statutes which treat aiders and abettors as principals apply to offenders against laws which prohibit sale or distribution of controlled substances or narcotics, so that a person who aids and abets the commission of such an offense is guilty of the offense. So a person may be guilty as an aider and abettor of an unlawful sale where he received payment directly from the buyer, or where he was present encouraging the sale.

"Where, as discussed supra subdivision a of this section, a mere agent or employee of the purchaser is not liable for selling a narcotic, a person who aids only the purchaser is not liable as an aider and abettor of the seller; and a person who merely drove another person to the place where the latter discarded a package containing a drug and was waiting for his companion's return when arrested was not thereby shown to be an aider and abetter of possession of the drug."

It can readily be seen from the above quotations, and the many cases footnoted, that, facially at least, the authorities are not in such accord that we can chart our course by them without careful analysis of them. In proceeding to do so we find that we must differentiate as among them and other related cases.

We find that many of the cases in which the question of one's guilt turns on whether he has aided or abetted another, or become the accomplice of another, in the commission of a crime, the inquiry centers on the nature of his conduct rather than on any relationship between him and the principal offender. For that reason, it seems that often overlooked is the principle that for one to be criminally liable for a crime actually committed by another, the two must to some extent be in league with each other. There must be some community of interest or unlawful intent, even though such community need not be for any great length of time beforehand but may be merely momentary. In Mikell, Clark's Criminal Law, § 43, p. 108 (3d ed. 1915) it is stated:

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