Kohler v. Com.

• Decision Date: 23 March 1973
• Citation: 492 S.W.2d 198
• Parties: Lance KOHLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 198

492 S.W.2d 198

Lance KOHLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 23, 1973.

Richard J. Getty, Paris, for appellant.

Ed W. Hancock, Atty. Gen., John C. Ryan, Sp. Asst. Atty. Gen., Frankfort, George Barker, Commonwealth's Atty., Lexington, for appellee.

VANCE, Commissioner.

The appellant was convicted of the offense of unlawful sale of heroin, a narcotic drug, and sentenced to confinement for a period of not more than twenty years and was fined $20,000.00.

The defendant admitted he procured two ounces of heroin from Ollie Craycraft and offered it for sale to Harold Brown, for the sum of $8,000.00. He claimed, however, that all of his activities in the procurement of the drug and the attempted sale thereof were prompted solely by his desire to aid and assist the police in their efforts to obtain information concerning illicit-drug traffic.

Approximately ten months before his arrest on this charge the appellant was confined in jail in Fayette County, Kentucky, on a charge of assault and battery. While in jail he was contacted by another prisoner who claimed to have six ounces of heroin and also claimed to be raising a half-acre of marijuana. This prisoner solicited appellant's help, upon release from jail, in the sale of the heroin and the harvest and sale of the marijuana.

When appellant was discharged from custody he informed police officers of his conversations with his fellow-prisoner. Officer Thornton advised him to try to keep in touch with the prisoner and to attempt a 'buy' of the narcotics. Officer Thornton also advised appellant to keep him informed of appellant's activities in that regard.

Appellant testified that he made a good faith effort during the ten-month period following his release from jail to locate and purchase drugs; that his efforts were of no avail until the transaction which resulted in his arrest; that he periodically advised officer Thornton of his activities and attempted to get in touch with officer Thornton on the day he was arrested to inform him of the pending sale but was unable to do so. Officer Thornton denied that appellant contacted him at any time after their initial meeting.

The attempted sale being admitted, the whole case boils down to a question of appellant's motive and intent. His only real defense was that he acted in good faith with the intent only to be of assistance to law enforcement officers. He requested the court to affirmatively instruct the jury in a manner which fairly presented his theory of defense. The request for an affirmative instruction was denied.

The jury was instructed as follows:

'If the jury shall believe from the evidence in this case to the exclusion of a reasonable doubt that in Fayette County, Kentucky, on or about the 4th day of June, 1971, the defendant, Lance Kohler, unlawfully and feloniously sold a narcotic drug, to-wit, heroin, to Harold Brown, you shall find him guilty as charged in the indictment and fix his punishment at confinement in the penitentiary for not less than five years nor more than twenty years, and by a fine of not more than $20,000.00, in your discretion.

The word 'feloniously' as used in this instruction means done with an intent to commit a crime or wrong.

'Sale' includes barter, exchange or gift, or offer thereof, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.'

By references to that portion of the instruction wherein the word feloniously was defined as an act done with an intent to commit a crime or wrong, the jurors, if they had believed appellant's testimony,...