Laughter v. State, 46027
| Decision Date | 23 November 1970 |
| Docket Number | No. 46027,46027 |
| Parties | Ronald LAUGHTER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Walker, Franks, Rone & Bridgforth, Hernando, for appellant.
A. F. Summer, Atty. Gen. by Velia Ann Mayer, Special Asst. Atty. Gen., Jackson, for appellee.
Appellant Ronald Laughter was indicted, tried and convicted in the Circuit Court of DeSoto County for the crime of the sale of marijuana. He was sentenced to serve a term of five years in the State Penitentiary. From this conviction he appeals. We reverse and render.
Appellant assigns and argues two propositions for the reversal of this case. They are: (1) the lower court erred in overruling defendant's motion for a directed verdict and a new trial on the ground that the uncontradicted evidence presented at the trial relating to the action of the authorities and those in concert with them constituted entrapment under the laws of this state; (2) the lower court erred in overruling defendant's motion to quash the indictment and dismiss this charge on the grounds that this prosecution constituted double jeopardy.
The record in this case reveals that at the June 1969 term of the Circuit Court of DeSoto County appellant was indicted by separate indictments for the crime of possession and sale of marijuana. He was tried at the June 1969 term on the charge of possession of marijuana and sentenced to serve a term of four years at the State Penitentiary with two and a half years suspended on good behavior. On appeal to this Court we affirmed the conviction in Laughter v. State, 235 So.2d 468 (Miss.1970). At the November 1969 term of court appellant was tried on the charge of selling marijuana. Appellant by his motion to quash the indictment pointed out that the possession and sale of marijuana arose out of the same transaction and the possession for which he was convicted was necessarily incident to the sale and that trial for the sale would constitute double jeopardy. His motion to quash was overruled.
The facts developed on the trial of this case are for all practical purposes identical with the facts set out in detail in Laughter v. State,supra, and we will only state such facts as we deem necessary for this opinion. Prior to April 25, 1969, appellant was contacted by Cam Walker, an informer for the Mississippi Highway Safety Patrol, relative to procuring some marijuana for a friend of his from Jackson. According to appellant he finally agreed to go with Walker and his friend and show them where they could buy some marijuana. On the above date, Malcolm Watson, an undercover agent for the Narcotics Division of the Mississippi Highway Safety Patrol, and Cam Walker contacted appellant in Hernando, Mississippi. After parking his car appellant got into the car with Watson and Walker and he directed them to a parking lot at the Harlem Restaurant in Memphis, Tennessee. There the appellant was furnished with $20 by Watson and he, appellant, contacted a Negro male. After a few words appellant went into a building and shortly thereafter he returned and said he had the marijuana and that it was good stuff. They then drove back to Mississippi and stopped at the place where appellant had parked his car. Appellant then advised Watson that he owed him $5 more, which Watson paid. Appellant then delivered the brown manila envelope to Watson. An analysis by the state chemist revealed that the contents of the envelope were marijuana.
We held in Laughter v. State, supra, that the facts detailed there did not constitute entrapment as a matter of law and since the facts in this case are in all material respects the same, we find no merit in appellant's first proposition.
The second proposition raises a new and interesting question. Appellant urges that the indictment charging him with possession and sale grew out of the same transaction and were charged as a violation of the Uniform Narcotic Drug Act, adopted by the legislature in 1936. The act has been codified as Section 6844 through 6869, Mississippi Code 1942 Annotated (1952). Section 6846 provides that:
Prohibited-unless.-It shall be unlawful for any person to manufacture, possess, have under his or her control, sell, prescribe, administer, dispense, or compound any narcotic drug except as authorized in this Act.
Section 6866 prescribes the penalties for violation of the Act. The penalty for the first offense of possession is a fine of not more than $2,000 and imprisonment of for not less than two years nor more than five years. The penalty for the first offense for the sale of the prohibited drug is a fine of not more than $2,000 and imprisonment of not less than five years and not more than ten years. Thus, appellant argues that under the facts of this case the possession of marijuana was a lesser included or constituent offense of the sale. In support of this argument appellant cites cases from other jurisdictions which have adopted the Uniform Narcotic Drug Act which have so construed the Act. It is also pointed out that the legislature by the provisions of Section 6869 directed that the act be interpreted and construed to make uniform the laws of those states which have enacted it.
The state contends that the two convictions of appellant were based upon two different sections of the Code and in Burton v. State, 226 Miss. 31, 79 So.2d 242 (1955), we held that in order to prevail in a plea of double jeopardy 'the offenses charged in the two prosecutions must by the same in law and in fact.' It is also pointed out that we said in Burton that:
There is a distinction between an offense and the unlawful act out of which it arises. And the test is not whether the accused has been tried for the same act, but whether he had been put in jeopardy for the same offense. (226 Miss. at 40, 79 So.2d at 246-247).
It is also pointed out that we held in Nixon v. State, 148 Miss. 224, 114 So. 346 (1927), that a conviction for possession of intoxicating liquor did not bar a conviction for the unlawful sale of the same intoxicating liquor.
We are unable to agree with the state's argument that the conviction of appellant for possession and sale of marijuana is based upon two different sections of the code. The charges in both indictments are based on the provisions of Section 6846. Section 6866 relied upon by the state provides for the punishment for such violation.
Since we have not heretofore had the occasion to construe the Act relative to the question raised, we deem it proper to follow the suggestion of the legislature and look to the decisions of other jurisdictions which have decided this...
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