McKissick v. State

Decision Date24 November 1987
Docket Number4 Div. 824
Citation522 So.2d 3
PartiesJunior Lee McKISSICK v. STATE
CourtAlabama Court of Criminal Appeals

Alabama Supreme Court 87-424.

Charles D. Decker, of Hardwick, Hause, Segrest & Northcutt, Dothan, for appellant.

Don Siegelman, Atty. Gen., and C. Dean Monroe III, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant Junior Lee McKissick was found guilty, by a jury, of the charge that he "did sell, furnish or give away Marijuana, a controlled substance, contrary to law, in violation of § 20-2-70 of the Code of Alabama". As a result of this conviction, 1 appellant was sentenced, as a habitual offender, to 20 years' imprisonment.

The prosecution's evidence established the following. On February 2, 1986, at approximately 2:00 a.m., Officer Jesse Seroyer, while working undercover, approached several males who were standing outside Newsome's Drive-In and asked where he could purchase some marijuana. Appellant replied that he knew someone who was doing business. Seroyer said, "Let's go see what we can do." Then, appellant walked to an automobile parked nearby. One of the two males in the car, the occupant of the driver's seat, gave appellant a plastic bag that contained plant material later determined to be marijuana. Appellant, in turn, gave the bag to Seroyer, and Seroyer handed $10.00 to the driver. During this transaction, Seroyer observed several more bags and more money in the car. As Seroyer was leaving, appellant said that Seroyer should give him something for setting up the deal. Seroyer gave appellant a dollar and left.

As his sole issue, appellant argues that, upon the recited evidence, the trial court should have granted his motion for a directed verdict of acquittal. He relies on Hill v. State, 348 So.2d 848 (Ala.Cr.App.1977), cert. denied, 348 So.2d 857 (Ala.1977), for his contention that a defendant who has acted without interest in or benefit from an alleged sale cannot be convicted as a seller, even though his conduct may have facilitated the sale, where the evidence shows no conspiracy or pre-arrangment between the defendant and the seller. Appellant contends that he was merely a "procuring agent" for the buyer and, thus, not guilty as an accomplice of the seller.

This argument overlooks one fact: the indictment was not limited to the act of selling, but broadly included the act of furnishing marijuana.

" 'Furnish' is not defined in the Alabama Uniform Controlled Substances Act. Section 20-2-2.

"As used in the Controlled Substances Act, 'furnishes' means to provide or supply and connotes a transfer of possession. State v. Robinson, 108 Ariz. 596, 503 P.2d 817, 819 (1972); Baker v. Superior Court of Los Angeles County, 24 Cal.App.3d 124, 100 Cal.Rptr. 771, 772 (1972); Miller v. State, 281 P.2d 441, 445 (Okl.Cr.App.1955). The ordinary meaning of 'furnish' is to provide or supply. 17A Words and Phrases, 'Furnish' (1958).

"The meaning of furnish as used in the Controlled Substances Act is clear...."

Walker v. State, 428 So.2d 139, 141 (Ala.Cr.App.1982). See also 28 C.J.S. Drugs and Narcotics § 164 (Supp.1974) (" 'To furnish' means to supply by any means, by sale or otherwise, and a sale need not be shown").

"Under a statutory provision denouncing the offense of furnishing narcotic drugs, it is immaterial that the defendant furnished the narcotic or dangerous drug in the role of an agent between the purchaser and the supplier or the seller and the buyer." 28 C.J.S., supra, at § 165. The court in Hill, the case upon which appellant relies, recognizes the difference in result between those cases in which the defendant was charged with a "sale" in the ordinary sense of the word and those in which the accused was charged with some other action, such as "delivering," "distributing," or "furnishing." 348 So.2d at 853-55. In the latter type of prosecution, the issue of agency is irrelevant and the "procuring agent" defense is precluded. State v. Sharp, 104 Idaho 691, 662 P.2d 1135 (1983); Harwood v. State, 543 P.2d 761 (Okla.Cr.App.1975); Tipton v. State, 528 P.2d 1115 (Okla.Cr.Ap...

To continue reading

Request your trial
10 cases
  • People v. Cattaneo
    • United States
    • California Court of Appeals Court of Appeals
    • February 20, 1990
    ...generally have followed the well reasoned lead of the federal courts and declared the defense to be no longer valid. (McKissick v. State (Ala.App.1987) 522 So.2d 3, 4; State v. Sharp (1983) 104 Idaho 691, 662 P.2d 1135, 1139; Harwood v. State (Okl.Cr.1975) 543 P.2d 761, 763-764.) Some state......
  • Kinsey v. State, 4 Div. 113
    • United States
    • Alabama Court of Criminal Appeals
    • January 27, 1989
    ...where the indictment is not limited to merely selling marijuana, but also charges other action by the defendant. In McKissick v. State, 522 So.2d 3 (Ala.Cr.App.1987), this Court stated: "The court in Hill, the case upon which appellant relies, recognizes the difference in result between tho......
  • Owes v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 9, 1993
    ...away, manufacture, deliver or distribute" cocaine, then it proved the alternate charge laid in the indictment. Citing McKissick v. State, 522 So.2d 3 (Ala.Cr.App.1987), the attorney general argues that the appellant violated § 13A-12-211, when she picked up the rock of cocaine, broke off a ......
  • State v. Allen
    • United States
    • Iowa Supreme Court
    • September 6, 2001
    ...of statutes similar to the Uniform Controlled Substances Act have likewise been uniform in rejecting the defense. See McKissick v. State, 522 So.2d 3, 4 (Ala.Crim.App.1987) (defense does not apply when defendant charged with furnishing drugs rather than merely selling drugs); State v. Burde......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT