Messelt v. State, 8 Div. 754

• Decision Date: 16 August 1977
• Docket Number: 8 Div. 754
• Citation: Messelt v. State, 351 So.2d 640 (Ala. Crim. App. 1977)
• Parties: Jack MESSELT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 640

351 So.2d 640

Jack MESSELT v.STATE.

8 Div. 754.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

Rehearing Denied Oct. 4, 1977.

Laura Jo Wilbourn, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of selling, furnishing, or giving away marijuana, a controlled substance as listed in the Alabama Uniform Controlled Substances Act of 1971 (Code of Alabama 1940, 1973 Cum.Supp.Tit. 22, §§ 258(25)-258(60).The case was tried without a jury, the defendant, accompanied by his counsel, having made known to the court that he understandingly and voluntarily waived his right to a jury trial with full awareness of the consequences.

This is one of three cases wherein appellant has appealed from a conviction and sentence for a violation of the Alabama Uniform Controlled Substances Act, the other two being 8 Div. 687 and 8 Div. 712, Ala.Cr.App., 351 So.2d 630, 636.

Three witnesses testified for the State, two of them merely to establish the chain of custody of the substance involved and its identity as marijuana.The only other witness, Kenneth Dupree, an undercover narcotics agent, testified that he went to defendant's apartment on the evening of September 20, 1974, in company with an unnamed informer, that each of the two asked defendant to sell him some marijuana, and defendant complied with the requests.The marijuana that was sold to the witness was thereafter sealed in an envelope by the witness, marked for identification, turned over to the Police Department for an examination by the Department of Toxicology, whose representative analyzed it and testified that it was marijuana.

As shown by one or more of the other Messelt cases consisting of appeals from judgments of conviction under the Alabama Uniform Controlled Substances Act of 1971, as well as in Messelt v. State, Ala.Cr.App., 351 So.2d 627(1977), an appeal from a denial of a petition for writ of error coram nobis, his attorney on the trial does not represent him on appeal.His attorney on appeal was appointed by the trial court on a determination by the trial court of defendant's indigency.

Appellant contends that his conviction is not supported by the evidence, that the judgment of the trial court is contrary to the great weight of the evidence, and that the judgment should be set aside.Appellant bases his contention largely on the claimed weakness of the State's evidence, but apparently chiefly on the evidence for defendant.

Defendant testified but denied any such transaction as described by the State's witness.To some extent he was supported by three witnesses, who testified that defendant was not in his apartment at the time claimed by the State's witness, that he was with the three witnesses in another place at that time.

Our review of the evidence fails to convince us that the judgment is not amply supported by the evidence.Nor are we convinced by the record that the judgment is contrary to the weight of the evidence.Furthermore, we must adhere to the general proposition that, on appeal, the judgment of a trial court upon evidence taken ore tenus is to be...