Mickens v. People
| Decision Date | 23 October 1961 |
| Docket Number | No. 19481,19481 |
| Citation | 365 P.2d 679,148 Colo. 237 |
| Parties | Alfred Leon MICKENS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Francis P. O'Neill, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.
Mickens was convicted of possession of a narcotic drug and seeks reversal of judgment of conviction with directions to dismiss, or, in the alternative, that he be granted a new trial. A second count of the information had been withdrawn, and is of no importance in this review.
Officers went to a room in a Denver transient hotel and were admitted by Mickens, the sole occupant, who was then in his night clothes. They searched the room and found two hand-rolled cigarettes concealed under a rug near the bed. Finding these items, the officers required Mickens to dress and accompany them to the police station. There, his clothing was searched and debris removed from his pockets. He was detained thereafter and subsequently charged with the unlawful possession of a narcotic drug, namely, Cannabis Sativa L., and, in a second count, with a prior conviction of unlawful possession.
At the time of trial, the foregoing facts were established. Also, in the course of the trial, the two cigarettes found in the room and envelopes containing the debris from defendant's pockets were identified as People's exhibits. A laboratory technician testified he examined the cigarettes and they contained Cannabis Sativa L. or marijuana. Some of the debris taken from defendant's pockets was likewise, according to the technician's testimony, found to contain small particles of the same substance.
This evidence constituted the People's case. Mickens moved for a directed verdict of acquittal, which was denied. He did not testify himself, and offered no evidence in defense.
Instructions numbered 8 and 9 were definitive. By Instruction No. 8 the trial court quoted a portion of C.R.S. '53, 48-6-1(13), defining marijuana as including 'all parts of the plant Cannabis Sativa L., whether growing or not.' Objection was made to the giving of this instruction, although admittedly it quoted the statutory definition of marijuana.
Instruction No. 9 related to a definition of the term 'possession' and read as follows:
'The Court instructs the jury that 'to possess' and 'possession,' as these words are used in these instructions, does not necessarily mean physical possession or control but does mean actual and immediate dominion or control over the object or thing alleged to be possessed; further, by way of definition, it is also essential that the person charged with the unlawful possession of a narcotic drug know of the presence of the object or thing alleged to be possessed; and finally it is essential that the person charged with the unlawful possession of a narcotic drug know that the object or thing allegedly possessed is a narcotic drug.'
The grounds on which defendant seeks reversal of this conviction may be summarized as:
1. That the People's evidence was insufficient to submit to a jury the issue of defendant's guilt; that defendant's motion for directed verdict, at the conclusion of the People's case, should have been granted.
2. That Instructions 8 and 9 did not properly define the law relating to possession of the narcotic drug.
3. That the court should, although not so requested by either the prosecution or defendant, on its own motion have given the jury an instruction on circumstantial evidence.
On the first proposition, that of insufficient evidence, defendant argues that the State failed to prove defendant was actually in 'possession' of a narcotic drug as charged, or as contemplated by the statute. He contends the two cigarettes found concealed in a transient hotel room, even though occupied by defendant, could well have been left by another or former occupant. He points out that the State failed to adduce evidence, from the hotel records or employees, that defendant was the registered occupant of the room, or the sole occupant, whether defendant was a transient or permanent guest, the identity of the former occupant or occupants, and whether the room had been cleaned just...
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