Miller v. State, 5808

• Decision Date: 19 February 1973
• Docket Number: No. 5808,5808
• Citation: 490 S.W.2d 445,253 Ark. 1060
• Parties: David MILLER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 445

490 S.W.2d 445

253 Ark. 1060

David MILLER, Appellant, v. STATE of Arkansas, Appellee.

No. 5808.

Supreme Court of Arkansas.

Feb. 19, 1973.

Carpenter, Finch & McArthur, Little Rock, for appellant.

Rodney Parham, Atty. Gen., by Frank B. Newell, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was charged by separate felony informations with two violations of Article IV of Act 590 of 1971 (Controlled Substances Act); namely, the alleged delivery (sale) of marihuana and codeine. Ark.Stat.Ann. § 82--2617 (1971 Supp.). Subsequently, the charges were reduced to misdemeanors. The trial court, sitting as a jury, found appellant guilty on both charges and sentenced him on each offense to one year confinement with six months suspended.

For reversal of the marihuana conviction appellant asserts that the evidence is insufficient to sustain the verdict 'on which another defendant had entered a plea of guilty and had been sentenced.' He recognizes that in misdemeanors there is no distinction between accessories and principals. Hubbard v. State, 10 Ark. 378, 5 Eng. 378 (1850). In Price v. City of Trumann, 213 Ark. 50, 209 S.W.2d 284 (1948), we reiterated that "(A)ll who procure, participate in, or assent to the commission of a misdemeanor, are punishable as principals." Furthermore, the distinction between accessories and principals has been abolished in all criminal cases. Ark.Stat.Ann. § 41--118 (repl. 1964), (Init.Acts #3, 1936, Acts 1937, p. 1384). He maintains, however, there is no proof of his guilt as principal. We cannot agree.

On appeal we review the sufficiency of the evidence with all reasonable inferences deducible therefrom in the light most favorable to the appellee and if there is any substantial evidence to support the finding of the trier of facts, we must affirm. Mumphrey v. State, 251 Ark. 25, 470 S.W.2d 589 (1971). In the case at bar, a police officer, working undercover for the narcotics division, testified 'the defendant (appellant) there, David Miller, wanted to know if I'd like to buy some grass * * * and told me it was fifteen dollars a lid, so I told him I'd take two lids.' 'Ronnie (Brown, co-defendant) reached under the (car) seat and he gave it to Miller and Miller handed it to me, and I handed Miller the money and Miller handed the money to Ronnie Brown.' Miller was driving the car. The substance purchased was analyzed and identified as marihuana. Although Brown pleaded guilty to the sale of marihuana, was find the recited evidence, when viewed most favorably to the state, is amply substantial to support the finding that appellant, also, was an active participant in the illegal transaction and guilty as a principal.

Neither can we agree with appellant's contention that the evidence is insufficient to sustain the verdict as to the sale of codeine 'in that the State failed to prove that the drug involved was one that would be listed in any of the schedules as a 'controlled drug'.' Appellant admitted that he offered to sell the officer some 'reds' or codeine and about an hour after the marihuana sale appellant returned, as agreed, and sold this same officer 40 tablets with codeine which he had acquired by a prescription for his own use as a muscle relaxant. It is argued that no proof was presented to show that these Soma tablets with their codeine content are included in the Act. App...