Napier v. State, 1 Div. 725

• Decision Date: 01 March 1977
• Docket Number: 1 Div. 725
• Citation: 344 So.2d 1235
• Parties: Damon Shelton NAPIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1235

344 So.2d 1235

Damon Shelton NAPIER v. STATE.

1 Div. 725.

Court of Criminal Appeals of Alabama.

March 1, 1977.

Rehearing Denied March 29, 1977.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State.

PER CURIAM.

On an indictment charging that appellant, Damon Shelton Napier, did unlawfully give away heroin to Steven Wayne Rhodes, and that said Damon Shelton Napier has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act, on, to-wit: February 24, 1976, the appellant was convicted and sentenced to twenty-five years imprisonment in the penitentiary.

This cause was submitted to this Court on briefs. Appellant was at all proceedings in the lower court represented by counsel of his choice, and is here represented by court appointed counsel.

Counsel for appellant argues that the trial court erred in overruling his objection to the following wording in the indictment: 'and that said Damon Shelton Napier has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act, on to-wit: February 24, 1976'. The way to raise the question as to the proper wording of an indictment is by demurrer. The record in this case fails to show a demurrer to the indictment, but does show that appellant was in open court, attended by counsel, waived reading of the indictment, and entered a plea of not guilty. The appellant was not prejudiced by the overruling of his objection to the wording of the indictment, because his objection to the wording of the indictment was obviously without merit. Uniform Alabama Controlled Substances Act provides as follows:

'Sec. 258(53). Second or subsequent offenses.--(a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term outherwise (otherwise) authorized, fined an amount up to twice that otherwise authorized, or both.

(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs. (1971, No. 1407, p. 2397, Sec. 407, appvd. Sept. 16, 1971.)'

We hold that it is proper for an indictment for an offense in violation of the Uniform Alabama Controlled Substances Act to contain the averment that the defendant has heretofore been convicted of an offense under the act. Title 22, Sec. 258(53) of the Code of Alabama, supra; Mamie Delores Funches v. State, 56 Ala.App. 22, 318 So.2d 762; Certiorari denied, 294 Ala. 757, 318 So.2d 768.

Appellant also contends that the court erred in refusing to grant his motion to exclude all the evidence. This motion was made by appellant at the close of the state's case. The state had introduced evidence of five witnesses namely: Stephen Wayne Rhodes: Officer Diegan; James L. Small, State Toxicologist; Ronnie Quarles; and his wife, Deborah Quarles. Mr. and Mrs. Quarles had testified that they went to Mexico with appellant and that appellant bought heroin in Mexico. From their testimony, if believed, they had assisted the appellant in securing the heroin in Mexico and bringing it into the United States and to Mobile, Alabama. The witness, Stephen Wayne Rhodes, testified in substance that the appellant had the heroin in the kitchen of a house in Mobile, Alabama, in which witness had a room. That appellant mixed the heroin with dextrose and placed some of it in a tin foil package and gave it to the witness. On the next day Rhodes gave the package to Mr. Quarles and went with him and saw him give it to Officer Diegan. There is no evidence in the record that Rhodes had anything to do with the heroin except to take it from appellant and deliver it to Mr. Quarles to give to the police Officer Diegan. The proper way to determine if a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. If he could not, he is not an accomplice. Guyward Wayne Miller v. State of Alabama, 290 Ala. 248, 275 So.2d 675.

We hold that the witness Rhodes is not shown by the facts in the record to be an accomplice, and that his evidence together with the other evidence offered by the state, if believed by the jury, is sufficient to sustain the jury verdict finding the appellant guilty as charged in the indictment. The court did not err in overruling appellant's motion to exclude the evidence.

Next the appellant contends that the court erred in overruling his objection to the introduction of State's Exhibit 2. In the record we find the following 'MR. HUGHES: At this time I would offer State's Exhibit 2 in evidence.

MR. STEPHENS: I would object Your Honor. It has not been proven that what's in that little piece of tinfoil is in fact heroin.

MR. HUGHES: I think that Mr. Small testified that it was heroin and that he got it from Mr. Diegan and Mr. Diegan got it from Mr. Quarles and that Mr. Quarles got it from Stephen Rhodes.

THE COURT: Overrule the objection.

(State's Exhibit 2 was placed in evidence.)'

There is evidence in the record before us that appellant gave the substance contained in State's Exhibit No. 2 to the witness Rhodes, that Rhodes did nothing to change it and gave it to witness Quarles, that Quarles did nothing to change it and gave it to Deputy Diegan, that Deputy Diegan did nothing to it to change it and gave it to Jim Small, a State Toxicologist. Jim Small...