Nesbitt v. State
| Decision Date | 01 February 1977 |
| Docket Number | 5 Div. 323 |
| Citation | 343 So.2d 1240 |
| Parties | Charles NESBITT, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Arnold W. Umbach, Jr., Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
The indictment charged that the appellant 'did knowingly and intentionally sell, furnish, or give away MARIHUANA, a controlled substance, to ALEX SMITH, contrary to the provisions of the Alabama Uniform Controlled Substances Act . . .' 1 The jury found the appellant guilty of sale of marihuana and assessed a fine of $5000.00. The trial court then set sentence in accordance with this verdict, and, in addition, imposed a fifteen year sentence.
Alex Smith, working as an undercover agent for the Lee County Sheriff's Department, testified that on the evening of April 3, 1974, he and a Don Williams went to appellant's apartment, No. 25 Campus Inn in Auburn, Alabama, to inquire about the possibility of purchasing marihuana from the appellant. The appellant indicated to Smith and Williams that he could sell them some, but stated that the marihuana was at another location about a half mile from his apartment, and that he would need to get a ride to go get it. Smith offered to take the appellant in his automobile, and, shortly thereafter, Smith and appellant drove to a house located on Black Street in Auburn. Appellant informed Smith that the price of the Columbian marihuana would be twenty dollars per lid, and he received from Smith a twenty-dollar bill to cover the purchase price. Appellant then got out of the car, walked up to the front door of the house, and knocked. When the door opened, appellant leaned 'about half his body' inside and received a lid of marihuana from an occupant therein. Appellant returned to Smith's automobile with the lid of marihuana, and the two men then drove back to appellant's Campus Inn apartment. There appellant removed a small amount of the marihuana from the plastic sandwich bag and added it to his own 'personal stash' which he kept inside a small medicine bottle. Appellant then rolled up the plastic bag, sealed it by moistening the outer flap, and handed the marihuana to Smith. After leaving appellant's spartment, Smith attached an identification tag on the bag of marihuana, telephoned and requested that Lt. Ronnie Watkins of the Lee County Sheriff's Department meet him behind the Kwik Chek store in Opelika, and there Smith turned over to Lt. Watkins the bag of marihuana he had purchased from appellant.
Appellant presented an alibi defense, and through several witnesses sought to establish that on the night in question he had been in the continuous presence of one Sidney Brewer from 7:00 p.m. to 1:00 a.m. Appellant stated that he had recently joined the Omega Psi Phi Fraternity at Auburn University, and, as part of his pledge training, he was required to go over to Sidney Brewer's (the 'Dean of Pledges') apartment to learn the "Do's and Don'ts of Pledging." This particular pledge program lasted until 9:00 p.m., and, thereafter, both appellant and Brewer left Brewer's apartment to get beer and their dates for the evening, then drove to appellant's apartment where they remained in each other's company until 1:00 a.m. The appellant emphatically denied the sale of marihuana to State Witness Alex Smith.
Following the trial judge's oral charge, and his giving thirteen of appellant's written requested charges, the record reveals that the foregoing transpired:
After trial and notice of appeal, the appellant, pursuant to Rule 10(f), ARAP, filed a 'motion for correction of the record' alleging that there had been omitted from the completed trial record a refused written charge, the substance of which was as follows (Supplemental Transcript, page 4):
'Defendant's Requested Charge No. 21
'This Court charges the jury that an indictment for sale of marihuana also embraces the charge of possession of marihuana, as defined to you by the Court.'
A hearing on appellant's motion was held before Honorable Judge G. H. Wright, Jr. after the trial judge in this cause, Honorable Judge L. J. Tyner, recused himself from hearing appellant's motion. During the hearing, appellant's trial counsel, Honorable Robert Pettey, testified that he submitted the written charge, No. 21 (above), along with his other requested...
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Brown v. State
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Beverly v. State, 8 Div. 146
...464, 187 So. 250 (1939); Terry v. State, 33 Ala.App. 21, 29 So.2d 884, cert. denied, 249 Ala. 96, 29 So.2d 886 (1947); Nesbitt v. State, 343 So.2d 1240 (Ala.Cr.App.1977). VII Appellant contends that he should only be punished for the offense of murder because it was the most serious offense......
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Riley v. State
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