Palmer v. State, 5 Div. 262

• Decision Date: 18 March 1975
• Docket Number: 5 Div. 262
• Citation: 54 Ala.App. 707,312 So.2d 399
• Parties: William PALMER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 399

312 So.2d 399

54 Ala.App. 707

William PALMER v. STATE.

5 Div. 262.

Court of Criminal Appeals of Alabama.

March 18, 1975.

Rehearing Denied April 22, 1975.

Samford, Torbert, Denson & Horsley, Opelika, for appellant.

William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

William Palmer was indicted for the unlawful possession of Marihuana, a controlled substance, 'after having been previously convicted of possession of Marihuana The jury found the appellant guilty as charged in the indictment, but declined to assess a fine, and the trial court then entered judgment, setting sentence at fifteen years imprisonment in the penitentiary.

' contrary to the Alabama Uniform Controlled Substances Act of 1971. ¹

Sheriff Jim C. Pearson testified that on October 27, 1973, he received information pertaining to a package of a controlled substance being left in a park area off Bowden Drive in Lee County, Alabama. He testified that he and Deputy Sheriff Carrie Tolbert noticed a package, with what appeared to be a green vegetable material, in a cookie bag, partially covered by some pine straw, near a pine tree, in the park. He testified that he and his deputy concealed themselves in some shrubbery, approximately seventy-five feet from the area where the package was, and then waited to see who would pick up the package. He testified that the appellant and a companion walked over to a park bench, seated themselves, and then in a few minutes the appellant walked over near the foot of the tree and picked up the package. At this time Sheriff Pearson and Deputy Sheriff Tolbert emerged from their hiding place behind the bushes and told the two men not to move, that they were officers. The appellant and his companion started running, and Sheriff Pearson stated that he saw the appellant throw an object into a hedge row. He stated that he gave chase, apprehended the appellant, and brought him back to the park bench where Deputy Tolbert held him while he searched the hedge row area. He testified that he retrieved a package from the bushes, where he saw the appellant throw an object, and subsequently turned this in to the Toxicology office. An examination of the material by State Toxicologist Taylor Noggle showed the substance to be Marihuana. Sheriff Pearson's testimony was corroborated by Deputy Tolbert.

After moving to exclude the State's evidence, the appellant, himself, did not testify. He offered the testimony of several character witnesses.

I

The appellant's principal contention on appeal is that the trial court erroneously sentenced the appellant, since, the appellant contends, the provisions of the Alabama Uniform Controlled Substances Act of 1971 were improperly applied. This section is as follows:

'Section 401. ² (Prohibited Acts A--Penalties.)

'(a) Except as authorized by this Act, any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain by fraud, deceit, misrepresentation, or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of material fact, or by use of false name or giving a false address, controlled substances enumerated in Schedules I, II, III, IV, (and) V is guilty of a felony and upon conviction for first offense may be imprisoned not less than 2 nor more than 15 years and, in addition, may be fined not more than $25,000: except any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and upon conviction for the offense shall be imprisoned in the county jail for not more than one (1) year, and in addition, shall be fined not more than $1,000.00; but the penalties for the subsequent offenses relating to possesion ³ (sic) of marihuana shall be the same as '(b) Any person who violates this section with respect to a counterfeit substance enumerated in schedule I through V is guilty of a felony and upon conviction for the first offense may be imprisoned for not less than 2 nor more than 15 years and may be fined not more than $25,000.'

specified in the first sentence of this section 401(a).

The Alabama Supreme Court, in Boswell v. State, 290 Ala. 349, 276 So.2d 592, determined that this act satisfies the constitutional requirement of having a single subject, and, further, that the Legislature could include Marihuana with 'hard drugs,' and that such was a reasonable classification. Boswell, supra; Sawyer v. State, 50 Ala.App. 490, 280 So.2d 196; Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied 291 Ala. 786, 282 So.2d 392.

The appellant first contends that because there is a colon immediately following the figures '$25,000,' the section in question contains two sentences and provides two penalties for the same offense. This court has examined the original enrolled amendment to Senate Bill 414 (Act No. 1407), 1971 Regular Session, and finds that the colon appears outside the quote, '$25,000,' and the word 'Except,' which commences the next clause, is capitalized. It is clear, therefore, that the punctuation shown in the pocket parts of Michie's Edition to our Code is in error, since the colon appears to be directional only, and should not be construed as a part of the act itself. ⁴ It therefore follows that the sentence in question is but one sentence, which provides an exception as to punishment for persons who possess Marihuana for their personal use only on first conviction.

In Volume 96, Quarterly Reports of the Attorney General, pages 39, 40, we find:

'The several chapters, titles and sections of the 1940 Code are in pari materia, each having a field of operation, and must be so construed. Jenkins v. State, 16 So.2d 314, 245 Ala. 159. Also Jefferson County v. City of Birmingham, 221 Ala. 476, 129 So. 48.

'Judicial interpretation of statutes brought forward in codes without change become part of statutes by legislative adoption. Hurt v. Knox, 126 So. 110, 220 Ala. 448.' See also Johnson v. State, 222 Ala. 90, 130 So. 777.'

Moreover, as noted by Mr. Justice Simpson, in Akers v. State ex rel. Witcher, 283 Ala. 248, 215 So.2d 578:

'. . . (W)e should, in construing legislative enactments, look not only to the statute itself but to the purpose and object of the enactment as well, and its relation to other laws.'

Moreover, Mr. Justice Harwood, then Judge Harwood of the former Court of Appeals, in McDonald v. State, 32 Ala.App. 606, 28 So.2d 805, stated:

'It is basic that criminal and penal statutes are to be strictly construed. Grantland v. State, 8 Ala.App. 319, 62 So. 470; Jacobs v. State, 17 Ala.App. 396, 82 So. 837; Knowles v. State, 19 Ala.App. 476, 98 So. 207. However, even penal laws are not to be construed so strictly as to defeat the obvious intent of the legislature. Walton v. State, 62 Ala. 197; Preist v. State, 5 Ala.App. 171, 59 So. 318. A literal interpretation which would defeat the purpose of a statute will not be adopted, if any other reasonable construction can be given to it--Thompson v. State, 20 Ala. 54--and the The clear intention of the Legislature of Alabama, in creating the exception hereinabove noted in Section 258(47), was to provide a lesser punishment for persons found in possession of Marihuana for their personal use of first offense. The second clause of this section points out that for subsequent offenses relating to the possession of Marihuana, the punishment shall be as specified in the first sentence of this section. The trial court in this cause so understood and determined, and we are of the opinion that this interpretation is correct. Cases herein cited.

meaning of the legislature may be extended beyond the precise words used if such was the intent of the legislature. Graham v. City of Mobile, 17 Ala.App. 19, 81 So. 355.'

The appellant next argues that Title 22, Section 258(53), Code of Alabama 1940, as amended 1971, creates a lesser punishment, and that the appellant here should get the benefit of the punishment as set forth in this section.

We do not agree, as it is our judgment that this section is permissive as it uses the word 'may' in specifying punishment, and, secondly, that this section is general in nature and relates to narcotic drugs, Marihuana, depressant, stimulant, or hallucinogenic drugs. Clearly, the intent of the Legislature was that this section be applicable to all drug offenses other than possession of Marihuana, and we do so hold and determine. We believe this to be the intent of the Legislature of Alabama in enacting the sections in question. Cases herein cited.

II

In proving the prior offense with reference to the appellant in the case at bar (R. pp. 59--60), the trial court committed reversible error. It permitted the circuit clerk to read the purported trial docket sheet of an order entered on July 13, 1973, of the circuit judge. In Childers v. Holmes, 207 Ala. 382, 92 So. 615, we find:

'. . . The defendants' objection raised the question. They objected 'because it was not the proper manner to prove a conviction.' The proper manner was not by this witness, but by a certified copy of the record showing it, or by the oral testimony of the person convicted. The court erred in overruling that objection to the question. Sections 4008, 4009, Code 1907; Thompson v. State, 100 Ala. 70, 14 South. 878; Murphy v. State, 108 Ala. 10, 18 South. 557; rule 33 (circuit court) p. 1527, 2 Code 1907.'

In Murphy v. State, 108 Ala. 10, 18 So. 557, we find the rule stated thusly:

'A defendant who avails himself of the right to testify in his own behalf may be cross-examined generally, and be compelled to disclose all facts within his knowledge which could be elicited if he was merely a witness, and not a defendant, material to the issue, and is subject to all legal questions which may affect his credibility. It is competent to show, for the purpose of affecting his credibility, that a witness has been convicted of a felony (and a defendant who has been examined is...