Peppers v. State
| Decision Date | 30 July 1974 |
| Docket Number | 8 Div. 486 |
| Citation | 53 Ala.App. 695,304 So.2d 39 |
| Parties | Billy PEPPERS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Terry Huffstutler, Jr., Guntersville, for appellant.
William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
Appellant was found guilty by a jury under a count of an indictment charging him with selling marijuana in violation of the Alabama Uniform Controlled Substances Act of 1971. Another count of the indictment charging him with possession of marijuana was withdrawn by the State before the jury was selected to try the case. The court imposed a sentence of seven years imprisonment in the penitentiary.
Doug Nelson, an investigator employed by the Alabama Department of Public Safety as a narcotics undercover agent, testified that he saw defendant on January 26, 1973, at a store at Double Bridges on Alabama Highway No. 168; the defendant drove up beside the automobile the witness and one Randy Hayes were in and handed a lid of plant material out of the window and said, 'Try this, and follow me.' Thereafter the witness and Randy Hayes followed defendant to another area where defendant stopped on the side of the road, and the witness stopped his automobile behind that of defendant. Randy Hayes left the automobile in which he and the witness were riding and went to the automobile of Randy Hayes did not testify in the case.
the defendant and returned and asked for money from the witness. Thereupon the witness gave Randy Hayes three twenty dollar bills, Hayes went back to the Peppers vehicle and returned with two more lids of marijuana and money in the amount of $15.00. The witness further testified that he turned the three packs of plant material over to Sergeant R. M. Patterson at the Holiday Inn in Boaz, Alabama. On cross-examination the witness stated that he had known Randy Hayes for only two days, that Hayes had arranged the meeting after having told the witness he would help him get some marijuana. The incident occurred in the daytime, and according to the witness the sun was still shining. On further cross-examination the witness testified positively 'I know Billy Peppers handed it (the marijuana) to Randy Hayes.' He said he saw only the defendant and two others in the other automobile. He said he could see the side of defendant's face when he handed the two lids of marijuana to Hayes.
Other witnesses for the State were Sergeant Robert M. Patterson, John Kilborn and Allen Adair. Sergeant Patterson corroborated the testimony of Doug Nelson to the effect that the three lids of marijuana were turned over to Patterson, also an employee of the Alabama Public Safety Department, Narcotics Division, and testified that he ran a valtox test on the substance which indicated positive and that he placed the material in a brown envelope. Mr. Kilborn corroborated testimony of Sergeant Patterson to the effect that the brown envelope with the material therein was placed in the hands of Mr. Kilborn, of the State Toxicology Laboratory in Huntsville, and testified he turned the material over to Criminalist Allen Adair of the Alabama Department of Toxicology and Criminal Investigation. Mr. Adair corroborated the testimony of Mr. Kilborn as to the material being turned over to him and testified as to his examination, analyses and conclusions as to the material. His testimony showed that he had had considerable experience in the field of drug identification, including marijuana. He testified in detail as to the tests and positively that the 'green plant material' in the bags was marijuana. He testified specifically that the substance he examined had a postive test for 'four of the cannabanoids which are present in the resin of marijuana.' The three bags of marijuana were introduced in evidence.
Defendant offered no evidence.
Appellant challenges the sufficiency of the evidence in two respects:
1. That the testimony did not show that a sale of the material was made by the defendant; and
2. That there is no evidence that the substance analyzed, tested and identified as marijuana constituted illegal marijuana, that the marijuana could have been legal marijuana, that is, marijuana that is excluded from the inhibitions of the Alabama Uniform Controlled Substances Act of 1971.
Although the evidence as to the identity of the person who sold the marijuana was not a strong as it would have been if Randy Hayes, who was in closer relation than Nelson to defendant at the time of the sale of the marijuana, had testified as to the transaction that Doug Nelson testified he witnessed, there is no escape from the conclusion that the testimony of Doug Nelson was sufficient to present a jury issue as to an actual sale by defendant. Neither a request for an affirmative charge in favor of defendant nor a motion to exclude the evidence was made at the close of the evidence, but the question of the sufficiency of the evidence was raised on a motion for a new trial, which was properly overruled by the trial court.
As to appellant's insistence that the evidence does not show that the material was illegal as distinguished from legal marijuana "Marihuana' means all parts of the plant Cannabis sativa L. whether growing or not; the seeds thereof; the resin extracted from any part of the plaint; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.'
we first set forth the pertinent part of Title 22, § 258(25)(o), Code of Alabama as follows:
Whether a particular portion of marijuana is illegal, as distinguished from legal marijuana, as that distinction is delineated by the statute, is not so generally within the province of judicial knowledge that a trial or appellate court can make a determination thereof merely by observance of the material, but the evidence as a whole shows almost conclusively, if the testimony of the witnesses is to be accepted, that the particular material did contain illegal marijuana. There is nothing in the testimony to indicate that the material was limited to that which is included in any of the exempted categories. On the other hand, the testimony is strongly to the effect that the material did not contain any of the legal items. The appellation or description, 'green plant material,' is inconsonant with each and every excluded or exempted item. The same is true as to another description of a witness, 'crushed marijuana leaves and stems.' Nothing in the nature of any of the exemptions is shown by the testimony. The circumstances, including the price paid and the surreptitiousness of the transaction, indicate traffic in illegal rather than legal...
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Dickerson v. State
...321 So.2d 713 (1975); Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975); Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 Thus, we consider the definition of cannabis as used in § 20-2-80(1) the same as......
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Osner v. State
...and returned by registered mail to the Seizure Custodian, District Director of Customs in Mobile, Alabama. See Peppers v. State, Ala.App., 304 So.2d 39, 1974. Appellant moved to exclude this witness's testimony on the ground that it was not sufficiently shown that he possessed the necessary......
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Taylor v. State, 4 Div. 85
...omitted). See also Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977); Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975); Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 (1974); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala.......
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