Posey v. State
| Decision Date | 01 March 1973 |
| Docket Number | No. A--17066,A--17066 |
| Citation | 507 P.2d 576 |
| Parties | Gary Dale POSEY, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Gary Dale Posey, who will hereafter be referred to as defendant, was convicted in the District Court of Oklahoma County, for the crime of sale of marihuana, after former conviction of a felony, in Case No. CRF--69--2360. Defendant was tried along with a co-defendant, Asa Lee Mayes, and both defendants were found guilty. Punishment for defendant Mayes was fixed at three years imprisonment, and defendant herein was sentenced to serve ten years imprisonment. Defendant's first purpoted appeal was dismissed by this Court for the reason the original record and transcript of evidence were not filed in accordance with 22 O.S.1971, § 1054. Defendant filed for post conviction relief under the provisions of 22 O.S.1971, § 1080 et seq. The trial court granted defendant's post conviction relief and this appeal was thereafter filed in this Court.
The facts briefly stated, reveal that on August 9, 1969, Oklahoma City undercover police officer, John H. Cain 1 approached defendant about 1:00 A.M. and offered to buy some marihuana from defendant. Defendant advised the officer that he didn't have any marihuana, but that he could take him to someone who might sell him some. Defendant got into the officer's automobile and they drove to Nineteenth and Francis Street, where defendant left the car for a few minutes and returned with co-defendant Mayes. The parties entered the officer's car and drove to Northwest Seventeenth and Brauer Street. Defendant and Mayes got out of the car to go and buy the marihuana for the officer. The officer gave a twenty dollar bill to Mayes and instructed them if they could not buy hashish for fifteen dollars, then they should 'call off the whole thing.' The two men entered a nearby residence and were gone for five or ten minutes when they returned to the officer's car. Defendant handed the officer an aluminum foil wrapper, Mayes handed the officer a five dollar bill, and they told the officer they had gotten the price down to fifteen dollars. The officer put the packet and the money in his pocket and returned defendant and Mayes to the respective points at which they were picked up. The substance in the aluminum foil packet was identified as hashish; and G. A. 'Buddy' Burns testified that he had Officer Cain under surveilance during the entire transaction.
Defendant did not testify, but defendant Mayes did testify. In substance, he related that defendant came to his apartment and told him that he had a friend that needed some marihuana, and asked Mayes if he knew any place where he could get some for his friend. Mayes told defendant that he didn't have any marihuana and that he wasn't sure of any place where he could get some. But Mayes and defendant went out to the officer's car where a conversation ensued. Officer Cain asked Mayes if he knew any place where he could get some marihuana, and Mayes told him that he wasn't sure, but they might try a place nearby. Mayes gave the directions how to get to the place. Mayes related that the officer gave him the twenty dollar bill and told him not to pay more than fifteen dollars for the marihuana. Mayes testified that he purchased the marihuana for the officer from a person named 'Stu'; that they gave the packet and the five dollars to the officer; and the officer returned them to the places where he picked them up. Thereafter, the two defendants were arrested and charged with the sale of marihuana.
Defendant argues one proposition in his appeal as follows: 'A defendant who has acted without interest or benefit of an alleged sale cannot be convicted as a seller even though his conduct may have facilitated the sale where the evidence shows no conspiracy or pre-arranged plan between the defendant and the seller.' In support of this proposition defendant relies primarily upon this Court's decision in Jones v. State, Okl.Cr., 481 P.2d 169 (1971). This Court said in Jones v. State, supra:
In the instant case, there is no proof of 'any community of scheme,' collaboration, or association, between defendant and the seller 'Stu,' nor did defendant have any personal or financial interest in the transaction. Consequently, there being a total failure to prove the necessary element to constitute a 'sale,' as to the defendant, and no proof of conspiracy or pre-arranged plan, we are bound to hold that the verdict of guilty could only have been based upon speculation.
A case very similar to the instant case was Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764, 1972. In the Pennsylvania case the evidence showed that one Paul Guy pursuaded Simione to arrange a sale of a quantity of hashish through a third party, James Heisey. Paul Guy testified that the alleged transaction took place in the kitchen of his apartment and that the three people were all present. Guy stated that he gave a twenty dollar bill to Simione, who then handed the money to Heisey. Heisey accepted the money and gave the gram of hashish and five dollars in change to Simione, who in turn gave the hashish and change to Guy. The Supreme Court of Pennsylvania reduced the question in that appeal to the following: 'We must determine whether the evidence was sufficient to establish that appellant 'sold' a prohibited drug.' In reaching its decision the Pennsylvania court stated:
'This Court is obligated to construe words employed in the laws of this Commonwealth 'according to their common and approved usage.' Where as here there is no evidence that the defendant received any of the proceeds of the sale or was employed by the seller to promote sales, we do not believe it can be fairly said that defendant is guilty of a 'sale,' and we hold that as a matter of law defendant cannot be included in the category of 'sellers' of narcotic drugs that the Legislature singled out for especially severe punishment.'
In People v. Turner, 38 Mich.App. 479, 196 N.W.2d 799 (1972), Division 2 of the Court of Appeals of Michigan, held:
'(T)he term 'agent' used in the 'sale' definition refers only to the agent of the vendor.'
In the Michigan case the informer gave defendant twenty dollars for the purchase of heroin; defendant bought the heroin from a third party and gave it to the informer. Defendant was thereafter charged for the sale of heroin. The Michigan Statute defining the word 'sale' is...
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