Pryor v. State, 1 Div. 147

• Decision Date: 15 August 1972
• Docket Number: 1 Div. 147
• Parties: James C. PRYOR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 907

265 So.2d 907

48 Ala.App. 465

James C. PRYOR v. STATE.

1 Div. 147.

Court of Criminal Appeals of Alabama.

Aug. 15, 1972.

[48 Ala.App. 466] Fred F. Smith, Jr., Fairhope, for appellant.

William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted in the Circuit Court of Baldwin County for the unlawful possession of certain drugs and sentenced to two (2) years in the penitentiary. He is an indigent and was represented by a court-appointed lawyer in the court below, who represents him on this appeal.

A police officer, Sergeant Ethridge, for the City of Fairhope, testified that on the night of March 30, 1970, he received a telephone call from an unidentified informer that four men in a 1967 Chevrolet were in possession of a part of the merchandise stolen from Holland's Drugstore. This officer said that on prior occasions this source had given him information that had always been reliable. The car was described as being a cream-colored bottom with a black top, bearing tag number 5--20563 and was occupied by James Pryor, Edwin Pryor, Raymond Bradley, and Dale Thomas Boswell. Bradley was the owner and driver of this automobile. The car was first spotted on Section Street in Fairhope and was traveling toward the beach. An off-duty policeman was alerted and instructed to keep the car under surveillance and to notify Sgt. Ethridge when it left the beach. The car stayed at the beach ten or fifteen minutes and when it was leaving, Ethridge was called and he intercepted the car as it turned off Magnolia Street on to Section Street and got the four men out of the car. Two men were in the front seat and two in the back seat. Appellant was in the back seat. After the men were out of the car, Ethridge saw a bottle on the front seat 'in open view'. He took possession of the bottle and arrested the four men. He put two of them in one police car and the other two in another police car. He instructed the off-duty officer to drive the Chevrolet to the police station.

Ethridge called the Chief of Police, Leo Gilhart, and they went to Arrie S. Godwin, a justice of the peace, and secured a search warrant to search the Chevrolet.

The affidavit in support of the search warrant is as follows:

'STATE OF ALABAMA

BALDWIN COUNTY.

MARch 30, 1970

Before me Arrie S. GoGWin a Justice of the Peace in and for said County, personally appeared James C. Ethridge, who upon oath states that in his opinion and to the best of his information and

Narcotics Are ill. Drgus (sic.) belief there are prohibited liquors on the person or premises of Raymond Keith Bradley one 1968 Che/5;20563 in Baldwin County, Alabama.

s/ JAMES C. ETHERIDGE (sic.)

Sworn to and subscribed before me this 30 day of March, 1970.

s/ ARRIE S. GODWIN J.P.

STATE OF ALABAMA

BALDWIN COUNTY.

March 30, 1970

TO ANY OFFICER Of Said State And County:

Proof by affidavit having been made this day before me by James C. Ethernarcotics are ill Drugus (sic.) idge (sic.) that prohibited liquors are on the person or premises of Raymond Keith Bradley You are therefore commanded in the day time or night to make immediate search of the persons, premises, house, out-house, barn, smoke-house, vehicles, automobiles, or any property of the said Raymond Keith Bradley in said County, and if you find Prohibited liquors thereon to make such disposition of the same as is required by law. (Emphasis supplied)

Witness my hand this 30 day of March, 1970.

ARRIE S. GODWIN, J.P.'

The bottle that was on the front seat of the Chevrolet was identified at trial and admitted into evidence over the objections of appellant assigning the following grounds:

'MR. SMITH: Object on the ground no proper predicate has been laid; nothing to show or intimate connection or knowledge on the part of this defendant with anything in the automobile; no proof that it was his automobile. You are not liable for anything in somebody else's automobile.

'THE COURT: Act you adding the ground that it is a product of an illegal search and seizure?

'MR. SMITH: Yes.

'THE COURT: Overrule the objection.

'MR. SMITH: Except.'

State's Exhibit No. 1 was labeled '100 Capsules Phenaphen with codeine Phosphate 1/4 gr. Phenaphen No. 2', and according to the Reporter's note, 'the bottle is about half full of capsules black on one end and yellow on the other.'

Omitting the formal parts the indictment charged 'before finding this indictment James C. Pryor did unlawfully have in his possession depressant or stimulant drugs, to-wit: codeine sulfate, pheobarbital (sic), codeine phosphate, phenacetin, isonipecaine and methadone hydrochloride, against the peace and dignity of the State of Alabama.'

Under the statutory law in force and effect at the time this indictment was returned, the unlawful possession of codeine and phenobarbital constituted a misdemeanor. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234; Ramsey v. State, 43 Ala.App. 617, 197 So.2d 763; Thompson v. State,44 Ala.App. 414, 211 So.2d 505; Brandies v. State, 44 Ala.App. 648, 219 So.2d 404; Jordan v. State, 44 Ala.App. 21, 201 So.2d 63.

Isonipecaine and methadone hydrochloride are synthetic narcotics and are strong hard drugs. The unlawful possession of these drugs is a felony and on first conviction is punishable by not less than two nor more than ten years in the penitentiary. Title 22, Sections 242 and 255, subsection (b), Code of Alabama 1940; Brandies v. State, supra.

It is, therefore, apparent that the indictment in this case embraces both a felony and a misdemeanor. Appellant was sentenced to two years in the penitentiary, the sentence being for a felony. Felonies and misdemeanors cannot be joined in the same indictment, let alone in the same count. James v. State, 104 Ala. 20, 16 So. 94; Brandies v. State, supra.

Appellant filed a demurrer to the indictment containing five grounds, none of which raised the question of misjoinder of offenses.

The indictment also includes the drug 'phenacetin.' Phenacetin is a pain reliever and is one of the ingredients in empirin, which can be purchased over the counter without a prescription. Among the drugs in the glove compartment of the automobile was a bottle of A.P.C., which are tablets containing aspirin, phenacetin, and caffeine, and a prescription is not required for this medication. Appellant was, therefore, indicted for the unlawful possession of a lawful drug, viz. phenacetin.

A search of appellant's person did not reveal any incriminating evidence tending to link him with the possession of these drugs or to show that he had any knowledge that this bottle was in the car. The rule of constructive possession did not run to him. He did not own the automobile. He was on the back seat of the car and two other men were in the front seat where the bottle of capsules were found after all four occupants were evacuated.

A case squarely in point is Parks v. State, 46 Ala.App. 722, 248 So.2d 761, wherein this Court said:

'The offense of possession of illegal drugs is susceptible of joint commission.

Green v. State, 30 Ala.App. 94, 2 So.2d 324; Gunnells v. State, 21 Ala.App. 648, 111 So. 320. Further the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Thompson v. State, 32 Ala.App. 402, 27 So.2d 55. However, there must be evidence from which the jury might conclude beyond a reasonable doubt that defendant knew of the pressence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra.

'The proof introduced by the state showed that the accused was a passenger sitting on the right side of the front seat of an automobile being driven by another. The police testified they stopped the automobile because, 'The vehicle was driving all over the road.' The driver was placed under arrest for driving while intoxicated. There was no evidence of any incriminating statement by the accused, nor evidence of attempted flight after the detectives determined that the automobile contained narcotics. In our opinion, mere presence of a defendant in an automobile is not sufficient to establish the requisite knowledge of the presence of the drugs or to prove defendant guilty of aiding and abetting in the illegal possession. The defendant was entitled to have granted his motion to exclude the state's evidence. Hudson v. State, 249 Ala. 372, 31 So.2d 774; Davis v. State, 40 Ala.App. 609, 119 So.2d 236; Rikard v. State, 31 Ala.App. 374, 18 So.2d 435; Farmer v. State, 19 Ala.App. 560, 99 So. 59; People v. Foster, 115 Cal.App.2d 866, 253 P.2d 50.

'Cases in this jurisdiction which have previously dealt with the issue of sufficient evidence to justify a finding of guilty knowledge of an illegal substance in a vehicle or on premises of the accused, where constructive possession is relied upon, are readily distinguishable as involving facts and circumstances in addition to the mere presence of the accused. See Thomas v. State, 37 Ala.App. 179, 66 So.2d 189; Womack v. State, supra; Barnes v. State, 34 Ala.App. 183, 38 So.2d 21; Thompson v. State, supra; Green v. State, supra.'

There was no proof that Holland's Drugstore had been burglarized and pharmaceutical drugs stolen possessing the same chemical compound as the drugs in State's Exhibit No. 1.

In Coshatt v. State, 37 Ala.App. 422, 69 So.2d 877, a prosecution for illegal possession of narcotic drugs, this Court said:

'Other evidence introduced by the State tended to show that the bottles produced by the appellant contained various types of narcotic drugs which were derivatives or compounds of opium or morphine. It was also shown that these drugs were the same that were stolen from a drug store in Birmingham, the pharmacist in the drug store identifying the bottles by a cost mark she had written on each bottle label.

'The pharmacist also testified as to the narcotic qualities of the...