Radke v. State

• Decision Date: 04 April 1974
• Citation: 292 Ala. 290,293 So.2d 314
• Parties: In re James Lester RADKE v. STATE of Alabama. Ex parte STATE of Alabama. SC 680.
• Court: Alabama Supreme Court

Page 314

293 So.2d 314

292 Ala. 290

In re James Lester RADKE v. STATE of Alabama Ex parte STATE of Alabama.

SC 680.

Supreme Court of Alabama.

April 4, 1974.

William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Special Asst. Atty. Gen., Dothan, for petitioner.

Rowe & Rowe, Enterprise, for respondent.

McCALL, Justice.

We granted a writ of certiorari in this case to review a decision of the Court of Criminal Appeals which reversed the judgment of conviction rendered by the circuit court. The only question here is whether or not the State's quantum of proof as to guilt of illegal possession of marijuana was sufficient to submit that issue to the jury. The appellate court held that the proof was insufficient to let the cause go to the jury, and in reversing the case said:

'* * * To view the evidence otherwise would condone resort to speculation and surmise rather than to concrete circumstances. * * *'

The following evidence appears in the opinion: The defendant, Radke, was present in the Burger Inn, a hamburger establishment. A law enforcement officer, apparently in deceptive and disarming dress, drove up to the place in a gold Chevrolet. After conversing with one Polk, an employee of the Burger Inn, the two went to the storeroom in the building. Radke followed them to that location. When they arrived, Polk got the marijuana down from a shelf. After the officer opened the box, containing the marijuana, he, the officer, asked how much marijuana was in it. The opinion states: 'Both (Polk and Radke) replied, twenty pounds.' Apparently, at that time the marijuana was in plain view. Then '* * * as Polk was asking Radke to get a scale the raiding party irrupted into the hamburger establishment.' This ended that activity.

The appellate court said that there is no evidence that Radke knew beforehand of the presence of the marijuana, nor does it appear that Radke either heard or complied with Polk's request to fetch the scale. The opinion further states that all conversations about sale and delivery took place only between Polk and the officer, that Radke was an onlooker, though only part of the time; he never touched the contraband. He had no connection with Burger Inn.

We think that the defendant's guilt depends upon whether he aided or abetted in the illegal possession of the marijuana The statute, Tit. 14, § 14, Code of Alabama, Recompiled 1958, states in part:

'* * * all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors.'

Aid and Abet 'comprehend all assistance rendered by acts or words of encouragement or supports or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.' * * *.' Jones v. State, 174 Ala. 53, 57, 57 So. 31, 32.

The Court of Criminal Appeals said in Parks v. State, 46 Ala.App. 722, 724, 248 So.2d 761, 762:

'The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324; Gunnels 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 presence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra.'

It was pointed out by the Court of Appeals in Parsons v. State, 33 Ala.App. 309, 33 So.2d 164, that the rule is:

'The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. West v. State, 25 Ala.App. 492, 149 So. 354; Kelly v. State, 31 Ala.App. 194, 13 So.2d 691; Williams v. State, 31 Ala.App. 48, 11 So.2d 870, * * *. All persons participating in a crime are guilty as principals. Title 14, Section 14, Code of Alabama 1940.'

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