Saik v. State, 52079

• Decision Date: 10 September 1980
• Docket Number: No. 52079,52079
• Citation: Saik v. State, 387 So.2d 751 (Miss. 1980)
• Parties: Tommy M. SAIK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 751

387 So.2d 751

Tommy M. SAIK v.STATE of Mississippi.

No. 52079.

Supreme Court of Mississippi.

Sept. 10, 1980.

Gerald Hosemann, Vicksburg, for appellant.

Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

LEE, Justice, for the Court:

Tommy Saik was convicted in the Circuit Court of Warren County for attempting to obtain possession of a controlled substance by reason of a forged medical prescription and was sentenced to serve a term of three (3) years in the Mississippi State Penitentiary with two (2) years suspended.He has appealed and assigns two (2) errors in the trial below.

I.

Appellant first contends that the court erred in refusing to grant his requested peremptory instruction of not guilty.

Evidence for the State indicated that appellant and his wife, Mary Louise Saik, lived in Jackson.On May 25, 1979, they went to Vicksburg, with appellant driving the automobile, and stopped at Super G Discount Drugs.Mrs. Saik entered the drugstore while appellant remained in the car.She presented a counterfeit prescription to Nancy Fuller, a clerk, for Talwin tablets (pentazozine), a controlled substance, and requested that the prescription be filled.The prescription purported to be from Jackson Mental Health Center, signed by R. J. Thomas, M.D. for Mrs. Billy Wade, patient.Mrs. Fuller delivered the prescription to pharmacist Glenn Russell to be filled.

Russell was able to determine that the prescription was counterfeit, and, while Mrs. Saik was talking to the female clerk, he telephoned the police department.For the purpose of delay, Russell asked Mrs. Saik whether Dr. Thomas was still in his office and stated that he needed to contact Dr. Thomas about the prescription.When that statement was made to her, Mrs. Saik left the store, got back into the automobile, and appellant drove off.Russell was able to get a description of the automobile and the tag number, and gave them to the police, along with a description of Mrs. Saik.

A short while later, appellant and his wife were arrested by Vicksburg police and were taken to the police department.Upon searching appellant, his billfold was found to contain another prescription from Jackson Mental Health Center with the patient name of Mr. Bob Wilson and for the same amount of Talwin.The doctor's name appearing on the prescription was R. Jones, and the handwriting compared favorably with that of the first prescription presented at Super G Discount Drugs.

Detective Phil Solomon of the Vicksburg Police Department advised appellant of his constitutional rights and testified that appellant made the following free and voluntary oral statement to him:

"A.Yes, sir, I did.Mr. Saik informed me that he and his wife had gotten this prescription, the one attempted to be passed at the Super G Drug Store and also the prescription he had in his possession, from some friends in Jackson-which he declined to name-and had come together in a car to Vicksburg.And he was driving, and he let her out at the Super G Drug Store, knowing that she was going in to attempt to pass this prescription.He waited for her on the outside to return hopefully, apparently, with the pills.And then she returned without it, without the pills and they drove off, and he was driving.

Q.He was driving?

A.Yes, sir.

Q.Did he make any statement with reference to the alleged prescription found in his possession?

A.He said they got both prescriptions from the same friend at the same time in Jackson.And they came together, he and his wife, to Vicksburg to pass the prescriptions.

Q.They came from Jackson to Vicksburg for what purpose?

A.To pass these prescriptions for the Talwin tablets."

In deciding the question of whether or not the trial court should have granted a requested peremptory instruction, this Court considers all evidence favorable to the State, together with reasonable inferences flowing therefrom, and, if such evidence is sufficient to present a guilt question for the jury, the peremptory instruction should be refused.Roberts v. State, 379 So.2d 514(Miss.1979);Minor v. State, 379 So.2d 495(Miss.1979);Warn v. State, 349 So.2d 1055(Miss.1977).

There was strong evidence for the State that appellant and his wife left Jackson for Vicksburg with the common design and intent to obtain Talwin by passing counterfeit medical prescriptions, that appellant drove to the Super G drugstore for that purpose, and that the plan was thwarted when the pharmacist called the police.Appellant was present, aiding and abetting in the attempt to obtain possession of a controlled substance, and the evidence amply supports the verdict of the jury.

II.

Appellant next contends that State's Exhibits # 2, # 3 and # 4 were improperly admitted into...