Skaggs v. State

Decision Date29 March 1973
Docket NumberNo. 1171S343,1171S343
Citation260 Ind. 180,293 N.E.2d 781
PartiesLouis SKAGGS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Malcolm G. Montgomery, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

This is an appeal from a conviction of violation of the Indiana Dangerous Drug Act. Appellant was sentenced to the Indiana Reformatory for an indeterminate period of one to ten years.

The record reveals the following evidence:

Roger Karch, an elementary school art teacher, testified that prior to July 31, 1970, he volunteered to do undercover drug work for the Evansville Police Department. Karch was instructed that the could use marijuana from time to time to maintain his cover.

On July 31, 1970, Karch went to Haynie's Corner in Evansville where he contacted a 12 year old boy and indicated to him that he wanted some 'speed.' The boy told him that Louis Skaggs, the appellant herein, would sell him 'speed.' The 12 year old boy and an older boy took Karch to a house where the appellant was living. At about 1::00 P.M. Karch and one of the boys went to the door and knocked. A man subsequently identified as the appellant answered the door. The boy told the appellant that Karch wanted four 'speed' capsules. Appellant went inside the house and returned with four capsules. Karch gave the appellant $4 in exchange for the capsules. Karch returned to his home and placed the four capsules in a container with a note telling where, when and from whom they were purchased. The next evening Karch gave the four capsules in the container with the note to Sgt. Chaffin of the Evansville Police Department, who in turn took them to the Indiana State Police lab where the capsules were analyzed and found to contain amphetamines. They were further identified as a Strassenburg product called bi-phetamine which contains 12 1/2 milligrams of amphetamine.

Appellant's fiancee, Judy Peck, testified that she and appellant were living together, and that during the night in question she did not hear anyone come to the door. She admitted, however, on cross-examination that she might have been in the bathroom and unable to hear a knock at the door.

The appellant testified that he had a prescription for 20 milligram bi-phetamine capsules but had no prescription for the 12 1/2 milligram capsules.

Appellant also stated that Karch did not come to his door on July 31, 1970.

During the course of the trial the Evansville Courier contained an article concerning the trial. The court bailiff testified that he took a copy of the paper containing the article into the jury room. Five of the jurors stated that they had seen the article, and three of the five stated they had read it. Apparently the only thing stated in the article which had not been placed before the jury in evidence was a statement by Karch that the reason he volunteered to do undercover work for the police was that 'he thought it was the moral thing to do.'

Appellant first argues that the verdict of the jury was not sustained by sufficient evidence. It is appellant's claim that the State failed to introduce evidence of probative value that amphetamine is on the list of drugs compiled in accordance with 21 U.S.C. § 321(V). (Now 21 U.S.C. § 812).

Burns' Ind.Stat.Ann., 1972 Supp., § 35--3332(j), IC 1971, 16--6--8--2, reads as follows:

'(j) 'Dangerous drug' means (1) any drug the label of which is required by federal law to bear the statement: 'Caution: Federal law prohibits dispensing without a prescription'; (2) any drug which, because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to prescribe or administer such drug; or (3) a new drug which is limited by an effective application under state law to use under the professional supervision of a practitioner licensed by law to prescribe or administer such drug; (4) any hallucinogenic, psychedelic, psychogenic drug or substance including but not limited to cannabis or lysergic acid diethylamide, commonly know as LSD; or (5) any drug appearing on the lists of drugs under schedules I, II, III and IV of the Controlled Substances Act, 21 U.S.C. sec. 812, Pub.L. no. 91--513, sec. 202(c), and any drugs included therein by duly promulgated regulation; (6) any substance which the state board of pharmacy, after reasonable notice and hearing, shall by promulgated rule determine has qualities similar to that of any dangerous drug.'

It is true the State did not submit evidence that the contents of the capsules introduced in evidence were on the list of dangerous drugs; however, State's Instruction No. one which was given to the jury by the court reads as follows:

'The Court instructs you that Indiana Law defines 'Dangerous Drug' to mean any drug the label of which is required by Federal Law to bear a statement: 'Caution: Federal Law prohibits dispensing without a prescription.' Burns 35--3332J(1).

'The Court further instructs that Federal Law requires that any drug containing amphetamine must have a label bearing the statement: 'Caution: Federal Law prohibits dispensing without a prescription.'

'21 U.S.C. § 321, § 331Q, 333, 352(d), 353, 360a; Codes of Federal Regulations, Title 21, Part 320 to end.'

It is sufficient that the court take judicial notice of the law and so instruct the jury. State ex rel. Fry v. Superior Court of Lake County et al. (1933), 205 Ind. 355, 186 N.E. 310; Taggart v. Keebler (1926), 198 Ind. 633, 154 N.E. 485.

Appellant next contends the trial court erred in allowing Harold Chaffin to testify as to a conversation he had with Mr. Karch outside the presence of the appellant. Appellant cites Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865, 22 Ind.Dec. 573 and Pennebaker v. State (1971), Ind.,270 N.E.2d 756, 26 Ind.Dec. 31. However, the case at bar may be distinguished from the two cases cited. In each of those cases the declarant in the conversation was not available for cross-examination, whereas in the case at bar Chaffin was the declarant. We, therefore, hold that it was not error for the court to allow Chaffin to testify concerning his instructions to Karch.

Appellant next contends the trial court erred in admitting evidence that Sgt. Chaffin had told Karch he had permission to smoke marijuana when necessary to maintain his cover. It is appellant's position that such testimony was self-serving to the State and not admissible. We do not agree with the appellant that this evidence was within the definition of self-serving declaration. Black's Law, Dictionary 496 (4th ed. 1951) describes a self-serving declaration as

'One made by a party in his own interest at some time and palce out of court;--not including testimony which he gives as witness at the trial.'

Appellant cites the case of Keener School Township v. Eudaly (1931), 93 Ind.App. 627, 175 N.E. 363. That case was an action to set aside a teacher's dismissal. Evidence of a conversation in the teacher's absence which might have shown good faith on the part of the school authorities was excluded as a self-serving declaration. However, in the case at bar we do not have a self-serving declaration. The evidence that a police official purported to give Karch permission to use marijuana to facilitate his undercover work is a statement of fact submitted by the State in anticipation of an attack on the credibility of Karch as a witness. We do not see this statement as a...

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  • Ballard v. State
    • United States
    • Indiana Appellate Court
    • April 18, 1974
    ...Ballard, and was subjected to cross-examination. See, Hall v. State, (1972) Ind., 284 N.E.2d 758 (analogous facts); Skaggs v. State, (1973) Ind., 293 N.E.2d 781; Wolfe v. State, (1928) 200 Ind. 557, 159 N.E. 545; Carlile v. State, (1973) Ind.App., 303 N.E.2d 303; Arnold v. State, (1973) Ind......
  • Ballard v. State
    • United States
    • Indiana Supreme Court
    • November 12, 1974
    ...Ballard, and was subjected to cross-examination. See, Hall v. State, (1972) Ind., 284 N.E.2d 758 (analogous facts); Skaggs v. State, (1973) Ind., 293 N.E.2d 781; Wolfe v. State, (1928) 200 Ind. 557, 159 N.E. 545; Carlile v. State, (1973) Ind.App., 303 N.E.2d 303; Arnold v. State, (1973) Ind......
  • Ludlow v. State, 2-573A110
    • United States
    • Indiana Appellate Court
    • October 30, 1973
    ...of direct testimony that methamphetamine was listed on said Schedule II, the court could take judicial notice of it. Skaggs v. State, Ind., 293 N.E.2d 781 (1971). Careful consideration of these assertions of the Appellant demonstrate they are without Since no reversible error has been demon......
  • Patterson v. State
    • United States
    • Indiana Supreme Court
    • March 18, 1975
    ...both of the aforementioned statements violated the traditional hearsay rule in Indiana, as such rule was regarded prior to Skaggs v. State (1973), Ind., 293 N.E.2d 781. By dicta, we had previously stated that the primary reason for excluding hearsay is because of its insusceptibility to the......
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