State v. Attardo, No. 19951

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: NESS; MOSS
• Citation: 263 S.C. 546,211 S.E.2d 868
• Parties: The STATE, Respondent, v. John Steven ATTARDO, Appellant.
• Decision Date: 28 January 1975
• Docket Number: No. 19951

Page 868

211 S.E.2d 868 263 S.C. 546 The STATE, Respondent,
v.
John Steven ATTARDO, Appellant. No. 19951. Supreme Court of South Carolina. Jan. 28, 1975.

Page 869

[263 S.C. 547] Grimes, Hinds & Cowan, Myrtle Beach, for appellant.

[263 S.C. 548] Sol. J. M. Long, Jr., Conway, Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. C. Tolbert Goolsby, Jr., and Staff Attys. Joseph R. Barker and Sidney S. Riggs, III, Columbia, for respondent.

[263 S.C. 549] NESS, Justice:

The appellant was tried and found guilty of possession of more than one ounce of marijuana with the intent to distribute. Seeking reversal, he contends that the trial judge erred in failing to charge that such possession must be knowing or intentional and by charging that the buren shifted to the appellant to prove that he, in fact, had no knowledge of what he possessed.

The conviction was based on § 32--1510.49(b) of the South Carolina Code 1962 (1973 Cum.Supp.). That section reads: 'It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.'

The forbidden act is 'knowingly or intentionally possessing certain substances.' This language evinces a legislative desire to fasten a general, but not a specific, criminal intent as an element of the offense. Appellant's contentions arise from the trial judge's efforts to adequately charge the jury concerning this criminal intent. The assaulted charge follows. 'In other words, if I went to the Post Office and got out a package and it happened that it had marijuana in it, but I didn't know that it had marijuana in it--it had been mailed to me by somebody that I didn't know, and I had no knowledge whatsoever and I could prove that I didn't know, then, that would be a defense. But, normally where a person is in possession of contraband, there is a factual presumption that he knows what it is, and the burden is then on him to prove that he did not have actual knowledge.'

We conclude that considering the instructions as a whole the jury was adequately and correctly advised as to the full meaning of the word 'knowledge'. [263 S.C. 550] It is to be observed that in drug cases although the element of knowledge is seldom susceptible of direct proof, it may be proved circumstantially. Eason v. United States, 281 F.2d 818 (9th Cir. 1960); United States v. Pinna, 229 F.2d 216 (7th Cir. 1956); Covarrubias v. United States, 272 F.2d 352 (9th Cir. 1959). It can be proved by the evidence of acts, declarations, or conduct of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances. State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971); State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193, 198 (1969). Possession as heretofore defined by this Court in State v. Ellis, S.C., 207 S.E.2d 408 (1974) and State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973) gives rise to an inference of the possessor's knowledge of the character of the substance. The record before us does not contain any testimony, therefore, there is before us neither direct proof of knowledge, nor proof of actual physical possession. We understand from the briefs that it is conceded that the appellant was in actual possession of the controlled substance. ¹ Knowledge thus properly became a question for the jury. Eason v. United States, supra; Evans v. United States, 257 F.2d 121, 128 (9th Cir. 1958).

The appellant next assigns error to instructions given by the trial court which

Page 870

purported to place the burden of proof, as to lack of knowledge, upon the appellant.

A basic principle of criminal law is that the State has the burden of proof as to all of the essential elements of the crime. State v. Paulk, 18 S.C. 514 (1883); 22A C.J.S. Criminal Law § 566, p. 307; Wharton's Criminal Evidence,[263 S.C. 551] Vol. 1, Section 16, p. 24. Furthermore, it has been held that when knowledge is an element of the crime, it must be proved by the...