State v. Barr

• Decision Date: 15 January 1976
• Docket Number: No. 11457,11457
• Citation: 237 N.W.2d 888,90 S.D. 9
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Ralph Richard BARR, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 888

237 N.W.2d 888

90 S.D. 9

STATE of South Dakota, Plaintiff and Respondent, v. Ralph Richard BARR, Defendant and Appellant.

No. 11457.

Supreme Court of South Dakota.

Jan 15, 1976.

Laurence J. Zastrow, Rapid City, for defendant and appellant.

William J. Janklow, Atty. Gen., Galen Vaa, Asst. Atty. Gen., Pierre, Michael J. McGreevy, Warrensburg, Mo., for plaintiff and respondent.

WOLLMAN, Justice.

Defendant was charged with the unlawful distribution of a controlled substance, lysergic acid diethylamide (LSD) in violation of SDCL 39--17--88. He was found guilty by a jury and was sentenced to two years' imprisonment in the state penitentiary.

The state's principal witness, one Naomi Church, also known as Kathy Clark, and as 'Fat Kathy,' of whom we have written in State v. Barr, S.D., 232 N.W.2d 257, and State v. Murphy, S.D., 234 N.W.2d 54, testified that she had been employed as a narcotics agent by the Pennington County, South Dakota, sheriff's office and the Rapid City, South Dakota, police department on June 1, 1973. She was first introduced to defendant at Sheridan Lake on or about June 24, 1973. She next saw the defendant at the Casino Bar in Rapid City during the evening of June 25, 1973, when she sat at a table with defendant and several other persons. She testified that during the course of the conversation that defendant was having with his several friends at the table she overheard defendant talking to one of the persons at the table about some chocolate mescaline defendant was going to get for him. She heard defendant state that he was going to get enough chocolate mescaline to, in the witness' words, '* * * turn on the two bands that were playing, White Witch and this Black Oak Arkansas or something * * * And also that he was getting enough to turn on all of his help.' Ms. Church also heard defendant talking about white crosses, which is the street name for amphetamines. In her words, 'Well, he was trying to tell me how many he had taken that night and they'd been putting them in his drink.'

Ms. Church then asked defendant how much chocolate mescaline he was getting and whether he could get her some. After defendant replied in the affirmative, she asked him the price. Defendant replied that, in the wtiness' words, '* * * it would be about two dollars a hit, and then he asked me how much I wanted and I told him about ten.' In response to Ms. Church's inquiry about when he could get the chocolate mescaline for her, defendant '* * * told me that this Mathiason, or whoever he was getting it from from Hill City had already left to go back, so it was too late to get it then, and he (defendant) said he had to go to Sioux Falls and he'd be back some-time Wednesday or late Wednesday night, so it would be either Wednesday or, Thursday that I could get it.'

Ms. Church testified that she next saw defendant on June 29, 1973, at approximately 12:35 p.m., when she went to his record store in , rapid City. After purchasing a record from one of defendant's employees, Ms. Church approached defendant. According to her testimony:

'I don't remember if I asked him or he told me that he'd got them, but then I--he asked me how many I wanted and I told him ten, and then I asked him--I asked him the price and he said two dollars, and then I said ten again * * *'

Defendant then went into the back room of his store and returned with a cellophane bag containing some brown pills. Defendant told Ms. Church that there were nine pills in the bag, whereupon she paid him $18. Ms. Church then left the store and shortly thereafter turned the pills over to a deputy sheriff. A chemical analysis of two of these nine pills revealed that they contained LSD.

Defendant testified that he had seen Ms. Church in the Casino Bar on Monday night, June 25, 1973. He admitted that he had made the statement that he had intended to turn on the members of the band, but testified that he was referring to providing them with liquor and not with drugs. In response to his attorney's question, 'Is it pretty much what happened?,' referring to Ms. Church's testimony regarding the transaction that occurred in defendant's store on June 29, 1973, defendant replied, 'Yes, it is.' It was the thrust of defendant's direct testimony that Ms. Church had importuned him to secure drugs for her on numerous occasions, that he had never distributed or sold drugs prior to June 29, 1973, and that the idea of purchasing drugs for and selling them to Ms. Church had originated in her mind rather than his. On cross-examination, however, defendant admitted that he had seen one Fred Monson passing some white crosses to Ms. Church in the Casino Bar on the evening of June 25, that he learned that Fred Monson had put white crosses into his drink that evening, and that the conversation he had had with Ms. Church that evening concerning drugs may have taken place after he had seen Fred Monson passing some white crosses to Ms. Church. Defendant further admitted on cross-examination that he had obtained the drugs in question from one Dave Mathiason on June 28, 1973, after the latter had come into defendant's store and asked defendant whether he knew anyone who wanted to buy some of the chocolate mescaline that Mathiason had. According to defendant, he (defendant) replied, "No, I can't think of anybody,' and I went back to my business. Oh, it must not have been more than two minutes and I thought, 'This is a good way to get rid of this girl." Defendant then bought all of the alleged mescaline that Mathiason had, consisting of nine pills, which defendant then sold to Ms. Church the following day for $18.

Defendant raises three principal questions on appeal. First, he contends that SDCL 39--17--88, which is a part of the state drugs and substances control act, is invalid because of this court's decision in State v. Matteson, S.D., 205 N.W.2d 512, holding Ch. 229, Laws of 1970, unconstitutional because its title was defective under Art. III, § 21 of the South Dakota Constitution. Defendant contends that because Ch. 229, Laws of 1970, the source of SDCL 39--17, was the subject of an action commenced prior to July 1, 1972, to determine the constitutionality of the title of said chapter, that chapter could not have been validly reenacted as part of the Code pursuant to SDCL 2--16--13 because of the provisions of SDCL 2--16--15.

In the case of State v. Barr, supra, we upheld the validity of SDCL 39--17 in the face of a similar challenge. We reaffirm that holding here.

Defendant contends that the trial court erred in giving, over defendant's objection, Instruction No. 10, which informed the jury that:

'The crime of distribution of a controlled substance, as defined by the statutes of this state, does not require that a person distributing a controlled substance know the nature of such substance or that it is a controlled substance. Therefore, if a person does in fact distribute a controlled substance, he has committed the crime, even though he is unaware of the nature of such substance or that it is a controlled substance or is mistaken as to its identify.'

We agree with defendant's contention that the court erred in giving this instruction. SDCL 39--17--88 provides that:

'Except as authorized by this chapter, it shall be unlawful for any person to manufacture, distribute, or dispense a substance controlled under this chapter, or to possess with intent to manufacture, distribute, or dispense, a substance controlled under this chapter.'

Although it is true that this statute does not specifically provide that knowledge is an element of the offense therein stated, we conclude that knowledge is an element of the offense of unlawful distribution of a controlled substance and that the jury should have been so instructed. We reach this conclusion for several reasons.

First, we note that courts in other jurisdictions have held that notwithstanding the absence of the word 'knowingly' in statutes prohibiting the unlawful possession and sale of narcotic drugs and controlled substances, knowledge is an element of those offenses. See e.g., Thomas v. State, Alaska, 522 P.2d 528 (sale); People v. Bowens, 229 Cal.App.2d 590, 40 Cal.Rptr. 435 (possession); Rideout v. Superior Court, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197 (transporting); People v. Rogers, 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129 (transporting); State v. Harris, 159 Conn. 521, 271 A.2d 74 (possession); Medlin v. State, Fla.App., 265 So.2d 515 (unlawful delivery); People v. Truelock, 35 Ill.2d 189, 220 N.E.2d 187 (possession); State v. Reeves, Iowa, 209 N.W.2d 18 (possession); State v. Smith, Iowa, 219 N.W.2d 655 (possession); State v. Florine, Minn., 226 N.W.2d 609 (possession); Applegate v. State, Miss., 301 So.2d 853 (unlawful delivery); Collini v. State, Tex.Cr.App., 487 S.W.2d 132 (possession).

In State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551, this court recognized that under the Uniform Narcotic Drug Act, Ch. 94, Laws of 1968, knowledge of the character of the drug had been held to be an element of the charge of unlawful possession. See Annot., 91 A.L.R.2d 810. South Dakota is among the states that have adopted the Uniform Controlled Substances Act, SDCL 39--17. See 1974 Handbook of the National Commissioners on Uniform State Laws, Table VII, p. 1034. In keeping with the statutory direction that we should interpret and construe a uniform law in such a manner as to effectuate the purpose of making uniform the law of the states which enact it, SDCL 2--14--13, we find persuasive those holdings cited above that have construed the Uniform Narcotic Drug Act and the Uniform Controlled Substances Act, or variations thereof, to require knowledge as an element of the offense of unlawful distribution of a substance such as that involved here.

Second, we note, that SDCL 39--17--95 provides that:

'It is unlawful for any person knowingly or intentionally to possess a controlled drug or substance * * *'

The...