State v. Bullard, 826

• Citation: 267 N.C. 599,148 S.E.2d 565
• Decision Date: 16 June 1966
• Docket Number: No. 826,826
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. William Robert BULLARD, III.

Page 565

148 S.E.2d 565

267 N.C. 599

STATE of North Carolina v. William Robert BULLARD, III.

No. 826.

Supreme Court of North Carolina.

June 16, 1966.

T. W. Burton, Atty. Gen., Charles D. Barham, Jr., Asst. Atty. Gen., Wilson B. Partin, Jr., Staff Atty., Raleigh, for the State, appellee.

Cooper & Winston, by Barry T. Winston, Carrboro, for defendant appellant.

PLESS, Justice.

The facts in this case are not in dispute. That is, the State's evidence was overwhelmingly that the defendant had peyote and marijuana in his possession in his Chapel Hill apartment and the defendant admits this. The trial judge, in effect, told the jury that if they found these to be the facts the defendant would be guilty. The defendant interposes three grounds of defense. (1) That the search warrant used by the officers was not validly issued, that evidence obtained under it was incompetent, and that without that evidence, the cause should have been non-suited. (2) That peyote and marijuana are not narcotics and, therefore, their possession cannot constitute a violation of the law. (3) That as a Peyotist the use of this substance is necessary in the practice of his religion; that its possession under those conditions is not a criminal offense, and to forbid its use constitutes a violation of his constitutional rights.

In support of his claim that the search warrant used by the officers was not valid, the defendant relies principally upon the case of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. In that case the U.S. Supreme Court reversed Aguilar's conviction upon a charge of possessing narcotics because certain requirements it laid down for the issuance of search warrants were not met in that case. It said that '(T)he magistrate must be more than a mere rubber stamp for the police officers; that the officers must provide their reasons for believing and relying upon the credibility of their informant.' These objections are not valid here. The search warrant was issued upon the oath of Sargeant W. F. Hester, an officer of the Chapel Hill Police Force, that he had reasonable grounds to believe that the defendant possessed a quantity of peyote; that a person known to him to be reliable had stated that 'He has in the immediate past period seen peyote' at the defendant's address; that the informer had also delivered to the affiant portions of the peyote and that this had been examined by one skilled in the identification of peyote who had identified it as such.

It must be remembered that the object of search warrants is to obtain evidence--if it were already available there would be no reason to seek their issuance. They must be issued upon information which may not at that time be competent as evidence by strict rules, but there must be justifiable and probable cause to believe that a search will reveal the presence of the object sought. There can be no doubt that upon the affidavit of Sgt. Hester the Clerk of the Recorder's Court was justified in issuing the search warrant. The defendant's exception to its issuance and the evidence obtained as a result thereof was properly overruled.

The defendant's second objection to the State's case is that the possession of peyote and marijuana are not unlawful because they are not narcotic drugs. Here the defendant is confronted with the provisions of the Statute § 90--87(9) which says, "Narcotic drugs means * * * cannabis, etc.,' and § 90--87(1): " Cannabis' includes * * * Peyote or marihuana.'

In addition, the State's witness, Starling, testified he was a graduate of the Federal Bureau of Narcotics Advanced Training School; that he had worked for four years 'exclusively on narcotic investigation;' that he had 'taught school to local police officers on various aspects of narcotic investigation.' While the record does not show that the court held Mr. Starling to be an expert in this field, he undoubtedly qualifies as such. He describes peyote 'as a plant that grows wild and * * * is used sometimes by persons who use narcotics illegally * * * to produce certain hallucination type effects.' He also testified that marijuana 'is a narcotic * * * and is a type of weed that distorts the senses.'

Also, the State's witness Best, who qualified as an expert in the field of chemistry, as it pertains to the identification and analysis of narcotic drugs, referred to 'the narcotic known as Marijuana,' and testified that prior to this case he had 'had occasion to examine, identify and analyze the narcotic known as marijuana.' Thus, defendant's second ground of defense is successfully met and it is denied.

The third and most emphasized position for the defendant is that he is now a Peyotist with Buddhist leanings and that he has recently joined the Neo-American Church and that 'peyote is most necessary and marijuana is most advisable in the practice of my church's beliefs.' The very interesting and informative brief filed on behalf of the defendant describes the ceremonies connected with the defendant's religion. They...