State v. Burns

• Decision Date: 14 September 1970
• Docket Number: No. 1,No. 55148,55148,1
• Citation: 457 S.W.2d 721
• Parties: STATE of Missouri, Respondent, v. Russell BURNS, Appellant
• Court: Missouri Supreme Court

Page 721

457 S.W.2d 721

STATE of Missouri, Respondent, v. Russell BURNS, Appellant.

No. 55148.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1970.

Robert G. Duncan, Pierce, Duncan, Hill & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Presiding Judge.

This is an appeal by defendant from a conviction by a jury of illegal possession of marijuana, with the punishment being assessed at 10 years' imprisonment and sentence imposed accordingly.

The case presents the question of whether in a prosecution under Sec. 195.020, RSMo 1959, V.A.M.S., for illegal possession of marijuana the state must prove a conscious possession by the defendant and, if so, was there sufficient proof here to make a submissible issue for the jury.

On Saturday afternoon, February 15, 1969, employees at the R.E.A. Air Express office at the Municipal Airport in Kansas City, Missouri, noticed that a package which had been delivered earlier from Braniff flight 235, addressed to Automotive Products, Inc., 1213 Olive, Kansas City, Missouri, had been damaged, presumably in shipment. The package 'had been wet' and one end had been torn open. Through what was described as a 'little hole in the plastic', one of the employees, Robert Consolver, could see some 'ground up vegetation or grass or something in it'. The R.E.A. Express people got in touch with the police and Detective Grasher from the Kansas City police force came out to inspect the package. Before Detective Grasher arrived someone telephoned the R.E.A. office asking if the package had arrived. Consolver said not yet and the caller left a number to call when it did. Grasher examined the material in the box and thought it was marijuana. He called in an agent from the federal Bureau of Narcotics. Then Detective Grasher had Consolver call the telephone number and say the package for Automotive Products had arrived. Then someone called the R.E.A. office again to verify that the package was there and once again to find out what the charges were. Consolver said there was $5.50 due on it.

No one purported to identify the voice of the person at the other end of the line or say that the voice sounded like the voice of defendant.

Around 5:00 p.m. defendant arrived, alone, to pick up the package at the R.E.A. office. He asked if Consolver had a package for A.P.I. Consolver said, 'A.P.I.?' Defendant answered, 'Automotive Products, Incorporated.' Consolver said he did, gave defendant the waybill to sign, ¹ got the package, and gave defendant change for his $20 bill. Defendant picked up the package, turned to leave, and by the time he had taken a step or two, Detective Grasher stepped out from hiding and placed him under arrest for possession of and transporting marijuana.

Detective Grasher and Consolver had repaired and taped the package before defendant arrived and when defendant picked it up there was no way to see inside the package. The package showed it was from one Charles Green, 131 Hayes Street, San Antonio, Texas. The waybill said the package contained 'auto parts'. When the police at their laboratory opened and examined the package, they found it contained four brown paper bag containers, wrapped in some sort of a plastic wrapping, and two shirts. The four paper containers weighed not quite 3 lbs. and contained marijuana.

After the police arrested defendant, they first read him a statement of his constitutional rights, searched him, but found no weapons or anything incriminating, and then took him to the police station. On the way they asked defendant where he lived. He said he lived in Chicago, but was staying in Kansas City with a friend. Detective Grasher asked defendant why he had come to Kansas City. Defendant said he had come to Kansas City to pick up the package and said that he was immediately going back to Chicago.

The police were unable to locate any store or business in Kansas City by the name of Automotive Products, Inc., and the address, 1213 Olive Street, turned out to be a vacant lot.

Defendant did not take the stand or put on any testimony. He specifically raised the point about the evidence failing to prove knowledge on his part of what he was charged with possessing, by motion for acquittal, and also by tendering an instruction on the point, both of which were refused.

In this case defendant did have possession of the package in his own hands for a few seconds, whether he knew what was in the package or not. The state takes the position that 'simple possession', as it puts it, of a narcotic substance constitutes substantial evidence to sustain a finding that the possessor of the narcotic knew its nature, citing State v. Page (Mo.Sup.) 395 S.W.2d 146, and State v. Virdure (Mo.Sup.) 371 S.W.2d 196. The state's position does not meet the exact question presented, however, because the question here is not whether defendant had knowledge that marijuana is a narcotic and a prohibited substance, but whether, in order to be guilty of illegal possession, the state must prove he is conscious he has possession.

In the Page case, supra, the charge was unlawfully selling a narcotic drug. The issue in that case was whether the state must show knowledge on the part of the defendant that the item sold was a narcotic drug. The court pointed out that Sec. 195.020, supra, does not require as an element of the offense, knowledge on the part of the accused that the item sold was a narcotic drug. The verdictdirecting instruction in Page did not require a finding that defendant 'knowingly' sold narcotics. The court pointed out that defendant at the trial actually had not interposed the defense that he did not have knowledge that what he had arranged to be sold was a narcotic drug and in such instance the court said it is not necessary that the verdict-directing instruction require a finding of guilty knowledge. The court carefully reserved the question as to whether it would be necessary to require a finding of knowledge on the part of the defendant that what he sold was a narcotic drug if lack of such knowledge had been interposed as a defense. The case actually does not touch on the problem raised in the present case, which is whether it is a part of the offense to prove that defendant had knowledge that he was in possession of the substance in question. For example, suppose A borrows B's coat for a short time. There is marijuana hidden in the breast pocket. A, however, has no idea the coat he is wearing contains marijuana. Within a few minutes after donning the coat, A is arrested and charged with illegal possession of marijuana. Is this sufficient to convict him of violation of Sec. 195.020? Possession without knowledge of such possession is not possession in the legal sense of that word, State v. Nicolosi, 228 La. 65, 81 So.2d 771. Knowledge of the existence of the object is essential to physical control thereof with the intent to exercise such control and such knowledge must necessarily precede the intent to exercise or the exercise of such control, People v. Gory, 28 Cal.2d 450, 170 P.2d 433, 436.

The Virdure case, supra, is a possession case and defendant specifically raised the point in his motion for judgment of acquittal, as was done in the present case, that the state failed to prove that he knew of the presence of the narcotics which were found in his basement and in his automobile. The opinion says that the state's evidence was ample upon the point. The court said that defendant was in the possession of his automobile and his premises when the marijuana was discovered by the officers and that from this and the inferences to be deduced therefrom, the jury could reasonably find that defendant knew the narcotic drug was upon and in his property. The effect of the Virdure case is, therefore, that the state must prove that defendant knew he had possession of the substance. The facts in Virdure of finding the...