State v. Carter, 47287

Decision Date06 April 1974
Docket NumberNo. 47287,47287
PartiesSTATE of Kansas, Appellee, v. William CARTER, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Where some evidence is offered to support the defense of entrapment, the question of fact is raised whether the intent to engage in the offense originated in the mind of the defendant or was instigated by officers or agents of the state and failure to show evidence of defendant's past narcotics sales or convictions does not prove entrapment as a matter of law. (Following State v. Reichenberger, 209 Kan. 210, 495 P.2d 919, and State v. Fitzgibbon, 211 Kan. 553, 507 P.2d 313.)

2. Defendant has the burden of introducing evidence as a matter of defense that brings him within an exception or exemption in the statute creating the offense if such exception or exemption is not part of the description of the offense.

3. K.S.A. 65-2517 (now K.S.A. 65-4136), making it unnecessary for the state to negate any exceptions to the prohibition contained in the act, is not an unconstitutional shifting of the burden of proof to the defendant because it requires that he produce evidence bringing his acts within exceptions to the act as a matter of procedure.

4. Under the circumstances of this case, the exposure of improper hearsay testimony to a jury does not constitute prejudicial error when the court promptly strikes the testimony and admonishes the jury to disregard it.

5. The record is examined in a criminal action in which defendant was convicted of two counts of delievering barbiturates in violation of K.S.A.1971 Supp. 65-2602(1), and it is held: The trial court did not err in (1) overruling defendant's motion for directed verdict of acquittal; (2) finding K.S.A. 65-2517 made it unnecessary for the state to negative exceptions to the prohibitions of the Uniform Narcotics Act; and (3) overruling defendant's motion for a new trial.

Charles S. Scott, Scott, Scott, Scott & Jackson, Topeka, argued the cause, and was on the brief for appellant.

John H. Taylor, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice:

Defendant William Carter appeals from conviction of two counts of delivering barbiturates in violation of K.S.A.1971 Supp. 65-2602(1) (now K.S.A. 65-4126(a)), and two concurrent sentences of one to twenty years imposed therefor.

The evidence against the defendant, in the form of testimony of Guy S. Teeselink and Terry L. Stevens, special narcotics agents for the Kansas Bureau of Investigation, is as follows: They went to Junction City to purchase drugs on .February 15, 1972, and picked up two individuals in downtown Junction City, known to the agents only as Gary and Clarence. They directed the agents to Shorty's Record Shop located in a residence at 536 West 12th. At the shop they were introduced by Gary and Clarence to an individual whom the agents later identified in court as defendant Carter. The agents testified they asked Carter if he had any 'reds;' he reached into his pocket, removed three tablets from a bottle, and handed them to the agents. They gave him three one dollar bills in payment. The agents returned to 536 West 12th on February 16, 1972; Carter answered the door and asked if they were there to buy 'grass.' The agents replied they were there to buy more 'reds.' Carter went into the bedroom and came back with four tablets saying the extra was one he had promised them before. The agents paid him three one dollar bills. All the tablets were identified by K.B.I. laboratory tests as containing secobarbital, a derivative of barbituric acid.

Defendant and others were arrested on February 18, 1972, during a drug raid on 536 West 12th. Defendant testified he had never seen agents Teeselink and Stevens before the night of his arrest. Defendant denied selling or delivering drugs from a bottle in his possession. He testified he had made deliveries of drugs to buyers at the record shop, but he had acted merely as relay from sellers in the back room of the shop and had not kept any payments of money. Defendant could not identify any of the sellers in the back room for whom he admitted relaying drugs.

At the close of the state's evidence, defendant moved for a directed verdict of acquittal, alleging the state's evidence proved he was entrapped as a matter of law since no previous narcotics convictions or sales were proved against him. This contention has no merit. Where some evidence is offered to support the defense of entrapment, the question of fact is raised whether the intent to engage in the offense originated in the mind of the defendant or was instigated by officers or agents of the state. The question is one of intent, and failure to show evidence of past convictions or sales of narcotics as evidence of intent does not prove entrapment as a matter of law. (State v. Reichenberger, 209 Kan. 210, 495 P.2d 919; State v. Fitzgibbon, 211 Kan. 553, 507 P.2d 313.) The record shows the question of entrapment was properly submitted to the jury with appropriate instructions.

Defendant submits as further ground to support his motion for directed verdict of acquittal that the state has not made a prima facie case against him because it failed to prove he was not within the exceptions to the general prohibition of K.S.A.1971 Supp. 65-2602(1). The statute which defendant is charged with violating reads as follows:

'It shall be unlawful

'(1) To deliver any drugs unless: (A) Such drug is delivered by a pharmacist, or his authorized agent, in good faith upon prescription and there is affixed to the immediate container in which such drug is delivered a label bearing (a) the name and address of the owner of the establishment from which such drug was delivered; (b) the date on which the prescription for such drug was filled; (c) the number of such prescription as filed in the prescription files of the pharmacist who filled such prescription; (d) the name of the practitioner who prescribed such drug; (e) the name and address...

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    ...See Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973); Peppers, supra; State v. Buchman, 361 So.2d 692 (Fla.1978); State v. Carter, 214 Kan. 533, 521 P.2d 294 (1974); State v. Brothers, 212 Kan. 187, 510 P.2d 608 (1973); State v. Dixon, 546 S.W.2d 774 (Mo.App.1977); Elkins v. State, 543 S.W......
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