State v. Cude
| Decision Date | 03 September 1975 |
| Docket Number | No. 20091,20091 |
| Citation | 265 S.C. 313,218 S.E.2d 240 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Vickie CUDE, Appellant. |
J. Reuben Long, Conway, and Albert E. Wheless, North Myrtle Beach, for appellant.
Sol. J. M. Long, Jr., Conway, Atty. Gen. Daniel R. McLeod, and Asst. Attys. Gen. Joseph R. Barker and Sidney S. Riggs, III, Columbia, for respondent.
Vickie Cude, the appellant herein, was tried and convicted on two counts of an indictment charging her with: (1) possession of heroin with intent to distribute, Section 32--1510.49(a)(1) of the Code (1974 Supp.); and (2) possession of less than one ounce of marihuana, Section 32--1510.49(c) of the Code (1974 Supp.). The trial judge sentenced the appellant to a term of 15 years for possession of heroin with intent to distribute from which she now appeals.
On the night of September 5, 1974, police officers, armed with a search warrant, went to the trailer home of the appellant where they found her getting out of her water bed. Upon searching the appellant's bedroom, a red box with 12 packets of powder was found between the sheets of her bed. The powder was examined and analyzed by a chemist for the State Law Enforcement Division who testified that the total weight of the substance in the packets was 7.721 grams or 118.7 grains. He also testified that the heroin content of the powder he examined was approximately two per cent. This testimony was unchallenged by the appellant and was the only evidence proffered concerning the quantity of heroin seized from the bed of the appellant. It is undisputed in the evidence that the amount of the heroin seized was more than two grains.
The testimony of the appellant was entirely exculpatory. She testified that the heroin belonged to someone else and that she had no knowledge that it was in her bedroom. It follows that the only issue in the case was whether or not the appellant was guilty or not guilty of possessing more than two grains of heroin.
It is provided in Section 32--1510.49(d)(3) (1974 Supp.), that one possessing more than 'two grains of heroin' shall be Prima facie guilty of possessing with intent to distribute.
The appellant assigns error to the trial judge in refusing to submit to the jury the issue of whether she was guilty of simple possession of heroin as opposed to possession with intent to distribute.
We have carefully reviewed all of the testimony in this case and there are no facts to support a conclusion that the appellant was guilty of simple possession of heroin. The appellant did not dispute the amount of heroin found between the sheets of her bed. There are no disputed facts with respect to any element required for conviction of the greater offense charged except her denial that the heroin belonged to her and that she had no knowledge that it was in her bed. There was no evidence from which the jury could conclude that the appellant was guilty of simple possession rather than possession with intent to distribute. It follows that there was no error on the part of the trial judge in refusing the requested instruction.
In the case of U.S. v. Johnson, 7 Cir., 506 F.2d 305, it was held that an instruction on a lesser included offense is proper only when the charged greater offense requires that the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense. See also the cases of Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882; United States v. Hephner, 7 Cir., 410 F.2d 930.
We have carefully examined the other exceptions posed by the appellant and find them to be without merit.
In my view the trial court was clearly in error in refusing to submit to the jury the issue of whether appellant was guilty of simple possession of heroin as opposed to possession thereof with intent to distribute. Such lesser offense is punishable by imprisonment of not more than two years, or a fine of not more than $5,000, or both. Code section 32--1510.49(d)(1) (1974 Supp.).
It is well settled that where, under the evidence, the accused may be found guilty of any lesser offense necessarily included within the greater crime charged, the court should so instruct the jury, especially where such an instruction has been requested. See State v. Bealin, 201 S.C. 490, 23 S.E.2d 746 and State v. Shea, 226 S.C. 501, 85 S.E.2d 858. Moreover the defendant, under the circumstances of this case, would have been entitled, if requested, to a charge to the effect that the jury...
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State v. Jones
...Thus, the factual issue was simply whether or not the appellants were the perpetrators of the crimes charged. See State v. Cude, 265 S.C. 313, 218 S.E.2d 240 (1975). Unless there is evidence tending to show that appellants are guilty of robbery or larceny, it is not error for the trial cour......
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State v. Mitchell
...the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense." State v. Cude, 265 S.C. 313, 316, 218 S.E.2d 240, 242 (1975) (citation In this case, Mitchell essentially argued he had no contact with Passion, except for a prior spanking, and......
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Gilmore v. State, 24107
...on the argument that he never actually possessed any of the drugs and that the drugs belonged to someone else. See State v. Cude, 265 S.C. 313, 218 S.E.2d 240 (1975). The record at trial does not support an instruction on the lesser-included offense of simple possession. Moreover, responden......
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State v. Adams
...CHANDLER and FINNEY, JJ., concur. HARWELL, J., not participating. 1 This case is distinguishable on its facts from State v. Cude, 265 S.C. 313, 218 S.E.2d 240 (1975), where the amount of controlled substances was greater than the amount that raises the statutory presumption of intent to ...