State v. Davis

Decision Date09 February 1970
Docket NumberNo. 1,No. 54183,54183,1
PartiesSTATE of Missouri, Respondent, v. Gene DAVIS, Appellant
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

Newmark & Baris, Irl B. Baris, Leonard J. Frankel, St. Louis, for appellant.

HOUSER, Commissioner.

Gene Davis was convicted by a jury of the felony of unlawfully selling a stimulant drug in violation of § 195.240, V.A.M.S. The jury assessed punishment at six months in jail and a fine of $1000. Appellant raises six points on appeal.

Appellant claims that his conviction under §§ 195.230 and 195.240 violates the state constitution; that these sections unlawfully delegate authority to the department of health and welfare in violation of Article I, Section 31, Constitution of Missouri, V.A.M.S., which provides 'That no law shall delegate to any commission, bureau, board or other administrative agency authority to make any rule fixing a fine or imprisonment as punishment for its violation.' Section 195.230 directs the division of health of the department of health and welfare to prepare a list of drugs falling within the purview of the terms 'barbiturate' or 'stimulant' (terms defined in § 195.220). Section 195.240 provides that the sale of any drug so designated is unlawful, with exceptions inapplicable here.

We find no merit in this point. In the enactment of §§ 195.230 and 195.240 the General Assembly exercised its undoubted power to make laws prohibiting trafficking in these drugs and to prescribe punishment for their violation. These sections do not constitute an unlawful delegation of authority to the division to make a rule prohibiting such trafficking or to provide punishment for violation of such rules, and the division has not undertaken to do either of these things. The division has merely complied with the General Assembly's mandate to list all barbituate and stimulant drugs. The General Assembly had full power to make this requirement of the division.

Appellant urges that under the evidence he was not guilty of a 'sale' of the drugs, which he says invariably involves the payment of current money by the buyer to the seller; that the evidence showed that defendant merely exchanged drugs for cigarettes and a television set; that the only money involved in the transaction was that paid by the alleged seller to the alleged buyer for the excess value of the cigarettes and television over that of the drugs; that 'inasmuch as there was no money passing from Dixon to defendant, there was no sale and therefore no violation of Section 195.240.' This contention is disallowed. 'A sale ordinarily is defined as a contract to transfer property rights for money paid or promised to be paid, but the term is broad enough to include the transfer of property for any sort of valuable consideration. Freund Motor Co. v. Alma Realty & Investment Co., (235 Mo.App. 587, 142 S.W.2d 790); Good v. Erker, 170 Mo.App. 681, 153 S.W. 556.' Schulte v. Crites, Mo.App., 300 S.W.2d 819, 822(2). In declaring unlawful the 'possession, sale, distribution, or transfer' of stimulant drugs the General Assembly intended to use the term 'sale' in its broad sense, so as to include an exchange of the listed drugs for cigarettes or other property. In point is State v. Miller, 318 Mo. 581, 300 S.W. 765, in which this Court held that an information charging that defendant did 'sell, barter, and trade' moonshine for an automobile tire was sufficient; that in enacting the prohibition law making it a felony to 'sell, give away' etc. moonshine the Legislature intended to use the word 'sell' in its broad sense, so as to include a disposition for any consideration. The Court would not 'ssume that the lawmakers intended to give the word a meaning which would defeat the purpose of the act.' The Court held that the Legislature 'did not intend to prohibit selling and giving away moonshine liquor and allow it to be traded for any consideration other than money,' pointing out that such a construction would 'stimulate the ingenuity of dealers to devise sales by indirection and accomplish a flourishing business, permitted by the letter of the law.' 300 S.W., l.c. 767. The same considerations require a construction that § 195.240 brands as an unlawful sale an exchange of the listed drugs for merchandise.

Next, appellant claims that the court erred in not ordering appellant's discharge on the ground that the defense of entrapment was established as a matter of law. We disagree. Entrapment as a matter of law is not established where there is any substantial evidence from which it may be inferred that the intention to commit the crime originated in the mind of the accused, 22 C.J.S. Criminal Law § 45(2), p. 141, or, as stated in United States v. Haden, 7 Cir., 397 F.2d 460, 466, '* * * unless it is patently clear from the undisputed evidence that government agents originated the criminal design and implanted in the mind of an innocent person the disposition to commit the crime.'

The State's evidence showed the following: Curtis L. Dixon, agent for the Bureau of Narcotics and Dangerous Drugs, was told by Dallas Barr, an informer, that appellant 'had pills, drugs' available. By prearrangement Barr introduced Dixon to appellant, who freely and willingly discussed with Dixon the exchange of 'bennies' for cigarettes. Bennies are proscribed drugs--dexadrine or amphetamine pills or capsules. Dixon either expressly or impliedly informed appellant that the cigarettes were 'hot,' i.e., stolen goods. In this conversation appellant disclosed that he had a source from which he could obtain 50,000 bennies: a pharmacist who had red birds, yellow birds, yellow jackets, tuinol and dexadrine bennies ('* * * just about whatever (he) wanted'). Appellant was interested in exchanging the bennies for cigarettes and asked Dixon how many pills he was interested in. When told that Dixon could not handle 50,000 pills appellant suggested that they could make up the difference in some kind of a cash deal. Appellant gave Dixon his telephone number and told Dixon to get in touch with him later. Dixon agreed and they parted. A week later Dixon called appellant by telephone. Appellant invited him to a certain address on Morton Street in Wellston. When Dixon arrived he and appellant went to a back room. Appellant went into a restroom and came out with a paper drinking cup containing a quantity of capsules (supposedly 400) which later analyzed proved to be dextroamphetamine sulfate. Dixon put the capsules in his pocket and appellant asked what Dixon had brought to trade. Dixon told him he had 40 cartons of cigarettes and a television set. They finally agreed that 20 cartons of cigarettes would be exchanged changed for the capsules. That left 20 cartons of cigarettes and the television, for which appellant gave Dixon $60 in cash. Appellant drove his Cadillac automobile next to Dixon's parked car. The two men moved 40 cartons of cigarettes and the television into the trunk of the Cadillac. Arrangements were made for Dixon to get $60 worth of pills in a later transaction. Appellant did not inform the law enforcement officers that he had information with respect to supposedly stolen cigarettes. From the foregoing the jury could infer that appellant had a predisposition toward criminality; that he had the criminal intent to traffic in unlawful drugs; that the crime originated in the mind of appellant; that the crime was not the creative activity of Dixon but that Dixon merely afforded appellant an opportunity to commit the criminal act. This 'is a far cry from entrapment,' Osborn v. United States, 385 U.S. 323, 332, 87 S.Ct. 429, 17 L.Ed.2d 394, reh. den. 386 U.S. 938, 87 S.Ct. 951, 17 L.Ed.2d 813; Taylor v. United States, 8 Cir., 390 F.2d 278, 283(6), cert. den. 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137, and does not constitute entrapment as a matter of law.

Although appellant is not entitled to...

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