State v. Dixon

• Decision Date: 31 January 1977
• Docket Number: No. 28419,28419
• Citation: 546 S.W.2d 774
• Parties: STATE of Missouri, Respondent, v. James Douglas DIXON, Appellant.
• Court: Missouri Court of Appeals

Page 774

546 S.W.2d 774

STATE of Missouri, Respondent, v. James Douglas DIXON, Appellant.

No. 28419.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

R. M. Gifford, Green City, for appellant; Gifford & Gifford, Green City of Counsel.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., PRITCHARD, C.J., and DIXON, J PRITCHARD, Chief Judge.

In a trial to the court, appellant was found guilty of the sale of marihuana, and was sentenced to five years imprisonment in the Department of Corrections.

Appellant makes three contentions for reversal. The first point is that the court erred in refusing to 'quash' the indictment because it failed to specify the nature of the controlled substance allegedly sold, and failed to negative the exceptions to the definition of marijuana contained in § 195.010(20), RSMo Supp., 1975, thus placing an unconstitutional burden of proof on appellant under § 195.180.

The relevant portion of the indictment alleged that appellant 'did willfully, unlawfully and feloniously sell a certain controlled substance, to-wit: Marijuana, botanically known as Cannabis Sativa L * * *.' § 195.010(20), RSMo Supp.1975, defines marihuana as '* * * all parts of the plant genus Cannabis in any species or form thereof, including, but not limited to Cannabis Sativa L. * * * It does not include the mature stalks of the plant, fiber produced from stalks (except the resin extracted therefrom), fiber, oil or cake, or the pound, manufacture, salt, derivative, mixture or preparation of the mature stalks * * *.' (Italics, supra, added.) § 195.020, under which appellant was charged, provides that 'It is unlawful for any person to * * * sell, * * * any controlled or counterfeit substance except as authorized in Section 195.010 to 195.320 * * *.' § 195.180 provides, 'In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.' The issue of the specificity of the allegation as to what portions or derivatives of the plant were sold was ruled in State v. Page, 395 S.W.2d 146, 148(2) (Mo.1965), where it was held that the challenge to the indictment was without merit. § 195.180 was noted as authorizing the indictment to be in the language used. Besides, the exceptions to the definition of marihuana in § 195.010(20), supra, are contained in a separate sentence, and in that circumstance, State v. Bridges, 412 S.W.2d 455, 457 (Mo.1967), controls. It was there said that where exceptions are not a part of the statutory definition of the crime (e.g., here possession, sale, etc. of the stalks, fibers, etc., are not crimes), but are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead or prove them, and that the exceptions are purely matters of affirmative defense. See also State v. Collins, 394 S.W.2d 368, 371(5) (Mo.1965), holding that a federal judgment of conviction for possession and sale of heroin was admissible as a prior felony conviction for Second Offender purposes despite its failure to contain specific negation of the state narcotic exemption statutes, § 195.020, et seq.

In this case Chemist Durham testified that the green plant material in evidence was marihuana. The terms 'cannabis' and 'marihuana' are synonymous. State v. Simpson, 534 S.W.2d 568, 570 (Mo.App.1976). The state further proved that the green plant material was not mature stalks or other material not defined as marihuana, and appellant stipulated twice at trial, that it was a controlled substance. The state, perhaps unnecessarily, shouldered the burden of proof as to the exceptions to the definitions of marihuana not being in the case. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), cited by appellant, held merely that the reasonable doubt standard of criminal law applies to juvenile proceedings as a matter of constitutional due process of law. Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), held that a Maine rule placing the burden of proof upon a defendant to prove he acted in heat of passion on sudden provocation did not comport with the requirement of the due process clause of the fourteenth amendment that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. As above construed, the indictment specified the elements of the crime charged, it not being necessary to negative the separately enumerated exceptions. No unconstitutional shifting of the burden of proof is here involved. Point I is overruled.

Appellant's second point is a composite of three contentions for reversal. The first is that the trial court erred in overruling the motion for new trial because the verdict was against the weight of the evidence. This contention need not be noticed other than to say that in a court-tried case under Rule 26.01, the findings of the court shall have the same force and effect of a verdict of a jury, and review shall be in the same manner as though a verdict of guilty had been returned by a jury. State v. Haislip, 411 S.W.2d 81 (Mo.1967). See State v. Simmons, 494 S.W.2d 302, 303(2) (Mo.1973), holding that the weight of the evidence in either a court or a jury tried (criminal) case is not reviewable by an appellate court.

The second contention of Point II is that the state failed to show a sale of the controlled substance. Appellant seems to base...