State v. Dwyer

• Decision Date: 26 November 1969
• Docket Number: Cr. N
• Citation: 172 N.W.2d 591
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Richard DWYER, Defendant and Appellant. o. 388.
• Court: North Dakota Supreme Court

Page 591

172 N.W.2d 591

STATE of North Dakota, Plaintiff and Respondent, v. Richard DWYER, Defendant and Appellant.

Cr. No. 388.

Supreme Court of North Dakota.

Nov. 26, 1969.

Syllabus by the Court

1. The word 'sale' as used in Chapter 19--03 of the North Dakota Century Code is broader in scope than the definition usually given to it in other branches of the law. For reasons stated in the opinion, the transfer of marijuana and money between the defendant and another constituted a sale by the defendant to another as comprehended by and within the prohibitions of Chapter 19--03 of the North Dakota Century Code.

2. Where there is a sale of marijuana, the purchaser cannot be charged with the identical offense with which the seller is charged. The purchaser may be charged with illegal possession, but not with an illegal sale, both of which are separate offenses; therefore, the purchaser is not an accomplice of the seller.

3. Where the trial court determined that a purchaser of marijuana was not an accomplice of the seller, it did not err in refusing to submit defendant's requested instruction to the jury on the law concerning an accomplice and on the statutory law which requires corroboration of the testimony of an accomplice to support a conviction.

4. This court will not substitute its opinion for the verdict of the jury, nor can it find that the trial court abused its discretion in sustaining the jury's verdict of guilty in this case where the jury could reasonably have found from the evidence that there was a sale of marijuana by the defendant to another.

5. Whether leading questions shall be permitted or not is very largely discretionary with the trial court, and its rulings in that respect will not be disturbed unless it is apparent from the record that the discretion was abused to the prejudice of the defendant.

Edward J. Murphy, Fargo, for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, Thomas L. Burgum, State's Atty., and David E. Nething, Sp. Asst. State's Atty., Jamestown, for plaintiff and respondent.

PAULSON, Judge.

This is an appeal by Richard Dwyer from the judgment of conviction entered against him on March 31, 1969, in the District Court of Stutsman County, North Dakota.

Richard Dwyer was tried by a Stutsman County jury. The criminal information alleged that Richard Dwyer sold to Gregory Waxler a narcotic drug, namely, marijuana, in violation of Chapter 19--03 of the North Dakota Century Code. Two witnesses testified for the State, Gregory Waxler and Ardel Wolff, a detective with the Jamestown Police Department. Gregory Waxler testified that he purchased marijuana from Richard Dwyer for about $50.00. Ardel Wolff testified that he received the marijuana from Waxler and that it was the same marijuana which was introduced into evidence. The State rested and Dwyer did not take the witness stand, nor did he have any witness testify in his behalf. The case was submitted to the jury, which returned a verdict on March 25, 1969.

Dwyer, through his attorney, made a motion for a new trial on the sole ground that the verdict of the jury was contrary to law and clearly against the evidence. This motion was denied by the district court.

Richard Dwyer appeals to this court from the judgment of conviction, and asserts as error the following:

1. The verdict of the jury is contrary to law and clearly against the evidence.

2. The trial court erred in refusing to instruct the jury as to defendant's Requested Instruction Number One.

3. The evidence was insufficient in the following particulars, to wit:

A. The testimony of Gregory Waxler was wholly uncorroborated as required by law in the case of an accomplice.

4. There were manifest errors of law occurring at the trial which were duly excepted to or specified herein.

Dwyer, for one of his specifications of error, urges that the verdict was contrary to law and clearly against the evidence. One of Dwyer's contentions is that the transfer of marijuana did not constitute a sale. In support of this contention, Dwyer specifically refers to the testimony of Gregory Waxler, which testimony is as follows:

(Cross-examination of Gregory Waxler by Mr. Murphy)

'Q Let me ask you this question: Did you and the defendant at any time discuss the purchase and sale of marijuana?

'A Yes.

'Q And did you at that time--would it be safe to say you decided between the two of you to purchase and sell marijuana?

'A Yes.

'Q And as an outgrowth of that agreement would you say then that you and the defendant did purchase the very marijuana we are talking about today?

'A I think so.

'Q In fact, you know definitely that that is correct, do you not?

'A That what is correct?

'Q That you and the defendant, it would be safe to say, you agreed to buy and sell this marijuana and that is the same marijuana we are talking about today?

'A Yes.'

(Recross-examination)

'Q Let me ask you this: This money you allegedly paid over to the defendant, Richard Dwyer, that was part of an agreement that you and he had, would that be safe to say, this is part of your payment towards the purchase of this marijuana?

'A What?

'Q That this was part of the agreement between you and Richard Dwyer--would it be safe to say that this money was part of your share of the general scheme and plan to purchase marijuana and resell it?

'A Yes, I think you could say that.'

Dwyer contends that this testimony establishes a general scheme by Waxler and himself to purchase marijuana from a third person for the purpose of resale to other individuals, and, the plan being a joint effort, the money paid by Waxler to Dwyer represented Waxler's contribution to the plan for the purchase of his proportionate share of a certain amount of marijuana. Dwyer therefore argues that, since there was no sale, he could not as a matter of law be guilty of the crime of sale of a narcotic drug.

The information charges Dwyer with the sale of a narcotic drug to Gregory Waxler in violation of Chapter 19--03 of the North Dakota Century Code. The propriety of Dwyer's conviction hinges on the word 'sale' as used in the wording of the statute and as alleged in the criminal information. The word 'sale' has been defined by our Legislature to include '* * * barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee'. § 19--03--01(9), N.D.C.C. The same definition is set forth verbatim in the Uniform Narcotic Drug Act. 9B U.L.A. § 1(10), p. 416.

This court has not previously interpreted the legislative definition of 'sale' as employed in § 19--03--01(9), N.D.C.C. We are not, however, without precedent. The States of Illinois and New Jersey both have adopted the Uniform Narcotic Drug Act. The Supreme Court of Illinois, in People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578, 580 (1959), in construing a similar statute, said:

'We interpret the meaning of the word 'sale,' as defined by the act, to be much broader in scope than that usually given to it in other branches of the law. Admittedly, the defendant took the role of at least an agent, and the act specifically declares an agent in a nacotics transaction to be a seller. We are of the opinion that the definition shows a legislative intent that the act of a person wether as agent, either for the seller or the purchaser, or as a go-between, in such a transaction constitutes a sale.'

The Superior Court of New Jersey, in State v. Weissman, 73 N.J.Super. 274, 179 A.2d 748, 753 (1962), held:

'Under the circumstances of such unlawful episodes, it is immaterial whether Green be characterized as a 'buyer,' a 'purchaser,' or an 'agent'--she was a recipient of marijuana, and money therefor was passed by her to the party from whom she acquired the illegal drug. We hold, as did the Illinois Supreme Court, that the word 'sale' as defined in the Uniform Narcotic Drug Law is broader in scope than the definition usually given to it in other branches of the law, and that the passing of illicit merchandise and money, between the defendant and Green, constituted a sale as comprehended by and within the prohibitions of our narcotic drug laws.'

In the instant case, Richard Dwyer might be either an agent of a seller or an agent of Waxler. Dwyer submits that the transaction was a joint scheme or plan by Waxler and himself, and that, accordingly, Dwyer should still be considered as an agent of Waxler. However, in this case, it is not material whether Dwyer was Waxler's agent either under the doctrine of a principal-agent relationship or as an agent for both of them at the time he purchased the marijuana from a third person. Black's Law Dictionary (4th ed. 1957) defines an 'agent' as 'A person authorized by another to act for him, one intrusted with another's business'; or as 'One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it.' See § 3--01-01, N.D.C.C.; 3 Am.Jur.2d Agency § 1, p. 419; and 2 C.J.S. Agency § 1a(1), p. 1023. therefore, following the expanded scope of the definition of the word 'sale' as used in § 19--03--01(9), N.D.C.C., as...