State v. Giddings

• Decision Date: 07 June 1960
• Docket Number: No. 6637,6637
• Citation: 67 N.M. 87,352 P.2d 1003,1960 NMSC 50
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Alex GIDDINGS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1003

352 P.2d 1003

67 N.M. 87

STATE of New Mexico, Plaintiff-Appellee, v. Alex GIDDINGS, Defendant-Appellant.

No. 6637.

Supreme Court of New Mexico.

June 7, 1960.

John Quinn, Hobbs, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Philip R. Ashby, Asst. Atty. Gen., B. J. Baggett, Asst. Atty. Gen., for appellee.

CHAVEZ, Justice.

Appellant, who will hereinafter be referred to as defendant, was convicted of unlawful possession of cannabis indica (marijuana), in violation of Sec. 54-7-13, N.M.S.A., 1953, and appeals.

Defendant raises three points upon which he relies for reversal, as follows: (1) That the court, in a possession of narcotics case, should instruct the jury that an essential element of proof on the part of the state is actual knowledge of the presence of the narcotic on the part of the defendant; (2) Insufficiency of the evidence; and (3) Claimed error by the trial court in the course of giving additional instructions to the jury.

The record shows that sometime after 12:00 o'clock midnight on the early morning of Sunday, March 1, 1959, while walking on one of the streets of Hobbs, New Mexico, defendant was stopped by a Hobbs city policeman who became suspicious because defendant's suit was dirty and because it was customary to stop all people out on the streets at that time of night. The policeman had defendant get into the police car and sit with him while he filled out an interrogation report. Defendant told the policeman that he had driven a car to the Frey Hotel and was walking back home. When the policeman started filling out the interrogation report defendant told him that he visited with the porter at the Frey Hotel, whereupon the policeman said that he would check on that. The defendant then changed his story and said that he hadn't been in the Frey Hotel and hadn't seen the porter. The policeman then asked defendant to get out of the car and to put everything in his pockets upon the hood of the automobile. When defendant was taking his coat off the policeman found that he had a pistol in his inside coat pocket. Defendant also had a wad of money, two billfolds, keys and 'stuff.' After this the policeman testified that he brushed through the defendant's clothes but could find nothing. The policeman then gathered up all of the items that had been in the defendant's pockets from the hood of the car, took them around to the other side of the car and placed them on the front seat. After arresting defendant, the policeman placed him in the police car. At that time defendant reached to open the door with two hands and the policeman saw cigarettes fall to the ground. The policeman backed up, got of his car and picked up three cigarettes which looked like 'roll your own' cigarettes, except they were a little thinner. The policeman then took defendant to the police station and turned the cigarettes over to Deputy Sheriff Bruce McCallum. The cigarettes were placed in an envelope, marked for identification, sealed and mailed to the Department of Public Safety in Austin, Texas, for analysis. The defendant denied that he dropped the cigarettes out of the car and denied any knowledge whatsoever of the cigarettes. A state witness, Mr. Leslie Smith, testified that he was an expert chemist for the Department of Public Safety in Texas and that the cigarettes which were sent to him by the Hobbs police department contained marijuana. The officers testified that defendant was not under the influence of narcotics and seemed perfectly normal when arrested.

Defendant's contention under point I is that actual knowledge of the presence of the narcotic on the part of the defendant is an essential ingredient of the offense of possession of narcotics, and that upon this point the jury went uninstructed. The defendant tendered and the court refused the following instruction:

'You are instructed that by the term 'Possession', as used in the Court's main charge, is meant the care, control, and management of the marijuana at the time and on the occasion in question, and the actual knowledge of the presence of the narcotic on the part of the defendant. If you believe that the defendant did not have the care, control, and management of the marijuana at the time and on the occasion in question or did not have actual knowledge of the presence of the narcotic, then you must find that he did not have possession of it as charged in the Information.'

The trial court did give this instruction:

'You are instructed that by the term 'Possession', as used in the Court's main charge, is meant the care, control, and management of the marijuana at the time and on the occasion in question. If you believe that the defendant did not have the care, control, and management of the marijuana at the time and on the occasion in question, then you must find that he did not have possession of it as charged in the Information.'

In California, where this particular question has been repeatedly before the courts, by a consistent long line of decisions, it is well established that in order to sustain a conviction of possession of narcotics, it must be shown that the defendant had either physical or constructive possession, coupled with the knowledge of the presence and narcotic character of the substance. People v. Gory, 28 Cal.2d 450, 170 P.2d 433; People v. Candiotto, 128 Cal.App.2d 347, 353, 275 P.2d 500; People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Rodriguez, 151 Cal.App.2d 598, 312 P.2d 272; People v. Toms, 163 Cal.App.2d 123, 329 P.2d 90; People v. Simpson, 170 Cal.App.2d 524, 339 P.2d 156.

In People v. Simpson, supra, one of the defendants contended that the court erred in failing to instruct the jury more fully on the law as to the required knowledge that the narcotic was in the automobile or under her control, citing People v. Gory, supra; People v. Foster, 115 Cal.App.2d 866, 253 P.2d 50. It was argued that the court failed to instruct that actual knowledge and possession are necessary for the offense and that mere presence is insufficient. The court did instruct the jury to the effect that [170 Cal.App.2d 524, 339 P.2d 161]:

'* * * a person is in possession of a narcotic when it is under his dominion and control and he knows that it is a narcotic, and knows that it either is carried on his person, or is in his presence and custody, or, if not on his person or in his presence, the possession thereof is immediate, accessible and exclusive to him, provided, however, that two or more persons may have joint possession of a narcotic if jointly and knowingly they have the dominion, control and exclusive possession I have described.'

The above instruction was approved by the appellate court.

It has also been held in California that to show such knowing possession the conduct and behavior of the parties, admissions or contradictory statements and explanations are frequently sufficient. People v. Foster, supra; People v. Brickman, 119 Cal.App.2d 253, 263, 259 P.2d 917. Furthermore, evidence of other acts of similar nature are admissible when not too remote in order to show guilty knowledge of the presence of narcotics by a defendant. People v. Torres, 98 Cal.App.2d 189, 192, 219 P.2d 480. Also, possession and knowledge that the object is a narcotic drug can be proven circumstantially. People v. Flores, 155 Cal.App.2d 347, 318 P.2d 65.

It should be observed that the New Mexico Statute, Sec. 54-7-13, and the California Statute, Sec. 11500, West's Annotated Health and Safety California Codes, in substance are similar. Sec. 54-7-13, N.M.S.A., 1953, provides:

'Whoever, not being a manufacturer, wholesaler, physician, veterinarian, dentist, nurse acting under the direction of a physician, or an employee of a hospital or laboratory acting under the direction of its superintendent or official in immediate charge, or a common carrier or messenger when transporting any drug mentioned herein between parties hereinbefore mentioned in the same package in which the drug was delivered to him for transportation, is found in possession thereof, except by reason of an order or prescription lawfully and properly issued shall be punished as hereinafter provided.'

Sec. 11500, West's Annotated California Codes, provides:

'Except as otherwise provided in this division, no person shall possess, transport, import into this State, sell, furnish, administer or give away, or offer to transport, import into this State, sell, furnish, administer, or give away, or attempt to import into this State or transport a narcotic except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in this State.'

The state of California in 1959 amended Sec. 11500 by providing a special article prohibiting the planting, cultivating, harvesting and possession of marijuana and providing punishment for a previous conviction (Sec. 11530, Pocket Parts, West's Annotated California Codes), and by providing in another section the prohibition as to possession of narcotics other than marijuana (Sec. 11500, Pocket Parts, West's Annotated California Codes). New Mexico also has a special section prohibiting the possession, planting, cultivation and production of cannabis indica (Sec. 54-5-14, N.M.S.A. 1953).

The rulings of the California courts that knowledge is an element of the offense of possession remains as stated by the cases cited.

In State v. Nicolosi, 228 La. 65, 81 So.2d 771, 773, the court stated the rule as follows:

'Possession without knowledge of such possession is not possession in the legal sense of that word. See 33 Words and Phrases, Possession, pp. 73, 88. Knowledge is therefore an essential ingredient of the crime of possession of narcotics, and consequently the ruling of the trial judge was correct under Article 446 of the Code of Criminal Procedure, which reads:

"When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the...