State v. Lockhart, 57380
| Decision Date | 12 November 1973 |
| Docket Number | No. 1,No. 57380,57380,1 |
| Citation | 501 S.W.2d 163 |
| Parties | STATE of Missouri, Respondent, v. William LOCKHART, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Edmund W. Albright, St. Louis, for appellant.
WELBORN, Commissioner.
Appeal from judgment of conviction on jury verdict and 5-year sentence, under Second Offender Act, for possession of apparatus for unauthorized use of narcotic drugs. § 195.020, RSMo 1969, V.A.M.S.
On November 24, 1970, four St. Louis detectives went to his place of residence to arrest William Lockhart on a charge of illegal sale of narcotics. As they approached the residence, they looked through a window and saw Lockhart, standing near a dresser and talking on the telephone. Lockhart answered the door in response to the officers' knock and was informed that he was under arrest for illegal sale of narcotics. The officers entered the residence and saw on the dresser a plastic bag which contained a hypodermic syringe and needle, three eyedroppers with hypodermic needles in them, three bottle caps and a small ball of cotton. In response to a question by one of the officers, Lockhart stated that the items were his. He was placed under arrest for the possession of narcotics paraphernalia.
At his trial, the officers testified to the seizure of the paraphernalia and how the items were adapted for the unlawful use of narcotic drugs. A police laboratory technician testified that a residue in two of the bottle caps was found to contain heroin. No evidence was offered by the defendant. A verdict of guilty was returned by the jury and, after a finding of a prior felony conviction, the court sentenced Lockhart to five years' imprisonment.
The first contention on this appeal is that the trial court should have sustained defendant's motion for a directed verdict of acquittal because the evidence failed to show that the items seized and placed in evidence were in the sole custody of the appellant. This contention is premised upon evidence of the presence of another person in the kitchen of the two-room residential quarters at which the seizure and arrest occurred.
State v. Worley, 375 S.W.2d 44 (Mo.1964), relied upon by appellant, is of no assistance to him. That case dealt with elements of constructive possession which will support a charge of illegal possession of narcotic drugs. That case held that the proximity to the substance of the person who acknowledges its ownership will permit a finding of possession which will support the charge of illegal possession. Here the objects were on the dresser near which defendant was seen talking on the telephone and he acknowledged that they were his.
The other person in the kitchen area was not seen near the items and defendant's cross-examination of one of the police officers by defense counsel brought out that the other person denied that the items were his.
The circumstances were sufficient to support the charge of illegal possession of the items seized. State v. Worley, supra; State v. Norris, 460 S.W.2d 672 (Mo. banc 1970).
Appellant argues that the principal instruction given by the court was insufficient because it failed to require the jury to find that the defendant was solely possessed of the illegal articles involved. Again the sole reliance of appellant on this point is State v. Worley, supra, which does not consider the proposition for which it is here cited. The appellant's argument also ignores the terms of the instruction which defines 'possession' as 'the act of having the control of and exercising such control and dominion over an article or object to the exclusion of others * * *.' (Emphasis ours.) Appellant has not demonstrated that the instruction was erroneous.
Appellant complains of the court's permitting an amended information to be filed on the day that trial commenced and in failing to grant a continuance on the grounds of surprise to the defendant caused by the amendment. The original information charged the possession of apparatus 'for the unauthorized use of narcotic drugs, to-wit: two bottle caps, containing a residue of HEROIN; * * *.' The amended information alleged a prior felony conviction for robbery in Illinois and changed the specification of the apparatus possessed by defendant to read: 'three eyedroppers with black rubber bulbs, each with hypodermic needles attached, three burnt bottle caps (cookers) with a small ball of cotton and residue, and one hypodermic syringe * * *.' This amendment was permitted over objection of defense counsel to its timeliness and an oral request for a continuance on the grounds of surprise was overruled.
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State v. Drake
...there was no showing of any prejudice to defendant or abuse of discretion of the trial court in allowing the amendment. State v. Lockhart, 501 S.W.2d 163 (Mo.1973). The judgment is SMITH, P.J., concurs. McMILLIAN, J., dissents. McMILLIAN, Judge. I respectfully dissent. It is my firm opinion......
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State v. Cline, No. 73162
...over 10 years, also entitled the jury to find the defendant was aware of the nature of the methamphetamine in question. State v. Lockhart, 501 S.W.2d 163 (Mo.1973); Barber, 635 S.W.2d 342; State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977); State v. Pacchetti, 729 S.W.2d 621 II. 1 Appellant con......
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State v. Rivers, 38205
...for the unauthorized use of any controlled substance."2 See, e. g., State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Lockhart, 501 S.W.2d 163 (Mo.1973); State v. Scarlett, 486 S.W.2d 409 (Mo.1972); State v. Virdure, 371 S.W.2d 196 (Mo.1963); State v. Zimpher, 552 S.W.2d 345 (Mo.App.......
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State v. Pacchetti
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