State v. Napolis, 53600

• Decision Date: 10 February 1969
• Docket Number: No. 2,No. 53600,53600,2
• Citation: 436 S.W.2d 645
• Parties: STATE of Missouri, Respondent, v. Lincoln Namolokama NAPOLIS, Appellant
• Court: Missouri Supreme Court

Page 645

436 S.W.2d 645

STATE of Missouri, Respondent, v. Lincoln Namolokama NAPOLIS, Appellant.

No. 53600.

Supreme Court of Missouri, Division No. 2.

Feb. 10, 1969.

Bernard W. Weitzman, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, James T. O'Brien, Asst. Atty. Gen., St. Louis, for respondent.

FINCH, Presiding Judge.

Defendant was prosecuted under the Second Offender Act for selling 65 milligrams of Dextro Amphetamine Hydrochloride, a stimulant drug, in violation of § 195.240 (all references are to RSMo 1959, V.A.M.S.). Following conviction by a jury plus a finding of prior convictions by the trial court, defendant was sentenced to imprisonment for six years and he appeals. We affirm.

The evidence introduced by the State, considered in the light most favorable to the verdict, will support the following recital of facts: On April 24, 1967, Donald Ivy, a paid informer, told Willard Rutledge, an agent with the U.S. Bureau of Drug Abuse Control, that defendant was selling amphetamine powder. At about 11:30 p.m. that night Rutledge and Ivy went to the rear of an apartment building located at 3925 N. 21st Street in the City of St. Louis. They stepped up on a porch to knock and an unknown male leaned over an upstairs balcony and asked who they were and what they wanted. The two men identified themselves as Don Ivy and Will and said they wanted to see Chico, a name by which the defendant was known. The man disappeared from the balcony and a moment or so later an unknown woman opened the door and they followed her upstairs to the third floor. There the woman took them into an apartment where they found defendant asleep on a couch. The woman awakened defendant. Ivy then told him that his companion wanted to buy some 'splash' and asked if he had any. Defendant replied that he had one bag left. He then removed a cigarette package from a nearby table, removed a tinfoil package from it and handed the latter package to Ivy, who, in turn, handed it to Rutledge. Defendant was asked how much he wanted for it and he replied $5.00, which amount Rutledge then paid him. Rutledge started to put the tinfoil package in his shirt pocket but defendant told him to put it in his cigarette package instead because then if he was stopped by the police and searched they wouldn't find the package. Ivy and Rutledge then departed after having been in the apartment for some five to ten minutes.

The folded tinfoil package contained a quantity of white powder. Rutledge retained it until he took it on April 26 to the Food and Drug Administration Laboratory at 12th and Market in St. Louis where a chemist analyzed the contents of the tinfoil package. He testified at the trial that it consisted of 65 milligrams of Dextro Amphetamine Hydrochloride.

Defendant was arrested in a restaurant at about 12:05 a.m. on May 10, 1967, on account of the sale on April 24, 1967. Before the arrest was made, another Federal Agent talked to defendant in the restaurant and tried to set up another purchase but was unsuccessful.

After testifying about the facts concerning the purchase from the defendant, Rutledge testified that he had used Don Ivy as an informer on other occasions both before and after the purchase from the defendant and that his personal experience had been that Ivy's information had been reliable. it was developed that Ivy was in the penitentiary at the time of this trial and he was not produced or used as a witness.

The State offered in evidence a certificate from James C. Kirkpatrick, Secretary of the State of Missouri, which contained a list of the stimulant drugs filed in his office on May 2, 1966, by the Division of Health of the Department of Public Health and Welfare of the State of Missouri. It included Dextro Amphetamine Hydrochloride.

Defendant offered no evidence.

An examination of § 195.240, the statute under which the defendant was prosecuted, discloses that it provides simply that the possession, sale, distribution, or transfer of any drug designated as a barbiturate or stimulant by the division of health is unlawful, except when such act is by specified persons in the usual course of business or practice, or in the performance of official duties. Knowledge that the drug is a barbiturate or stimulant is not specified as an element of the offense by the language of the statute. Consequently, it was not necessary for the information against defendant to allege knowledge or criminal intent if the State has the right to prohibit such possession, sale, distribution, or transfer of barbiturates and stimulant drugs other than in specified instances.

In State v. Page, Mo., 395 S.W.2d 146, this court considered a similar attack on an information based on § 195.020, which relates to narcotic drugs. That section contains no requirement of knowledge or criminal intent as a part of the crime. In upholding the statute and the information thereunder, this court said, 395 S.W.2d l.c. 149: 'We find it difficult to conceive of any offense which so adversely affects public welfare and interest as the wrongful sale of narcotic drugs. This unquestionably justifies a State, in the exercise of its police power, to prohibit all sales thereof, except as specifically authorized, and to place on all persons the responsibility to see that they do not sell narcotic drugs unlawfully.' The opinion then holds that the language of § 195.020 disclosed an intention by the legislature to make such sales criminal offenses without requiring proof of knowledge or criminal intent.

We hold that the State has the same right, in the exercise of its police power, to prohibit possession, sale, distribution, or transfer of barbiturates and stimulant drugs except as specifically authorized in the statute, and that it is not necessary that the legislature make knowledge or criminal intent an element of the offense. We find further that the language of § 195.240 indicates a legislative intent not to require such knowledge or criminal intent.

Defendant cites State v. McLarty, Mo., 414 S.W.2d 315, and State v. Darabcsek, Mo., 412 S.W.2d 97, but neither case supports his position with reference to the information herein. McLarty involved the offense of tampering with an automobile. The majority opinion held that criminal intent was an essential element of that offense, but recognized the rule that whether criminal intent or knowledge is an element of a statutory crime depends on whether it is made so by the legislature. Darabcsek involved the possession of amphetamine sulphate pills. It was a prosecution under § 195.240, the section under which defendant herein is prosecuted. Darabcsek raised the point that the State had failed to prove that he knowingly or wilfully had the drug in his possession. Judge Eager's opinion points out, 412 S.W.2d l.c. 103, that 'The statute, Section 195.240, requires no specific intent * * *.' He then went on to demonstrate that even assuming that possession of the drug must be with knowledge, the evidence was sufficient in that case to show knowledge on the part of Darabcsek. The case of Pena-Cabanillas v. United States, 9 Cir., 394 F.2d 785, cited by defendant, also recognizes that whether criminal intent or knowledge is made an element of an offense is a question of legislative intent.

Defendant's brief asserts also that failure to require proof of...