State v. Odom, 48929
| Decision Date | 12 February 1962 |
| Docket Number | No. 48929,No. 1,48929,1 |
| Parties | STATE of Missouri, Respondent, v. Frank ODOM, Appellant |
| Court | Missouri Supreme Court |
J. K. Owens, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., Edward A. Glenn, Sp. Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant was charged with the unlawful sale of narcotics, i. e., 'one capsule containing approximately one grain of heroin, a derivative of opium.' See Section 195.020, RSMo 1959, V.A.M.S., and Section 195.200, Laws of Missouri 1959, S.B. No. 240. The amended information also charged prior felony convictions. The trial court heard evidence outside the presence of the jury and found that defendant had been priorly convicted of the said felonies as charged. The trial resulted in a verdict of guilty and the court fixed the punishment of the defendant at imprisonment in the penitentiary for a term of 15 years. Section 556.280(1), RSMo 1959, V.A.M.S. Defendant has duly appealed from the ensuing judgment and sentence.
The main witness for the State was Melvin Hogan. He admittedly was once a user of narcotics and was convicted for the use thereof in the federal court in 1949 and sentenced to two years' imprisonment. Captain Flavin of the Kansas City Police Department aided in getting Hogan a parole after he had served nine months and since that time Hogan has helped the police department from time to time in apprehending persons selling narcotics. Hogan testified that he was acquainted with the defendant; that he saw him on Twelfth Street on November 11, 1960, at which time defendant asked if he wanted to buy some heroin; that he told defendant he did but would have to go to the pawn shop to get some money; that he then went to a nearby drugstore and called Captain Flavin who sent Sergeant Hitchcock to meet him; that Sergeant Hitchcock searched him and then gave him a five dollar bill; that he gave a receipt therefor which had on it the serial number of the bill; that he then went into a building on Twelfth Street where he met the defendant and they went into a lavatory together where defendant pulled out 'a little green gum package' and emptied the contents, three or four red capsules, into his hand; that he kept one of the capsules and put the others back in the gum wrapper and defendant put them in his pocket; that he gave defendant the five dollar bill he had obtained from Sergeant Hitchcock and then left the building; that he met Sergeant Hitchcock on Twelfth Street and gave him the capsule, and then went to police headquarters.
Sergeant Hitchcock testified concerning the fact that he met Melvin Hogan and gave him the five dollar bill and received the red capsule from him. He further testified that he then parked his car near the building that Hogan had recently come out of, and within a few minutes the defendant came out of that building and started to walk east on Twelfth Street; that he, Hitchcock, immediately approached the defendant and said, 'Frank, you are under arrest'; that defendant was carrying a light topcoat and 'threw this coat up to shield his face, and immediately threw something in his mouth'; that defendant resisted arrest and appeared to be trying to swallow something and continued to chew rapidly; that at that time patrolman Jenkins came to his assistance and they were able to handcuff the defendant; that he reached into defendant's pocket and pulled out a roll of bills and then took defendant to Captain Flavin's office at police headquarters; that an examination of the receipt and a five dollar bill taken from defendant indicated, from the serial number, that the bill was the one previously given to Hogan; that Captain Flavin asked defendant, 'What in the world are you trying to do now? He says, 'Well, Mr. Flavin, I'm selling. I'm selling this to support my own habit.'' The witness then informed the captain that defendant had gulped something at the time of his arrest and Captain Flavin told him to take defendant to the hospital immediately and have his stomach pumped because if he had swallowed too much dope it might kill him.
James Furlong testified that he was a chemist for the Kansas City Police Department and that Sergeant Hitchcock, on November 12, 1960, had delivered to him an envelope containing a red capsule with the request that he analyze and determine the identity of the white powder therein; that the envelope had the following information thereon: 'Frank Odom, 1512 Olive; 1 cap. of heroin, purchased 11-11-60 by Melvin Hogan, $5.00; money recovered.' He stated that he analyzed the white powder and found that it was heroin, a derivative of opium.
The State then closed its case in chief and the only evidence offered by defendant was his own testimony. Defendant denied the charge and stated that Hogan had given him the $5 as a payment upon a loan of $10 he had made to him about two years before. He stated that in 1958 Hogan had become angry during an argument over a girl and had threatened him. Defendant also testified that he had been taken to the hospital and strapped to a table where hospital employees, under the supervision of Sergeant Hitchcock, had pumped his stomach and had given him some medicine. He then testified as follows:
In rebuttal the State offered the testimony of Dr. Boydston who related that they had attempted to pump defendant's stomach but were not completely successful so they gave him a 'shot' which would cause vomiting; defendant did vomit and they placed the stomach contents in a small jar. The State thereafter offered witnesses who accounted for possession of the jar containing the contents of defendant's stomach obtained on that occasion and showed that this jar was delivered to Mr. Furlong, the police department chemist. Mr. Furlong testified that he had run an analysis on the contents of the jar and found therein traces of heroin, and that it also contained a reddish gelatine-like substance which could have been the remainder of a capsule that dissolved in the stomach.
Defendant has not filed a brief in this court so we will consider the assignments in his motion for new trial.
Assignments 1 and 2 question the sufficiency of the evidence to support the verdict. These assignments are without merit. A review of the statement of facts herein clearly shows that there was ample evidence to support the submission of this case to the jury. See State v. McIntosh, Mo.Sup., 333 S.W.2d 51.
The fourth assignment asserts that the State failed to prove the charge 'beyond a reasonable doubt.' It is not our province to determine that question. That is an issue for the jury under proper instructions. We are of the opinion, as heretofore indicated, that there was substantial...
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State v. Hall
...asserts that it was properly admitted under the doctrine of 'curative admissibility' and relies principally upon the case of State v. Odom, 353 S.W.2d 708 (Mo.1962) to support its position. The doctrine of 'curative admissibility' is a rule of evidence which we would be extremely reluctant ......
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