State v. Osburn

• Decision Date: 20 January 1973
• Docket Number: No. 46878,46878
• Citation: 211 Kan. 248,505 P.2d 742
• Parties: STATE of Kansas, Appellee, v. Carl Dean OSBURN, Appellant.
• Court: Kansas Supreme Court

Page 742

505 P.2d 742

211 Kan. 248

STATE of Kansas, Appellee, v. Carl Dean OSBURN, Appellant.

No. 46878.

Supreme Court of Kansas.

Jan. 20, 1973.

Syllabus by the Court

1. Where possession of a substance, such as a narcotic, is unlawful a procuring agent for a purchaser may be convicted of unlawful possession thereof; but if he is an agent for a purchaser, and not for the seller, he is not guilty of an unlawful sale in procuring the unlawful substance.

2. In a prosecution for the unlawful sale of a narcotic when the defense of 'procuring agent' is properly raised the decision as to whether the accused merely acted as a procuring agent of the buyer or was a seller of the narcotic to the buyer is a question of fact for the jury to determine from the evidence.

3. When the procuring agent theory has been properly raised by the evidence and a request for an instruction has been made by the accused a jury should be instructed that should the jury find the defendant merely acted as a procuring agent for the purchaser and not for or as the seller of the drugs the jury should find the defendant not guilty of selling the drugs.

4. The Kansas Code of Criminal Procedure makes no provision for submitting special questions to the jury and in view of the apparent differences in our civil and criminal statutes relating to verdicts it is apparent the legislature intended to preserve the time honored power of a jury to return a verdict in a criminal prosecution in the teeth of the law and the facts.

5. Special questions may not be submitted to the jury for answer in a criminal prosecution.

6. The record on appeal in a prosecution for unlawful sale of narcotics is examined and it is held, (1) the trial court erred in refusing to instruct the jury on the procuring agent theory of the defense, (2) various other claimed errors are examined and no error is found, and (3) the case is remanded for a new trial on both counts in the information.

Scott E. Jarvis, Topeka, argued the cause and was on the brief for appellant.

Gene M. Olander, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice:

Carl Dean Osburn was convicted and now appeals from two narcotic charges. In count one he was charged with the unlawful sale of heroin under K.S.A. 65-2502 and in count two he was charged with conspiracy to unlawfully sell cocaine as such a charge is authorized by K.S.A. 1970 Supp. 21-3302. Osburn was sentenced to a term of three to ten years upon count one and to a term of one to five years upon count two, the terms to run concurrently.

Appellant Osburn does not deny his participation in the events which gave rise to the charges but he contends his conduct did not constitute a sale or a conspiracy to sell. He argues that he was a mere middleman or a procuring agent acting on behalf of the purchasers and that he did not sell or conspire to sell the drugs. It should be noted he was not charged and tried for possession of the drugs. There was no essential dispute in the testimony at the trial. The state's principal witness, Richard Jones, was a part-time reserve policeman. He was an undercover agent for the Topeka Police Department, assigned to the vice squad. On this particular case he worked with a police informant, Dan Biddle.

The circumstances which gave rise to count one arose in this fashion. On the evening of December 24, 1970, Jones and Biddle were sent to 1526 Harrison Street in Topeka with instructions to attempt a purchase of heroin. Upon their arrival at that address they asked Frank Fitzgibbons if he knew where they could buy some heroin. Fitzgibbons made a phone call and directed Jones and Biddle to 1222 Long Street. Upon arriving at that address, Jones and Biddle were met by the appellant who opened the conversation by asking, 'You came after the heroin?' Jones replied that they had. Appellant asked how much they wanted and was told they wanted 'two fixes'. Appellant informed them it would be cheaper if they bought a 'spoon'. Jones insisted on only 'two fixes'. Appellant then asked for $20, and for the favor of going and getting the heroin he requested an additional $4 so he could get some for himself. Appellant was a heroin addict. Appellant told Jones and Biddle he had to have the cash in advance to pay for the heroin.

Appellant advised Jones and Biddle that he had to go across town to pick up the stuff. He took the $24, left and returned in half an hour with a substance folded in white paper, which proved to be heroin. It was handed to Jones. Thereupon the appellant produced four other pieces of folded paper from his wallet and asked Jones and Biddle if they would stay and help him 'shoot his heroin up.' After this was accomplished with a syringe and needle, Jones and Biddle left with their packet of heroin which was produced at the trial.

The charge in count two arose from these subsequent circumstances. Six days later Jones and Biddle, although unannounced, returned to 1222 Long Street in an attempt to purchase more hereon. They were met at the front door by appellant who let them in and led them to his basement bedroom. Appellant then asked Jones and Biddle if they were back for some more heroin. On being advised in the affirmative, appellant again asked how much they wanted and was told 'two fixes'. Appellant advised them he could get some heroin from a person known as Rick. He then made a telephone call. Thereafter he advised Jones and Biddle that Rick would not sell him the heroin but if they would come back the following afternoon he could get some. The three men talked for a while and then the telephone rang. Appellant left to answer the phone and after some conversation returned with the news that Rick would sell some cocaine and would be by in half an hour to deliver it. Appellant asked for and received $24 and went upstairs to wait for Rick. He came back to put his syringe and needle on to boil and left once more. He returned carrying a police 'walkie-talkie' which had been previously kept hidden in the Jones car. Jones retrieved his 'walkie-talkie' from the appellant and was told he had better leave. He did so and charges were thereafter filed against the appellant.

Appellant testified at the trial in his own behalf. He was 19 years old, had finished the eighth grade in school, was married but separated from his wife and daughter. He was living in the home of his parents. He had been asked to procure drugs for Biddle a number of times before but had not met Jones prior to December 24. Appellant's story was substantially the same as that told by Jones, except he testified that he was talked into buying the drugs by the two men. He further testified he took the money from Jones only to procure the drugs which he bought from Rick.

The foregoing lengthy factual background is necessary to consider the appellant's points of error raised on appeal.

Appellant's first point is that the two motions for acquittal, one at the conclusion of the state's case and one at the conclusion of all the evidence, should have been granted since the undisputed facts conclusively showed appellant was merely a procuring agent for the two purchasers, Jones and Biddle.

The procuring agent defense is recognized in a number of Kansas cases decided at a time when the sale of intoxicating liquor was unlawful but possession of liquor was lawful. (See State v. Cullins, 53 Kan. 100, 36 P. 56, 24 L.R.A. 212; State v. Turner, 83 Kan. 183, 109 P. 983, and City of Iola v. Lederer, 86 Kan. 347, 120 P. 354.) We find no Kansas cases, and appellant cites none, in which the procuring agent defense has been raised when the charge has been the unlawful sale of narcotics.

In State v. Turner, supra, this court reversed the conviction of Turner on a charge of unlawful sale of intoxicating liquor. The evidence in that case established that Turner at the request of two other individuals took money tendered by them and procured the liquor from a local proprietor or 'bootlegger'. This court held the defendant was entitled to have his theory of defense submitted to the jury. Paragraph two of the syllabus reads:

'In a prosecution for a violation of the Prohibitory Law, where the defense is that the defendant purchased the liquor for others, who advanced him the money for that purpose, and that he merely acted as their agent, it is error for the court to refuse to give an instruction to find the defendant not guilty, if the jury believed the evidence offered in support of such defense.'

In Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877, in an opinion upholding the private club act, the procuring agent concept was recognized as the cornerstone which supports the constitutionality of the act. At page 757 of the opinion, 408 P.2d at page 885 it is said:

'. . . The general rule is that where a liquor pool is maintained as provided in the Act, the agent designated by the class A club is the agent for the member in procuring the alcoholic liquor from the licensed retail dealer. In such a situation, the agent has no personal interest in the transaction and never becomes the owner of the alcoholic liquor, and is, therefore, incapable of selling it; the sale of alcoholic liquor is to the club member who is the principal. The agent acts as an intermediary for the member and not the seller. . . .'

There appears no valid basis for a distinction between the elements of a sale of liquor and of a sale of a narcotic when in either event a conviction must be based upon proof of the unlawful sale of a substance. If under all the facts a jury finds a defendant merely acted as a procuring agent for a purchaser it would logically follow he did not sell. The unlawful sale in such a case takes place between the seller and the agent's principal. Where possession of a substance, such as a narcotic, is unlawful a procuring agent for a purchaser may be convicted of unlawful possession thereof;...