State v. Page

• Decision Date: 08 November 1965
• Docket Number: No. 51491,No. 2,51491,2
• Citation: 395 S.W.2d 146
• Parties: STATE of Missouri, Respondent, v. Rudy PAGE, Appellant
• Court: Missouri Supreme Court

Page 146

395 S.W.2d 146

STATE of Missouri, Respondent, v. Rudy PAGE, Appellant.

No. 51491.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Special Asst. Atty. Gen., St. Louis, for respondent.

J. Whitfield Moody, James H. Harrington, Legal Aid & Defender Society of Greater Kansas City, Kansas City, for appellant.

STOCKARD, Commissioner.

Defendant Rudy Page, jointly charged and tried with Buford Reed, was found guilty of unlawfully selling a narcotic drug. His punishment was assessed by the jury at imprisonment for ten years. The trial court subsequently remitted four years of the sentence, and defendant has appealed from the ensuing judgment. At trial defendant was represented by court appointed counsel, but on this appeal he is represented by the Legal Aid and Defender Society of Greater Kansas City which has filed a brief on his behalf.

From the evidence a jury reasonably could find that the following occurred. On June 11, 1963, Wilburn Wayne Creed reported to John C. Wilkie, Jr., a narcotics agent for the United States Bureau of Narcotics that defendant, known to Creed by the name of 'Short Change,' had offered to sell some marijuana to him. Wilkie went with Creed to meet defendant at a parking lot. After some negotiation between defendant and Wilkie, defendant said he would 'send his man' to see Wilkie and talk about price. Defendant left, and immediately thereafter Buford Reed appeared and Wilkie purchased from him a 'can' of marijuana for $25.00.

In his brief defendant challenges the indictment, the sufficiency of which we review without a challenge, and which may be challenged by defendant on appeal even though not challenged in the trial court. Supreme Court Rule 28.02, V.A.M.R. The other matters presented in his brief were not preserved for appellate review in the motion for new trial. However, defendant urges that they should be reviewed pursuant to Supreme Court Rule 27.20(c), V.A.M.R., because failure to do so 'would be a manifest injustice.' We shall review the challenge to the indictment, and we shall review the other matters presented in the brief to determine whether there occurred 'Plain errors affecting substantial rights' from which has resulted 'manifest injustice or miscarriage of justice,' and which would, in the exercise of the discretion of this court, authorize corrective action.

Defendant's challenge to the indictment is that it charges him with selling marijuana but does not specify which portions or derivatives of the plant he sold. He then asserts that it is not unlawful to sell some portions or derivatives of the plant.

The indictment charged that on June 11, 1963, in Jackson County, Missouri, the defendant 'did then and there sell to one John Wilkie, Jr., certain narcotics, to-wit: 95.850 grams of Marijuana, botanically known as 'Cannibis Sativa." Section 195.020 (all statutory references are to RSMo 1959, V.A.M.S.) provides that it is unlawful for any person 'to * * * sell * * * any narcotic drug, except as authorized in this law * * *.' Narcotic drugs are defined in Section 195.010 to include 'cannabis,' and 'cannabis' is defined to include 'all part of the plant Cannabis Sativa L. whether growing or not; * * * but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, * * *' and certain other compounds and products. Defendant cites State v. Tevis, Mo.App., 340 S.W.2d 415, and quotes therefrom the following statement: 'The general rule as to the contents of an information which charges an offense, to which there are exceptions negativing guilt, is that all such exceptions must be pleaded in the information when they occur as parts of the statutory definition of the offense, in all cases where, if such exception be omitted, the offense cannot be accurately described.' We do not disagree with this general rule, but it has no application in this case. Defendant ignores Section 195.180 which provides that 'In any * * * indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.' This statute authorized the indictment to be in the language used, and there is no challenge of its validity. See People v. Lynumn, 21 Ill.2d 63, 171 N.E.2d 17 (subsequently reversed for improper use of confession, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922); People v. Yeargain, 3 Ill.2d 25, 119 N.E.2d 752; and People v. Lee Foon, 275 N.Y. 229, 9 N.E.2d 847. This challenge to the indictment is without merit.

Defendant also contends that there was no 'proof as to which portions of the plant or derivatives were sold.' The proof was that the substance was marijuana which is known as cannabis, and cannabis is statutorily defined as all parts of the plant cannabis sativa except the mature stalks and certain products of the plant. Therefore when the proof was that a sale of cannabis occurred, reference was had to the parts of the plant defined as cannabis; not the parts excluded from that definition.

Defendant challenges Instruction 2, the verdict directing instruction, 'because it does not require the jury to find that appellant 'knowingly' sold narcotics.' A general objection was made by defendant to all instructions, but the only challenge to Instruction 2 in the motion for new trial, but not now specifically presented on appeal, was that 'there was no evidence adduced that the defendant, Rudy Page, actually sold narcotic [drugs?] to witnesses on June 11, 1963.'

Defendant did not present any evidence. The defense that the item which he arranged to be sold to John C. Wilkie was not known by him to be marijuana was not advanced either by a pleading or by evidence. Therefore, the issue presented is whether knowledge on the part of defendant that the item sold was a narcotic drug, as statutorily defined, is an essential element of the crime charged which the State is required to prove, and which the jury must find to exist even though the defendant has not denied such knowledge.

Section 195.020 does not include as an element of the offense, knowledge on the part of an accused that the item sold was a narcotic drug. "Whether or not criminal intent or knowledge is an element of a statutory crime is a matter of statutory construction to be determined in a given case by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature." City of St. Louis v. Williams, Mo., 343 S.W.2d 16. See also 22 C.J.S. Criminal Law Sec. 30; 21 Am.Jur.2d Criminal Law Sec. 91. In Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930, it was held that in the prohibition or punishment of particular acts, a State may in the maintenance of a public policy provide 'that he who shall do them shall do them at his peril, and will not be heard to plead in defense good faith or ignorance.' The power of eliminating mental intent or consciousness of wrongdoing as an essential element of a statutory offense has been held to be properly exercised with respect to laws prohibiting the sale of narcotics. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604. There the indictment charged an unlawful sale of a derivative of opium. A demurrer was sustained on the ground that the indictment did not charge that defendants sold the inhibited drugs knowing them to be such. After pointing out that the statute did not make such knowledge an element of the offense, it was held that the demurrer was wrongfully sustained, and the judgment was reversed. See also Wharton's Criminal Law and Procedure Sec. 17. We find it difficult to conceive of any offense which so adversely affects public welfare and interest as the...