State v. Reed, 53978

• Decision Date: 08 December 1969
• Docket Number: No. 2,No. 53978,53978,2
• Citation: 447 S.W.2d 533
• Parties: STATE of Missouri, Respondent, v. Cephus REED, a/k/a Cephus L. B. Reed, Appellant
• Court: Missouri Supreme Court

Page 533

447 S.W.2d 533

STATE of Missouri, Respondent, v. Cephus REED, a/k/a Cephus L. B. Reed, Appellant.

No. 53978.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1969.

John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.

Louis Wagner, Kansas City, for appellant.

STOCKARD, Commissioner.

Defendant was prosecuted by amended information under the Second Offender Act (§ 556.280 and § 556.290 RSMo 1959, V.A.M.S.) for an unlawful sale on July 12, 1967 of marijuana to James Pollard. He was found guilty by a jury, sentenced by the court to imprisonment for ten years, and he now appeals.

On this appeal there is no challenge to the sufficiency of the evidence. We need only state that although defendant testified and denied his guilt the evidence clearly authorized a finding that on July 12, 1967, defendant sold some marijuana to James Pollard and received therefor $10 of marked money.

We shall consider first defendant's contention that the trial court erred in permitting the State 'to introduce evidence of separate and distinct crimes which were unrelated to the cause on trial.'

James Pollard, to whom defendant was charged with having made an illegal sale of marijuana, was what is commonly called an informer. He was working with Keith L. Fieger, an agent for the federal Bureau of Narcotics. Mr. Pollard first testified that on July 12, 1967, Mr. Fieger gave him ten dollars of marked bills, and that he went to defendant's apartment and purchased a bag of marijuana with that money. He then returned to Mr. Fieger and gave him the marijuana and it was placed in an envelope and initialed. Mr. Pollard was then asked if he saw Mr. Fieger on June 13, 1967, and he said that he did. He stated that on that date he called Mr. Fieger and told him that he could purchase marijuana from defendant, and that on June 14, after searching for defendant at several places, he went to defendant's apartment and purchased from him two ten dollar bags of marijuana. At this point defendant's counsel interrupted and objected 'to this testimony as not being within the allegation of the information' and because it showed 'a prior sale without any charge lodged against him.' As noted, the amended information charged defendant with making a sale of marijuana to James Pollard on July 12, 1967. Counsel for the State argued to the court that 'evidence of prior sales is admissible to show a course of conduct and to show that this defendant committed this crime with knowledge and intent and shows there is a motive to make the sale on the occasion for which he was charged, (and it) further shows a positive identification of the defendant.' Defendant's objection was overruled. The witness then restated his testimony that he had purchased marijuana from the defendant on June 14, and that he took the marijuana to Mr. Fieger where it was placed in an envelope and initialed. Subsequently the two bags of marijuana were admitted into evidence.

It is the well established general rule that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant's guilt of the charge for which he is on trial. State v. Selle, Mo., 367 S.W.2d 522, 529; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922--923. It has been said that "Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission...