State v. Schlagel, 57425

• Decision Date: 12 February 1973
• Docket Number: No. 2,No. 57425,57425,2
• Citation: 490 S.W.2d 81
• Parties: STATE of Missouri, Respondent, v. Raymond R. SCHLAGEL, Appellant
• Court: Missouri Supreme Court

Page 81

490 S.W.2d 81

STATE of Missouri, Respondent, v.Raymond R. SCHLAGEL, Appellant.

No. 57425.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1973.

John C. Danforth, Atty. Gen., Allan D. Seidel, Asst. Atty. Gen., Jefferson City, for respondent.

John P. Haley, Jr., Kansas City, for appellant.

HENRY I. EAGER, Special Commissioner.

Defendant was convicted by a jury of the sale of a quantity of Lysergic Acid Diethylamide, commonly known as LSD.The jury fixed his punishment at imprisonment for ten years and he was so sentenced.He has duly appealed after the overruling of his motion for a new trial.He was represented at trial and is represented here by employed counsel.Since the appeal was filed before January 1, 1972, we have jurisdiction.

John J. Philpott, a State Highway Patrolman, was assigned to work undercover in an investigation of drug sales in Clay County.He grew a beard and mustache, wore a long-haired wig and, at the times here in question, wore boots and blue jeans.He was assisted by a sixteen-year old youth, described as 'Buddy Gately'; the latter, acting on a voluntary basis, would introduce Philpott to persons supposedly selling drugs.On the morning of March 7, 1971, Gately called Philpott and told him that they were supposed to make a 'buy' from one Jay Vance at a certain pool hall near the square in Liberty at 1:00 p.m. Gately had talked to Vance that morning, the latter saying that he had the LSD ready for him; Philpott had met the defendant Schlagel in North Kansas City on the previous day.Gately and Philpott went to the pool hall and at about 1:15 Vance and defendant Schlagel came in.Philpott had seen Vance previously but had not met him.Upon arriving at the pool hall with Schlagel, Vance said that 'they' had the stuff out in the car, and that Philpott and Gately should come on out and get in.Philpott and Gately did so, entering a car which Schlagel drove and which belonged to his father.Vance sat in front, Philpott sat behind Vance.Gately did 'most of the talking.'They drove along nearby streets.Soon after entering the car Schlagel, defendant here, reached up above or behind the sun visor, took out two sheets of 'blotter acid' and handed them back to Philpott.These were sheets of blotter paper divided into squares, into each of which had been dropped some material.Philpott 'counted the dots' and there were 201; he and Vance then discussed the price, which Vance said would be $235; Philpott took from his pocket $240 in $20 bills, tried to give it to Schlagel 'because he handed me the stuff,' but he did not take it, so Philpott gave it to Vance.The latter could not make the change, so Schlagel took four one-dollar bills out of his pocket and handed them to Philpott.(The one dollar difference is not explained but is immaterial.)Gately had told Philpott that the material was LSD, and that there should be 201 'hits.'Schlagel stated to Philpott during the ride that it was the 'same stuff'he had 'bought the day before.'This evidence was objected to but no point is made on this appeal as to its admissibility.Evidence was also admitted over objection that Philpott had bought 100 'hits' of LSD from defendant on March 6, 1971, and that defendant went to Grandview to get it.The admissibility of this evidence has not been briefed and the objection has not been preserved; therefore, we consider the evidence.The theory of its admission was evidently to show knowledge on the part of defendant concerning the sale on March 7.

There was also evidence that during the ride on March 7 there was some discussion of buying 'speed,' that Vance said he could get some, and that defendant stated that he, Schlagel, would have to go to Warrensburg to get it; heroin was also discussed; Vance said that it could be obtained through a dealer in Kansas City, but Schlagel said he would not deal on that.

The blotter sheets were delivered to a Sergeant of the Highway Patrol who took them to the Kansas City Police Laboratory for analysis.The sheets and their container were duly marked at each step and, although the identity was questioned by objection, no such point is made here.The Police Department chemist testified in detail to his various tests; and specifically to the fact that the material in or on the blotters was Lysergic Acid Diethylamide or LSD; he was cross-examined most extensively.It was also shown that LSD is one of the prohibited or restricted drugs listed by the Missouri Department of Health,--as an hallucinogenic drug, under authority of Missouri law, and registered as such with the Secretary of State.Section 195.230, RSMo 1969, V.A.M.S.The blotter sheets were sent after analysis to the office of the Prosecutor of Clay County where they were kept until these proceedings were begun.They were received in evidence at the trial as exhibits.Certain other facts and details of the trial will be referred to in the discussion of appellant's points.

The first point made is that the Court erred in overruling defendant's motion for acquittal.Defendant offered no evidence.Counsel says that the State did not prove a sale of LSD by Schlagel to Philpott.This argument seemed to be divided into two parts: (1) that the sale was made between Vance and Philpott with defendant playing no material part; and (2) that if a sale was made it was completed when Gately and Vance negotiated earlier and agreed on the transaction, leaving only delivery and payment to be made later.Counsel notes that defendant was not even shown to have been present at the earlier negotiations.We may dispose of the latter contention summarily.The principle involves primarily a question concerning the time when, in civil law, a contract becomes valid and enforceable.It can have no material effect in a criminal case where, pursuant to prior negotiations, a contraband article is delivered and paid for.Under our facts the sale occurred in the car on the afternoon of March 7.Defendant cites 72 C.J.S.Poisons§ 11, p. 186, which refers to a federal case, Fisk v. United States, CA 6, 279 F. 12.In that case the contraband was delivered at the time when defendant claimed the sale occurred.In Barnett v. United States, CA 9, 171 F.2d 721, it was held that a sale of narcotics is not complete until the property has been delivered or the purchase price paid.(Citing cases.)The sale here was completed in the car on March 7, 1971, the goods delivered, and the purchase price paid.In State v. Davis, Mo., 450 S.W.2d 168, cited by defendant, it was merely held that a sale of prohibited drugs could be made by exchanging them for merchandise rather than cash.This phase of defendant's point one is denied.

The other contention essentially is that defendant played no part in the criminal act, citing State v. Muchnick, Mo.App., 334 S.W.2d 386.There, defendant was charged with unlawfully 'permitting' a minor to assist in the sale of intoxicating liquor.The essential holding was that mere negative or passive action is not sufficient and that, although all who participate in a crime are equally guilty, the defendant must have in some way associated himself with the principal by some act of participation, encouragement or support.We look again, briefly, at our facts.Defendant had procured LSD for Philpott on the previous day.He told Philpott on March 7 that the blotter acid then delivered was the 'same stuff' which he had bought on the day before.This was admitted to show knowledge and intent and no question on the admissibility of the testimony has been preserved.Defendant entered the pool hall with Vance, the latter told Philpott and Gately, in defendant's presence, that 'they' had the stuff out in the car, and all four then entered a car belonging to defendant's father which was at all times driven by defendant.Defendant reached up behind or above the sun visor, took down the two sheets of 'blotter acid' and gave them to Philpott; this clearly constituted the delivery, which was and is a material element.Defendant did not accept the money, but made change for Vance by handing Philpott four one-dollar bills, which he took from his pocket.Defendant stated (with no objection to the evidence) that he could go to Warrensburg and get them some 'speed.'On appeal we accept the State's evidence as true, and allow such inferences favorable to the State as may be drawn therefrom.State v. Johnson, Mo., 475 S.W.2d 95.We hold that these facts constituted substantial evidence of a participation in the sale by defendant.

Under our law, evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.State v. Cobb (Banc), Mo., 444...