State v. Scott

• Decision Date: 14 March 1960
• Docket Number: No. 47504,No. 1,47504,1
• Citation: 333 S.W.2d 41
• Parties: STATE of Missouri, Respondent, v. Leonard SCOTT, Appellant
• Court: Missouri Supreme Court

Page 41

333 S.W.2d 41

STATE of Missouri, Respondent, v. Leonard SCOTT, Appellant.

No. 47504.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

Robert P. Stanislaw, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was charged and convicted of the offense of possession of an apparatus device and instrument for the unauthorized use of narcotic drugs, to wit, heroin, as charged in an information filed in the Circuit Court of St. Louis County. See Sections 195.020 and 195.200 RSMo 1957 Supp. (Laws 1957, p. 679), V.A.M.S. His punishment was assessed by the jury at five years' imprisonment in the State Penitentiary, but the court found the punishment excessive, reduced it to two years and sentenced defendant accordingly. Defendant has appealed from the judgment entered against him and assigns error on the giving of Instruction No. 1.

Defendant, age 22 years, was arrested about 1 p. m., August 15, 1958, in the City of Kirkwood by two uniformed police officers of that city. He was driving a 1951 Ford automobile east on Clinton Street with a cardboard license tag affixed to the rear of the car and the officers stopped the car and asked him for his driver's license. When he produced his own 'draft card' and a driver's license issued to his brother, William Scott, he was placed under arrest for driving a motor vehicle without proper license plates and for operating a motor vehicle without an operator's license. There were two other persons in the car, a boy in the right front seat and a man in the rear seat.

Immediately after defendant was arrested the officers searched him and the automobile. In the front seat, 'just a little to the left of center' and directly to the right of where defendant had been sitting, officer Strehl saw some folded envelopes and crumpled-up newspapers which he took apart rather hurriedly. Among the papers he found a rubber syringe or eye dropper, also referred to as a 'plastic dropper with a rubber bulb on the end,' a screw-type metal bottle cap with a blackened base or bottom and with residue inside, a typodermic needle with a screw-on section in the needle which fitted onto the end of the plastic syringe, and a piece of cotton waste. The articles were in one package wrapped in an old white envelope and parts of a torn and crumpled newspaper. The officer took charge of the articles and asked defendant what they were and what he was doing with them. Defendant said his mother was a diabetic and she used these instruments for taking insulin. Later in the afternoon, the defendant said that he knew that the several articles were located in the car, but that they belonged to his brother and a person named Pore Jesse.

The mentioned articles were subsequently examined by a chemist employed in the St. Louis Police Laboratory. He made certain analyses and tests, which disclosed that the material contained in the bottle cap was heroin. The eye dropper and needle also showed the presence of heroin. This witness testified that the mentioned articles were suitable for use and he explained how they could be used in placing a narcotic drug, such as heroin, into the human body.

After defendant was taken to the police station a written statement was taken and signed. Defendant said that he had previously seen a hypodermic needle; that he had seen one used by Jesse, when it had 'dope' in it; that he had seen the needle on the day of his arrest; that he had put it under the seat of the car before he was arrested because he didn't 'want the cops to find it'; that there was an eye dropper with the needle; that Pore Jesse owned the needle found in the car; that Jesse gave it to him four days before to put in the glove compartment; that the last time he saw it was at 7 a. m. on the day of his arrest; and that, 'I seen it today when you all found it in the car. I moved it under the seat.' There was no explanation as to how the articles became located on the front seat or who placed them there.

Defendant testified on his own behalf at the trial. His testimony and that of his witnesses tended to show that his several statements to the police officers and the signing of the written statement were not voluntary, but were made under coercion and the statements were not true. Defendant testified that on the evening of August 13, 1958 (two days before his arrest), he was in the mentioned automobile with his brother William, the owner; and that, while defendant was seated in the car, a party by the name of Jesse, who had previously been in the car, returned to it and handed him (defendant) a package to put in the car. Defendant testified: 'I didn't open it or nothing, look at it or nothing, I just put it in the glove compartment'; that the package received was wrapped up in brown paper, a brown paper sack; that another boy came and got the package and then later asked defendant's brother to ride out to the west part of town in the car; that when this party got in the car he had a package and laid it in the seat and defendant didn't notice whether the boy took the package when he, later, left the car. Defendant admitted he was driving the 1951 Ford on the day of his arrest and had his brother's driver's license. Defendant further testified that, after he was arrested, the police officers found a package in the car; that they showed him the package; that this package was the same package he had had in his possession before August 15; that he recognized it as the same package; that they showed him what was in the package; that he had never seen what was in the package before; that he didn't know what was in the package, but when they showed it to him there was a hypodermic needle in it; and that the first time he had seen what was in the package was when the police opened it up.

Defendant said once that he did not remember seeing the package the officer found in the car; and that he did not see the newspapers, but he later said the officers found a brown package; and that he had put this package, wrapped in 'sack paper, brown sack paper,' in the glove compartment of the car on the 13th of August.

Defendant admitted that, when he was arrested on August 15, and the officers had showed him some instruments, he had said they belonged to his mother, but he was 'in shock' when he told them that. At the trial he further testified that he had never in his whole life seen those instruments, 'until the police opened them up,' nor had he seen his brother's friend Jesse use them. He said the package opened by the officers was wrapped in brown paper and that he didn't see any envelope. It is unnecessary to review the evidence further.

Defendant's motion for a new trial contained only one assignment, to wit, that: '* * * the court erred in giving instruction number 1 in that the said instruction wholly failed to charge the jury that it would be a valid defense to the crime charged in the information if the defendant intended to possess the package mentioned in evidence as a package belonging to another.' (Italics ours.)

42 V.A.M.S. Supreme Court Rule 27.20 requires that a motion for a new trial shall set forth in detail and with particularity the specific grounds or causes therefor. The above assignment is a little ambiguous but, in effect, it says that Instruction No. 1 is erroneous because it did not charge the jury with reference to what appellant says is 'a valid defense,' to wit, with reference to an intention 'to possess the package mentioned in evidence as a package belonging to another.'

Section 195.020 RSMo [Laws 1957, pp. 679, 682] provides: 'It is unlawful for any person * * * to possess any apparatus, device or instrument for the unauthorized use of narcotic drugs * * *.'

Instruction No. 1 submitted a finding 'that if you find and believe from the evidence beyond a reasonable doubt, that at the County of St. Louis and State of Missouri, on or about the 15th day of August, 1958, the defendant, Leonard Scott, knowingly, unlawfully and feloniously had in his possession any apparatus, device and instrument, to-wit: a hypodermic needle, eye dropper, bottle cap and cotton, as mentioned in the evidence for the unauthorized use of narcotic drugs, if you so find; then you will find the defendant guilty of possession of an apparatus, device and instrument for the unauthorized use of narcotic drugs as charged in the Information; and unless you so find the facts to be, you will acquit the defendant. * * *

'The term 'possession' as used in this instruction, and in its legal sense means having the actual control, care and management of something to the exclusion of others, and not a mere passing control fleeting and shadowy in its nature. However, it is not necessary to establish ownership in order to establish possession. 'Feloniously' as that word is used in these instructions means wickedly and against the admonition of the law.'

Appellant contends that Instruction No. 1 failed to cover 'an essential element of the law of the case,' the element of defendant's intention, since 'the said instruction purports to cover the entire case but did not hypothesize the intention of the defendant in possessing the package in evidence as a defense to the crime charged.'

Appellant argues that, 'If the defendant did in fact possess the apparatus in evidence as a temporary sub-bailee of his brother and did not intend...