State v. Tabory, 19607
| Decision Date | 05 April 1973 |
| Docket Number | No. 19607,19607 |
| Citation | 196 S.E.2d 111,260 S.C. 355 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Leon TABORY, Appellant. Leon TABORY, Appellant, v. William D. LEEKE, Director, South Carolina Department of Corrections, Respondent. |
Laughlin McDonald, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Robert M. Ariail, Columbia, for respondents.
This is an appeal from judgment and sentence after conviction of possession for sale of marihuana. South Carolina Code of Laws § 32--1492.1 (1962, as amended). The defendant's arguments for reversal are numerous and will be examined separately. A summary of the evidence is necessary to an understanding of the issues.
The defendant was a passenger in a U-Haul truck, driven by David Rubin, when it was stopped on Hilton Head Island at approximately 1:00 a.m. on March 1, 1971, by officers of the sheriff's department. Also stopped was an automobile, following the truck, in which two other individuals were traveling. The vehicles were stopped pursuant to a long-standing policy of the sheriff's office to stop all U-Haul trucks traveling about Hilton Head Island at night. Rental trucks were being used in that area in the commission of burglaries and other theft crimes. After questioning the occupants of the truck and automobile, they were all taken to the Bluffton Town Hall and Jail. There is some confusion in the testimony as to the sequence of events, but a search warrant was obtained and the truck was searched. The search of the truck produced some 2600 pounds of marihuana, whereupon the defendant and the three persons with him were given the Miranda warning and arrested.
The other three persons plead guilty to criminal charges. The defendant was indicted and tried for violation of Act No. 1158, Acts and Joint Resolutions of the General Assembly, 1970, codified as Section 32--1492.1.
Prior to trial, the defendant made a motion to suppress the physical evidence against him (marihuana, photographs and a search warrant) on the grounds of lack of probable cause to stop the vehicle in which he was riding, lack of probable cause to detain him, and lack of evidence to show that he exercised any possession or control over the vehicle or its contents. The motions were denied. On the same grounds, the defendant made a motion for a directed verdict of acquittal at the close of the State's case and renewed it at the close of all the evidence; these were also denied.
Defendant first contends that the lower court erred in charging the jury that a presumption of 'possession for sale' arises from the possession of marihuana in excess of one ounce (twenty-eight grams). He argues that the presumption is unconstitutional and that the conviction is invalid because it was based on the presumption. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court gave us the basic test by which to measure the constitutionality of criminal statutory presumptions:
'. . . (A) criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.'
In Leary, the Court also recognized a strong presumption that statutes enacted by the legislature are constitutional. It is encumbent upon those who would have the court declare the statute unconstitutional to overcome the presumption of constitutionality. Defendant argues that there is no rationale between the proved fact and the presumed fact, but there is nothing in the record before us to substantiate such contention.
Had the record substantiated such a contention, we are not convinced that a twenty-eight gram presumption as charged and not excepted to, or a five gram presumption as contained in the statute under which defendant was prosecuted, would have any prejudicial effect in this case. When the quantity of marihuana possessed is 2600 pounds, an application of a presumption based on either amount would be of such minimal effect that an error based on either presumption would be inoffensive.
Section 32--1492.1, under which defendant was convicted, provides that: 'Any person having in his possession or under his control, contrary to law, . . . marihuana in an amount more than five grams, . . . shall be Prima facie guilty of violation of this section.'
This was the effective statutory law on March 1, 1971, the date on which the offense was committed. The judge charged the jury a twenty-eight gram presumption of Prima facie guilt at the trial in July 1971, based on the 1971 Drug Act, which became effective June 17, 1971. The charge, more beneficial to the defendant, was given out of an abundance of precaution. This charge was agreed to and no exceptions to charging twenty-eight grams instead of five grams were made.
We are not at all sure that the defendant was entitled to the more beneficial charge. The 1971 Drug Act, which became effective June 17, 1971, contained a savings clause which reads in part as follows:
'Prosecution occurring prior to June 17, 1971 is not affected or abated by this article.'
The defendant is not in a position to complain of having received the more advantageous charge.
Defendant also argues that the 1971 Drug Act as originally enacted South Carolina Code of Laws § 32--1510.21 et seq. (Supp.1971), nullified the presumption contained in § 32--1492.1, under which the defendant was prosecuted. The 1971 Drug Act, by its own terms, does not apply.
Defendant next argues that the legislature has overstepped its constitutional authority by the enactment of laws regulating the possession and use of marihuana. The exceptions are obviously without merit.
The next challenge concerns the proof needed to establish possession. Defendant contends the State failed to prove possession sufficient to warrant imposition of criminal sanctions. The evidence warrants the inference that the 2600 pounds of marihuana was purchased and loaded on a boat in Jamaica. It was unloaded at Hilton Head Island and was found in the U-Haul truck in which the defendant was riding. The truck was seen empty about three hours before it was apprehended. Prest, a State's witness, testified that he discussed the loading and boating of the marihuana with defendant in Jamaica.
We recognize that proof of possession requires more than proof of mere presence, and that the State must show defendant had dominion and control over the thing allegedly possessed or had the right to exercise dominion and control over it. United States v. Bethea, 143 U.S.App.D.C. 68, 442 F.2d 790 (1971). The defendant's presence in the truck alone might not support a finding of possession but, coupled with the incriminating testimony of Prest, the State clearly made a jury issue...
To continue reading
Request your trial
-
State v. Easler
...of this routine investigation. Miranda warnings were not required. Clay v. Riddle, 541 F.2d 456 (4th Cir.1976); State v. Tabory, 260 S.C. 355, 366, 196 S.E.2d 111, 114 (1973); but see McCarty v. Herdman, 716 F.2d 361 (6th Cir.1983) cert. granted 464 U.S. 1038, 104 S.Ct. 697, 79 L.Ed.2d 163 ......
-
State v. Sachs
...possession of the substances charged in the indictment. State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974); State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973). This is a close case because attempted destruction of evidence is regarded as an incriminating circumstance. State v. Epes, 209 S......
-
People v. Schmidt
...People v. Demers, 42 A.D.2d 634, 345 N.Y.S.2d 184 (1973); State v. Kaplan, 23 N.C.App. 410, 209 S.E.2d 325 (1974); State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973). We do not necessarily agree with statements, such as appear in Brantley v. State, 548 P.2d 675 (Okl.Cr.App.1976), that the......
-
Goldsmith v. Witkowski
...drugs, absent evidence of his dominion and control over them, is insufficient to prove his possession of the drugs. State v. Tabory, 260 S.C. 355, 196 S.E.2d 111, 113 (1973). Again, even presence coupled with knowledge of the drugs is insufficient to sustain a possession conviction; the Sta......
-
Reflexive Federalism.
...(Iowa 1975); State v. Donovan, 344 A.2d 401, 405-06 (Me. 1975); Blincoe v. State, 204 S.E.2d 597, 598-600 (Ga. 1974); State v. Tabory, 196 S.E.2d 111, 112-13 (S.C. 1973); State v. Parker, 256 A.2d 159, 160 (N.H. 1969); Commonwealth v. Leis, 243 N.E. 2d 898, 901-05 (Mass. 1969); People v. St......