State v. Virdure

• Decision Date: 14 October 1963
• Docket Number: No. 49815,No. 2,49815,2
• Parties: STATE of Missouri, Respondent, v. Alvin Herden VIRDURE, Appellant
• Court: Missouri Supreme Court

Page 196

371 S.W.2d 196

STATE of Missouri, Respondent, v. Alvin Herden VIRDURE, Appellant.

No. 49815.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1963.

James J. Rankin, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.

PRITCHARD, Commissioner.

Defendant was found guilty by the verdict of a jury of the possession of narcotics, and since he was charged in the substitute information filed in lieu of indictment with being a habitual criminal, this fact being found by the trial court, [RSMo Sec. 556.280, V.A.M.S.] his punishment, after his motion for new trial was overruled and allocution was granted, was set by the court at confinement in the Department of Corrections of the State of Missouri for a period of ten years. From his judgment of conviction, defendant has perfected his appeal.

On January 31, 1962, officer Paul McCulloch, a member of the Canine Deployment Division of the St. Louis Police Department, went to the premises of defendant (the Algiers Herb Company) at 3360 Union Boulevard in St. Louis, arriving there around 11:30 or 11:45 A.M. Other officers of the Police Department were also there, but defendant was not then present. Defendant came to his premises later after his then lawyer made arrangments for defendant to talk to the police, who were looking for defendant for a peace disturbance charge. The officers had entered the store part of defendant's premises prior to defendant's arrival, and were waiting for him there. Defendant was then placed under arrest on the peace disturbance charge (for which there was actually no formal charge pending, and for which no further proceedings were had, but defendant does not attack the validity of the arrest).

After the arrest, officer McCulloch asked the defendant if he could look around and make a search of the premises, and defendant told him he could look over the entire premises, he had no objection whatsoever, that the officer could look around and search all he wanted to. Defendant also gave officer McCulloch permission to search his car, and he unlocked the trunk of the car for the search. At no time did the defendant attempt to prevent the inspection and search.

Officer McCulloch then went out to his police car and brought into the store part of defendant's premises his German Shepherd dog and had him conduct a search thereof, this dog having remained in the police car during all of the prior arrest proceedings. The dog had been given specialized training to seek out and find marijuana, and had performed that function approximately 500 times. They then went outside to where defendant's car was parked, and had the dog make a search of the interior and trunk thereof, after defendant had unlocked it. The officer let the dog loose, gave him a command, and he went into the trunk and sniffed around, then remained in one spot, 'patted around' with his nose in the spare tire and tried to push it away. The officer moved the spare tire and found a green substance on the floor mat. He then called officer Longinette who scraped up the substance, put it in an envelope, and later delivered it to the police chemist who made an analysis that this substance was dried leaf fragments of the plant Cannabis Sativa, otherwise known as marijuana.

Officer McCulloch thereafter went inside and down to the basement of the house at 3360 Union, and there released the dog, gave him a command, and the dog began sniffing around and got up on a shelf in the northwest corner of the basement where there were about 75 or 100 red and green colored boxes. The dog knocked four or five of these to the floor, then got down to where the officer could see him, and came back around the hall with one of the boxes in his mouth. The dog brought the box to officer McCulloch who put his initials on it. At the trial, McCulloch testified that the box was the same one the dog had brought to him, and that its contents, which the chemist found and testified also to be marijuana, appeared to be the same.

Defendant in testifying in his own behalf, admitted a conviction for the possession of marijuana in 1944 and a conviction for receiving goods stolen from an interstate shipment in 1951. He said further that he did not know narcotics were within the premises or in the automobile; that other persons had access to the basement where the narcotics were discovered; that in the week prior to the incident in question he had several flat tires and his car was not in his control at all times; and that his lady friend, (one Denoose Quarrels) his brother, and other individuals often drove his automobile. Defendant's business, which he has been in for about fourteen years, consists of the sale of all kinds of medicines, tonics, remedies, oils, incense, candles, powders, a few herbs and all kinds of soda--just a regular confectionary.

Defendant first contends that the trial court erred in failing to sustain defendant's pretrial motion to dismiss the substitute information (in lieu of indictment) for the reason that said information failed to charge a crime, it was duplicitous and failed to apprise defendant of the crime with which he was charged. In elaboration, defendant says the statute, set out below, describes acts or offenses disjunctively, and therefore the indictment or information should charge them in the conjunctive; that to 'possess' narcotics or 'to have under his control' narcotics are separate and distinct offenses.

The substitute information, filed June 11, 1962, eight days before trial, first charged defendant's previous convictions, then went on to charge the present alleged offense that defendant, 'on January 31, 1962, at the City of St. Louis aforesaid, did then and there unlawfully and feloniously have in his possession or under his control a certain quantity of narcotic drug, to wit: 3.61 grams of the plant, Cannabis Sative, commonly called marijuana. In violation of Chapter 195, Section 195.020, Revised Statutes of the State of Missouri, 1959.' (Emphasis added.)

Sec. 195.020 [RSMo 1959, V.A.M.S.] provides: 'It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this law, or to possess any apparatus, device or instrument for the unauthorized use of narcotic drugs * * *.' (Emphasis added.)

The Missouri cases cited by defendant do, in general, support his contention that where several different acts or offenses are set forth in the disjunctive, the indictment or information should charge them in the conjunctive if they are not repugnant, 'else it will be ill as being uncertain.' State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Fox, Mo., 46 S.W.2d 544; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477. In the one cited case most directly in point with defendant's contention, United States v. MacKenzie, (D.C.Me.) 170 F.Supp. 797, the defendant was charged under 26 U.S.C.A. Secs. 5174(a) and 5601 by having 'in his possession or custody, or under his control' an unregistered still and distilling device, following the wording of said Sec. 5174(a). The court dismissed the indictment upon one of the stated grounds (as to Count I) that, '* * * where a statute specifies in the alternative several acts constituting an offense, an indictment may allege commission of the offense by all the acts mentioned, using the conjunctive 'and' where the statute uses the disjunctive 'or'. * * * It is equally well settled, however, that an indictment which alleges the several acts constituting the statutory offense in the disjunctive or alternative lacks the necessary certainty and is wholly insufficient. (Citing The Confiscation Cases, 20 Wall. 92, 104, 87 U.S. 92, 104, 22 L.Ed. 320, 322).'

Under the wording of the statute and substitute information here in question, and upon the facts and circumstances in this case, we must reject defendant's contention that the information is duplicitous and that it did not apprise the defendant of the crime with which he was charged, and we must take a view contrary to that expressed by the court in United States v. MacKenzie, supra.

It is our view that while the words 'possession' and 'control' are not precisely synonymous (so that they may be used interchangeably) which would bring this case within the exception to the 'disjunctive-conjunctive' rule which is recited in the cases of State v. Ellis, 4 Mo. 474, 477; State v. Moore, 61 Mo. 276, 278 and State v. Bragg, Mo.App., 220 S.W. 25, 27, (relied upon by the state in its contention that the words 'possess' and 'control' are synonymous) these words, as to their meanings, do have common elements. They do not connote entirely separate and distinct acts as constituting an offense. In State v. Lane, 221 Mo.App. 148, 297 S.W. 708, 709, the court said, 'Webster's International Dictionary gives the legal definition of possession '[o]ne who has physical control of the thing and holds it for himself.' All the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term 'possession." See also State v. Lunfrunk et al., Mo.App., 279 S.W. 733, 735; State v. Compton, Mo.App., 297 S.W. 413, 414.

In Webster's Third New International Dictionary, the words are defined: 'Possess' means 'to take into one's possession;' 'seize or gain control of;' 'to enter into and influence powerfully or control.' 'Possession' means 'something owned, occupied or controlled;' 'the act or condition of having in or taking into one's control or holding at one's disposal.' See the variety of definitions of the word 'possession,' 72 C.J.S. p. 233. See also 'Possession' (control, care or custody), 33 Words and Phrases p. 80; 'control,' 9A Words and Phrases pp. 4, 23; and 'custody,' (charge, control or possession) 10 Words and Phrases ...