Von Hauger v. State, 670S131
| Decision Date | 05 February 1971 |
| Docket Number | No. 670S131,670S131 |
| Citation | 255 Ind. 666,24 Ind.Dec. 500,266 N.E.2d 197 |
| Parties | Lee H. VON HAUGER III, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frederick B. Robinson, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., R. Michael Bruney, Deputy Atty. Gen., for appellee.
The appellant was indicted, charged and convicted of a violation of the 1935 Narcotics Act, as amended. The essence of the charge was that on the 20th day of February, 1969 in Marion County, State of Indiana, he had in his possession and control certain instruments, to-wit: a syringe, plunger, needle, etc., with intent to unlawfully use such items for administering narcotic drugs, which instruments were adopted for such use.
The evidence reveals that on February 20, 1969 the appellant was in front of a restaurant on East 16th Street in the City of Indianapolis at about 3:40 in the morning. Indianapolis police officers were across the street and saw the defendant holding a paper sack in his hand, standing with another person in front of the restaurant. When the appellant saw the officers he moved the sack around behind him and walked down the alley towards an automobile which was parked and running near the restaurant. When the appellant saw the officers coming towards him he dropped the sack by a cement post. The police retrieved the sack, examined the contents, and found the articles named in the indictment. Thereupon they stopped the appellant and arrested him. In the paper sack the following items were found:
1. A nylon hose with knots in it so it could be used as a tourniquet.
2. An eye dropper with a needle on the end of it which was hollow inside to be used to draw liquids into the eyedropper and used to inject the liquid into the human body.
3. An extra rubber plunger.
4. A cooker, or metal cap with a wire handle, in which a liquid and narcotic drug are mixed to put into a liquid form for injection into the body.
5. A plastic hose containing two professional syringes, or needles.
6. Another plastic hose containing one professional hypodermic needle.
7. A hypodermic needle that goes on a disposable syringe and is adaptable to eye dropper use.
8. A plunger for a disposable syringe.
9. Three needle guards.
10. Extra rubber that goes on the end of the eye dropper.
11. A plastic vial which contains one bullet, a razor blade, and numerous empty number five gelatin capsules which for narcotic use are filled with heroin and cut with another product to get a mixture down to a proper percentage to avoid overdoses.
The statute, Burns' Indiana Stat.Anno. § 10--3520(c) (1970 Cum.Supp.), upon which the charge is based reads as follows:
The appellant contends that the necessary elements of a crime under the above quoted statute are:
1. Possession.
2. Intent to unlawfully use the possessed instruments.
3. The instruments were adapted for the use of administering narcotic drugs.
There is no question under the evidence that possession was proved in this case and we need not discuss that item any further, nor do we think there is any question here that there was evidence of intent from the history of appellant's own activities, which showed previous convictions with reference to the use of narcotic drugs and the statement which he made to a police officer only a month prior to his arrest that he was a narcotics user. When the appellant saw the police he tried to hide the sack, as well as moved towards his running car, all of which is some evidence of a consciousness of guilt. Layton v. State (1968), Ind., 240 N.E.2d 489.
The appellant further contends that there was no evidence that the instruments were adapted for the use of administering narcotic drugs. That there was such evidence is supported by Officer Donald Goeden's testimony that the contents of the paper sack which defendant possessed were a combination of various articles used to administer narcotic drugs.
It is finally contended that the act, Acts 1935, ch. 280, § 2, p. 1351; 1961, ch. 90, § 2, p. 169, under which the...
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