Von Hauger v. State

• Decision Date: 08 June 1970
• Docket Number: No. 169S4,169S4
• Citation: 258 N.E.2d 847,254 Ind. 297
• Parties: Lee VON HAUGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 847

258 N.E.2d 847

254 Ind. 297

Lee VON HAUGER, Appellant, v. STATE of Indiana, Appellee.

No. 169S4.

Supreme Court of Indiana.

June 8, 1970.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Aaron T. Jahr, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged by affidavit with the violation of the 1935 Narcotics Act. Upon a plea of not guilty, court trial was had resulting in a finding of guilty. Defendant was sentenced to the Indiana Reformatory for not less than two nor more than ten years and fined $1.00 and costs.

The evidence in this case discloses that the appellant was arrested for a traffic violation. Upon approaching the automobile after it stopped, the arresting officer observed the appellant attempting to slide an object under the seat of his automobile. Upon investigating, the officer discovered the object to be an automatic pistol. In recovering the pistol the officer also observed two foil covered packages on the floor of the car, which upon examination were disclosed to contain marijuana. Appellant was thereupon placed under arrest for the possession of marijuana. A passenger in the appellant's car was also arrested at that time, but was subsequently released.

It is appellant's contention that the finding of the marijuana in the automobile containing two persons was not sufficient evidence to establish the possession in the defendant, and further that the State never established by the evidence that the defendant was the owner of the automobile. We do not consider either of these contentions to be meritorious. The police officer upon approaching the car had observed the appellant placing something on the floor under the seat. It was in this location the officer found the marijuana. This is evidence upon which the trier of fact could reasonably find that the possession of the marijuana was in fact in the appellant. This would be true regardless of the ownership of the vehicle he happened to be driving at that time. Pinkston v. State (1968), Ind., 241 N.E.2d 138, 15 Ind.Dec. 560.

We find that the packages containing marijuana were admissible in evidence; that there is ample evidence in the record from which the court could find that they were in fact in the possession of the defendant at the time of his arrest.

The trial court is, therefore, in all things affirmed.

HUNTER, C.J., and ARTERBURN and DeBRULER, JJ., concur.

JACKSON, J., dissents with opinion.

JACKSON, Judge (dissenting).

I am unable to concur with the majority opinion and dissent thereto.

The appellant in the case at bar was tried and convicted of the crime of possessing marijuana. While possession may be either actual or constructive, for the element of possession to be established it must be proven beyond a reasonable doubt that the person charged with possession of a narcotic could knowingly exercise dominion or control over it. Amaya v. United States (10 Cir. 1967), 373 F.2d 197.

However, mere presence in the vicinity of the narcotic is insufficient to establish possession. Amaya v. United States, supra.

Obviously, merely because one steps into a room in a building does not mean that that person is in possession of the items in that room. Similarly, one riding in an automobile is not necessarily in possession of every item in that automobile. Thus, other facts in addition to mere presence are necessary before a legal determination of 'possession' may be made.

In the case at bar, however, the only evidence of 'possession' is that the appellant was driving an automobile in which marijuana was found. There is absolutely no evidence that the car belonged to the...