Whited v. State

• Decision Date: 15 February 1972
• Citation: 483 S.W.2d 594
• Parties: Bobby K. WHITED and Cecil Ray Lame, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 594

483 S.W.2d 594

Bobby K. WHITED and Cecil Ray Lame, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Feb. 15, 1972 Certiorari Denied as to Lame by Supreme Court July 17, 1972.

Thomas D. Steele, Nashville, for plaintiffs in error.

David M. Pack, Atty. Gen., Charles W. Cherry, Asst. Atty. Gen., Nashville, O'Brien Price, Dist. Atty. Gen., Springfield, for defendant in error.

DWYER, Judge.

OPINION

At a joint trial a jury found two defendants guilty of possessing legend drugs without a prescription as defined and prohibited by T.C.A. 52--1201 et seq. The punishment by the jury with judgment thereon assessed upon Cecil Lame was a fine of $1,500 and confinement for eleven months and twenty-nine days. The defendant George Whited was fined $500 and confined for thirty days in jail.

The appeal has been seasonably perfected with assignments of error contending the verdicts and judgments are contrary to law.

The record reflects that the sheriff of Sumner County obtained a search warrant and searched the filling station, restaurant and living quarters owned by the defendant Lame and a truck on the premises, on October 7, 1970.

At the time of the search Whited, an employee of Lame's, was present and related to the sheriff when the warrant was read that he knew what the sheriff was looking for. The sheriff was then led into the back of the restaurant and in a room across from Lame's quarters under a mattress on the bed he recovered two match boxes and two vials which were later determined to contain amphetamines. The sheriff kicked in the locked door of Lame's quarters, found nothing, then went out the back door of the room and searched a two-ton International truck parked within ten to twenty feet of the door. The sheriff related that with a flashlight he looked in the cab and saw bottles in a cardboard box containing pills. He unlocked the door and confiscated in the neighborhood of twelve thousand pills of which some were found to contain amphetamines, a legend drug, and some contained caffeine which is not.

When Lame arrived shortly thereafter he denied knowledge of the drugs. He further related that he had the truck in his possession but that title was in some other person. At the trial he related he had given his ex-brother-in-law six hundred dollars for the truck and the brother-in-law was to clear title. We are satisfied from our review that Lame had possession of the truck and had a possessory right to question any search made thereof, as well as the possessory responsibility for any prohibited items found therein.

The defendants assign as error that the evidence does not support the verdict. The requisite rule of law placing the burden on the defendant in this court to show that the evidence preponderates against his guilt and in favor of his innocence may be found in Rambo v. State, Tenn.Cr.App., 472 S.W.2d 911, 913. We sustain this assignment as to the defendant Whited. From our review of this record, Whited's assertion that he saw someone put the drugs under the mattress is the only proof tending to put him in possession of the drugs. Without further proof of this defendant's complicity as to the possession and control of the drugs, we cannot agree with holding that this employee had the requisite possession of the drugs located on his employer's premises.

The evidence as we view this record does sustain the verdict as to the defendant Lame. He was the owner of the truck stop. The drugs were found on his premises and in the truck that he admits to buying. He further acknowledged that he had used the truck that Sunday prior to the search but denied all knowledge of the drugs on the premises and in the truck. The jury has concluded from the evidence that the drugs were on the premises of Lame and therefore in his possession. We reason, as in liquor law cases, that a presumption arises when the beverages are found on the premises that they are owned and possessed by the owner of the premises. See Lampley v. State, 196 Tenn. 534, 268 S.W.2d 572; Shelton v. State, 190 Tenn. 518, 230 S.W.2d 986; Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258; Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457, 463. The defendant Lame's denial of the knowledge and possession of the drugs has been rejected by the jury. The assignments pertaining to the sufficiency of the evidence pertaining to Lame are overruled.

Defendant next assigns that he was indicted under T.C.A. 52--1204, whereas he should have been indicted and convicted under T.C.A. 52--1206, if at all. Inasmuch as T.C.A. 52--1204 includes the words, 'It shall be unlawful for any person . . . to possess . . . any drug known as barbital and legend drugs . . .', this is considered to be a meritless assignment, even though T.C.A. 52--1206 is entitled 'Possession Without Prescription Unlawful', and does include the same prohibiting phrases regarding possession. As we read these two sections of the statute, they both prohibit the possession of barbital and legend drugs without a prescription. Furthermore, in reading the full text of the indictment, it is clear that defendants were being charged with possession without a prescription, and nothing more. The indictment thus gave defendants proper notice of what offense they were being charged with having committed.

As to the trial judge's charge to the jury regarding T.C.A. 52--1206, as well as regarding T.C.A. 52--1204, it is true the he did so charge, as shown in the record, whereas the indictment specified the...