Winfield v. State, 30516

• Decision Date: 24 February 1967
• Docket Number: No. 30516,30516
• Citation: 248 Ind. 95,223 N.E.2d 576
• Parties: Oscar Floyd WINFIELD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 576

223 N.E.2d 576

248 Ind. 95

Oscar Floyd WINFIELD, Appellant, v. STATE of Indiana, Appellee.

No. 30516.

Supreme Court of Indiana.

Feb. 24, 1967.

George R. Brawley, Ft. Wayne, for appellant.

John J. Dillon, Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by affidavit in two counts with the possession and sale of marijuana.

Appellant waived arraignment and entered a plea of not guilty to both counts of the affidavit. Trial was had by jury resulting in a finding and verdict by the jury of guilty on both counts.

Thereafter, the court, having examined and considered the presentence investigation report filed herein, entered judgment to the effect that the appellant was guilty of the offense of possession of marijuana and violation of the Uniform Narcotic Drug Act as charged in counts one and two of the affidavit. He was committed to the custody and control of the Warden of the Indiana State Prison for a period of not less than two years nor more than ten years, and order to pay and satisfy the costs on count one; he was committed to the custody and control of the Warden of the Indiana State Prison for a period of not less than five years nor more than twenty years and that he pay and satisfy the costs on count two. It was further ordered by the court that the aforesaid sentences were to run concurrently.

Count one of the affidavit on which this prosecution was based in pertinent part reads as follows:

'That on or about the 5th day of October A.D., 1962, at the County of Allen and in the State of Indiana, said Defendant, Oscar Floyd Winfield did then and there unlawfully and feloniously possess and have under his control narcotic drugs, to-wit: cannabis and the said defendant was not authorized under the laws of the United States or the State of Indiana so to do, being contrary to the form of the statute in such case made and provided.'

Said affidavit was subscribed, sworn to and filed on the 11th day of December, 1962.

Thereafter, on the third day of September, 1963, count two was filed herein, which in pertinent part reads as follows:

'That on or about the 5th day of October A.D., 1962, at the County of Allen and in the State of Indiana, said Defendant, Oscar Floyd Winfield did then and there unlawfully and feloniously sell a certain narcotic drug, to-wit: marihuana (Cannabis) said defendant was not then and there authorized under the laws of the United States and the State of Indiana so to do, being contrary to the form of the statute in such case made and provided.'

Within time the defendant filed his motion for a new trial alleging the following specifications:

'1. That the Court erred in overruling defendant's motion to dismiss the plaintiff's case.

'2. That the verdict of the Jury is contrary to the evidence.'

Appellant's assignment of error is the single specification;

'1. The Court erred in overruling appellant's motion for a new trial.'

The evidence most favorable to the State in the case at bar may be summarized as follows: That on the night of October 5, 1962, a Federal Narcotics Agent by the name of William R. Jackson purchased from the appellant a bag of marijuana for the sum of $6.00. In narrative form the transaction was summarized by the Federal Agent as follows:

On October 5, 1962, he saw Mr. Winfield across the street from the Club Andre on Lafayette Street in Fort Wayne, Indiana. About 11:00 p.m. Mr. Winfield drove up and parked his automobile across the street from the Club Andre. He greeted him, said hello, and asked him if he had any more weed. He was alone in his vehicle and in reply to the agent's question he said, 'Yes'. The agent said, 'I'll take a $6.00 bag.' Appellant reached into his pocket, took out a small manila envelope and handed it to him. The agent opened the envelope and observed that the envelope held a small quantity of a green weedy crushed material which he believed to be marijuana. It was not rolled into a cigarette form when he received this bag. The agent gave appellant $6.00 in government funds, the serial numbers of which were known to the government. Later the agent went to Chicago taking the envelope purchased from the appellant with him.

Thereafter, he delivered the envelope purchased from the appellant in a locked, sealed condition to Mr. John Endriz who was a government chemist.

Thereafter, John D. Endriz who testified in this case as a witness for the State, testified that he was employed as a first assistant chemist of the Internal Revenue Regional Laboratory in Chicago. That he was acquainted with agent Jackson, worked in the same office building in Chicago where the witness was employed; that he analyzed the contents of the bag that Mr. Jackson had previously testified to and that the contents in the envelope was definitely marijuana. That after the analysis he placed the same in their vault and kept it in his custody until he brought it into court at the time he was testifying.

There was testimony by the executive secretary of the Board of Pharmacy of Indiana that an examination of the records of that organization disclosed that the appellant herein was never issued a license by the State Board of Pharmacy to dispense any type of narcotic drug on October 5, 1962, and that he has never been licensed by such board to the best of his knowledge.

There was further evidence on behalf of the State by one Raymond Chambers who testified that he had been a police officer for 13 years in the City of Fort Wayne and held the rank of Detective Sergeant. He further testified that he had known the appellant for approximately 30 years during which time he had been an almost continuous ...