Wolf v. State
| Decision Date | 27 April 1973 |
| Docket Number | No. 46988,46988 |
| Citation | 281 So.2d 445 |
| Parties | Eugene John WOLF v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Dempsey M. Levi, Ralph W. Pringle, Pascagoula, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, James W. Haddock and Timmie Hancock, Sp. Asst. Attys. Gen., Jackson, for appellee.
Eugene John Wolf was tried in the Circuit Court of Jackson County on an indictment charging that he did have in his 'possession and produce' a certain narcotic drug. He was convicted and sentenced to serve a term of five years in the penitentiary. He has appealed here.
The record leaves no reasonable doubt that appellant did, in fact, have in his possession and produce the narcotic drug as charged. Among the several grounds assigned for reversal is the overruling of appellant's objection to the indictment that 'as the indictment states the cause of action it is twofold and your defendant is not able to understand the charge against him.' It is now argued that the indictment charged in one count a felony (producing) and a misdemeanor (possessing) and is, therefore, fatally defective.
The general rule is that it is improper to charge the commission of two different crimes in a single count. Hitt v. State, 217 Miss. 61, 63 So.2d 665 (1953); Clanton v. State, 211 Miss. 568, 52 So.2d 349 (1951); 27 Am.Jur. Indictments and Information § 124 (1940).
In a recent controlled substance case decided by the Court of Appeals of Alabama, in which the one-count indictment charged the defendant with possession of two separate, distinct and different 'controlled substances,' namely, barbiturates, possession of which is a misdemeanor, and Demerol, possession of which constitutes a felony, the Alabama Court held that such distinct and separate offenses could not be joined in the same count. Brandies v. State, 44 Ala.App. 648, 219 So.2d 404 (1968).
There are certain generally recognized exceptions to the rule. These include such offenses as assault and battery and burglary and larceny. Bradshaw v. State, 192 So.2d 387 (Miss.1966).
The rationale of the exceptions seems to be that a statement in an indictment of the motive or purpose which prompted the principal criminal action, although it may in itself, if taken alone, charge an offense, is not objectionable, if it is incidental and relates to a description of the principal offense, is not inconsistent with it, and is part of a single transaction.
In Laughter v. State, a Mississippi case, 241 So.2d 641 (Miss.1970) the Court was confronted with a question of double jeopardy. In Laughter the Court dealt at some length with the 'single transaction principle' as it applied to double jeopardy. It appears that Laughter had been indicted for possession of marijuana, and by a separate indictment, for the sale of marijuana. He was tried and convicted on the possession charge and his conviction was affirmed. Following his conviction on the possession charge, Laughter was brought to trial upon the indictment for the sale of the same marijuana. On his motion to quash the indictment in the second case, it was established that the possession, for which he had been convicted previously, and the sale, for which he was to be tried, arose out of the same transaction and that the possession for which he had been convicted was necessarily incidental to the sale.
After an extensive review of the authorities, this Court said:
We are of the opinion that the one transaction principle is sound when properly limited. Since the facts in this case show that the appellant procured the marijuana at the request of Walker for the purpose of sale to Watson, his possession and sale of marijuana constitute one transaction and the possession was only incident to the sale. Under these circumstances possession was a lesser included or constituent offense of the sale and it would be unfair to punish appellant for both offenses (241 So.2d at 644).
The Court pointed out, of course, that if the possession had been distinct, unrelated or not incidental to the sale, or had been upon another occasion, the prosecution would not have been barred.
In West v. State, 49 So.2d 271 (Miss.1950) the indictment charged that the defendant had in his possession 'a still and the integral parts thereof.' In deciding that the indictment was not duplicitous in charging in the same count the offense of possession fo the still and of possession of the 'integral parts of a still,' each being a statutory offense, the Court said that the In the present case we have concluded that the possession, although a lesser offense in itself, was only incidental to the more serious charge of production of marijuana, and that possession and production were parts of the same transaction.
In the Mississippi 'pointing and aiming statutes,' it is made a misdemeanor to 'intentionally point or aim any gun, pistol, or firearm at or toward another, except in self-defense or in the lawful discharge of official duty.' It is also made a misdemeanor, for which a more severe punishment is provided, to 'discharge such firearm, so intentionally pointed or aimed, . . .' and is then made a felony if, 'by such discharge, (the accused) shall maim, kill, or injure another. . . .' Obviously, the indictment for the felony would not be objectionable although it included words which, if taken alone, would constitute the charge of either or both of the misdemeanors defined by the statute. Mississippi Code 1942 Annotated section 2013 (1956).
In Fairman v. State, 83 Nov. 137, 143, 425 P.2d 342, 345 (1967) the Supreme Court of Nevada said: 'Possession of the marijuana is a necessarily included offense when incident to the sale as shown by the facts of this case and only one conviction can be had for either the sale or possession, but not both.'
The general rule is stated in 22 C.J.S. Criminal Law § 295(3) (1961) in a headnote as follows:
An accused may not properly be prosecuted for two offenses with relation to narcotics where both arise out of the same transaction and one is necessarily incident to the other, but where the same transaction gives rise to separate and distinct offenses, a prosecution for one will not ordinarily bar prosecution for the others.
In Lenoir v. State, 237 Miss. 620, 623-624, 115 So.2d 731, 732 (1959), this Court said:
It is a general rule that where a statute denounces as an offense two or more distinctive acts, things, or transactions enumerated therein in the disjunctive, the whole may be charged conjunctively and the defendant found guilty of either one. Section 1798, Vol. 4, Wharton's Criminal Law and Procedure; 27 Am.Jur., Indictment and Information, Sec. 104. This Court seems to have followed this general rule in cases involving other statutes. Cf. State v. Sam, 154 Miss. 14, 122 So. 101; Sauer v. State, 166 Miss. 507, 144 So. 225; Turner v. State, 177 Miss. 272, 171 So. 21; Brady v. State, 128 Miss. 575, 91 So. 277; State v. Clark, 97 Miss. 806, 52 So. 691; Coleman v. State, 94 Miss. 860, 48 So. 181, and West v. State, Miss., 49 So.2d 271.
The insertion in the indictment of the statement that appellant had in his 'possesion' was not essential to the charge that he produced the marijuana. It neither added to nor detracted from the charge of production and must be categorized as one of the 'lesser included offenses.' It is clear that the offense charged was the production of the specified '1,088 marijuana plants,' and the language of the indictment makes it unmistakably clear that both the possession and production relate to the same 1,088 plants specifically referred to in the indictment. At worst, the insertion of the words 'had in (his) possession' before 'and produced' the 1,088 plants was harmless surplusage.
We have concluded that here, where in a single count indictment, possession and production of a controlled substance is charged conjunctively, such possession and production constitute aspects of a single transaction and that the possession, having been merely incidental to the production of the substance, did not constitute a charge of a separate or distinct offense. We hold, therefore, that the indictment in this case charging that appellant did possess and produce marijuana was not fatally defective.
The case against Wolf developed in this way. A neighbor informed a police officer that he had observed plants growing upon Wolf's land, which adjoined his which the...
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