Summary
In State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967), a case whose facts are remarkably similar to the facts of this case, we held that there was insufficient evidence to sustain a conviction of the crime of possession of marijuana of a driver of a vehicle, whose ownership was not shown to be that of the driver, where the marijuana was contained in a duffelbag between the feet of a passenger.
Summary of this case from State v. MastersOpinion
No. 36385.
Filed February 3, 1967.
1. Criminal Law: Evidence. Where circumstantial evidence is relied upon in a criminal prosecution, the circumstances proven must relate directly to the guilt of the accused beyond all reasonable doubt in such a way as to exclude any other reasonable conclusion. 2. ___: ___. Any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused. A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the fact that some unfavorable circumstances are not satisfactorily explained. 3. Narcotics: Evidence. To prove unlawful possession of a narcotic drug, the evidence must show that the accused had physical or constructive possession with knowledge of the presence of the drug and its character as a narcotic. 4. ___: ___. Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotic drug at the place where it was found. But mere presence at a place where a narcotic drug is found is not sufficient. 5. ___: ___. Joint possession cannot be established by the fact that the defendant is or has been in the company of one who has a narcotic drug on his person. An additional independent factor linking the defendant with the narcotic must be shown.
Appeal from the district court for Deuel County: JOHN H. KUNS, Judge. Exceptions sustained in part, and in part overruled.
Robert E. Richards and Everett O. Richards, for appellant.
William S. Padley, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, and McCOWN, JJ., and WEAVER, District Judge.
The defendants, Dwight Edwin Faircloth, James Allen Oram, and Larry Dale Martin, were charged with unlawful possession and control of narcotics in violation of section 28-452, R.R.S. 1943. At the close of the State's evidence the defendants' motion to dismiss for want of sufficient evidence was sustained by the trial court.
Application was then made to this court by the State, pursuant to section 29-2315.01, R.R.S. 1943, and leave to docket error proceedings was obtained. The State seeks a review of the judgment of the trial court dismissing the prosecution for lack of sufficient evidence. Since the defendants were placed in jeopardy, this proceeding will not affect the judgment of the trial court in any manner. 29-2316, R.R.S. 1943.
The evidence shows that defendants were apprehended on January 7, 1966, on U.S. Highway No. 30 approximately 1 1/2 miles west of Chappell, Nebraska. They were riding in an automobile which was registered in the name of William Ross. A state patrolman stopped the automobile because the left headlight was out. Faircloth was driving the automobile. Oram was seated on the right side of the front seat with a blue duffle bag "down between his legs." Martin was sleeping in the rear seat. The defendants stated that "they were on the way from California, going to Lincoln, Nebraska to look for work." The patrolman required the defendants to follow him into Chappell so that the ownership of the automobile could be determined.
When apprehended, the defendants' clothing was soiled and disarrayed and it appeared that they had been sleeping in their clothing. They appeared to be under the influence of alcoholic liquor, but there was no odor of alcoholic liquor about them. Their eyes were dull, watery, and bloodshot. The defendants were placed in the county jail at Chappell, Nebraska, but no tests were administered to determine whether the defendants were intoxicated. No body fluids were withdrawn, and the defendants were not examined by a physician.
On the following day, a search warrant was obtained. The "belongings" which were in the front seat, rear seat, and trunk of the car were brought into the sheriff's office and searched in the presence of the defendants. Marihuana was found in the blue duffle bag and in a suitcase which had been taken from the car. Cigarette papers were scattered throughout the car, and were found in the pockets of the clothing of some of the defendants, but no tobacco was found. The record does not identify which of the defendants had cigarette papers in their pockets. Bottles of pills, which are not otherwise described in the record, syringes, cigarette papers, matches, and two knives were also discovered in the duffle bag and suitcase.
The defendants denied any knowledge of the "belongings" taken from the car. The blue duffle bag and suitcase were not produced at the trial. The clothing and other contents of the blue duffle bag and suitcase, except the items previously mentioned, were not produced at the trial and are not described in the record.
On cross-examination, the sheriff was asked if the defendants had stated that they knew the chemical character of the exhibits that had been identified. The sheriff answered that Oram had said that he smoked marihuana and was going to continue to smoke it. The answer was stricken on the motion of the defendants as not responsive, and the sheriff was not questioned further about the statement.
The evidence of the State establishes that marihuana was found in the blue duffle bag and suitcase which were in the automobile in which the defendants were riding. There is very little evidence to connect or identify any particular defendant with the blue duffle bag or suitcase.
Where circumstantial evidence is relied upon in a criminal prosecution, the circumstances proven must relate directly to the guilt of the accused beyond all reasonable doubt in such a way as to exclude any other reasonable conclusion. State v. Eberhardt, 176 Neb. 18, 125 N.W.2d 1.
To justify a conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together, must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby and inconsistent with any reasonable hypothesis of innocence. Reyes v. State, 151 Neb. 636, 38 N.W.2d 539. Any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused.
A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the fact that some unfavorable circumstances are not satisfactorily explained. Reyes v. State, supra.
Section 28-452, R.R.S. 1943, is a part of the Uniform Narcotic Drug Act which has been adopted in nearly every state. See 9B U. L. A., p. 409. Under this act it has been generally held that in order to prove unlawful possession, the evidence must show that the accused had physical or constructive possession with knowledge of the presence of the drug and of its character as a narcotic. Annotation, 91 A.L.R. 2d, at page 821. A similar rule prevails in this state with respect to unlawful possession of intoxicating liquor. See State v. Eberhardt, supra.
Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotics at the place where they were found. People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609. But mere presence at a place where a narcotic drug is found is not sufficient. State v. Hunt, 91 Ariz. 149, 370 P.2d 642; Carroll v. State, 90 Ariz. 411, 368 P.2d 649. As stated by the Arizona court in State v. Hunt, supra, joint possession cannot be established by the fact that the defendant is or has been in the company of one who has a narcotic drug on his person. An additional independent factor linking the defendant with the narcotic must be shown. See, also, Spataro v. State (Fla. App.), 179 So.2d 873; Evans v. United States, 257 F.2d 121.
In this case the evidence shows that Oram had the blue duffle bag containing marihuana between his legs when the automobile was stopped by the patrolman. This circumstance placed the marihuana "within such close juxtaposition" or "easy reach" of the defendant that he could be found to be in possession of it. Hunt v. State, 158 Tex. Cr. 618, 258 S.W.2d 320; Duran v. People, 145 Colo. 563, 360 P.2d 132. It was sufficient to permit the jury to have inferred that the marihuana found in the bag was under his possession and control. We think the motion to dismiss made at the close of the State's evidence should have been overruled as to Oram.
As to the other defendants, we believe that the ruling of the trial court on the motion to dismiss was correct. There was no circumstance, other than their presence in the automobile with Oram on the trip from California, to connect them with his possession of the marihuana.
It is unfortunate that the evidence in this case was not as fully developed as the record suggests it might have been. As sometimes happens, the prosecuting attorney may have been prevented from making a full presentation of the evidence which otherwise appears to have been available. In cases of this nature, where the evidence is usually of a circumstantial nature, it is important that all of the available facts be developed and presented in the trial court.
EXCEPTIONS SUSTAINED IN PART, AND IN PART OVERRULED.