Summary
In Turner, unlike the present case, the informer was not only present when the drugs were transferred, the informer also received part of the contraband.
Summary of this case from Woods v. StateOpinion
7 Div. 249.
June 28, 1974.
Appeal from the Circuit Court, Talladega County, William P. Powers, J.
Love, Love Lawrence, Talladega, for appellant.
For that the trial judge erred in sustaining the District Attorney's objection to Sheriff Gene Mitchell being cross-examined on the date that he had previously testified the alleged buy was made as being September 4, 1972, rather than September 3, 1972. Dixon v. United States, 5 Cir., 333 F.2d 348; Lanier v. State, 43 Ala. App. 38, 179 So.2d 167; Sixth Amendment to the Constitution of the United States; the trial court erred in its oral charge to the jury when it failed to instruct the jury that an indictment for possession of marijuana for sale carried with it the lesser offense of possession for personal use and that the defendant, though indicted for possession for sale which is a felony, could be convicted of the lesser offense of possession for personal use. Powers v. State, 49 Ala. App. 690, 275 So.2d 369.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Sp. Asst. Atty. Gen., for the State.
Where no objection or exception is taken to the trial court's oral charge, and no explanatory instruction is requested on the point in question, the argument on appeal that the oral charge was erroneous will not be considered. Sullivan v. State, 48 Ala. App. 347, 264 So.2d 576; Id., 288 Ala. 756, 264 So.2d 580; Goolsby v. State, 44 Ala. App. 535, 215 So.2d 598, modified 283 Ala. 269, 215 So.2d 602; Passmore v. State, 47 Ala. App. 189, 252 So.2d 115; Moates v. State, 40 Ala. App. 234, 115 So.2d 277, Id. 269 Ala. 698, 115 So.2d 282; Ingram v. State, 48 Ala. App. 193, 263 So.2d 179; Id., 288 Ala. 743, 263 So.2d 181.
ON REHEARINGThe original opinion, released on May 21, 1974, is hereby withdrawn and held for naught. This opinion is substituted therefor.
Appellant-defendant was indicted for unlawfully possessing for sale or selling five plastic bags of marijuana, contrary to the Alabama Controlled Substances Act. Marijuana is one of the controlled substances enumerated in § 204 (Schedule 1) (d), Act No. 1407, Volume 3, page 2378, General Acts of 1971.
The indictment charges "that before the finding of this Indictment Robert Edward Turner, alais (sic) Bobby Turner, * * *, on, to-wit: the 3rd day of September, 1972, at a place located near Chocolocco Creek, * * *, did unlawfully possess for sale or did sell, to-wit: 5 plastic bags of Marijuana weighing in the aggregate amount of, to-wit: 83.13 grams, to Robert Patterson * * *."
The jury returned a verdict of guilty as charged. The court fixed punishment at seven years imprisonment in the penitentiary. Judgment was duly entered in harmony with this verdict. This appeal followed.
Appellant for the first time calls to our attention the fact that the trial court refused to permit the disclosure of the name of the informer who went with the narcotics agent to purchase the marijuana. The evidence discloses that the informer was present when the alleged sale was made and received a portion of the contraband.
An issue of identity of the instant appellant was involved.
Under authority of Davis v. State, 51 Ala. App. 532, 287 So.2d 243, the trial court committed reversible error in his ruling.
Application for rehearing is granted; the judgment is reversed, and the cause is remanded.
The foregoing opinion was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
Application for Rehearing Granted.
Reversed and remanded.
All the Judges concur.