State v. Aiken , 286 N.C. 202 ( 1974 )

209 S.E.2d 763 (1974) 286 N.C. 202

STATE of North Carolina
v.
Samuel Francis AIKEN.

No. 81.

Supreme Court of North Carolina.

November 26, 1974.

James H. Carson, Jr., Atty. Gen., Rafford E. Jones and T. Buie Costen, Asst. Attys. Gen., for the State.

William A. Smith, Jr., Raleigh, for defendant.

LAKE, Justice.

The North Carolina Controlled Substances Act, G.S. § 90-86 to G.S. § 90-113.8, defines a "controlled substance" to mean "a drug, substance, or immediate precursor included in Schedules I through VI of this Article." G.S. § 90-87(5). Heroin is a substance included in Schedule I. G.S. § 90-89(b)(10).

The pertinent portions of G.S. § 90-95 provide:

"Violations; penalties. (a) Except as authorized by this Article, it is unlawful for any person:

(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;

* * * * * *

(3) To possess a controlled substance.

* * * * * *

(d) Any person who violates G.S. 90-95(a)(3) with respect to:

(1) A controlled substance classified in Schedule I shall be guilty of a felony and shall be sentenced to a term of imprisonment of not more than five years or fined not more than five thousand dollars ($5,000), or both in the discretion of the court."

The sole contention of the defendant in this Court is that the crime of possession of a controlled substance is not a lesser included offense of the crime of possession of a controlled substance with intent to deliver it, and, therefore, the trial court erred when it instructed the jury that it might return a verdict of guilty of possession of a controlled substance.

A defendant brought to trial under an indictment, proper in form, may, if the evidence so warrants and the trial is free from error, be properly convicted of the offense charged in the indictment or of a lesser offense all of the elements of which are included in the offense charged in the indictment and all of which elements can be proved by proof of the allegations of fact contained in the indictment. G.S. § 15-170; State v. Riera, 276 N.C. 361, 172 S.E.2d 535; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; State v. Rorie, 252 N.C. 579, 114 S.E.2d 233. See also: 41 Am.Jur.2d, Indictment and Information, § 313; Wharton, Criminal Law and Procedure, § 1799.

The defendant, recognizing this rule, contends that the offense of the unauthorized possession of a controlled substance (heroin) is not included within the offense of the unauthorized possession of such substance with the intent to deliver it. He relies upon our decision in State v. Cameron, 283 N.C. 191, 195 S.E.2d 481. That case is clearly distinguishable from the present. In the Cameron case, the defendant was charged in separate indictments with the unlawful possession of heroin and with the unlawful sale of the same heroin. He was convicted on both charges and sentenced to imprisonment on each, the sentences to run consecutively. Cameron contended that the possession of a controlled substance is a lesser offense included within the offense of the unauthorized sale of such substance and, therefore, the imposition of separate sentences upon him for these two offenses constituted double jeopardy, in violation of the State and Federal Constitutions. We held that these were two separate, distinct crimes and that there was no error in imposing the separate sentences therefor. We reaffirm that decision.

As we pointed out in State v. Cameron, supra, one may unlawfully sell a controlled substance which he lawfully possesses. Furthermore, the sale of a substance is the passage of title thereto and while usually the seller of a controlled substance has possession thereof, actual or constructive, it is not necessarily so as a matter of law. One may sell an article or substance which he does not possess. Quite obviously, one may possess an article or substance which he does not sell. Consequently, possession is not an element of sale and sale is not an element of possession. Thus, neither the offense of unauthorized possession nor the offense of unauthorized sale of a controlled substance is included within the other offense and one placed in jeopardy as to the one offense is not thereby placed in jeopardy as to the other. Thus, one charged with both offenses may be convicted of both and sentenced to imprisonment for each.

On the contrary, one may not possess a substance with intent to deliver it (the offense charged in the present indictment) without having possession thereof. Thus, possession is an element of possession with intent to deliver and the unauthorized possession is, of necessity, an offense included within the charge that the defendant did unlawfully possess with intent to deliver. Consequently, there was no error in instructing the jury that, under the indictment in the present case, it might find the defendant guilty of the unauthorized possession of a controlled substance.

No error.

BOBBITT, C. J., not sitting.