State v. Stacy , 19 N.C. App. 35 ( 1973 )

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197 S.E.2d 881 (1973) 19 N.C. App. 35
STATE of North Carolina
v.
Larry STACY.
No. 7326SC533.
Court of Appeals of North Carolina.
July 25, 1973.
*882 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Eugene Hafer, Raleigh, for the State.

Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III, Charlotte, for defendant appellant.

PARKER, Judge.

Appellant assigns error to the action of the trial court in permitting the State's witness, Best, to testify over defendant's objection that in his opinion the contents of the bags was heroin. Prior to this the witness had testified without objection to his extensive academic and practical training in chemistry, including testimony that he had "run thousands of analyses on heroin." This testimony furnished ample support for admission of the witness's opinion as an expert. "In the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness." State v. Perry, 275 N.C. 565, 169 S.E.2d 839. Here, appellant made no request for a finding by the trial court as to the qualification of the witness as an expert, and under the circumstances disclosed in this record there was no error in permitting the witness to state his opinion.

In apt time the defendant filed with the trial judge written request that the jury be instructed as follows:

"If you find that the defendant distributed heroin to Donald P. Stockett, but if you further find that he did not know or had no reasonable ground to believe the substance was a controlled substance, then it would be your duty to find for the defendant."

The trial judge denied this request, and instead charged the jury that if they should find from the evidence beyond a reasonable doubt that defendant had passed a packet containing heroin to Donald Stockett, it would be their duty to return a verdict of guilty as charged.

Under the evidence in this case the court should have instructed the jury that the *883 defendant is guilty only in the event he knew the package contained heroin and that if he was ignorant of that fact, and the jury should so find, they should return a verdict of not guilty. State v. Elliott, 232 N.C. 377, 61 S.E.2d 93. For failure to so charge, defendant is entitled to a

New trial.

BROCK and MORRIS, JJ., concur.