State v. Johnson ( 1955 )

MOISE, Justice.

This is an appeal by the accused, Ben Johnson, who was convicted of the crime of possession of marijuana, LSA-R.S. 40:962, and sentenced therefor to a term of ten years in the state penitentiary.

The record discloses—

(a)That there was filed a motion for a new trial, which was refused;

(b) That two bills of exception were perfected, which we will discuss;

(c) That the accused now urges that there is error patent on the face of the record.

Bill of Exception No. 1

This bill was taken and perfected to the trial court’s ruling in permitting the state to change the date of the alleged offense charged in the bill of information from on or about October 7, 1953, to on or about October 6, 1953.

LSA-R.S. 15:253 provides:

“ * * * The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. * * * No action of the court in refusing a continuance or postponement? under this article shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted.”

In his per curiam, we think the trial judge properly refused a continuance and permitted the amendment. Time was not the essence of the crime and the defense was not an alibi; hence, there was no harm to the defendant. State v. Roshto, 169 La. 251, 125 So. 67; State v. Anderson, 125 La. 779, 51 So. 846.

Bill of Exception No. 2

This bill was reserved to the admitting in evidence the fact that gleanings of marijuana were found in defendant’s clothes at his residence on October 7, 1953. The day after his arrest on October 6, 1953, the defendant was taken to his home where he identified certain clothing as belonging to him, and in those clothing marijuana gleanings were found.

Evidence of this second offense was introduced by the state for the purpose of showing intent, system and guilty knowledge. Defendant objected, on the ground that such was irrelevant to the issue and contrary to the state’s answer to the bill of particulars that the marijuana gleanings— of which accused had possession — were on his person and his automobile. Our learned Brother below stated that the district attorney, in the presence of the jury, claimed that this evidence was not offered in support of the charge in the information but to show another and similar offense on October 7, 1953. The objection was overruled and the evidence admitted to’show intent, system and knowledge. Articles 445 and 446 of the Code of Criminal Law and Procedure; LSA-R.S. 15:445 and 15:446.

Defendant urges in this Court that the evidence of a similar offense allegedly committed, to prove a system, intent or guilty knowledge relative to the crime charged, is prejudicial and violative of the rights of the accused. He also argues that the admission of such evidence (although in the presence of the jury) is reversible error.

The question now posed is: Under the facts and the law, is intent a necessary ingredient of the crime charged?

LSA-R.S. 40:962 reads:

“It is unlawful for any person to .* * * possess * * * any narcotic drug * * (Italics ours.)

Once possession is proved, intent forms no part of the crime. The mere possession, when that person is not authorized to possees narcotic drugs, constitutes the crime.

Ben Johnson was charged in a bill of information reading:

“ * * * feloniously did violate Title 40, Section 962 et seq., Revised Statutes of Louisiana, in that he had in his possession certain quantities of narcotic drugs, contrary to the form of the Statutes of the State of Louisiana, in such case made .and provided, in contempt of the authority of said State, and against the peace and dignity of the same.” (Italics ours.)

As pronounced in State v. Wilde, 214 La. 453, 38 So.2d 72, 75 (a forgery prosecution),, the general rule, is:

“ * * : " that' evidence tending to show the accused, who is being prosecuted for a particular crime, has. committed another crime wholly independent of and unconnected with that for which he is on trial is irrelevant and inadmissible even though it is a crime of the same sort, is subject to a number of exceptions. Such an exception is ‘When knowledge or intent forms an essential part of the inquiry.’ In such case ‘testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, * * *.’ ” (Italics ours.)

In the case of State v. Haddad, 221 La. 337, 59 So.2d 411, 415, this Court stated:

“The general rule is that evidence of the commission of a crime other than that charged in the indictment is not admissible, but Articles 445 and 446 provide exceptions to this general rule, and in the cases above cited this court admitted the evidence of subsequent offenses for the reason that they were relevant to the offense charged because they showed intent or guilty knowledge and intent.”

In the above case, the defendant wa,s charged with receiving stolen articles. The evidence of subsequent crime was admitted solely for the purpose, of showing guilty knowledge of receiving this stolen property knowingly. This was a crime where guilty knowledge was an ingredient of the offense charged, and the evidence was properly ad-i mitted; but, here in the instant case, mere possession of the marijuana constituted the crime.

In the case of State v. Colombo, 171 La. 475, 131 So. 464, the Court, likewise, held that evidence of a collateral offense was admissible to establish guilty knowledge in a prosecution for receiving stolen goods.

In State v. Keife, 165 La. 47, 115 So. 363 (a prosecution for embezzlement), the Court held that various collateral acts of embezzlement were admissible to show defendant’s intent and system and not as substantive proof of the offense charged.

Certainly, the defendant did not fall within the exception of the general rule in LSA-R.S. 15:445 and 15:446, because intent, system, and guilty knowledge form no part of the ingredients of the crime charged. Neither was the evidence a part of res gestae, as was in the case of State v. Clark, 220 La. 946, 57 So.2d 904.

In the case of State v. Johnson, 38 La. Ann. 686, where the defendant was charged with the.crime of burglary, the introduction pf evidence of prior burglaries was not permitted. The Court stated:

“It is difficult to conceive in what way the commission of a burglary, at a different time and place’ from that charged in the indictment, by the accused, could interpret the latter; or in what way the subsequent larceny, by the accused, of- a gold watch, from a person riot named could interpret the previous larceny, of a pocketknife, the property of Joseph O. Toups. It was not proper to allow such evidence to be heard by jury, and the instructions of the trial judge were proper.”

The well reasoned case of State v. Gardner, 198 La. 861, 5 So.2d 132, 134, is on all fours with the present appeal. The accused was charged with selling intoxicating liquor for beverage purposes in a parish where the sale was forbidden. The Court held that evidence of prior sales of liquor was inadmissible and made, the following pertinent pronouncement:

“‘The general rule is.against the introduction of evidence of the commission of another offense than that for which the defendant is being tried * * *.' 2 Marr’s Criminal Jurisprudence 568. See, also, State v. Johnson, 38 La.Ann. 686; State v. Bates, 46 La.Ann. 849, 850, 15 So. 204; State v. Cavanaugh, 52 La.Ann. 1251, 27 So. 704; State v. Williams, 111 La. 179, 35 So. 505; State v. Smith, 156 La. 818, 101 So. 209; Rice on Evidence, vol. 3, c. 25, § 153, and especially regarding larceny, chapter 42, § 453; 16. C.J. p. 574, § 1115, p. 586, §§ 1132, 1133, 1134, 22 C.J.S., Criminal Law, §§ 663, 682, 683; 8 R.C.L. p. 198, No. 194. There are exceptions to this- general - rule, however, one, where the evidence is’iritroduced for the purpose- of rebutting the inference that the act with which the accused is charged was not committed by accident or mistake but with a guilty knowledge or evil motive; another, when the evidence shows a system of wrongdoing, as in cases of forgery, making of false entries in books, etc. State v. Williams, 111 La. 179, 35 So. 505; State v. Norphlis, 165 La. 893, 116 So. 374; and State v. Brown, 185 La. 1023, 171 So. 433.

“In the instant case the question if intent or motive is not at issue and there being no connection between the previous sales of liquor and the sale with which the accused was charged in the indictment, it is our opinion therefore that the evidence of such previous sales was inadmissible.”

Since we have found that there is merit in Bill of Exception No. 2, no further discussion is necessary.

For the reasons assigned, the conviction and the sentence are set aside, and the case is remanded for a new trial according to law.

FOURNET, C. J., absent. HAMITER, J., dissents: