State v. Brown

200 S.E.2d 666 (1973) 20 N.C. App. 71

STATE of North Carolina
v.
Harry S. BROWN.

No. 733SC758.

Court of Appeals of North Carolina.

November 28, 1973.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

Ernest C. Richardson III, New Bern, for defendant appellant.

PARKER, Judge.

On cross-examination of defendant by the solicitor the following occurred:

Question: "On January 16, 1973, where were you employed?"

Answer: "I was employed at Burroughs Wellcome."

Question: "A pharmaceutical plant?"

Answer: "Yes sir."

Question: "What do they manufacture?"

"OBJECTION OVERRULED"

Answer: "They manufacture medicine."

Appellant assigns error to the overruling of his objection to the solicitor's question as to what defendant's employer manufactured. This assignment of error is without merit. The question was well within the range of permissible cross-examination within the rule prevailing in this State. 1 Stansbury, N.C. Evidence, Brandis Revision, § 35. Defendant's counsel interposed no objection or motion to strike when, during the further cross-examination of defendant by the solicitor, the defendant testified that he had "heard that they manufacture codeine." The information elicited was relevant to show defendant's access to the drug he was charged with unlawfully distributing.

Appellant assigns error to the trial court's failure to submit to the jury the question of defendant's guilt or innocence of the offense of simple possession of codeine, contending that such offense is a lesser included offense of the offense charged in the bill of indictment. Our Supreme Court has held, however, that possession of a controlled substance and distribution of the same controlled substance are separate and distinct crimes, and each may be punished as provided by law, even where the possession and distribution in point of time were the same. State v. Thornton, 283 N.C. 513, 196 S.E.2d 701; State v. Cameron, 283 N.C. 191, 195 S.E.2d 481. Under the holding of these cases unlawful possession cannot be considered a lesser included offense of the crime of unlawful distribution.

Upon oral argument in this Court appellant's counsel abandoned the only remaining assignment of error which was brought forward in appellant's brief. No reason or argument has been stated and no authority cited in appellant's brief in support of other assignments of error appearing in the record, and these will also be taken as abandoned. Rule 28, Rules of Practice in the Court of Appeals. We have, nevertheless, carefully reviewed the entire record and in the trial and judgment appealed from find

No error.

BROCK, C.J., and CAMPBELL, J., concur.