State v. McIntyre

186 S.E.2d 207 (1972)

13 N.C. App. 479

STATE of North Carolina v. Jack Arnold McINTYRE.

No. 7216SC76.

Court of Appeals of North Carolina.

February 2, 1972.

Certiorari Allowed March 7, 1972.

*208 Atty. Gen. Robert Morgan and Associate Atty. Gen. Henry E. Poole for the State.

John C. B. Regan, III, Lumberton, for defendant-appellant.

Certiorari Allowed by Supreme Court March 7, 1972.

MALLARD, Chief Judge.

The defendant contends that the trial judge committed error in failing to charge the jury on the lesser included offense of possession of one gram or less of marijuana. (G.S. § 90-111, before being rewritten effective 1 January 1972.) All the evidence for the State tended to show that the defendant had in his possession more than one gram of marijuana. The defendant's evidence tended to show that he did not have any marijuana in his possession. There was therefore no evidence of the misdemeanor of possession of only one gram or less of marijuana. The trial judge did not commit error in failing to charge the jury on the lesser included offense of the possession of one gram or less of marijuana. The applicable rule is:

"* * * The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State's evidence tends to show a completed. . . (offense) and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice." State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954); State v. Gurkin, 8 N.C.App. 304, 174 S.E.2d 20 (1970). See also, State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969).

The case of State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970), cited and relied on by defendant, is distinguishable. In Riera, the Supreme Court held, among other things, that the possession of barbiturates, a misdemeanor, was a lesser included offense in the felony charge of possession of barbiturates for the purpose of sale. Proof that the defendant possessed 100 or more capsules or tablets of barbiturates, under G.S. § 90-113.2 and G.S. § 90-113.8 as they existed at the time Riera was decided, merely established for the State a prima facie case that the crime of felonious possession for the purpose of sale had been committed. In Riera, it is said:

"A prima facie case does nothing more than carry the case to the jury for its determination. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163. Likewise, prima facie evidence is no more than sufficient evidence to establish the vital facts without further proof, if it satisfies the jury. In a criminal case the jury is at full liberty to acquit the defendant if it is not satisfied from all the evidenceincluding prima facie evidencethat defendant's guilt has been proven beyond a reasonable doubt. In short, the inference or conclusion which may be drawn from certain facts recited in the statute may justify, but not compel, a verdict adverse to the defendant. Ordinarily, the establishment *209 of prima facie evidence does not shift the burden of the issue from the State to the defendant. * * *"

Under the applicable statutes pertaining to marijuana prior to the effective date of the North Carolina Controlled Substances Act, the quantity possessed actually determined the grade of the offensethe possession of one gram or less being a misdemeanor and the possession of more than a gram of marijuana, in and of itself, being a felony. In the case before us, therefore, the possession of more than one gram of marijuana was a felony, not just prima facie evidence thereof.

On 1 January 1972, and while this case was on appeal to this court, however, the Act of the 1971 General Assembly entitled North Carolina Controlled Substances Act (Act), Article 5, Chapter 90 of the General Statutes, became effective. This cause was argued in the Court of Appeals in January 1972.

Pertinent parts of the Act read as follows:

"§ 90-94. Schedule VI controlled substances. * * * The following controlled substances are included in this schedule: 1. Marihuana. 2. Tetrahydrocannabinols. § 90-95. Violations, penalties.(a) Except as authorized by this Article, it shall be unlawful for any person: (1) To manufacture, distribute or dispense or possess with intent to distribute a controlled substance listed in any schedule of this Article; * * * * * * (3) To possess a controlled substance included in any schedule of this Article. * * * * * *

(e) Any person who violates G.S. § 90-95(a) (3) with respect to controlled substances included in Schedules V and VI of this Article shall, for the first offense, be guilty of a misdemeanor and be sentenced to a term of imprisonment of not more than six months or fined not more than five hundred dollars ($500.00). * * *

(f) Possession by any person of controlled substances included in any schedule of this Article in violation of G.S. § 90-95(a) (3) shall be presumed to be possession of such substances for purposes of violating G.S. § 90-95(a) (1) in the following cases:

* * * * * * (3) Possession of more than five grams of marijuana as controlled within Schedule VI of this Article. . . . * * * * * * § 90-113.7. Pending proceedings. (a) Prosecutions for any violation of law occurring prior to January 1, 1972 shall not be affected by these repealers, or amendments, or abated by reason, thereof."

It is noted that the above-quoted portion of G.S. § 90-113.7(a) does not now specifically refer to the punishment to be imposed, but the Act does reduce the crime of possession of more than one gram of marijuana from a felony to a misdemeanor, and the maximum punishment for the first offense of possession of any quantity of marijuana to imprisonment for not more than six months. The defendant in this case was found guilty of only the possession of marijuana. While the prosecution of the defendant for the violation of the narcotic laws occurring prior to 1 January 1972 was not affected by the 1971 Act, under the principles set forth in State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967) and followed in State v. Spencer, 276 N. C. 535, 173 S.E.2d 765 (1970), the reduction of the grade of the crime by the General Assembly, while this case is pending, and the reduction of the maximum punishment for the simple possession of marijuana *210 inures to the benefit of the defendant. The defendant, therefore, has been convicted of only a misdemeanor. The judgment as to the defendant, Jack Arnold McIntyre, is modifed so as to reduce his sentence of imprisonment for not less than three years nor more than five years to imprisonment for six months in the custody of the Commissioner of Corrections.

The defendant has other contentions and exceptions which are not discussed herein, but in view of the disposition of this case, we hold that the errors complained of, if any, are without merit or are not prejudicial.

Modified and affirmed.

HEDRICK and GRAHAM, JJ., concur.