State v. Yelverton

196 S.E.2d 551 (1973)

18 N.C. App. 337

STATE of North Carolina v. Lewis YELVERTON.

No. 737SC319.

Court of Appeals of North Carolina.

May 23, 1973.

Certiorari Denied July 12, 1973.

Atty. Gen., Robert Morgan by Asst. Atty. Gen., Raymond W. Dew, Jr., for the State.

Farris, Thomas & Farris by Robert A. Farris Wilson, for defendant-appellant.

Certiorari Denied by Supreme Court July 12, 1973.

CAMPBELL, Judge.

Defendant has argued that the possession and distribution of a single quantity of marijuana taking place on one occasion constitutes but one crime for which he may be punished only once. This Court so held in State v. Thornton, 17 N.C.App. 225, 193 S.E.2d 373 (1972), upon the premise that it is impossible to prove distribution of a narcotic without also proving at least constructive possession.

The Thornton case, however, has been specifically disapproved in State v. Cameron, 195 S.E.2d 481, filed in the Supreme Court of North Carolina on April 11, 1973. In the opinion by Justice Moore, it is observed that the General Assembly created two distinct crimes of equal degree, to be separately punished rather than providing that one should be a lesser included offense in the other. It is a matter of public policy, then, to punish equally the possession of a controlled substance and the distribution of a controlled substance.

It is also a rule of law that if a defendant's conduct violates two or more criminal statutes, he may be convicted and *552 punished only one time if each crime does not require proof of additional facts not required by the other. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962). In the Cameron ruling the Supreme Court met this test by holding that:

"`There are different elements present in the two crimes of selling and possessing the prohibited drugs. Proof of the illegal sale of the drugs would not prove the illegal possession of the drugs, since persons might legally possess the drugs who could not legally sell them. Proof of the illegal possession of the drugs would not prove the illegal sale of the drugs. Neither offense is a necessary element in, and constitutes an essential part of, the other offense. . . .'" Gee v. State, 225 Ga. 669, 171 S.E.2d 291 (1969).

As we find no error in the conduct of the trial, the judgment and conviction must be affirmed.

Affirmed.

MORRIS and VAUGHN, JJ., concur.