State v. Austin

228 S.E.2d 507 (1976)

31 N.C. App. 20

STATE of North Carolina v. Jack P. AUSTIN and Joseph P. Thorne.

No. 7611SC236.

Court of Appeals of North Carolina.

October 6, 1976.

*510 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

L. Austin Stevens, Smithfield, for defendant-appellant, Jack P. Austin.

T. Yates Dobson, Jr., Smithfield, for defendant-appellant, Joseph P. Thorne.

PARKER, Judge.

Appeal by defendant, Jack P. Austin

Defendant Austin assigns error to the denial of his motions, made at the conclusion of the evidence, to dismiss all charges against him. As to Case No. 5405, in which Austin was charged with aiding and abetting Thorne in furnishing false information in violation of G.S. 90-108(a)(11), there was insufficient evidence to support a jury verdict finding Thorne guilty of that offense. Where there is insufficient evidence to convict a specifically named principal defendant of the crime charged, another person may not be convicted of aiding and abetting him. State v. Gainey, 273 N.C. 620, 160 S.E.2d 685 (1968). Therefore, defendant Austin's motion to dismiss Case No. 5405 should have been allowed.

As to the remaining cases against Austin, Nos. 3586B, 3588B, and 3589B, in which he was charged with selling and delivering controlled substances, we find the evidence sufficient to withstand defendant's motions for dismissal. We do not agree with defendant's contention that, since the drugs sold were exactly those called for by prescriptions which appeared regular in all respects, he could at most be guilty of a violation under Article 4 of G.S. Ch. 90, which governs the practice of pharmacy, and not under Article 5, the North Carolina Controlled Substances Act. G.S. 90-71, which appears in Art. 4, makes it unlawful for any person not licensed as a pharmacist to dispense or sell at retail any drug or pharmaceutical preparation "upon the prescription of a physician or otherwise, or to compound physicians' prescriptions except *511 as an aid to and under the immediate supervision of a person licensed as a pharmacist or assistant pharmacist" under Article 4. On the evidence presented in the present case, defendant Austin might indeed have been guilty of the unlawful conduct proscribed by G.S. 90-71 and its companion statute, G.S. 90-72. See, Board of Pharmacy v. Lane, 248 N.C. 134, 102 S.E.2d 832 (1958). That fact, however, does not insulate him from prosecution for violation of the more serious offense proscribed by G.S. 90-95(a)(1), the statute under which he was convicted. That statute makes it a criminal offense to sell or deliver a controlled substance except as authorized by Article 5 of G.S. Ch. 90, and nowhere in Article 5 do we find authority for a sale which is clearly made unlawful under Article 4. We hold, therefore, that when a drug is sold under circumstances which render the sale unlawful under Article 4, there is also a violation of Article 5, if, as in the present case, the drug involved is a controlled substance.

The bills of indictment on which defendant Austin was tried were returned by the grand jury as true bills on 2 June 1975. Prior thereto, on 7 May 1975, three warrants had been issued and served on defendant Austin charging him with the misdemeanors of unlawfully dispensing pharmaceutical preparations in violation of G.S. 90-72. These warrants were based on the same sales of drugs as were alleged in the bills of indictment in Cases 75CR3586B, 3588B, and 3589B. Defendant Austin contends that because these misdemeanor warrants had been issued and served prior to the time of the return of the bills of indictment, his motion to dismiss the indictments, made prior to entry of his pleas of not guilty, should have been allowed. Citing State v. Parker, 234 N.C. 236, 66 S.E.2d 907 (1951), for the rule "that where two courts have concurrent jurisdiction of a case, the court which first acquires jurisdiction over the case retains it to the exclusion of the other court," defendant Austin contends the District Court acquired prior jurisdiction by reason of the warrants and for that reason the Superior Court had no jurisdiction to proceed to try him under the bills of indictment. The rule cited by defendant has no application to the present case. Here, the Superior and District Courts did not have concurrent jurisdiction. The indictments charged defendant with commission of felonies, over which the Superior Court has exclusive original jurisdiction. The outstanding misdemeanor warrants, on which defendant has never been brought to trial, did not prevent the Superior Court from exercising its jurisdiction over the felony offenses. The motion to dismiss the indictments was properly denied.

Defendant Austin assigns as error the admission in evidence over his objection of the affidavit of S.B.I. Agent Boulus on the basis of which the search warrant dated 28 March 1975 was issued. Agent Boulus was called as the first witness for the State. Over defendant's objections he was permitted to recount to the jury the contents of his affidavit, and the affidavit itself was received in evidence before the jury. In this there was error. In State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972), Justice Branch, speaking for our Supreme Court, said (pp. 351, 352, 185 S.E.2d p. 888):

"The validity of a search warrant, the legality of a search, and the admissibility of evidence obtained by the search are matters of law to be determined by the trial judge. Determination of these questions is not for the jury's consideration. State v. Reams, 277 N.C. 391, 178 S.E.2d 65; State v. Vestal, 278 N.C. 561, 180 S.E.2d 755; State v. Myers, 266 N.C. 581, 146 S.E.2d 674; State v. Moore, 240 N.C. 749, 83 S.E.2d 912. It is error to allow a search warrant together with the affidavit to obtain search warrant to be introduced into evidence because the statements and allegations contained in the affidavit are hearsay statements which deprive the accused of his rights of confrontation and cross-examination. See State v. Oakes, 249 N.C. 282, 106 S.E.2d 206."

We need only determine if the error was prejudicial. State v. Jackson, 287 N.C. 470, *512 215 S.E.2d 123 (1975); State v. Spillars, supra.

The affidavit of Agent Boulus was clearly based in substantial part on hearsay statements of Agents Kelly and McDaniel. If this was its only vice, we might be able to consider the admission of the affidavit as nonprejudicial error, since both Kelly and McDaniel subsequently testified and were subject to cross examination. The affidavit, however, went further and referred to a number of other pending criminal charges against defendant Austin without showing that he had been convicted of those offenses, and "[i]t is well recognized in this jurisdiction that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense." State v. Spillars, supra, 280 N.C. at 352, 185 S.E.2d at 888. Considering the entire affidavit, we are unable to say that the error in its admission was nonprejudicial. For this error, defendant Austin is entitled to a new trial in Cases 75CR3586B, 3588B, and 3589B.

Appeal by defendant, Joseph P. Thorne

Defendant Thorne points out, and the State concedes, that the indictment against him in Case No. 75CR3585, which was returned as a true bill on 15 April 1975, was dismissed by the trial court on motion of defendant prior to arraignment. For that reason the judgment entered in that case must be vacated.

In Cases Nos. 75CR3584B and 3579, in which Thorne was charged with aiding and abetting Austin in making felonious sales of controlled substances to Agent McDaniel on 9 January 1975, there was no evidence to show that Thorne was physically present, that he gave any encouragement, or that he did anything else to assist or encourage Austin in making those sales. Indeed, the State's entire case against Austin was predicated on the theory that his pharmacist, Thorne, was not present when those sales were made. Thorne's motions for dismissal of those cases should have been allowed.

In Case No. 75CR5423, in which Thorne was charged with feloniously and intentionally furnishing false and fraudulent information, the State also failed to present evidence sufficient to warrant submission of the case to the jury. The State's own handwriting expert testified that he was unable to identify any of the entries on the records as having been written by Thorne. There was no evidence from which the jury could find Thorne guilty of the offense charged.

The result is:

As to defendant, Jack P. Austin:

In Case No. 75CR5405, the judgment is vacated.

In Cases Nos. 75CR3586B, 3588B, and 3589B, defendant is entitled to a new trial.

As to defendant, Joseph P. Thorne, the judgments in all cases against him, being Nos. 75CR3584B, 3579, 3585, and 5423, are vacated.

BROCK, C. J., and ARNOLD, J., concur.