KELLY v. STATE

KELLY v. STATE
1971 OK CR 137
483 P.2d 737
Case Number: A-16220
Decided: 03/24/1971
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Kay County; Lester R. Maris, Judge.

Lawrence Kelly was convicted of the offense of possession of marihuana; was sentenced to five (5) years imprisonment; and he appeals. Reversed and remanded for a new trial.

John W. Raley, Jr., Ponca City, for plaintiff in error.

Larry Derryberry, Atty. Gen., Sondra Leah Fogley, Asst. Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge:

¶1 Lawrence R. Kelly, hereinafter referred to as "defendant," was charged, tried and convicted in the District Court of Kay County of the offense of Possession of Marihuana; his punishment was fixed at five years imprisonment and a $5,000 fine and from said judgment and sentence a timely appeal has been perfected to this Court.

¶2 The Attorney General has filed a Response Brief herein confessing error in that the trial court refused to instruct the jury that the defendant must "knowingly" have possession of the contraband. This Court is of the opinion that this proposition is well taken. We have previously held that knowledge of the presence of marihuana is a necessary element of the offense of possession of marihuana. Brown v. State, Okl.Cr., 481 P.2d 475.

¶3 The defendant further contends that the trial court erred in refusing to admit evidence showing that other parties in the Ponca City area had received packages of marihuana from unknown parties at about the same date. We are of the opinion that if such incidents were not remote in point of time that evidence of such should be admitted to support the defendant's theory of defense.

¶4 It is therefore the order of this Court that this cause be reversed and remanded to the District Court of Kay County for a new trial.

NIX and BRETT, JJ., concur.