OPINION
Appellant, Lloyd A. Corbett, hereinafter referred to as defendant, was charged, tried and convicted in Cases CRF-73-753 and CRF-73-574 in the District Court,
At trial, Oklahoma City Police Officer Lucien Jones testified that while he was serving as air undercover narcotics agent on February 15, 1973, he went to the Bucking Far Bar where he met the defendant whom he knew only as “Blue.” The officer related that he engaged the defendant in conversation and learned from him that he had a certain amount of LSD which he would sell at two dollars a “hit.” The officer offered to buy some and the transaction was immediately completed by Jones giving the defendant four dollars in return for two tablets of the substance. Jones testified that the transaction out of which the second charge arose took place in the same bar three days later on February 18, 1973. He stated on direct examination that he was accompanied on that second occasion by a confidential informer and that he and the unnamed informer met the defendant in a hallway leading to a restroom at the rear of the establishment. The three men engaged in a brief conversation in which the defendant agreed to sell Jones more LSD at the same price he had paid earlier. Jones again gave the defendant four dollars in return for two tablets. The actual transfer took place inside the restroom out of the presence of the informer.
The introduction of evidence that established the chain of custody of the four tablets received by Officer Jones and that each tablet contained Lysergic acid diethyl-amide concluded the State’s case.
The defendant testified in his own behalf that he had not at any time sold LSD. He stated that he was not present at the Bucking Far Bar on February 15, 1973. He stated that he was able to recall the events of that date because he and his partner, Carroll Hanna, had completed two roofing jobs that day, had gotten their truck stuck in the mud on the first job and had been forced to haul materials to the roof by hand on the second job because their hoist had broken. At the end of the day they returned to the roofing company and received a check in payment for their work. He testified that he then accompanied Mr. Hanna to a bar where they drank several beers. After leaving the bar they went to Mr. Hanna’s apartment arriving there about 7:30 p. m. He stated that he stayed in that apartment for the rest of the night with Mr. Hanna who was caring for three small children while their mother worked. The defendant testified that on the second night in question, February 18, 1973, he was at home alone in his apartment in Oklahoma City where he remained the entire night.
Carol Ann Strother testified for the defense that she and her husband operated a roofing business that employed the defendant. She identified defendant’s exhibit No. 1 as the check she wrote to Mr. Corbett on February 15, 1973, and testified that she delivered that check to him on that date.
Carroll Hanna testified that he was with the defendant on February 15, 1973, and that the defendant spent the night at his apartment on that date. Hanna’s account of the events of that date did not differ materially from that of the defendant.
Gretha Bynum testified that on February 15, 1973, the defendant and Mr. Hanna came to her apartment and that she left her children in their care while she went to work.
The defendant asserts in his first proposition that this case must be reversed because the trial judge erred in refusing to
It is a general rule, founded upon substantial policy considerations, that the government is privileged to withhold from an accused the identity of an informer. See, Roviaro v. United States,
We first discussed the question of the disclosure of the identity of an informer in Kovash v. State, Okl.Cr.,
We have determined in the instant case that the trial judge did not abuse his discretion in overruling the defendant’s motion to compel disclosure. The informer was present during the conversation which preceded the drug sale but was not present at the time of the actual transfer. His testimony therefore is relevant only to the question of the identity of the person who sold the drug to Officer Jones on the night of February 18. At the time the trial judge made his ruling, however, there was nothing in evidence before him from which he could conclude that such testimony was material to the determination of the guilt or innocence of this defendant. The police officer had positively identified the defendant as the man who sold him the tablets of LSD and had been fully cross-examined. There was no
In his second proposition defendant urges that the trial judge committed error by refusing to comply with his request to give the following instructions:
“You are instructed that it is peculiarly within the power of the state to produce a witness who could give material testimony on an issue in the case (identity), that the failure to produce a witness whose testimony would elucidate the transaction creates the presumption that this witness’s testimony would be unfavorable.”
The so called “missing witness” instruction of which the above is an example glows out of the ancient principle that the non-production of evidence that would naturally have been produced by an honest and therefore fearless party permits the inference that the tenor of such evidence is unfavorable to the party’s cause. We do not reach the question of propriety of such an instruction, under our practice in a different case, for the principle upon which it must rest is clearly inapplicable to these circumstances. For that reason defendant’s contention of error in refusing a missing witness instruction is wholly without merit.
For the above and foregoing reasons we are of the opinion that the judgment and sentence appealed from should be, and hereby is, affirmed.