State v. CatterallState v. Catterall
- Reporters:
- , , ,
- Before:
- Horowitz
The state appeals from an order granting defendant’s motion for arrest of judgment of conviction of the crime of selling dangerous drugs entered after a trial before a jury in Snohomish County Superior Court.
The assignments of error involve an interpretation and application of
On June 22, 1970, two minors, Michael and Scott, agreed to go to Everett, Washington, to purchase some lysergic
After entering the defendant’s house, Michael asked defendant if he could obtain some LSD from him. Defendant stated he did not have any in the house due to frequent visits from narcotic agents, but that he might show him some people who might have it. They then discussed the going price of marijuana in the area, and the possibility of setting up large-scale trafficking of kilos of marijuаna to Eastern Washington.
The three then proceeded in defendant’s car to Madrona Beach in Snohomish County. There defendant approached several people and inquired as to whether they had any drugs. Finally defendant approached a vehicle and asked а passenger friend of his whether he had drugs or if he knew anybody who had any. The passenger said no. However, the driver, sitting in the driver’s seat on the other side of the car, said yes. Thereupon, without further ado, Michael began negotiations with the driver for the purchase of LSD and marijuana, and ultimately purchased $12 worth of marijuana and $16 worth of LSD. Neither Michael nor defendant had theretofore met or knew the driver, nor had the driver theretofore met either. While these negotiations between Michael and the driver were taking place, the defendant continued to stand by the passеnger side of the car and listen to the negotiations without comment.
The three then drove back to defendant’s residence. While en route to defendant’s home, defendant examined the purchased marijuana and gave his opinion to Michael that it was “good looking.” At the residencе Michael gave defendant three cigarette’s worth of marijuana in payment or appreciation for defendant’s help. Michael and Scott then left in their car, but were later stopped and searched by
Defendant was adjudged guilty of selling dangerous drugs by virtue of the aiding or abetting statute,
The state has appealed, contending
State v. Gladstone, supra,
to be distinguishable. It asserts that under
The state recognizes that
The purchase and sale are different sides of the same coin. See Butler v. Thomson, 92 U.S. 412, 23 L. Ed. 684 (1876); Pettaway v. Commercial Automotive Serv., Inc., 49 Wn.2d 650, 306 P.2d 219 (1957). Yet it is important to note the difference between a purchase and a sale. The sale involves the transfer of title to the subject matter of the sale from the seller to the purchaser. The рurchase involves the receipt of title to the subject matter of the sale by the purchaser from the seller. The consensual nature of the purchase-sale transaction requires that the purchaser cooperate with the seller in effecting the sale. As a matter of abstract logic, that cooperation requires that the purchaser aid or abet the seller in making the sale. If, however, the substantive statute defining the crime separates the sale transaction into its component parts, punishing only the seller and not the purchaser, then the legal consequences intended by this separation in treatment creates a problem of determining legislative intent. The separation suggests that the legislature may have intended that the purchaser, who is directly exempted, should not lose his exemption by indirection through application of a prior general aiding and abetting statute. To permit the exemption to be lost by indirection would prevent the accomplishment of those very policies intended to be effectuated by the direct exemption granted.
This reading of the purpose of the legislative exеmption from criminal responsibility of a necessary party has been adopted in cases such as
Gebardi v. United States,
287 U.S. 112, 77 L. Ed. 206, 53 S. Ct. 35, 84 A.L.R. 370 (1932). There a study of the prior history of the Mann Act, to the extent available, enabled the court to conclude that the words
The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal— approach it from the same direction, touch it at the same рoint. This is not the case with the purchaser of liquor. His approach to the crime is from the other side; he touches it at wholly another point. . . . The purchaser of liquor, by his offer to buy, induces the seller of the liquor to make the sale; but he can not be said to “assist” him in it. The whole force, moral or physical, that went to the production of the crime as such, was the seller’s.
Accord: Tellis v. State, supra.
What has been said about the noncriminal responsibility of the exempt purchaser applies also to his agent or one who’ assists the purchaser to make the purchase.
People v.
[T]here [is] an incongruity in holding a purchaser innocent, and his agent acting for him guilty of the same offense . . .
Finally, it is to be remembered that mere physical presencе and assent to the commission of the crime is not enough to constitute one an aider or abettor of the principal committing the crime. Something more is required. See State v. Peasley, 80 Wash. 99, 141 P. 316 (1914); Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967).
In
State v. Gladstone, supra,
relied upon by the trial court in arresting the judgment of conviction, the court reached conclusions applicablе here which are consistent with the principles discussed above. In that case, the conviction of the defendant for aiding and abetting the seller of marijuana in violation of
In the instant case, the evidence shows more aid to the purchaser than was shown in
State v. Gladstone, supra;
but the evidence that must control as to whether thе defendant did more than merely - stand by and assent to the transaction, is the testimony as to what occurred when the driver of the car volunteered that he had some marijuana to sell. The evidence below shows only aiding and abetting by the defendant for the purpose of aiding Michael makе the purchase. There is no evidence that the defendant, while standing where he was during the negotiations undertaken by Michael, by word, gesture or sign, did anything to induce the seller to make the sale. For all the evidence shows, the defendant might have been willing to take his chances in making the sale, rеlying upon his own ability to get away. There is no evidence that the seller who was sitting alongside the passenger solicited by the defendant, had met defendant or otherwise knew of him, or that he in any respect relied upon the defendant to identify Michael or to assure him that he could safely sell the marijuana to Michael. Nor is there evidence that the seller relied upon the defendant’s presence under the circumstances hereinabove described in making a sale that he would otherwise not have made.
See United States v. Moses,
220 F.2d 166 (3d Cir. 1955). It is true that the seller would not have known the purchaser, Michаel, but for the defendant’s inquiries made of the passenger in the car, which the seller, who was driving the car, overheard. However, the evidence is clear that defendant’s efforts were for the benefit of the purchaser in acquiring the drugs and not for the benefit of the seller in selling them. Since the рurchaser cannot be held responsible as a principal by reason of his participation in the purchase, neither should the defendant be responsible for his help to the purchaser in effecting that purchase. As
The judgment is affirmed.
Utter and Williams, JJ., concur.Petition for rehearing denied September 22,1971.
Review denied by Supreme Court November 23,1971.
Notes
“Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indireсtly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counselеd, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.”
Even if guilty of possession, the prosecutor, in order to obtain the purchaser’s cooperation, could promise immunity from prosecution—a promise which though not legally enforceable, could be honored voluntarily. See State v. Johnson, 77 Wn.2d 423, 462 P.2d 933 (1969).