STATE OF NEBRASKA, APPELLANT, V. DWIGHT EDWIN FAIRCLOTH ET AL., APPELLEES.
No. 36385
Supreme Court of Nebraska
February 3, 1967
148 N. W. 2d 187
In a post conviction proceeding, рetitioner has the burden of establishing a basis for relief. Defendant has not met this burden and his petition was properly dismissed. The judgment of the trial court is affirmed.
AFFIRMED.
William S. Padley, for appellees.
Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH, and McCown, JJ., and WEAVER, District Judge.
BOSLAUGH, J.
The defendants, Dwight Edwin Faircloth, James Allen Oram, and Larry Dale Martin, were chargеd with unlawful possession and control of narcotics in violation of
Application was then made to this court by the State, pursuant to
The evidence shows that defendants were apprehended on January 7, 1966, on U. S. Highway No. 30 approximately 12 miles west of Chappell, Nebraska. They were riding in an automobile which was registered in the name of William Rоss. A state patrolman stopped the automobile because the left headlight was out. Fair
When apprehended, the defendants’ clothing was soiled and disarrayed and it appeared that they had been sleeping in their clothing. They appeared to be under the influence of alcoholic liquor, but there was no odor of alcoholic liquor about them. Their eyes were dull, watery, and blоodshot. The defendants were placed in the county jail at Chappell, Nebraska, but no tests were administered to determine whether the defendants were intoxicated. No body fluids were withdrawn, and the defendants were not examined by a physician.
On the following day, a search warrant was obtained. The “belongings” which were in the front seat, rear seat, and trunk of the car were brought into the sheriff‘s office and searched in the presence of the defendants. Marihuana was found in the blue duffle bag and in a suitcase which had been taken from the car. Cigarette papers were scattered throughout the car, and were found in the pockets of the clothing of some of the defendants, but no tobacco was found. The record does not identify which of the defendants had cigarette рapers in their pockets. Bottles of pills, which are not otherwise described in the record, syringes, cigarette papers, matches, and two knives were also discovered in the duffle bag and suitcase.
The defendants denied any knowledge of the “belongings” takеn from the car. The blue duffle bag and suitcase were not produced at the trial. The clothing and other contents of the blue duffle bag and suitcase, except the items previously mentioned, were not produced at the trial and are not described in the reсord.
The evidence of the State establishes that marihuana was found in the blue duffle bag and suitcase which were in the automobile in which the defendants werе riding. There is very little evidence to connect or identify any particular defendant with the blue duffle bag or suitcase.
Where circumstantial evidence is relied upon in a criminal prosecution, the circumstances proven must relate directly to the guilt of the аccused beyond all reasonable doubt in such a way as to exclude any other reasonable conclusion. State v. Eberhardt, 176 Neb. 18, 125 N. W. 2d 1.
To justify a conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proved by competent evidence beyond a reasonable doubt, and, when taken together, must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby and inconsistent with any reasonable hyрothesis of innocence. Reyes v. State, 151 Neb. 636, 38 N. W. 2d 539. Any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused.
A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the fact that some unfavorable circumstances are not satisfactorily explained. Reyes v. State, supra.
Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotics at the place where they were found. People v. Mack, 12 Ill. 2d 151, 145 N. E. 2d 609. But mere presence at a place where a narcotic drug is found is not sufficient. State v. Hunt, 91 Ariz. 149, 370 P. 2d 642; Carroll v. State, 90 Ariz. 411, 368 P. 2d 649. As stated by the Arizona court in State v. Hunt, supra, joint possession cannot be established by the fact that the defendant is or has been in the company of one who has a narcotic drug on his person. An additional independent factor linking the defendant with the narcotic must be shown. See, also, Spataro v. State (Fla. App.), 179 So. 2d 873; Evans v. United States, 257 F. 2d 121.
In this case the evidence shows that Oram had the blue duffle bag containing marihuana between his legs when the automobile was stopped by the patrolman. This circumstance placed the marihuana “within such close juxtaposition” or “easy reach” of the defendant that he could be found to be in possession of it. Hunt v. State, 158 Tex. Cr. 618, 258 S. W. 2d 320; Duran v. People, 145 Colo. 563, 360 P. 2d 132. It was sufficient to pеrmit the jury to have inferred that the marihuana found in the bag was under his possession and control. We think the motion to dismiss made at the close of the State‘s evidence should have been overruled as to Oram.
As to the other defendants, we believe that the ruling of the trial сourt on the motion to dismiss was correct.
It is unfortunate that the evidence in this case was not as fully developed as the record suggests it might have been. As sometimes happens, the prosecuting attorney may have been prevented from making a full presentation of the evidence which otherwise appears to have been available. In сases of this nature, where the evidence is usually of a circumstantial nature, it is important that all of the available facts be developed and presented in the trial court.
EXCEPTIONS SUSTAINED IN PART, AND IN PART OVERRULED.
WEAVER, District Judge, dissenting.
The majority opinion holds that the motion to dismiss should have been overruled as to Oram, and in that I agree. However, it holds that the motion should be sustained as to the other defendants.
While this is a case of first impression in this state, it is, nevertheless, elementary that the opinions and holdings of this court should rest first upon the applicable law of this state and that hоldings of other jurisdictions should be secondary.
The majority opinion cites from State v. Hunt, 91 Ariz. 149, 370 P. 2d 642, as follows: “But mere presence at a place where a narcotic drug is found is not sufficient.” In that case the defendant had been in the house just before it was searched, but at the time of the search the defendant was in a grocery store some distance away and the only persons in the house were the tenant and two other persons. The facts are entirely different than the instant case, but it should be noted that in that case the court also said: ”Exclusive possession is nоt required as two or more persons may have joint possession of the drug.” (Emphasis supplied.)
In Carroll v. State, 90 Ariz. 411, 368 P. 2d 649, defendant and another man were sitting on a park bench.
In Evans v. United States, 257 F. 2d 121, the defendant Mildred Evans occupied an apartment which was frequented by a male aсquaintance, William Evans, who was not her husband. At the time of the arrest William had been at the apartment 5 minutes. Twenty-two grains of marihuana were found concealed under the carpet on the top step. Both Mildred and William disclaimed knowledge or possession of the marihuana, but both defendants were tried on the charge. Mildred was acquitted. William was convicted and the conviction affirmed. The case supports the theory that the question of the innocence or guilt of all three defendants should be submitted to the jury in the instant сase.
It has been said in jest that the Supreme Court corrects the errors of the trial court and perpetuates its own errors. I would urge that this court not perpetuate the holding in State v. Eberhardt, 176 Neb. 18, 125 N. W. 2d 1, cited in the majority opinion. The holding in that case relating to “possession” was based on a series of authorities from other jurisdictions, without any reference whatever to the statutory law of those jurisdictions. It finds no support whatever in Nebraska law and has since then been, in my opinion, repudiated by this court in State v. Stroh, ante p. 24, 146 N. W. 2d 756. The Stroh case involved a chargе of breaking and entering but also involved the question of who had possession of certain burglary tools, and the opinion reads in part as follows: “But, the evidence does show that the defendant and his two accomplices entered the building together and that some of them had possession of the tools admitted in evidence * * *. There is evidence here that the defendant broke into and entered, along
The Nebraska law properly applicable to the case now before the court is as follows: “A common purpose among two or more persons to commit a crime need not be shown by positive evidence but may be inferred from the circumstances surrounding the act and from defendant‘s conduct subsequent thereto. * * * Participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed. * * * The credibility of witnesses and the weight of the evidence are for the jury to determine in a criminal case and the verdict of the jury may not be disturbed by this court unless it is clearly wrong.” State v. Knecht, ante p. 149, 147 N. W. 2d 167.
“It is only where there is a total failure of proof to establish a material allegation of the information, or the testimony is of so weak or doubtful а character that a conviction based thereon cannot be sustained, that the trial court is justified in directing a verdict for the defendant.” State v. Knecht, supra. See, also, State v. Martin, 177 Neb. 209, 128 N. W. 2d 583.
“It is the province of the jury to determine the circumstances surrounding and which shed light upon the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they cannot be accounted for upon any rational theory which does not include the
The motions of all three defendants should have been overruled and the matter submitted to the jury for decision.
CARTER, J., joins in this dissent.