*1 STATE, HAM, Appellant Respondent, v. Gene (180 (2d) 628) E.S. *2 Florence, Johnson,
Messrs. Mordecai C. Frank E. Cain, of Bennettsville, Hill, Rock Jr., Gaines, John A. Jack York, and Jonathan of New Greenberg, Shapiro, Ap- pellant, *4 McLeod, Gen., Daniel G. Timothy
Messrs. R. Atty. Columbia, Quinn, Gen., Asst. Atty. Respondent, *6 Cain, Johnson, Florence, Frank E. Messrs. Mordecai C. of Hill, Jr., Bennettsville, Gaines, Rock John A. of Jack York, of New Ap- Jonathan Greenberg, Shapiro, pellant, Reply, 7, 1971.
April
Littlejohn, Justice: Ham, from his conviction Defendant, appeals Gene 32-1506(d) violation § of illegal drugs possession We affirm. The facts leading as Code amended). (1962 as follows: be summarized conviction may his arrest and in Florence 15, 1970, was arrested the appellant On May him with which pos- of four warrants charged on the basis *7 his arrest he was taken stimulant drugs. Following session of searched; search a the revealed quantity to the and city jail a arrest war- Thereafter fifth substance. of an unidentified of marijuana. him with rant was issued charging possession held was and and hearing On 28 29 a May preliminary bind over to the General Ses- cause found to Ham probable 1970, true 1, the returned jury sions On grand Court. June to trial on the in- on 2 State proceeded bills and the June of marijuana. dictment possession charging matter was sub- At conclusion of the evidence the the a verdict. Motions to which returned guilty mitted the jury new were denied. N.O.V. and a trial Appel- judgment sentenced months and this appeal lant was to eighteen follows. this raises twelve issues for determination by
Appellant in court; them as were the briefs. they we deal with presented first his initial was contends that arrest Appellant not made to a valid arrest warrant and that pursuant was therefore in- the evidence seized after the arrest find from of that no admissible. We an the record analysis the of the was made trial marijuana to admission at objection
9 the com- only on this At trial appellant questioned ground. sub- seized of to the identify the State’s witness petency stance as marijuana. of next contends that mere
Appellant possession cannot, be consistent with due marijuana process, made a crime. He relies on v. Geor- Stanley primarily 557, 1243, 394 22 L. Ed. U. S. 89 S. Ct. 542 gia, (2d) dealt with the of (1969). Stanley solely possession allegedly home, obscene materials in one’s and is clearly inapplicable here. itself,
The statute as the trial stressed in his judge jury more charge, than “mere” trial requires possession. set forth judge the correctly innocence and presumption doubt, reasonable with the along requirement “knowing” possession. contention, third a
Appellant’s that of venue change should have been because of granted prejudicial pub- is, after an licity, exhibits analysis the presented, without merit. completely The two newspaper clippings one editorial abuse did not name the defend- concerning drug ant or refer any his trial. The way trial did not judge his abuse broad discretion this case to determine fairness. Cannon, v. State 248 S. C. 752 (2d) (1966). next contends denial
Appellant that of his continu- anee motion was error. prejudicial He cites Powell Alabama, v. 287 U. S. S. Ct. 76 L. Ed. ; that case (1932) involved the very different factual *8 situation in which accused of Negroes, a white wo- raping man, were never the given effective aid of counsel. State v. Black, 42, 243 S. C. 132 E.S. 5 (2d) (1963) relied on by appellant, involved a offense capital where the death sentence had been There, on imposed the defendant. the only experi- enced counsel for the defendant had become ill and was un- able to in the effectively trial. In the participate case at bar was and appellant A continuously ably represented. continu- is ance within the broad discretion of trial the State judge.
10 and 253 170 S. E. 657 S. C. Harvey, (2d) (1969), v. that discretion was abused here where seventeen days not from to the arrest the trial. elapsed beginning trial in next contends the erred judge that
Appellant to ask voir dire 38- refusing proposed questions. § 202 sets forth the basic voir dire (1962 Code) law; that section also a de- questions required by permits introduce fendant to evidence competent support any ato The basic referred to in the objections juror. questions section were covered. has failed to burden Appellant carry that other should have been asked showing to questions assure a fair and there is no show- impartial jury. Certainly of an abuse of discretion a trial in this ing allowed judge Britt, State v. State. 273 S. C. S. E. (2d) 379 (1960). next contention is that
Appellant’s the trial judge abused his discretion in to allow counsel to refusing withdraw as retained attorney defendant. It is al that the should leged have made a factual judge determina tion that the defendant was He cites State v. indigent. Cow art, 251 S. C. (2d) for the (1968) rule that when one claims to be the indigent must judge make an affirmative determination of Coward indigency. is to this case in inapposite that the there, defendants two minors, at the with no appeared outset and lawyer the trial refused to one. Here judge had counsel appoint appellant for the and for he with preliminary hearing pretrial; appeared trial; this same counsel at the found that lawyer apparently Ham was unable and to be unwilling pay sought and/or so that the State could fee. The appointed his pay prejudice, if resulted to the not to the any, lawyer’s purse appellant; it does not to the way substance of con any go appellant’s viction. next contends that the court
Appellant below com- mitted error in reversible a tech- allowing laboratory nican to an as witness and testify expert identify the
11 Lt. of the South Caro- The was Wilson witness marijuana. He court that stated to the lina Law Enforcement Division. and had on numerous occasions he had identified marijuana to make the in the He seen it field. was qualified growing a man identification. The State does not require law this to as an Such to have a qualify expert. professional degree Parks determinations rest in the discretion of the trial judge. v. Morris Homes 245 S. C. 129 Corp., (2d) McCormick, and also Evidence (1965) (1954). § substance of next two contentions form the Appellant’s one; this con- we treat them as appeal; Basically, appellant tends that the to him of violat- State prove guilty attempted the trial statute. contends that his ing wrong Appellant should have been under that section of the code with dealing “narcotic” rather than that with drugs dealing “depressant and stimulant” drugs. 1, 1970, of the code as amended 32-1506(d) May
§ under which the makes un- indictment was brought lawful, the of a stimu- “(d) possession depressant, lant, counterfeit, or unless such illegal by drug any person, obtained such on the person a drug prescription practi- tioner, inor accordance with Section 2.” 2(a) (Emphasis added.)
The 1970 amendment places within the “illegal” drugs class prohibited Narcotic are by 32-1506(d). drugs § illegal as defined in drugs 32-1505 is (b), classed marijuana § as a narcotic of the drug 1962 Code as 32-1462(12) § amended.
This act became law on May two weeks before was appellant arrested. It follows that was appellant indicted on the correct statute. next contention is
Appellant’s that the indictment should have been because it fails quashed to allege the offense in the substantially the stat- language ute. did not Appellant enumerate this in his motion ground and is from quash, precluded so now. There can be doing defendant on notice
no doubt that indictment the the placed lan- that he was with marijuana. charged possession *10 him of the indictment was sufficient to advise clearly guage of of the the nature charge. contends that the of an
Finally, appellant imposition 18 months sentence on a first offender constituted cruel and unusual sentence The punishment. imposed was less than the maximum and is no show- statutory there or motive the sentenc- ing partiality, prejudice corrupt by State, 593, v. 251 Thompson S. C. ing judge. 760 (2d) (1968). lower is the the court
Accordingly, judgment Affirmed.
Moss, Lewis, and C. concur. J., J., Bussey and Brailseord, JJ., dissent.
Bussey, : (dissenting) Justice well-known, is a appellant locally black, young, bearded, activist, civil or “human” who rights contended, alia, inter that was him marijuana law en- planted upon by forcement officers who were “out to him.” The get jury was blacks panel of six and whites. composed thirty The ap- dire pellant voir examination of the requested prospective and jurors that the specifically requested following ques- alia, tions, inter be asked.
“1. Would this case on the basis of you fairly try evi- dence and the defendant’s race? disregarding
“2. You have no prejudice against Negroes? Against black You would not be influenced the use of people? by the term ‘black’?
“3. Would you the fact that this defendant disregard a in wears beard this case?” deciding The Trial declined to ask the judge foregoing questions, Instead, that were not relevant. His Honor asked ruling they the the three basic jurors only questions specificallyrequired
13 by of the the facts and cir- Sec. 38-202 1962 Code. Under cumstances of case the enunciated the this principles by United States Court the case of v. Aldridge Supreme 308, United States (1931), U. S. S. Ct. 75 L. Ed. decision is this I (which binding upon Court), conclude that His Honor was in error in summarily dispos- of the was, course, as It ing irrelevant. proposed questions not for the to ask court necessary the questions precisely form but under the case it presented, was Aldridge required, think, I of the inquire jurors whether had they any preju- dice because of these matters which particular would prevent them a fair and verdict. giving impartial
The case of State v. Young, 238 S. C. 119 S. E. (2d) 504, relied the by as the upon respondent action of sustaining *11 the trial is clearly on In fair- judge, the facts. distinguishable court, ness to the lower his in this finds some ruling respect in State v. Bethune 86 S. E. support C. 67 S. (1910), and State v. Bethune C.S. (1912), however, 281. The case I Aldridge is think control- supra, ling.
The defendant in is my entitled to a new opinion trial and I would reverse and remand to that end.
Brailsford, J., concurs. CAROLINA BOARD SOUTH OF EXAMINERS IN OPTOM ETRY, COHEN, Appellant-Respondent, Henry Respondent- v.
Appellant.
(180 (2d) 650) E.S.