24 N.C. App. 323 | N.C. Ct. App. | 1974
The trial court instructed the jury that they could find defendant guilty or not guilty of possession of a controlled substance, and guilty or not guilty of distribution of a controlled substance. Defendant contends that the court erred in instructing the jury on the offense of possession of a controlled substance when the bill of indictment charged him with possession of a controlled substance with the intent to distribute, arguing that possession of LSD is a separate and distinct crime from possession of LSD with intent to distribute. In State v. Aiken, 286 N.C. 202, _S.E. 2d _ (1974), defendant was charged with possession of heroin, a controlled substance, with the' intent to deliver, and the Supreme Court, affirming this Court, held that it was not error to instruct the jury that defendant could
. . [o]ne may not possess a substance with intent to deliver it (the offense charged in the present indictment) without having possession thereof. Thus, possession is an element of possession with intent to deliver and the unauthorized possession is, of necessity, an offense included within the charge that the defendant did unlawfully possess with intent to deliver. Consequently, there was no error in instructing the jury that, under the indictment in the present case, it might find the defendant guilty of the unauthorized possession of a controlled substance.”
In State v. Reindell (N. C. Court of Appeals, opinion filed 4 December 1974), defendant was charged with possession of a controlled substance with intent to distribute, to wit: 299 tablets of LSD, and this Court, citing Aiken as authority, held that it was not error to instruct the jury that defendant could be found guilty “of possession of LSD with intent to distribute, guilty of possession of LSD but without the intent to distribute, or not guilty.”
The crime of possession of a controlled substance is a lesser included offense of the crime of possession of a controlled substance with intent to distribute.
We have carefully considered defendant’s other assignment of error, find it to be without merit and hold that defendant’s trial was free from prejudicial error.
No error.