201 S.E.2d 201 | N.C. Ct. App. | 1973
STATE of North Carolina
v.
James Castle THOMAS.
Court of Appeals of North Carolina.
*202 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for the State.
Frye, Johnson & Barbee by Walter T. Johnson, Jr., Greensboro, for defendant appellant.
Certiorari Denied by Supreme Court February 5, 1974.
PARKER, Judge.
Appellant contends he was entitled to nonsuit on the grounds that the State's evidence disclosed that he possessed at most only a tiny amount of the substance heroin and that possession of such a small quantity should not be considered an offense under G.S. § 90-95(a)(3). That statute, however, makes it unlawful for any person to possess "a controlled substance included in any schedule" of the North Carolina Controlled Substances Act without regard to the amount involved. It may be, as defendant contends, that possession of a mere trace of a controlled substance is not in itself one of the evils sought to be suppressed by the Controlled Substances Act. Nevertheless, to interpret the statute as defendant here contends would require that we amend it, a legislative rather than a judicial function. We find no error in denial of defendant's motion for nonsuit.
What we have said above also disposes of appellant's assignments of error directed to the trial court's actions in sustaining the solicitor's objection when defendant's counsel sought to question the SBI chemist as to "[w]hat is a usable quantity of heroin" and in refusing to instruct the jury that they must find defendant not guilty if they found he "merely possessed useless traces or residue of narcotics." The North Carolina Controlled Substances Act as now written simply does not limit its strictures to possession of "usable" or any other specific quantities of the forbidden substances.
During cross-examination of the defendant the solicitor asked, without objection, if he did not have "track marks" on his arms. This the defendant denied. At the solicitor's request and over defendant's objection, the court then required defendant to take off his jacket and exhibit his arms to the jury. In this we find no error. The presence of such marks on defendant's arms was relevant to show his knowledge of and familiarity with the type of drug which he was charged with possessing in this case. Possession of a bottle cap containing a residue as described in the evidence in this case by a person unfamiliar with the uses of heroin might well *203 be consistent with innocent possession because of lack of knowledge by the possessor of the contraband nature of the article possessed. Possession of such an article by one sophisticated in the use of drugs is quite another matter. Evidence of the marks on defendant's arms was admissible as being relevant to show his prior knowledge. 1 Stansbury's N.C. Evidence, Brandis Revision, § 92. The evidence being relevant, the court committed no error in requiring defendant to show his arms to the jury. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137; Neely v. United States, 2 F.2d 849 (4th Cir. 1924).
Appellant complains because the court, at the solicitor's urging and over defendant's objection, required him to exhibit his arms to the jury a second time. While we do not approve of this procedure, we do not find it so prejudicial as to warrant requiring a new trial in this case.
Defendant, explaining the marks on his arms, testified he had been fed intravenously while hospitalized as a result of having been shot by a friend during the course of an argument over money he owed. Whereupon the solicitor asked: "Didn't he shoot you over dope?" Defendant's counsel objected to the question, and while the record shows no ruling on the objection, neither does it show that any answer was given. Without passing upon the propriety of the question on this appeal, we do hold that no prejudicial error has been made to appear from the mere fact that it was asked.
We have carefully reviewed all of appellant's remaining assignments of error and find them without merit. In defendant's trial we find no prejudicial error.
No error.
BRITT and VAUGHN, JJ., concur.
