State v. WarnockState v. Warnock
- Reporters:
- , ,
- Before:
- Pearson
Defendant, Bert Warnock, Jr., appeals a jury conviction and sentence imposed for the crime of unlawfully selling dangerous drugs. The information was based upon an alleged violation of
The state’s case rested solely upon the testimony of Barry G. Beck, that he had purchased four LSD pills from the defendant on January 25, 1971. These pills had been discovered in Beck’s possession by a deputy sheriff at the time he had arrested Beck on January 29, 1971. The pills were stipulated to contain a dangerous drug, namely, LSD.
Three related questions are raised on appeal: (1) was Beck an “accomplice” or “co-conspirator” with defendant; (2) if so, should the case have been dismissed for lack of corroborating evidence; and (3) should defendant have been given the benefit of cautionary instructions requiring the jury to view the testimony of an accomplice with distrust?
We hold that one who purchases a dangerous drug (controlled substance) from another is neither an accomplice of nor a coconspirator with the seller.
Conspiracy to commit a crime is a gross misdemeanor in Washington.
Any person who attempts or conspires to commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.’
Under either the repealed Dangerous Drug Act or the new Uniform Controlled Substances Act, the result is the same. A purchaser is not a coconspirator with the seller. The substantive crime of selling the drug or controlled substance requires the participation of a seller and a purchaser. Where that is the case, it is uniformly held that a separate crime of conspiracy has not occurred, so as to make them coconspirators. See State v. Aircraft Supplies, *623 Inc., 45 N.J. Super. 110, 131 A.2d 571 (1957) (offense, commercial bribery); In re Vickers’ Petition, 371 Mich. 114, 123 N.W.2d 253 (1963) (offense, abortion); Baker v. United States, 393 F.2d 604 (9th Cir. 1968), cert. denied, 393 U.S. 836, 21 L. Ed. 2d 106, 89 S. Ct. 110 (1968) (offense, receiving stolen property). Cf. State v. Gladstone, 78 Wn.2d 306, 474 P.2d 274 (1970), where it was held that conspiracy is a separate and distinct crime and not a lesser included offense in the substantive crime which the conspirators were alleged to have agreed to commit.
The rationale of the rule is that since commission of the substantive offense requires the actions of two parties, a conspiracy charge adds nothing and consequently is not chargeable as a separate offense. Furthermore, a purchaser of illegally sold drugs is not chargeable as a seller, but only as a possessor. Different elements are contained in the two offenses and different penalties are prescribed.
For much the same reason, defendant and Beck were not “accomplices.” An accomplice to the commission of a substantive crime is one who aids and abets in its perpetration.
As previously stated, Beck, as the purchaser of the drugs (controlled substances) could not be charged with the unlawful sale. The question was recently given detailed con
*624
sideration in
State v. Catterall,
5 Wn. App. 373, 486 P.2d 1167 (1971). The reasoning there is fully in accord with our views that the legislature did not intend a purchaser to be liable as a principal to the sale, via the aiding and abetting statute —
Defendant contends that every person apprehended with drugs in his possession can seek to escape prosecution or obtain leniency by naming the seller, and that in the “one on one” situation, justice is likely to miscarry without corroborating evidence to support the claim of ‘the purchaser.
However, there are many instances in the criminal law where guilt or innocence depends solely upon the testimony of a single victim. In today’s wholesale distribution of drugs to young people, we think there is a strong public policy in identifying those engaged in this illicit traffic. The young people are largely the victims of drugs. The legislative policy to protect them is demonstrated in
The corroboration requirement would effectively thwart this legislative policy and would unduly restrict law enforcement in this most crucial area.
Judgment affirmed.
Petrie, C.J., and Armstrong, J., concur.
Petition for rehearing denied November 20, 1972.
Review denied by Supreme Court January 23, 1973.
Notes
Selling and possessing dangerous drugs were also separate and distinct offenses under the former statute under which defendant was charged.