Toles v. StateToles v. State
Aрpellant was indicted on five counts of violating §§ 20-2-70 and 20-2-75, Code 1975. They were three identically worded counts of possession of marijuana, one count of possession of dextropropoxyphene, and one count of possession of paraphernalia. The court sustained a demurrer to the paraphernalia possession count. Apрellant was convicted and sentenced to four years in the penitentiary.
Appellant was living with Lily Edwards in a rented house on May 28, 1981. Miss Edwards testified that on that date she observed a tray with some seeds on it in the house. She further observed appellant rolling some marijuana cigarettes. She told the appellant “to get that stuff out of here.” She then went to get Chief Jaсkson of the Lockhart Police Department. Miss Edwards returned to the house with Chief Jackson. As he approached the house, Jackson observed appellant run out the back door with a tray in his hand. Appellant dropped the tray аnd ran into some nearby woods. Chief Jackson retrieved the tray, which contained 15 marijuana cigarettes.
The following dаy, Miss Edwards signed a “consent to search” form, which authorized Chief Jackson to search the house. She was present during the search. During the search, Chief Jackson found two pipes, some marijuana residue, some marijuana seeds, and a marijuana cigarette butt, or “roach.” He seized these items, plus an assortment of 81 pills in a peanut butter jar. Miss Edwards testified that thе pills and the marijuana belonged to appellant. Among the pills tested by the State Department of Forensic Sciences were pills containing dex-tropropoxyphene, a controlled substance.
Appellant was indicted based on this evidence.
I
Appellant claims the identical language of Counts I, III, and V made the indictment defective, either because it misjoined three separate оffenses or because it did not apprise Toles of what he was called upon to defend against.
Appellant cites Collins v. State,
The correct legal term for this practice of charging a single offense in several counts is “multiplicity.” United States v. Chrane,
Whether appellant committed one offense or several offensеs is a question of legislative intent. To determine whether separate offenses may be carved out of a single incident, the offenses should be examined to see whether each requires a proof of fact that the other does not. Chrane, supra, p. 1238.
The State claims that because the appellant could have been found to possess marijuana in three fоrms, namely “joint,” “roach,” or “residue,” there were three counts. However, all of these are forms of marijuana prоhibited under our statute. The facts to be proved do not differ and one count on the indictment would have more
Multiplicity оf counts for one offense is to be discouraged. The Federal Rales of Criminal Procedure have been drafted to discourage the practice. United States v. Allied Chemical Corp.,
In fact, there was no misjoinder, as the evidence indicates this was one offense mul-tiplicitously divided into three counts. Any one of the marijuana counts, I, III, or V, or the count for possession of dextropropoxy-phene would have been sufficient to support the guilty verdict rendered. Thus, there is nо error preserved for review, and we find the indictment sufficient for the verdict rendered.
II
Appellant contends that the сourt’s charge to the jury that “Any person who possesses a controlled substance violates the law,” was reversible еrror. He cites § 20-2-51, Code 1975, as proof that certain persons may be authorized and registered to possess contrоlled substances.
There was no inference from the evidence that appellant claimed to be among that sрecially screened body that is allowed to possess certain controlled substances. For that reason, we find thе overbreadth of the charge to be harmless error when applied to the facts in evidence.
III
Appellant аlleges error in the admission of exhibit six, which consists of a document titled “Alabama Controlled Substances List.” The document was signed and certified by State Health Officer, Dr. Ira Myers, and dated November 1981. The list contains the names of two substances which aрpellant was alleged to have had in his possession — marijuana and dextropro-poxyphene.
Appellant сontends that to have established the proper predicate for the admission of the list, the State should have prоffered additional evidence.
He cites Cassell v. State,
While еvidence of the meeting of the State committee would be appropriate here as it was in Cassell, such evidencе is in excess of that required by Alabama statute. Our law requires the following:
“The certificate of the head of any bureau or department of the general government is sufficient authentication of any paper or document appertaining to his office.” § 12-21-72, Code 1975.
We find no error in the admission of this evidence.
AFFIRMED.