State v. Barnes

BARHAM, Justice (dissenting). I cannot agree with the majority’s disposition of Bill of Exception No. 17. The bill of information in this case charges that the defendant did “* * * wilfully and unlawfully possess and have under his control a narcotic drug, to-wit: marijuana, contrary to the provisions of R.S. 40:962 * * * ”. (All emphasis mine.) The judge’s instructions to the jury relative to the ingredients of the crime follow: “The defendant in this case is charged with possession of a narcotic drug, marijuana. Other than certain exceptions provided by law and not involved in this case, it is unlawful for any person to manufacture, possess, have under his control, sell, give, deliver, transport, prescribe, administer, dispense, or compound any narcotic drug. ‘Narcotic drug’ includes marijuana.” The defendant requested the trial judge to give the following special charge to the jury: “Guilty knowledge is an essential ingredient of the crime of possession of narcotic drug.” Although the statute is silent as to scienter in defining this' crime, this court has repeatedly stated that an essential ingredient of the crime of possession of a narcotic drug is “guilty knowledge”. State v. Nicolosi, 228 La. 65 , 81 So.2d 771 ; State v. Johnson (on rehearing), 228 La. 317 , 82 So.2d 24 ; State v. Maney, 242 La. 223 , 135 So.2d 473, 475 ; State v. Richard, 245 La. 465 , 158 So.2d 828 ; State v. McIlvaine, 245 La. 649 , 160 So.2d 566 ; State v. Clack, 254 La. 61 , 222 So.2d 857 . All’of these cases which stated that guilty ‘knowledge is-an essential ingredient of the crime of possession of narcotics did so as a basis for allowing the State to introduce evidence of the defendant’s prior‘or subsequent convictions or other similar acts or offenses from which could be inferred his guilty knowledge in connection with the crime for which he was being tried. The charge given here by the trial court failed to include and define a necessary in *1035 gredient of the crime with which the defendant was charged. The definition of the crime contained in the charge is not even responsive to the crime charged in the bill of information. The special charge requested by the defendant was a totally correct statement of the law under the jurisprudence of this court. It was, in fact, literally lifted from the jurisprudence cited above. The proposed charge needed no further explanation. It used our very language “guilty knowledge”, which in my opinion is self-explanatory. The court has used the phrase so often without elucidation that it, too, must accept the language as fully expressive. The charge given by the trial court would have required any reasonable, fair-minded juror to convict the defendant simply because marijuana gleanings were found in his clothing, for the definition given in that charge makes mere possession a crime. * This is contrary to the legion of cases dealing with this point of law. Nothing could be clearer than the statement in State v. Johnson, supra, which has been adopted and approved repeatedly: “Therefore, guilty knowledge is an essential ingredient of the crime of possession of narcotic drugs. The crime of unlawful possession of narcotic drugs as denounced by law cannot exist without proof of guilty knowledge; for, such possession would not be a possession contemplated by the statute.” We commit grave error, I believe, to allow a conviction to stand where the charge to the jury has not correctly defined the crime and the correction of that definition offered as a requested special charge was rej ected by the trial court. I respectfully dissent. The inclusion of the definitions of specific and general criminal intent without a ' charge that intent was a necessary element of the crime added nothing to the correctness of the charge and did not cure its deficiencies.