State v. Stoner , 59 N.C. App. 656 ( 1982 )

VAUGHN, Judge.

Defendant’s first argument is that the trial court erred by excluding evidence that he contends tended to show he was framed by Stout. This evidence should have been admitted to allow the jury to determine Stout’s credibility. As Justice Ervin said in State v. Hart, 239 N.C. 709, 710, 80 S.E. 2d 901, 902 (1954):

Truth does not come to all witnesses in naked simplicity. It is likely to come to the biased or interested witness as the image of a rod comes to the beholder through the water, bent and distorted by his bias or interest. . . . [T]he law decrees that “any evidence is competent which tends to show the feeling or bias of a witness in respect to the party or the cause,” and that jurors are to consider and weigh evidence of this character in determining the credibility of the witness to whom it relates.

Defendant’s testimony that he was framed was his defense, preventing him from testifying about the frame was prejudicial error even though he should have first cross-examined Stout to call the matter to his attention. See 1 Brandis on North Carolina Evidence § 48 (1982). The State would have been free to recall Stout to rebut defendant’s testimony. The jury would decide whether there was any truth in defendant’s testimony.

Defendant argues that the trial court erred in entering judgments against him for both sale and possession with intent to sell because the offenses arise from the same transaction, and the multiple judgments violate his right against double jeopardy. Defendant admits that this Court has consistently held that possession with intent to sell and sale are separate offenses, but he contends that State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481 (1973), which was decided under the former statute, should not be applicable under our present statute. In Cameron, defendant was charged with possession and sale of heroin. The State’s evidence tended to show that an undercover policeman, Conant, went to defendant’s house and asked him if he had any heroin. Defendant left his house, and returned with fifteen small packages of heroin. At trial, defendant argued that possession is a lesser included offense of the sale because it is necessary to possess the drug in order to sell it. He contended that possession and sale constitute a single offense, and permit only a single punishment. In his opinion, Justice Moore discussed several analogous cases. In State v. Moschoures, 214 N.C. 321, 199 S.E. 92 (1938), defendant, who was charged with possession with intent to sell and unlawful sale of liquor, claimed that it was only one offense and he could receive only one sentence. The Supreme Court disagreed, and held that the unlawful sale and unlawful possession for the purpose of sale are distinct, separate offenses and support separate sentences. In Albrecht v. United States, 273 U.S. 1, 71 L.Ed. 505, 47 S.Ct. 250 (1926), defendants, who were charged with four counts of illegal liquor sales and four counts of illegal possession, contended that they could not be punished for both the sale and possession because the liquor which they sold was the same liquor that they possessed. Justice Brandéis disagreed, and said “[Possessing and selling are distinct offenses, one may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case.”

Justice Moore concluded:

The North Carolina General Assembly has determined that the unlawful possession of heroin is illegal [and] . . . the unlawful sale of heroin is illegal. While possession may be a part of the sale, the possession may be legal and the sale illegal; therefore, they are separate and distinct offenses. . . . We hold, then, that in the instant case two separate, distinct, and punishable crimes were established. . . .

State v. Cameron, 283 N.C. at 203, 195 S.E. 2d at 489.

Defendant’s argument that Cameron, which was decided under our old statute, G.S. 90-88, should not be followed because a different result would have been reached under our present statute, G.S. 90-95, has no merit. A comparison of the two statutes shows that the reasoning in Cameron would apply to the new statute as well as the old. G.S. 90-88 provided: “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this article.” Articles 5 and 5A of Chapter 90 of the North Carolina General Statutes were rewritten in 1971 (c. 919 s. 1 effective 1 January 1972). The present version of G.S. 90-95(a) provides: “Except as authorized by this Article, it is unlawful for any person: (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance; ... (3) To possess a controlled substance.”

Defendant contends that since possession and sale are in separate sections of the statute, they are separate and distinct offenses, and since possession with intent to sell and sale are in the same section, they are alternative offenses. Furthermore, the penalties for possession with intent to sell and sale are identical, whereas the penalties for possession and sale are different, which indicates that possession with intent to sell and sale are alternative offenses. Although this argument is reasonable, defendant fails to show how Cameron is not controlling, since in Cameron, the offenses of possession and sale were also in the same section and had the same punishment. If the legislature intended to overrule Cameron, they would have worded the statute to clearly show that they were alternative offenses and not separate offenses.

The errors alleged in defendant’s other assignments of error are not likely to recur at the next trial, and, therefore, need not be discussed.

New trial.

Judges Wells and Whichard concur.