Defendant appeals from his conviction of the offense of delivering narcotic drugs, three marijuana cigarettes, (LSA-R.S. 40:962), and his sentence to serve ten years at hard labor in the Louisiana State Penitentiary.
Five bills of exceptions are presented for our consideration.
BILL OF EXCEPTIONS NO. 1
Bill of Exceptions No. 1 was reserved when the trial court overruled a motion to quash filed by the defendant.
The motion to quash avers that LSA-R.S. 40:961 et seq. are unconstitutional in that they violate Art. I, Sec. 12, La.Const. of 1921, and the Eighth Amendment to the Constitution of the United States, both of which prohibit the infliction of cruel and unusual punishment. The motion further avers that LSA-R.S. 40:981
An identical attack as made by counsel for the defendant was levelled at the Uniform Narcotic Drug Law, LSA-R.S. 40:961 et seq., in the case of State v. Thomas, 224 La. 431, 69 So.2d 738, and found to be without merit. See, State v. Bellam, 225 La. 445, 73 So.2d 311; State v. Green, 244 La. 80, 150 So.2d 571.
It is to be noted that the federal statutes on narcotics provide that there shall be no suspension or probation of sentence upon conviction of certain violations of the narcotics statutes. 26 U.S.C.A., Sec. 7237 (d). See, Stewart v. United States, 325 F.2d 745, cert. den. 377 U.S. 937, 84 S.Ct. 1344, 12 L.Ed.2d 301;
Bill of Exceptions No. 1 is without merit.
BILL OF EXCEPTIONS NO. 2
Bill of Exceptions No. 2 was reserved when the trial court overruled defense counsel's motion for a unanimous jury verdict.
Defense counsel contends that defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated by the rendition of a divided verdict herein—nine for conviction, three for acquittal. He further contends that the right to trial by jury includes the right which a defendant has in federal court to be convicted by a unanimous verdict and not by a divided jury.
Art. VII, Sec. 41, La.Const. of 1921, provides that in a case where the punishment is necessarily at hard labor, the jury must be composed of twelve members, nine of whom must concur to render a verdict. See, Art. 782, Code of Criminal Procedure.
At the present time, we do not find that the United States Supreme Court has extended the Fourteenth Amendment to require that under the Sixth Amendment a verdict in a case such as the instant one must be unanimous. "We must await a clear exposition of this point by the Federal Supreme Court before we can decide whether a unanimous verdict is a requirement of the Sixth Amendment of the Federal Constitution which is obligatory on the States." State v. Schoonover, 252 La. 311, 211 So.2d 273, 278.
The case of Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491, is not apposite. It merely held that under the Fourteenth and Sixth Amendments to the United States Constitution, a defendant charged with a misdemeanor, punishable by two years' imprisonment and a $300 fine, was entitled to trial by jury.
The case of DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, avoided the question of a unanimous jury verdict; it was only mentioned in the body of a per curiam decision. That case merely held that certain decisions of the Court did not have retroactive effect.
Bill of Exceptions No. 2 is without merit.
BILL OF EXCEPTIONS NO. 3
Bill of Exceptions No. 3 was reserved when the trial judge overruled defense counsel's objection to a question propounded by the State to the witness Paul LeShay. The question recites:
The answer was, "Yes, sir."
Defense counsel contends that the question was leading and prejudicial to defendant's case. He argues that the question was not for the purpose of clarification, but was evidence as to the exact charge of which the defendant was convicted. Counsel further contends that the trial judge abused his discretion by permitting the witness to answer the question after objection.
A reading of the testimony attached to the instant bill reflects that the question was merely a continuation of the immediate preceding testimony which recites:
We find that the question was for the purpose of clarification, and that the trial
A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one's own witness, unless such witness be unwilling or hostile. LSA-R.S. 15:277. A question, however, which clearly refers to a statement which had been made by a witness in answer to a previous question is not leading. State v. Shuff, 198 La. 67, 3 So.2d 278.
We conclude that the question, supra, was not leading because of the circumstances under which it was propounded. The trial judge did not abuse his discretion in permitting the witness to answer.
Bill of Exceptions No. 3 is without merit.
BILL OF EXCEPTIONS NO. 4
Bill of Exceptions No. 4 was reserved when the trial judge refused to give the following specifically requested charges to the jury:
Counsel for the defendant contends that in this case two of the State's witnesses had prior convictions and in order for the jury to properly consider relevant evidence, it was necessary that the members receive a special charge with respect to credibility.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. Art. 807, Code of Criminal Procedure.
Our jurisprudence is legion that the trial judge may refuse a special charge when the subject matter is covered by the general charge. State v. Hagerty, 251 La. 477,
Bill of Exceptions No. 4 is without merit.
BILL OF EXCEPTIONS NO. 5
Bill of Exceptions No. 5 was reserved when the trial court overruled defendant's motion for a new trial and motion in arrest of judgment.
The averments in the motions, except for one hereinafter considered, raise issues which have been discussed and determined in Bills of Exceptions Nos. 1-4.
The motion in arrest of judgment sets forth that LSA-R.S. 40:962 is vague and unclear, containing no definition of what constitutes delivery of narcotic drugs, and that a conviction under the statute violates the due process clause of Art. I, Sec. 2, La.Const. of 1921, and the Fourteenth Amendment to the United States Constitution.
The bill of information herein recites that the defendant violated LSA-R.S. 40:962, in that he did "sell and deliver" three marijuana cigarettes. He was found guilty of "delivering narcotic drugs as charged."
LSA-R.S. 40:962(A) provides that, "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, except as provided in this Sub-part, or to be or become an addict as defined in R.S. 40:961." (Emphasis ours.)
The words "deliver," "delivery," and "delivering" are ordinary words and are used constantly in everyday conversation. They indicate a transfer or handing over. Webster's New World Dictionary; Webster ascribes to them such meaning among others.
We conclude that the reasoning of the Richard case is applicable to the instant one. A person of ordinary intelligence certainly has fair notice as to the meaning of the words "deliver," "delivery," and "delivering" when associated with marijuana. The statute apprises him that it is unlawful to deliver marijuana. We do not find that it is vague. Defendant has suffered no deprivation of his constitutional rights.
Bill of Exceptions No. 5 is without merit.
For the reasons assigned, the conviction and sentence are affirmed.