Thomas A. Boswell appeals from a judgment of conviction for selling marijuana, in violation of Title 22, § 258(47), Code of Alabama 1940, Recompiled 1958, and sentence of six years in the penitentiary imposed thereon.
The testimony at trial tended to show that Jerry Owensby, an undercover criminal investigator with the U. S. Customs Department, had been working to combat the sale of unlawful drugs in the area of Mobile, Alabama. He testified to having informed the defendant that he wished to buy a pound of marijuana. The defendant, an acquaintance, told Owensby to meet him in twenty minutes. When they met, a conversation ensued:
"Q. What was the essence of that conversation?
Later, the parties met again in the Flaming Hearth Lounge to consummate the deal:
"Q. Did you have a conversation with him at that time?
Witness Whatley, hiding in nearby weeds, testified to having observed the defendant placing the marijuana in the back of Owensby's camper.
The defendant himself admitted on the stand to having sold the marijuana to Owensby, but claimed to have turned all of the money over to his supplier, except for $35.00 which he kept as a "commission." Defendant stated in open court:
"I never denied that the transaction was made."
Despite the absence of factual dispute as to the unlawful sale, defendant appealed to the Alabama Court of Criminal Appeals, urging that procedural errors below entitled him to a reversal. On February 28, 1973, the cause was transferred to this court by authority of Title 13, § 111(11a) of our Code.
Appellant's counsel, in his brief, assigns two grounds of error: (1) that the statute defendant was convicted of violating is unconstitutional because it contains more than one subject; and (2) that the statute arbitrarily and unconstitutionally classifies marijuana with "hard" narcotic drugs. Appellant himself, in a 57-page pro se brief, assigns, insofar as we can interpret his turgid and lachrymose prose, at least 21 additional grounds: (3) that he was improperly extradited from Federal prison in Texas to stand trial in Alabama; (4) that he lacked counsel to fight his extradition; (5) that the indictment was vague, and failed to advise him of the nature and cause of the accusation against him; (6) that the indictment was fatally defective in that it lacked the date on which the alleged offense took place; (7) that the indictment was fatally defective in that it omitted the place at which the alleged offense took place; (8) that he never received a copy of the indictment; (9) that he was placed in double jeopardy, because charges at a preliminary hearing were dropped when the judge was advised that the grand jury was indicting defendant for the same offense; (10) that the jury panel composition was improper, lacking young adults; (11) that he was prejudiced by being taken in front of the jury panel handcuffed, chained, barefoot, dirty, unshaven, and disheveled; (12) that the court failed to rule on a motion for his mental examination; (13) that he was given insufficient time to prepare his case; (14) that the performance of his first counsel, Mr. Haas, was so incompetent as to entitle him to reversal; (15) that the performance of his trial counsel, Mr. Alonzo, was so incompetent as to entitle him to reversal; (16) that his appellate counsel, Mr. Barnett, did not communicate with him, and was so incompetent as to deny him due process of law and entitle him to a reversal; (17) that his prosecution was due to a vendetta against him by the district attorney; (18) that certain Negro jurors were Black Muslims, and were railroading him to jail just to punish a "blue-eyed devil" in accordance with the tenets of their faith; (19) that reversible error was made to appear in that two jurors slept soundly throughout the trial; (20) that the whole jury was prejudiced against him; (21) that he was entrapped into committing the offense; (22) that he was denied a transcript to prepare an appeal; and (23) that his transfer back into the Federal penetentiary in Texas after his Alabama trial served to void his state sentence as a matter of law.
The pro se brief sums up:
Appellant's initial argument is that the Alabama Uniform Controlled Substances Act, Title 22, § 258(25) et seq. of our Code, under which he was convicted, is
He invokes the case of State v. Welkner, 259 La. 815, 253 So.2d 192 (1971), in which the Louisiana Supreme Court quashed a prosecution for possession of pills under a Narcotics Drug Law provision regulating hard drugs and marijuana. In that case the Louisiana Legislature had amended the body of a law without changing the title to reflect the new contents. This precedent is clearly inapplicable to the Alabama law, which regulates "controlled substances," a term broadly inclusive of all drugs listed therein.
The purposes of this constitutional provision that every law contain but one subject, clearly expressed in its title, have been much commented upon in our case law. They are generally stated to be notification to the public of the nature of pending legislation, avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title thereof, and prevention of hodgepodge, conglomerate, or "logrolling" legislation. State ex rel. Bozeman v. Hester, 260 Ala. 566, 72 So.2d 61 (1954); State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1923).
Many years ago, in Ballentyne v. Wickersham, 75 Ala. 533 (1883), we stated the test for determining whether a law violates this constitutional provision:
Quoting the Kansas Supreme Court with approval, we continued:
It is clear that the component subjects, marijuana possession, heroin possession, marijuana sale, heroin sale, etc., do combine into the "grand and comprehensive" subject of regulation of controlled substances, and that the title of the Act does include all the component parts.
All the limbs of this tree belong to the tree. No alien branch is hidden in the foliage. We hold that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject clearly expressed in its title.
Appellant next contends that the classification of marijuana with so-called "hard" drugs is unconstitutional. He cites People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827
Four principles have been laid down by the United States Supreme Court in Lindsley v. Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369, 377 (1911), to determine whether a statutory classification is proper:
Appellant has fallen far short of carrying the burden of showing that the classifications made by § 258(25) et seq. are invalid. Unlike the statutes in McCabe, supra, and Wadsworth, supra, which involved different scales of penalties, our statute imposes a single range of punishment for selling different controlled substances. (Code, § 258(47)). We hold that the Legislature properly could punish sale of marijuana equally with sale of other controlled substances, and that the Uniform Controlled Substances Act is not subject to attack on the grounds of arbitrary classification.
Next, appellant contends that he was denied counsel to fight his extradition from Federal prison in Texas to Mobile, Alabama, and that the extradition itself was unlawful. There is nothing in the record that would allow us to pass on either of these claims, hence they are not properly presented for review. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Walker v. State, 223 Ala. 294, 135 So. 438 (1931).
Appellant argues that the indictment was vague, and was fatally defective in that it omitted the place at which the alleged offense was committed. Unfortunately for this contention, Title 15, § 238 of our Code provides:
Appellant further argues that the indictment was fatally defective in failing to give the date of the alleged offense. Our Code, Title 15, § 237, states:
Boswell's indictment stated:
Thus, the statutory requirement was satisfied, and appellant's contention is without merit.
Appellant contends that he was placed in double jeopardy by the dropping of charges at a preliminary hearing and subsequent indictment by the grand jury. In this state, jeopardy begins when the jury has been impaneled and sworn, and the indictment read. Scott v. State, 110 Ala. 48, 20 So. 468 (1896). Thus the defendant was not placed in double jeopardy.
Appellant argues that the jury panel composition was improper, because its members were on the whole much older than the average citizen of Mobile County. There is not one word in the record as to this issue; hence we cannot review it. Edwards v. State, supra; Walker v. State, supra.
Appellant complains of having been brought to court on one occasion prior to trial handcuffed, chained, barefoot, dirty, unshaven and disheveled. The record is incomplete on this issue; however, we cannot assume other than that was the way the defendant had dressed and groomed himself, and that he was brought to court "as is." No error appears on this point.
Appellant complains that the trial judge failed to rule on a motion that he be given a mental examination. Both the record and appellant's own brief state that the motion was ruled on and denied.
Appellant next complains that he was given insufficient time to prepare his case. His second counsel was appointed on September 15. On September 26, this counsel complained to the court that he had been unable to prepare:
The judge then set the trial for the next day, and denied a motion for a longer continuance. The two main grounds for the motion were the unavailability of a witness and a request to examine the alleged contraband. The record shows that by the beginning of proceedings next morning the witness was available and the alleged contraband had been examined by a defense expert. We hold that the trial judge's ruling was within the limits of his discretion. Any problems defendant had in preparation were caused by his refusal to cooperate with his counsel.
Appellant contends that each of the three attorneys he had at various stages of the case was so incompetent that his constitutional right to the assistance of counsel was effectively denied.
Every litigant is not necessarily entitled to counsel with the skill and silver-tongued eloquence of Daniel Webster, Clarence Darrow, or Rufus Choate. Any attorney who has been admitted to practice in this state is presumed capable of providing effective and successful representation. If, through carelessness or indolence he does not do so, relief is available, but only where his conduct reduces the trial to a farce, sham or mockery of justice. Gore v. State, 45 Ala.App. 146, 227 So.2d 432 (1969), cert. denied 284 Ala. 729, 227 So.2d 435 (1969), cert. denied 397 U.S. 966, 90 S.Ct. 1002, 25 L.Ed.2d 258 (1970).
It would be superfluous to review in detail the actions of the three attorneys
Appellant asserts that his prosecution was due to a vendetta against him by the District Attorney. There is nothing in the record regarding this allegation, hence nothing is presented for our review. Edwards v. State, supra; Walker v. State, supra.
Appellant contends that certain Negro jurors were Black Muslims, and were prejudiced against him as a "blue-eyed devil" in accordance with the tenets of their faith. Nothing appears of record to indicate the religious affiliation of the jurors, hence nothing is presented for our review. Edwards v. State, supra; Walker v. State, supra.
Appellant complains of sleeping jurors. There was no objection made to this at the time, if the jurors were in fact sleeping, and the record is silent. Nothing is presented for review on this point. The same is true of the contention that the jurors in general were biased against him.
Appellant complains that he was entrapped into committing the crime.
In Johnson v. State, 36 Ala.App. 634, 636, 61 So.2d 867, 869 (1952), our Court of Appeals stated:
There is no doubt that the course of conduct leading to the criminal activity began with the request by Owensby, the customs agent, to buy marijuana. The defendant sold the marijuana in response to this request. However, the agent's conduct, merely affording defendant the opportunity to commit a criminal act, falls short of what is necessary to constitute entrapment. Johnson v. State, supra. See also Brewer v. State, 23 Ala.App. 100, 123 So. 86 (1929), in which officers induced defendant to sell them liquor, then prosecuted him for violating prohibition laws. No entrapment was found.
In this case the entrapment issue was submitted to the jury with unusually full and fair instructions from the trial judge. The jury found no entrapment. We hold they could properly so find.
Appellant complains of failing to receive a transcript to use in preparing his appeal. The problem appears to have arisen between appellant, jailed in Texas, and his counsel in Mobile, Alabama as to who would use the single transcript available. Appellant ultimately did receive the transcript in Texas, and used it to prepare his 57-page pro se brief. No error appears on this point.
Finally, appellant contends that his transfer back to Federal custody following his Alabama trial served to void his state sentence as a matter of law. We are unaware of any authority in support of this position.
As mandated by Title 15, § 389 of our Code, we have searched the record for possible error. None appearing, the judgment and sentence must be and are affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.
If "sufficient doubt" of the mental capacity of the defendant to stand trial had been shown then I would have been of the opinion that a hearing should have been held separate from the trial to determine the defendant's mental capacity to stand trial. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. See also my dissenting opinion in Seibold v. State, 287 Ala. 549, 253 So.2d 302.
While the defendant did interpose a plea of not guilty by reason of insanity, he withdrew such plea before it went to the jury. A review of the record in this case indicates that there was not manifested during the trial "sufficient doubt" pertaining to the mental competency of the defendant to stand trial so as to justify a hearing on that issue.
I, therefore, concur in the opinion.