STATE of North Carolina
v.
Douglas THORNTON.
No. 7214SC812.
Court of Appeals of North Carolina.
December 29, 1972. Certiorari Allowed March 6, 1973.*374 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. R. S. Weathers, Raleigh, for the State.
Loflin, Anderson & Loflin, by Thomas F. Loflin, III, Durham, for defendant appellant.
Certiorari Allowed by Supreme Court March 6, 1973.
CAMPBELL, Judge.
At the beginning of trial the defendant stipulated that (1) State's Exhibit # 1 was a laboratory report from a Mr. Neal C. Evans of the State Bureau of Investigation Crime Laboratory; (2) that one of the three glassine bags given Evans by J. C. Fuller, a Durham police officer, was tested by Evans in the laboratory; and (3) that if Evans were called to testify, he would testify that the glassine bag contained hetoin.
The trial court, in the charge, reviewed the sequence of events by stating that the State's witness, Thompson, told defendant ". . . that he would like to buy three bags of heroin . . .; that there Mr. Thornton went to the back room; that when he returned he had with him three bags of heroin, or three bags of some substance; that Thompson took the bags and paid to Mr. Thornton the sum of $30.00 and left."
With respect to the stipulation, the trial court further instructed:
"Now, it was stipulated at the outset of this trial that that material, or some of it, was analyzed by the State Bureau of Investigation, and that the chemist who is a duly qualified expert in the field of qualitative analysis, would testify if he were here that upon the analysis of this material he found it to be the narcotic drug known as heroin.
Now, what his findings would be is not in contest, so if I refer to the contents of the bags as heroin, I do so simply because there is no argument that that is what the analysis would show. We do that simply to avoid the necessity of bringing the chemist over here to say what he has written in a letter."
Defendant assigned the above portion of the charge as error, and we feel that this assignment of error is well taken. Defendant never stipulated that the substance taken from him was the same substance tested by the State laboratory. While there was sufficient evidence upon *375 which the jury could find that the two substances were in fact the same, still this determination was for the jury. On cross examination, the State's witness, Thompson, could not remember exactly what he did with defendant's substance before he turned it over to his police contact, and he could not remember whether he made other purchases of heroin from different persons on that day. The court's charge in effect completely removed this doubt from the jury, and stated that the State had proved that the defendant had possessed and distributed heroin.
The court may not assume as true the existence or nonexistence of any material fact in issue, since the credibility of all the evidence tending to establish the crime and the identity of the defendant as the perpetrator of that crime is for the jury to determine. 3 Strong N.C.Index 2d, Criminal Law, § 114.
Because of this prejudicial error a new trial must be conducted.
Another assignment of error by the defendant deserves attention. May the defendant be tried, convicted and punished under both indictments?
The Fifth Amendment to the United States Constitution protects a person from the risks and the harassment inherent in being tried twice for the same crime. This principle is included in the North Carolina Constitution, Article I, Section 19 (formerly Section 17) by judicial construction. State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934). This constitutional guaranty also protects a defendant from multiple punishment for the same offense. State v. Summrell, 192 S.E.2d 569, filed in the Supreme Court of North Carolina, 15 November 1972.
In the instant case all of the evidence shows that the distribution of a controlled substance in violation of G.S. § 90-95(a)(1) was shown, and that no "line of demarcation between defendant's" possession and his distribution of the heroin could be drawn. The possession was in no manner unrelated in point of time to the distribution as alleged in the indictment. Since possession requires control and since transfer of the drug is an exercise of dominion and control over it, whether the transfer be actual or constructive, it is impossible to prove distribution of a narcotic without at least also proving constructive possession of it. Two offenses in point of time and as a matter of law are not shown by this evidence.
Upon the legal principles discussed in State v. Summrell, supra, we hold that in the instant case two separate, distinct, and punishable crimes were not established.
The sentences imposed upon the defendant's conviction being consecutive, there is substantial prejudice to him.
Upon a new trial the evidence may be different, and we therefore refrain from any other action other than ordering a new trial on both charges with directions to follow the views herein expressed.
New trial.
BROCK and GRAHAM, JJ., concur.