Wells v. State

OPINION

GALBREATH, Judge.

Plaintiffs in error, Clabon Z. Wells and his wife, Bennie Ruth, were convicted in the Criminal Court of Shelby County on three separate indictments charging them with violations of the Drug Control Act of 1971 for the possession of marijuana, cocaine and heroin with intent to sell, and appeal. For the heroin conviction the defendants were ordered to pay fines of $5,000 and sentenced to the penitentiary for not more than ten years; for the cocaine conviction the fines were $3,000 and the imprisonment for not more than eight years; for the marijuana conviction the *521fines imposed were $3,000 and the sentences were for not more than five years. All the sentences were ordered to run consecutively.

The defendants were found in possession at their home of rather large quantities of the drugs involved when officers searched armed with a warrant the trial judge found to be valid, and there is no merit to the assignments of error challenging the sufficiency of the evidence. See McBee v. State, 213 Tenn. 15, 372 S.W.2d 173. Nor do we find any substance to the contentions advanced that the statutes under which the defendants were indicted and convicted are unconstitutional as being vague and uncertain. The statutes set out with clarity just what is proscribed and are quite definite in terms.

We also overrule an assignment based on the trial judge’s refusal to declare a mistrial when one of the State’s witnesses in cross examination as to whether or not Mr. Wells was an addict in an unresponsive answer stated that he knew the defendant sells drugs. The trial judge sustained the objection made and promptly instructed the jury to disregard the answer. This is the approved manner to treat this often encountered situation. See Buchanan v. State, 2 Tenn.Cr.App. 398, 454 S.W.2d 178.

Also without merit is the insistence that the name of the reliable informant, upon whose information that she had purchased drugs from the home of the defendants the search warrant was issued, should have been disclosed. While we have held, as did the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, to the effect that if the informant is also a material witness whose testimony may be of benefit to the defense that his identity must be made known (see Roberts v. State, Tenn.Cr.App., 489 S.W.2d 263), the facts of this case do not indicate that the informant was other than just that — an informant whose identity should have been withheld. All other assignments have been carefully considered and found unmeritorious except those relating to the sentences imposed.

We agree with the defendants’ position that they should not have been sentenced to a combined total of twenty-three years for their criminal activity. The defendants were found by the jury to be in the unlawful business of trafficking in drugs. The fact that the drugs were of three different kinds, all of which are substances defined in the statutes, T.C.A. § 52-1413 et seq., and that different punishments may be imposed does not alter the fact that the activities resulting in the defendants’ arrests were all part of one illegal transaction.

In pointing out that both convictions for armed robbery and murder at about the same time could not be sustained, our Supreme Court said in Acres v. State, Tenn., 484 S.W.2d 534:

“There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other, Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690; Cronan v. State, 113 Tenn. 539, 82 S.W. 477; State v. Covington, 142 Tenn. 659, 222 S.W. 1; Patmore v. State, 152 Tenn. 281, 277 S.W. 892; Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794; English v. State, 219 Tenn. 568, 411 S.W.2d 702.
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“When this Court finds that only one of the two judgments can stand, the judgment for the greater offense should be allowed to stand. This is the accepted rule.”

We therefore void the two lesser convictions and affirm the convictions for the possession of heroin with the intent to sell *522m which punishment was imposed, as noted above, of ten years in the penitentiary and fines of $5,000.

O’BRIEN, J., concurs. MITCHELL, J., filed an opinion, concurring in part and dissenting in part.