McKessick v. State

284 So. 2d 516, 291 Ala. 564, 1973 Ala. LEXIS 1151

• Court: Supreme Court of Alabama
• Decided: September 13, 1973
• Docket: SC 349
• Status: Published

Opinions

MADDOX, Justice.

Appellant, Bobby Gene McKessick, was indicted, tried and convicted for the unlawful possession of drugs.

Lt. Kater Williams of the Mobile City Police Department was a shift lieutenant and on the morning of January 11, 1971, between 1 and 2 o’clock, he received a radio dispatch to call a telephone number. Lt. Williams called the number and talked to an informer. He knew the informer. He testified the informer was reliable in that the information supplied by him on previous occasions had led to “more than ten” convictions in Mobile County. Lt. Williams was informed that there was a white male in the vicinity of the Loop on Highway 90, driving a tan, 1967 Plymouth automobile, with an Alabama license. The informer gave the full license number, but the officer could only recall at trial that the first two numerals were “27-.” The informer described the occupant of the car as being approximately five feet, ten inches tall, with black hair and weighing 175 to 180 pounds. He said he would be wearing a blue suit. The informer said he thought the individual described was about 38 years of age. The informer stated that the subject was “dealing in narcotics.”

Lt. Williams went to the Loop area, and saw a vehicle with the tag number which had been given to him by the informer. The driver of the automobile fit the description given by the informer. Lt. Williams followed the car on Highway 90 west and called for another unmarked car to assist in following the vehicle. He continued to keep the car in sight. The car pulled into a Trackside service station and the subject got out and went into the station. The officer, using binoculars, observed the subject make three telephone calls and talk to the attendant. He was there approximately 45 minutes.

While the subject was at the service station, there were three or four cars which came in for service. When the subject left and headed back toward Mobile, Lt. Williams noticed there were two people in the car. Lt. Williams called a marked patrol car to pull the subject’s car over. When the car was stopped, Lt. Williams and two other officers were present. The woman passenger was known by the police as a user of narcotics. While the officers were questioning both McKessick and the female passenger, one of the officers said, “She just threw something.” Lt. Williams and another officer found numerous pills, capsules and tablets on the ground near the door from which the female passenger had alighted. While the officers were gathering the pills off the ground, they noticed some more on the floorboard of the passenger side in the car. The officers then asked to see the female passenger’s purse. It contained more pills and a .38 caliber revolver. She was arrested. At about that time, the officers found a crumpled brown paper bag containing more pills and a small bottle of clear liquid. McKessick was then placed under arrest for possession of prohibited drugs.

The facts of this case are very similar to those in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We affirm on authority of that case.

McKessick argues that the district attorney made improper and prejudicial remarks during closing argument. We have examined carefully the portions of the closing argument McKessick’s counsel objected to and find that his objections were sustained or the argument made was not error to reverse.

McKessick contends that the State failed to prove all the averments in the indictment. The indictment stated that the defendant unlawfully possessed bihphetamine “20” d-amphetamine and dl-amphetamine and methamphetamine hydrochloride, stimulating drugs. The State concedes that there was a misspelling of bi-phetamine 20 in the indictment. The indictment spelling — “bi/tphetamine” contained an extra “h.” Biphetamine 20 is the trade name. Biphetamine 20 contains d-amphetamine and dl-amphetamine. These two chemicals followed the trade name of the drug in the indictment as descriptive terms. Before an objection because of false grammar, incorrect spelling, or mere clerical error is entertained, the court should be satisfied of the tendency of the error to mislead. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Title 15, Section 231, Code of Alabama, 1940.

Having examined the record in this cause, and having considered the argument of counsel concerning alleged prejudicial error, we are of the opinion that no error to reverse is shown and that the judgment of conviction is due to be affirmed.

Affirmed.

MERRILL, COLEMAN, HARWOOD, and McCALL, JJ., concur. BLOOD WORTH, J., concurs specially, with which HEFLIN, C. J., concurs. FAULKNER and JONES, JJ., dissent.