State v. Brinkley

206 S.E.2d 353, 22 N.C. App. 339, 1974 N.C. App. LEXIS 2322

Opinion

PARKER, Judge.

Appellant first assigns error to the denial of his motion to compel the State to elect to try him either on the charge of possession of heroin or on the charge of sale of heroin. He contends that, the heroin involved in both cases being the same and the only evidence of possession being that shown when the distribution took place, denial of his motion subjected him to double jeopardy and to multiple punishment for the same offense. Our Supreme Court has held to the contrary in State v. Thornton, 283 N.C. 513, 196 S.E. 2d 701, and State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481, and on authority of those decisions appellant’s first assignment of error is overruled.

The only other assignment of error brought forward in appellant’s brief challenges the trial court’s action in allowing the State’s witnesses to testify, over defendant’s objections and motions to strike, concerning their observations of certain other “small glassine bags with white powder,” similar to the two bags, which were purchased from defendant, which they saw at the time of the purchase in a small brown leather pouch in defendant’s possession. The witnesses testified that the two glassine bags containing white powder, later determined to be heroin, which defendant sold, were removed from this same pouch by the defendant immediately prior to the sale. The testimony concerning the pouch and its contents was clearly relevant, and this assignment of error is also overruled.

No error.

Judges Hedrick and Vaughn concur.