Bracey v. State

Morton, J., delivered the opinion of the Court. ⁵⁶³ The appellant was indicted for possession, 1st count, and control, 2nd count, of heroin and by an addendum to the indictment was warned that the State intended to prosecute him for the offenses as a second offender, it having evidence that he had been formerly convicted of violation of the narcotic laws. He elected a court trial on the offenses for which he was indicted and to have the issue of whether he was a second offender tried concurrently with the trial on those offenses. Md. Rule, 713. At the trial it was stipulated that the appellant had been previously convicted of violation of the narcotic laws.

He was found guilty under both counts, determined to be a second offender, and sentenced generally to imprisonment for a term of 5 years. Md. Code (1967 Repl. Vol.) Art. 27, § 300. The appellant contends on appeal from the judgments that the evidence was not sufficient to sustain the convictions.

He does not argue that the evidence was not sufficient for the trial court to find beyond a reasonable doubt that he was in possession and control of “a small manila envelope containing sixteen gelatin capsules, two of which had white powder substances in them” and from the evidence adduced by the State we think that the court could properly so find. A detective assigned to the Narcotics Squad testified that he saw the appellant drop the envelope containing the capsules. The officer recovered the envelope. The “chemist report of analysis” showed the substance found in two of the capsules to be heroin hydrochloride, “net weight of sample received — traces; net weight after analysis— traces.” No prohibited narcotic drug was found in the other fourteen capsules.

The appellant urges that to sustain the conviction the narcotic drug must have been in such quantity as to be capable of being useable under the known practices of narcotic addicts. He claims that the “traces” of heroin in the capsules were useless for either sale or consumption and thus was not a narcotic drug within the meaning of the statute. Md. Code (1967 Repl. Vol.) Art. 27, § 277, provides: “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug * * *” with exceptions not here applicable. “Narcotic