Appeal from Circuit Court, Benton County. Richard Mengler, Judge. No. 26277.
Robert J. McCrea, Eugene, argued the cause and filed the brief for appellant.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was found guilty after jury trial of the crime of unlawful possession of a narcotic drug, namely, marihuana in hashish form. ORS 474.020.*fn1 The trial judge suspended imposition of sentence and placed defendant on probation for three years.
On appeal defendant contends that the trial judge erred: (1) in failing to grant a directed verdict of not guilty because the state had failed to prove that defendant had actual knowledge of the nature of the narcotic drug contained in the package mailed to him and (2) in instructing the jury as follows:
"You are also instructed that the evidence here is to be weighed or estimated not only by its intrinsic weight, which means the evidence is to be estimated not only by what the evidence itself proved but also according to evidence which is within the power of the state to produce and the defendant to contradict; therefore if you should find that weaker and less satisfactory evidence was offered by the state when it appears that stronger and more satisfactory evidence was within the power of the state to produce you would have to view the other evidence offered by the state with distrust."
The evidence offered by the state was as follows:
Federal customs agents in Los Angeles intercepted and opened a package from Holland addressed to defendant at his residence in Corvallis. The package contained a kilo of hashish, which was found sealed inside a block of cheese. The package was approximately one foot long, eight inches high and eight inches wide. It was wrapped in a heavy orangish-brown wrapping paper similar to common brown wrapping paper. The wrapping paper was sealed with red and green Christmas-style wrapping tape. Defendant's name and address were written on the outside of the package and the sender's name and address were written above defendant's.
The federal authorities notified the Corvallis police, who placed defendant's residence under surveillance. When a mailman delivered the package to defendant's residence at 12:20 p.m. on December 14, 1971, the police obtained a search warrant authorizing:
"* * * [A]n immediate search * * * of the residence of Daniel Robert Doerge * * * to search for the aforementioned marihuana in hashish form and the hollowed out cheese and package wrapper addressed to * * * [defendant], with the sender listed as J. N. Jansen, Amsterdam, Holland * * *."
About a half hour after the package was delivered the Corvallis police knocked on the door of defendant's residence. Defendant answered the door and admitted the police. Officer Miller read him the search warrant and gave him a copy of it. He next gave defendant the Miranda*fn2 warning. Then, ...