Campbell v. State

• Decision Date: 22 January 1985
• Docket Number: 1 Div. 754
• Citation: 479 So.2d 1294
• Parties: Rayford Howard CAMPBELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1294

479 So.2d 1294

Rayford Howard CAMPBELL v. STATE.

1 Div. 754.

Court of Criminal Appeals of Alabama.

Jan. 22, 1985.

Rehearing Denied Feb. 26, 1985.

Thomas M. Haas and James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial under an indictment charging in pertinent part the following:

"RAYFORD HOWARD CAMPBELL, JR.' ¹

"... did, on or about April 20, 1983, unlawfully possess in excess of 2.2 pounds of a controlled substance, to-wit: Marijuana, in violation of the Alabama Uniform Controlled Substances Act, a violation of § 20-2-80 of the Code of Alabama."

The Court fixed his punishment at imprisonment in the penitentiary for a term of three years and assessed a fine against him of $25,000.00. § 20-2-80(1)(a) provides:

"Any person who knowingly sells, manufactures, delivers, or brings into this State, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as 'trafficking in cannabis.' If the quantity of cannabis involved:

"(a) Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00."

According to the testimony of Sgt. William Lundy of the Mobile Police Department, attached to Narcotics Division, on April 20, 1983, while he had Denton Park under surveillance, he saw defendant, whom he knew, arrive at Denton Park in a pickup truck. On the same occasion, the witness saw Carl Stokes of the Mobile Police Department proceeding under cover, accompanied by a man by the name of Taylor, drive a motor vehicle into the park. Sgt. Lundy further testified that he looked in the pickup truck driven by defendant and saw the following:

"... A large grocery bag and a smaller bag that had several plastic bags in them with green plant material in them. The bags were on the floorboard of the pickup truck."

According to the testimony of Officer Stokes, he, accompanied by an informer by the name of Taylor, talked with the defendant on April 20, 1983, at a filling station and discussed a purchase from defendant of some marijuana on defendant's pickup truck. Officer Stokes was acting under cover at the time. The witness testified, "There was an arrangement between myself, Henry Taylor and the defendant to purchase five pounds of the marijuana for a certain price." He further said, "We left there and went directly to Denton Park, which is just around the corner on Emogene Street. Officer Stokes further testified that while at Denton Park he saw in the pickup truck "two grocery-bag type brown paper sacks" and nine individual clear plastic bags with green plant material, which items were introduced in evidence by the State as State's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, which he turned in to Ms. Brodbeck, the lab technician at the City Lab, soon after he had identified himself to the defendant and placed him under arrest.

The defendant took the stand and emphatically denied that he had knowingly possessed marijuana. He said that Thomas had previously paid him fifty dollars to deliver a package for him and that on the occasion of defendant's arrest, defendant had been employed by Thomas to make another delivery of some material, which, contrary to defendant's knowledge, consisted of State's Exhibits Nos. 1 through 11.

Five issues are presented in appellant's brief, which we now consider.

I.

Appellant contends that Section 20-2-80, Code of Alabama (1975), contains such vague, indefinite and uncertain terms as to violate the due process clause of the Fourteenth Amendment to the Constitution of the United States of America. This is not a new contention. It was raised and determined in the case of Dickerson v. State, Ala.Cr.App., 414 So.2d 998, 1004-1005 (1982), in which Judge Tyson states:

"Appellant contends that § 20-2-80(1) is unconstitutional as it provides for no maximum sentence. Consequently, he argues that it is unconstitutionally vague and indefinite, and runs afoul of the doctrine of separation of powers expressed in Article III, § 43 of our Constitution.

"...

"Consequently, the limitation upon the trial court in sentencing under § 20-2-80(1) would be that of § 15, supra, as well as the Eighth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment.

"...

"Consequently, we find § 20-2-8(1) not unconstitutionally vague or indefinite as to its sentencing scheme or violative of the separation of powers doctrine of § 43, supra."

Appellant's first issue is without merit; it is contrary to the precedent of Dickerson v. State, supra.

II.

Appellant's second issue is thus stated:

"WHETHER CHARGING APPELLANT POSSESSED IN EXCESS OF 2.2 POUNDS OF MARIJUANA FAILS TO ADEQUATELY AND PROPERLY STATE AN OFFENSE?"

The first paragraph of appellant's argument as to this issue is as follows:

"Marihuana, as defined by law, and cannabis, as undefined by law, are not one and the same substances. Section 20-2-2(15), Code of Alabama (1975), limits marihuana to a specific genus of the cannabis plant, i.e., Cannabis sativa L. There is no limitation, definition, or description anywhere in the Alabama Code as to the meaning of the term Cannabis."

We must recognize that the relatively new crime of possession or sale of marijuana, which came into existence in Alabama in 1971, by the Alabama Uniform Controlled Substances Act (Acts 1971, No. 1407, p. 2378, § 511) has been a source of some confusion, which has been due largely to the fact that there was involved the introduction into the law of this State of the subject of a vegetable product that was not indigenous to Alabama. As a result, legislators, lawyers and judges of Alabama looked elsewhere to ascertain the names, or names and synonyms, the use and usages of the product and their effects, as well as the chemical properties of the product, in order to protect the people of Alabama against the imported evil that has become gigantic. With this in mind, the Alabama Legislature enacted in 1980 the law now codified as Code of Alabama 1975, § 20-2-80, proscribing in part the crime charged in the indictment in the instant case.

In the first sentence of the argument of appellant's counsel in support of his second issue, he says, "Marihuana, as defined by law, and cannabis, as undefined by law, are not one and the same substance." We disagree. Although much has been written in numerous dictionaries, encyclopedias, and an extraordinarily large number of reported cases, as to the meaning of "marijuana" and as to the meaning of "cannabis," we do not find anything therein to the effect that the two substances are not one and the same. The following is found at 28 C.J.S.Supp., § 3, Drugs and Narcotics (1974), p. 10:

"Marijuana. The word 'marijuana' is of Mexican origin, and is variously spelled as 'mariguana,' 'marijuana,' 'mariahuana,' 'marajuana,' 'maraguana,' or 'marihuana.' Marijuana is not a scientific term; it is the Mexican name for 'cannabis sativa,' which is more commonly known as 'Indian hemp.' It is designed to mean a habit-forming substance used by addicts in the form of cigarettes; the narcotic product of the plant cannabis sativa; and while marijuana is not technically a narcotic, it is treated for all purposes just like an opiate, and usually it comes within such statutory terms as 'narcotics,' or 'narcotic drugs,' but not if it is expressly excluded therefrom, and where it is not classified as a narcotic or narcotic drug it may be classified as a dangerous drug, and marijuana may be classified as an injurious substance. A statutory definition of the word 'marijuana' has been held to include all varieties.

"The word 'marijuana' is applied to both the plant and the drug which the plant contains, and the term signifies any part of the hemp plant or extract therefrom which induces somatic and psychic changes in man. As used in some statutes the term admits of no distinction between the growing plant and the drug."

Appellant further argues in his brief that, "There is no limitation, definition, or description anywhere in the Alabama Code as to the meaning of the term Cannabis." Nevertheless, at the time the word "cannabis" came into the law of Alabama, the word had become a well defined one in the authoritative dictionaries of the United States at about the time "marijuana" had become a well defined word in such dictionaries, it appearing therefrom that Cannabis is the Latinization of the Greek word "Kannabis" and that the word "marijuana," however spelled, is a Spanish word, referred to as "Mexican Spanish," largely because of its propagation in Mexico. We quote from the American Heritage Dictionary (1969) in defining the two words as follows:

"Cannabis.

"1. A plant of the genus Cannabis, hemp (see) 2. The dried flowery tops of the hemp plant. (See marijuana, hashish [New Latin, from Latin, hemp, from Greek Kannabis."

"Marijuana, marihuana. 1. A plant, hemp (see). 2. The dried flower clusters and leaves of the hemp plant, especially when taken to induce euphoria. Slang equivalents include 'weed,' 'pot,' 'Mary Jane,' 'tea,' 'sage,' 'grass,' and as a cigarette, 'reefer,' 'pot,' See hashish, bhang [Mexican Spanish Marijuana, Marihuana]."

Taber's Cyclopedic Medical Dictionary, Second Printing, (1977) defines "marijuana" as follows:

"Also spelled marihuana. An intoxicating, excitant drug, usually in cigarette form and used illegally in the U.S. and elsewhere. Obtained from leaves and flowers of the Indian hemp plant. (Cannabis Sativa). Psychologically habituating but not habit-forming. Withdrawal of marijuana causes no such physical symptoms as opiate withdrawal does. Drug is considered to have no medical value."

The same...