Haynes v. State

• Decision Date: 04 February 1975
• Docket Number: 6 Div. 667
• Citation: 312 So.2d 406,54 Ala.App. 714
• Parties: Donny HAYNES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 406

312 So.2d 406

54 Ala.App. 714

Donny HAYNES, alias v. STATE.

6 Div. 667.

Court of Criminal Appeals of Alabama.

Feb. 4, 1975.

Rehearing Denied April 1, 1975.

Stewart & Colvin, Anniston, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. General, for the State.

CATES, Presiding Judge.

Possession of 'marijuana' (sic) for personal use: fine, $500.00 and six months hard labor for the county.

Haynes was indicted in 1973 for possession of 'marijuana' on March 17, 1973. The verdict and judgment entry show a finding of guilt of possession of 'marijuana' ¹ for his personal use only. See § 401(a) of Act No. 1407, September 16, 1971.

I

Alexander Pope said, among many other things:

'Be not the first by whom the new are tried,

Nor yet the last to lay the old aside.'--Essay on Criticism, Part II, 1. 133

Our Legislature, importuned by siren voices, abandoned a set of drug laws already mainly interpreted by the appellate courts to pass the Uniform Controlled Substances Act. Act No. 1407, September 16, 1971. See The Uniform Alabama Controlled Substances Act: An Appraisal, 24 Ala.Law Review 491.

In this course of novation (and repeal) our lawmakers came up with a brand new definition of what they now chose to call 'marihuana.' Beforehand the law stood thus:

'Section 256. Unlawful to sell marijuana, etc.--It shall be unlawful for any person to possess, transport, deliver, sell, offer for sale, barter, or give away in any form whatever in this state, any marijuana, cannabis Americana, or cannabis Indica, or any compound or mixture containing any marijuana, cannabis American or cannabis Indica, or any derivative therefrom or thereof or synthetic equivalents of the substances contained in the plant, or in the resinous extractives This § 256 was effectively, though malapropishly, repealed by § 508(b), (6) and (7) of Act 1407, supra.

of Cannabis or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as tetrahydrocannabinol and its optical isomers, or any cigar or cigarettes made of or containing any marijuana, cannabis Americana or cannabis Indica or such synthetic equivalents or derivatives.' Code 1940, T. 22, § 256 as amended by Act 625, August 29, 1969.

In lieu of this Enumerative classification built around the Chemical characteristics of the cannabis plant in all its varieties and synthetic derivatives, the 1971 Act (No. 1407, September 16, 1971) § 101(o) substituted the following Taxonomic definitive nomenclature, viz:

"Marihuana' Means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, maxture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.' (Italics added.) 1971 Acts pp. 2378--2402, at p. 2380.

Thus, we have a switch from 'marijuana' as a broad congeries of plant substances, compounds, mixture derivatives, synthetic equivalents, or extractives, etc., as listed illustratively in the 1969 amendment of § 256, supra.

The change from 'marijuana' to 'marihuana' went from showing the lawmakers' meaning by way of description (or illustration) over to a purported precise definition, i.e., of equivalency. Thus, in Helvering v. Morgan's, Inc., 293 U.S. 121, 55 S.Ct. 60, 79 L.Ed. 232, we find:

'* * * Section 200 * * * gives four (definitions) of which two use the verb 'include' and two the verb 'means.' That the draftsman used these words in a different sense seems clear. The natural distinction would be that where 'means' is employed, the term and its definition are to be interchangeable equivalents, and that the verb 'includes' imports a general class, some of whose particular instances are those specified in the definition. * * *.' (Bracketed matter added.)

Hence, in § 101 of The Uniform Alabama Controlled Substances Act, supra, the section uses the verb 'means' twenty-two times and 'includes' or 'including' twelve times, in seven instances accompanied by 'not' so as to be the same as 'excluding.'

This usage comports with the observation of distinction noted in Helvering v. Morgan's, Inc., supra. As pointed out by McCall, J., in Sims v. Moore, 288 Ala. 630, 264 So.2d 484, 'including' is not a word of limitation but rather one of enlargement.

In the course of the defense, counsel for Haynes put on the stand Dr. Aaron John Sharp, Professor of Botany at the University of Tennessee at Knoxville. Out of the hearing of the jury Dr. Sharp testified that in his opinion the term cannabis sativa L. omitted other botanical types of cannabis which were chemically indistinguishable from the statutorily defined substance.

The trial judge refused to permit testimony tending to establish the opinion of the witness that there exists more than one species of cannabis. The necessary implication of Professor Sharp's opinion would be that the statute § 101(o), by confining itself solely to cannabis sativa L., has decriminalized possession and sale of other varieties.

Perhaps the most concise writing we have found on the subject is in Stein 'The term marihuana is not a scientific name; it is a colloquialism. Statutes, however, define marihuana in two ways, botanically and chemically. Botanical taxonomical classification describes a plant by a genus and species name. Using the genus and species name, many statutes define marihuana as Cannabis sativa L. Cannabis is the genus name; sativa is the species name; and L. stands for Linnaeus who discovered and described marihuana.

Laessig and Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and Qualifications of Their Analysts, 1973 Wisconsin Law Review 727. At p. 767, we find:

'The difficulty with the botanical statutory definition of marihuana, C. sativa L., is that there may be more than one species of Cannabis. Most forensic analysts believe Cannabis is a monotypic genus; that is, it has only one species. However, Professor F. Rickson of Oregon State University, Professor R. E. Schultes of Harvard, and Dr. W. Klein, Assistant Director of the Missouri Botanical Gardens, all of whom are botanists, have testified that they believe there are two other species of Cannabis, C. ruderalis and C. indica. Authoritative treatises have also recognized the existence of more than one species of Cannabis. If Professor Rickson and his colleagues are correct and there are more than one species of Cannabis, the statutory definition C. sativa L. is defectively under-inclusive.

'The species controversy centers on whether the morphological differences observed in various Cannabis plants are genetic or environmental. If the differences are genetic, then there is more than one species. If the differences are due to geographic and environmental factors such as variations in temperature, soil chemistry, humidity, or length of daylight period, then there is only one species. The problem becomes more complicated because the observed differences may be due to both factors. The authors are of the view that the morphological differences are genetic and that there are more than one species of Cannabis. Flora Europea, a leading authority, supports this position, for it cites instances where both C. sativa L. and C. ruderalis were grown under essentially the same environmental conditions in Southeast Russia and were found to have different nut (seed) types, indicating a true species difference.

'The significance of this to the lawyer is that if there are more than one species, arguably the prosecution must prove that the unknown suspected vegetable material is C. sativa L. and not C. ruderalis or some other species. Since the only way to distinguish C. sativa L. from C. ruderalis is through comparison of their nuts, the absence of nuts in a sample, which is a fairly common occurrence, makes positive identification impossible. If a court were to accept this two-species argument in a jurisdiction where the statutes defined marihuana as C. sativa L., a defendant charged with possession of the drug might be acquitted due to the prosecution's failure to sustain its burden of proof.

'To date, few courts have been willing to recognize the argument. United States v. Rothberg (480 F.2d 534, 2 Cir.) typifies the judiciary's approach to the problem. There the court rejected an offer of proof regarding the existence of more than one species of Cannabis. Although the court tacitly conceded that the species C. indica existed, it found that Congress not only meant to, but actually did, include C. indica in the term C. sativa L. More recently, however, a defendant successfully pressed the argument. In April 1973, a Florida jury acquitted a Miami teenager charged with possession of marihuana after hearing the testimony of Professor R. Schultes who testified to the existence of three species of marihuana, of which only one 'The ambiguity of statutes proscribing marihuana is further exemplified by the problem of hashish. Hashish, the resinous extract of marihuana, is thought to be covered by the chemical description of marihuana. Typically, '(t)he term 'marihuana' means all parts of the plant Cannabis sativa L., . . . the resin extracted from any part of such plant; . . ..' Resin or resinous extract is not defined; it is a very broad term. Depending on which solvent is employed in the extraction process, different compounds will be extracted. Therefore, the 'resin estracted' will have a different chemical composition depending on the nature of the extracting solvent and the conditions employed. Yet, most forensic...