Ivey v. State, 26033
| Decision Date | 22 October 1970 |
| Docket Number | No. 26033,26033 |
| Citation | 177 S.E.2d 702,226 Ga. 821 |
| Parties | John IVEY v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The classification of marijuana as a narcotic drug in the Uniform Narcotic Drug Act of 1967 (Ga.L.1967, pp. 296, 325) was not so arbitrary, capricious, and unreasonable as to violate the due process and equal protection clauses of the State and Federal Constitutions.
2, 3. The trial judge's instructions on the necessity of proving that the appellant was the person seeding and cultivating the marijuana plants he was charged with possessing were more precisely adjusted to the evidence than the instructions requested, and it was not error to refuse to give the requested instructions.
4. The evidence of possession of marijuana was entirely circumstantial, and was not sufficient to exclude every other reasonable hypothesis except the guilt of the appellant.
Pegram Harrison, Richard M. Asbill, Atlanta, for appellant.
Richard H. Still, Dist. Atty., Marietta, for appellee.
John Ivey appealed from his conviction of the offense of possessing the dangerous drug marijuana, enumerating as error the refusal to sustain his demurrer to the indictment, the refusal to give certain instructions to the jury, and the denial of his motion for new trial on the general grounds.
1. The only ground of demurrer to the indictment argued is the contention that the inclusion of marijuana as a narcotic drug in the Uniform Narcotic Drug Act of 1967 (Ga.L.1967, pp. 296, 325) violated the due process and equal protection clauses of the State and Federal Constitutions, 'by arbitrarily, capriciously, and unreasonably classifying marijuana as a narcotic, which in fact it is not.' Permission was sought by the appellant to present evidence to the court that marijuana is not a narcotic.
Appellant points out the fact that the General Assembly at the 1970 session amended the drug laws by removing marijuana from the drugs enumerated as narcotics in the Uniform Narcotic Drug Act, and placing it under the chapter entitled, 'Georgia Drug Abuse Control Act.' See Ga.L.1970, pp. 470-472.
The General Assembly, in recognition of the danger to the public safety and welfare of the people of this State because of the use of narcotic and other dangerous drugs, has prohibited the possession of such drugs except under specified circumstances. For many years marijuana has been classified as a narcotic drug by this and other States.
While the General Assembly is not authorized to arbitrarily declare a state of facts contrary to current scientific information, scientific opinion changes. The General Assembly in the 1970 Act has declared that marijuana is a dangerous drug, even though it has removed it from the definition of a narcotic drug. The classification of marijuana as a narcotic in the 1967 law, which was in force at the time the appellant was charged with the possession of marijuana, was not so arbitrary, capricious, or unreasonable as to deny the appellant due process and equal protection of the law. Compare People v. Stark, 157 Colo. 59, 400 P.2d 923.
2. Appellant contends that the court erred in refusing to give the following written request to charge: 'I charge you that to show unlawful 'possession' of a narcotic drug, the State must prove that the defendant (a) had physical or constructive possession and control of the alleged narcotic substance, and (b) knowledge of the presence and narcotic character of such substance.'
After giving a definition of marijuana, the trial judge charged:
The marijuana which the appellant was charged with possessing consisted of numerous small plants which were in the process of cultivation,...
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