People v. Holcomb, 25410

• Decision Date: 10 February 1975
• Docket Number: No. 25410,25410
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Leslie HOLCOMB, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 45

532 P.2d 45

187 Colo. 371

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Leslie HOLCOMB, Defendant-Appellant.

No. 25410.

Supreme Court of Colorado, En Banc.

Feb. 10, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, T. Michael Dutton, Deputy State Public Defender, Denver, Don L. Nelson, Deputy State Public Defender, Fort Collins, for defendant-appellant.

LEE, Justice.

Appellant was convicted by a jury of one count of unlawfully dispensing a dangerous drug, phencyclidine, in violation of 1969 Perm.Supp., C.R.S.1963, 48--8--2(2)(a), and a second count of sale with intent to induce or aid another to unlawfully use or possess a narcotic drug, cannabis sativa L., in violation of C.R.S.1963, 48--5--20(1)(a) and (c). We find no prejudicial error and therefore affirm the convictions.

Appellant's defense challenged the sufficiency of the proof that the drugs involved in the sales were in fact phencyclidine and cannabis sativa L. Appellant did not testify in his own behalf and presented only one witness, a taxonomist from Colorado State University.

The trial, in effect, became a credibility contest between the expert witnesses. The expert for the People had chemically analyzed and identified the drugs involved as phencyclidine and cannabis sativa L. The expert witness for the defense had analyzed a sample of the marijuana involved. He was of the opinion that it was cannabis but that it could not be identified specifically as cannabis sativa L. He had no opinion as to the identification of the other drug as phencyclidine.

I.

Appellant contends the court prejudicially erred by refusing to accept his tendered instruction on lesser-included offenses and to instruct the jury that possession of narcotic drugs and possession of dangerous drugs were lesser-included offenses of sale of narcotic drugs (with intent) and sale of dangerous drugs.

In People v. Rivera, Colo., 525 P.2d 431, this Court clarified the law in Colorado on the doctrine of lesser-included offenses. Without going into an extensive discussion, we hold that the offense of possession of a narcotic drug is not a lesser-included offense of sale of a narcotic drug (with intent), and that possession of a dangerous drug is not a lesser-included offense of sale of a dangerous drug. The tests as set forth in Rivera, supra, do not require a contrary conclusion. We simply find that the offenses are separate and distinct and proscribe some different kinds of conduct. The trial court properly refused to give the tendered instruction and verdict forms.

II.

Appellant contends the court erred in failing to give his tendered instruction on his theory of the case. His theory was premised on the assumption that cannabis sativa L., cannabis americanus, and cannabis indica are separate species of drugs that are not identical; and that failure to prove beyond a reasonable doubt that the alleged narcotic drug sold was cannabis sativa L., as differentiated from cannabis americanus or cannabis indica, must result in his acquittal. In our view, the failure to give the tendered instruction was not error inasmuch as it was premised on an invalid assumption--that cannabis americanus and cannabis indica are separate species from cannabis sativa L.

This Court has considered a similar problem raised under the narcotic drug statute, in Martinez v. People, 160 Colo. 333, 417 P.2d 485, where the contention was asserted that marijuana and cannabis were not synonymous. There, this Court held as a matter of law that marijuana is identical with cannabis and that the common name 'marijuana' was merely a geographically oriented name for cannabis.

From our examination of the authorities on the subject, we find that cannabis sativa L. is the sole species of which marijuana, cannabis americanus and cannabis indica are merely varieties, so named because of their geographic origin. Marijuana (marihuana) is the Mexican variety of cannabis sativa L.; cannabis americanus, the North American variety; and cannabis indica the variety grown in India. That matter was considered in detail in State v. Romero, 74 N.M. 642, 397 P.2d 26, where the court concluded:

'We conclude as a matter of law that marijuana is identical with cannabis, cannabis sativa L., and cannabis indica. Marijuana and cannabis indica are merely geographical oriented names of cannabis, whereas cannabis sativa L. is the botanical name of cannabis.'

See United States v. John Moore, D.C., 330 F.Supp. 684 (1970), and authorities cited therein. Among a few of the other authorities lending support to this conclusion are: L. Goodman and A. Gilman, 'Cannabis (Marijuana) History and Source,' in 4th ed., The Pharmacological Basis of Therapeutics (The MacMillan Company, London and Toronto, 1970), p. 298; Charles M. Gruber, 'Cannabis (Indian Hemp, Marijuana, or Hashish),' in Vol. 2, The Cyclopedia of Medicine, Surgery, Specialities (F. A. Davis, Philadelphia, 1971), p. 871; Thomas Lathrop Stedman, Reference Handbook of the Medical Sciences, Vol. II, (William Wood and Company, New York, 1923), p. 610.

Our narcotic drug statute, C.R.S.1963, 48--5--1 et seq., which, by section 48--5--1(14), includes cannabis as a narcotic drug, further defines cannabis in section 48--5--1(13) as including all parts of the plant cannabis sativa L., with certain exceptions. Nowhere are the varieties of the species sativa L. excluded from the operation of the drug statute. It is our conclusion as a matter of law that the proscription of the statute includes all varieties of the species sativa L., whether designated as cannibis, marijuana, cannabis americanus, or cannabis indica.

The record discloses that the court correctly instructed the jury as to the law applicable in this regard and we do not find any merit to appellant's argument that the court erred in refusing to give his tendered theory of the case instruction.

III.

Appellant next contends the trial court abused its discretion in not granting him a continuance. We do not agree.

The record discloses that on April 8, 1971, the appellant was accused in a seven-count information with various violations of the narcotic drug and dangerous drug acts. A preliminary hearing was held on May 14, 1971, and appellant was bound over for trial on August 11, 1971. Appellant's motion for relief from prejudicial joinder was granted on August 4, 1971, and all counts except the two here involved were severed for trial purposes.

On August 6 appellant filed his discovery motion for production of samples of the drugs seized to allow testing before trial. The samples were unavailable until August 9 because of difficulty in locating the drugs.

On August 10 appellant moved for a continuance of the trial, contending that proper testing of the evidence required additional time. The motion was denied on the basis that appellant had not been diligent in his discovery. The case had been set for trial two and one-half months and inspection of the drugs for testing purposes had not been sought until five days before trial.

The trial was held as...