Simpson v. State

• Decision Date: 15 March 1937
• Citation: Simpson v. State, 129 Fla. 127, 176 So. 515 (Fla. 1937)
• Parties: SIMPSON v. STATE.
• Court: Florida Supreme Court

176 So. 515

129 Fla. 127

SIMPSON v. STATE.

Florida Supreme Court

March 15, 1937

On Rehearing Oct. 20, 1937.

Error to Criminal Court of Record, Dade County; Ben C. Willard Judge.

Philip Simpson was convicted of violation of the Uniform Narcotic Drug Act, and he brings error.

Affirmed on rehearing.

COUNSEL

W. W Colson, Jr., of Miami, for plaintiff in error.

Cary D. Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice ELLIS and Mr. Justice DAVIS and Mr. Justice TERRELL are of the opinion that the judgment of the criminal court of record for Dade county should be reversed; while Mr. Justice WHITFIELD, Mr. Justice BROWN, and Mr. Justice BUFORD are of the opinion that the judgment should be affirmed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the court are permanently and equally divided in opinion as to whether the said judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed; therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the criminal court of record in this cause be and the same is hereby affirmed.

Affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD, and DAVIS, JJ., concur.

CONCURRING CONCURRING

ELLIS, Chief Justice.

Philip Simpson was informed against in the criminal court of record of Dade county for violating provisions of chapter 16087, Laws of Florida 1933, known as the Uniform Narcotic Drug Act, in that he was charged with unlawfully selling on the 15th of March, 1934, 'eight cigarettes containing cannabis, from which the resin had not been extracted.' He moved to quash the information upon the grounds that it charged no offense under the law and its allegations were so vague and indefinite as to mislead the accused and to expose him to the danger of another prosecution for the same offense; and that the facts as alleged were insufficient to charge the defendant with a violation of the Uniform Narcotic Drug Act.

The motion to quash was overruled and the defendant went to trial upon the plea of not guilty. There was a verdict against the defendant of guilty as charged and a judgment entered that he was guilty of the sale of narcotics. He was sentenced to pay a fine of $500 and in default of the payment of that fine to be confined at hard labor in the Dade county jail for a period of one year. Simpson seeks to reverse the judgment upon writ of error which was taken by him a few days after his conviction.

Prior to the trial, he moved for a bill of particulars to show the name or identity of the person to whom the drug was sold; when and at what place the sale was made; and the quantity, if any, of cannabis sativa I contained in the cigarettes.

Chapter 16087, supra, provides in section 2 of the act that it shall be unlawful for any person to sell any narcotic drug except as provided in this act. Paragraph 14 of section 1 of the act defines 'narcotic drugs' to be: 'Coca leaves, opium, cannabis, and every substance neither chemically nor physically distinquishable from them.' Paragraph 13 defines cannabis as including 'the following substances under whatever names they may be designated: (a) the dried flowering or fruiting tops of the pistillate plant Cannabis Sativa I., from which the resin has not been extracted, (b) the resin extracted from such tops, and (c) every compound, manufacture, salt, derivative, mixture, or preparation of such resin, or of such tops from which the resin has not been extracted.'

Cannabis is a genus of herbs of a certain type having as the only known species a variety known as C sativa from which the hemp of commerce is manufactured. Webster's International Dictionary. Hemp is defined by the same authority as a tall Asiatic herb (C Sativa), widely cultivated, the tough bast fiber of which is used for the manufacture of cloth, floor covering, and cordage. The tender parts, its flowers and leaves, yield bhang, and are employed in pharmacy under the name of cannabin.

The history of the plant C sativa or hemp is very old. It seems to have originated in certain portions of temperate Asia, where it grew wild near the Caspian Sea in the region of the Lower Ural and Volga At an early date in its history a Chinese Emperor, about the Twenty-Eighth Century B. C., advised his people to cultivate it for its fiber from which useful articles of commerce could be made. Its cultivation then extended into Persia and India, but is supposed not to have been cultivated in European countries until about the beginning of the Christian era. In the middle ages hemp (C sativa) was cultivated in some western European countries for the seed which were used for food.

Hemp is a dioecious plant, that is to say, its flowers are male and female. It is upon the pistillate, or female, stalk, that the flowering tops and the seeds are produced which contain the elements or resin from which the narcotic drug is made.

Cannabis sativa indica, the variety grown in India, where the stalk sometimes reaches the height of twelve and fourteen feet, produces in the pistillate or female plant the seed and flowering tops, which coming to maturity and dried were commonly boiled with oil or butter producing an oleaginous substance, which mixed with other ingredients produced the narcotic drug hashish, bhang, and gunjah. In Arabia it is called dawames or dawamesk, and mapouchari in Egypt. Some varieties of the plant are grown in other countries, in the United States and Mexico, where in the latter country the narcotic drug from the pistillate female plant is called marijuana.

Although different forms of hemp (C sativa) have been described under different botanical names, there are no essential differences in any of the specific characteristics and all cultivated and wild hemp is now recognized as belonging to one species, Cannabis sativa L. (See Enc. Britannica.)

It appears that the narcotic or aphrodisiac qualities of the drug were first discovered in India from the variety known as Cannabis Indica. The effect of the use of the drug depends largely upon the individual. Among Asiatic peoples the dreams produced are usually of an erotic character, but the principal effect is upon the mind which seems to lose the power of directing and controlling its thoughts. Then follows errors of sense, false convictions, and the predominance of extravagant ideas where all sense of values seems to disappear. The addict loses all sense of time, where a minute may seem a year and an hour only an instant.

The deleterious, even vicious, qualities of the drug render it highly dangerous to the mind and body upon which it operates to destroy the will, causes one to lose the power of connected thought, producing imaginary delectable situations, and gradually weakening the physical powers. The use and sale of it, therefore, is sought to be prohibited by the Uniform Narcotic Drug Act.

When the plant Cannabis sativa or hemp is cultivated, the staminate or male plant and pistillate or female plant grows together in the same drill, row, or mound. The leaves of the male plant turn yellow and die before that of the female, which continues green for a month longer. The male plant is then cut down and the female continues to grow to maturity from which the seeds and dried flowering top, leaves, and twigs are preserved when it is desired to use the latter for narcotic purposes and the former for stock food or propagation of the plant.

The plaintiff in error was charged with selling cigarettes containing cannabis from which the resin had not been extracted, but cannabis is the name of a plant which is dioecious in nature, the dried leaves and flowering tops of the female plant only contain the resin or the properties from which the narcotic drug is produced. Paragraph 13 of section 1 of chapter 16087, supra, defined the narcotic drug Cannabis as being the dried flowering or fruiting tops of the pistillate (or female) plant Cannabis Sativa I, from which the resin has not been extracted. So it appears that referring only to the plant from which the resin has not been extracted in the information lodged against the accused, it is uncertain and vague in the light of the definition of the narcotic drug as given by paragraph 13 of section 1.

The defendant is entitled to be informed of the nature and cause of the accusation against him. Section 11, Declaration of Rights of Constitution; Reyes v. State, 34 Fla. 181, 15 So. 875; Smith v. Chase, 91 Fla. 1044, 109 So. 94; Vannoy v. State, 94 Fla. 1175, 115 So. 510; Smith v. McClelland, 99 Fla. 362, 126 So. 292.

The above authorities hold to the doctrine that unless the information or indictment charge the accused with the offense clearly and sufficiently so that he may know the nature and cause of the accusation against him he is entitled to his discharge.

While ordinarily it is sufficient in an indictment or information to charge an accused with the offense in the language of the statute denouncing such offense, yet unless the words of the act are self-explanatory, the facts and circumstances which constitute the definition of the offense charged must be alleged in the indictment or information so that the accused may be advised of the nature and cause of the accusation against him. Mills v. State, 58 Fla. 74, 51 So. 278; Reyes v. State, supra; Hamilton v. State, 16 Fla. 288; State ex rel. Moir v. Mayo, 121 Fla. 202, 163 So. 521.

We are of the opinion therefore that the information was insufficient to clearly apprise...