State v. Alley

Decision Date12 March 1970
Citation263 A.2d 66
PartiesSTATE of Maine v. Howard V. ALLEY.
CourtMaine Supreme Court

Douglas B. Chapman, County Atty., Ellsworth, Nicholas S. Strater, Asst. Atty. Gen., Augusta, as amicus curiae for plaintiff.

Smith, Elliott & Wood by George F. Wood, Saco, for defendant.


MARDEN, Justice.

On appeal from the denial of a motion to dismiss an indictment charging appellant with unlawful possession of a certain narcotic drug.

The proscription appears in 22 M.R.S.A. § 2362, which reads:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this chapter.'

Section 2361, subsection 15 in pertinent part defined narcotic drugs as follows:

"Narcotic drugs' means coca leaves, opium, isonipecaine, cannabis * * *.'

Section 2361, subsection 4 defined cannabis as follows:

"Cannabis' includes all parts of the plant Cannabis sativa L., whether growing or not; * * *; but shall not include the mature stalks of such plant, * * *.'

The penalty for a first violation of the statute was a fine of not more than $1,000 and by imprisonment for not less than 2 nor more than 8 years, which placed the offense in the category of a felony.

The issue centers in an indictment which charged:

'That on or about the thirty first day of March, 1969, in the Town of Bucksport, County of Hancock, and State of Maine, Howard V Alley did unlawfully possess and have under his control a certain narcotic drug, to wit: Cannabis Sativa L, to wit: Marijuana; the said Howard V. Alley not being then and there a physician, dentist, podiatrist, apothecary, veterinarian, or any other person authorized under Chapter 557 of Title 22 M.R.S.A., to prescribe, sell, dispense, possess or control said narcotic drug, and also the said Howard V. Alley not being the owner or person having custody or control of any animal for which said narcotic drug has been prescribed, sold or dispensed by a veterinarian.'

The accused seasonably filed a motion to dismiss the charge because it 'does not state facts sufficient to constitute an offense against the State of Maine.'

A motion by defense counsel for a continuance for purposes of preparation of defense was denied and on the same day defendant entered a plea of guilty, and was sentenced to an indefinite term at the Men's Correctional Center, which sentence was permissible.

Of six points of appeal, three (a, c and d) go to the sufficiency of the indictment, one (e) to the alleged abuse of discretion by the trial court in denying the continuance and two (b and f) to the constitutionality of the statute.

The points challenging the constitutionality of the reference statute were neither briefed nor argued and are considered waived. A. E. Borden Co. v. Wurm, Me., 222 A.2d 150(1), 152.

The points by which the sufficiency of the indictment are challenged are as follows:

'(a.) The Indictment fails to correctly negative exceptions as embodied within the enabling Statute.

'(c.) The Indictment fails to sufficiently charge the defendant of the offense intended making a preparation of defense futile and making protection against a subsequent prosecution illusory.

'(d.) The Indictment is defective in defining the offense under the Statute.'

These points were paraphrased in briefing as follows:

1. That the alternative terms in describing the drug allegedly unlawful identified substances which denote on the one hand a substance 'which can be lawfully possessed in part,' and on the other, a substance that has no meaning under the reference statute and 'which has popular meanings that are both broader and narrower than the substance' proscribed.

2. That the charge is expressed in generic and slang terms which disregard statutory definitions.

Subsequent to the proceeding in the trial court and before the appeal was perfected, the statute under which appellant was charged, convicted by plea and sentenced was revised by P.L.1969 Chapter 443 effective October 1, 1969. This revision altered Section 2361 by repealing subsection 4 in which Cannabis was defined, removed Cannabis from subsection 15 in which it was classified as a narcotic drug, and added Chapter 558 (under same Title 22) which was designated as 'the Act Controlling the Sale and Possession of Cannabis (Marijuana) and Peyote' consisting of §§ 2381-2386. In Section 2382, Cannabis was defined, using the same definition, pertinent here, as theretofore in Section 2361, subsection 4, except that marijuana was synonymized with Cannabis at the beginning of the definition as follows:

' § 2382. Definitions

'1. Cannabis. 'Cannabis', sometimes called marijuana or marihuana, includes all parts of the plant Cannabis sativa L., whether growing or not; * * *.'

In Section 2383 the penalty for illegal possession of cannabis (marijuana) (first offense) is a fine of not more than $1,000 and by imprisonment for not more than 11 months, which places the offense in the category of a misdemeanor.

It is to be noted that these statutory changes,-repeal of one section (§ 2361, subsection 4), change in another section (subsection 15), re-enactment substantially of subsection 4, and addition of the new statutory treatment of Cannabis, were accomplished by the one legislative act (Chapter 443 P.L. 1969), the provisions of which were, of course, simultaneously effective. The unauthorized possession of Cannabis (marijuana) with its own identity, rather than as a narcotic, continued to be an offense, but a misdemeanor rather than a felony.

Appellant 'does not assert that his conviction is abrogated by the new legislation' but urges that such change requires a remand of the case to the trial court for resentence according to the 'new legislative definition of the crime's character and punishment.' This contention is accepted for consideration as additional to the points of appeal, and as a threshold question.

How, if at all, is appellant's sentence affected by the changes in the statutes? It has been held in Thompson v. Edgar, Me., 259 A.2d 27 (November 21, 1969) that our general 'savings' clause, 1 M.R.S.A. § 302 1 applies to criminal proceedings and is as effective as if the clause were made an integral part of the new statute. See also United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480. With such savings clause 'the offender may be tried and punished under the old law.' 50 Am.Jur., Statutes § 572. Punishment is the penalty for the transgression of the law, Words & Phrases, and the sentence imposed by the trial court is a 'punishment' or 'penalty' within the terms of the savings clause.

Thompson, supra, did not require us to determine how the phrase 'incurred before the repeal' is to be interpreted. It is necessary to determine here whether the punishment was incurred at the time of the wrongful act (March 31, 1969) or when the ultimate liability for the act is imposed, conviction found, or judgment entered. The weight of authority upon this point is that:

"Punishment, penalty or forfeiture' is 'incurred,' * * *, at the time the offence for which punishment is imposed is committed.' Patrick v. Commissioner of Correction, 352 Mass. 666, 227 N.E.2d 348(3, 4), 351 (1967).

See also Penn v. State, 13 Okl.Cr. 367, 164 P. 992, L.R.A.1917E, 668 (1917); People v. Harmon, 54 Cal.2d 9, 4 Cal.Rptr. 161, 168, 351 P.2d 329(16), 336 (1960); State v. Johnson, 94 Ariz. 303, 383 P.2d 862(5), 864 (1963); State v. Moore, 192 Or. 39, 233 P.2d 253(5), 257 (1951); State v. Hardman, 16 Ind.App. 357, 45 N.E. 345 (1896); In re Schneck, 78 Kan. 207, 96 P. 43 (1908); Commonwealth v. Sherman, 9 Ky. 218, 4 S.W. 790, 792 (1887); United States v. Taylor, 123 F.Supp. 920(1), 922 (D.C. N.Y. 1954) aff'd. 227 F.2d 958 (2 CCA) applying general savings clause in 1 U.S.C.A. § 109. Contra, People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 372, 134 N.E.2d 197(5), 201 (N.Y.1956).

Under our savings clause, appellant's penalty was incurred on or about the 31st day of March, 1969, and appellant is exposed to the punishment provided at that time.

Denial of continuance

Action upon motions for continuance rest within the sound judicial discretion of the presiding Justice, State v. Hume, 146 Me. 129, 134, 78 A.2d 496, and upon which he must act on a case by case basis. Here, failing in the motion for continuance, the appellant entered a plea of guilty. It was neither recorded nor urged in brief that the denial of the motion prejudiced his election to stand trial or enter the plea ultimately made. He was not 'forced' to trial for he did not elect to undergo trial. The record reflects an intention on the part of the appellant to stand or fall on the legal issues incidental to the indictment. Prejudice to appellant is not presumed, it must be shown. State v. Rastrom, Me., 261 A.2d 245, (Opinion filed January 27, 1970).

Sufficiency of Indictment, description of Narcotics

Appellant emphasizes alleged infirmities in the use of 'cannabis sativa L' and 'marijuana' as effectively specifying the narcotic drug prohibited by the statute.

It is pointed out by appellant, and conceded by the State, that cannabis sativa L. is the botanical name of a plant, portions of which, excluding the mature stock, have narcotic quality. This distinction is recognized in Section 2361, supra. The narcotic quality exists in a resin (cannabin, cannabinon) and a volatile oil (cannabinol) within the leaves and flowering tops (cannabis) of the plant. See The Merck Index of Chemicals and Drugs (1952) and Van Norstrand's Scientific Encyc. (1968), Hemp. The euphoriant elements are released by heat (the act of smoking the dried portions, as in a cigarette). Appellant urges that the possession of the plant is not per se possession of a narcotic substance.

Appellant analogizes the use of 'cannabis sativa L' with the use of 'liquor' in ...

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