State v. Curry

• Decision Date: 04 February 1965
• Docket Number: No. 1311,1311
• Citation: State v. Curry, 398 P.2d 899, 97 Ariz. 191 (Ariz. 1965)
• Parties: STATE of Arizona, Appellee, v. Joe Lewis CURRY, Appellant.
• Court: Arizona Supreme Court

Page 899

398 P.2d 899

97 Ariz. 191

STATE of Arizona, Appellee, v. Joe Lewis CURRY, Appellant.

No. 1311.

Supreme Court of Arizona, In Banc.

Feb. 4, 1965.

Rehearing Denied Feb. 25, 1965.

Robert W. Pickrell, Atty. Gen., Merton E. Marks, Asst. Gen., for appellee.

Lewis, Roca, Scoville, Beauchamp & Linton, by David L. Grounds, Phoenix, for appellant.

McFARLAND, Justice.

Appellant was convicted of the crime of illegal sale of narcotics, filed under A.R.S. § 36-1002, § 36-1020 (1956), and sentenced to serve not less than twelve years nor more than eighteen years in the State Penitentiary. From the judgment and sentence he appeals.

The facts of this case show that Alfred Moore, a narcotics agent, picked up one Arthur Butler on the night of October 5, 1961, and went to the home of appellant, Joe Lewis Curry, hereinafter called defendant, who lived on 12th Avenue about half a block south of Buckeye Road, in Phoenix, Arizona, at about 10:20 p. m.

Arthur Butler then went to the door of defendant's house, and, after a conversation with defendant, came back to the car, which was parked--according to testimony of Moore and Butler--at a distance of about twenty feet from the house with the back end of the car almost even with defendant's door. Moore gave Butler $3.00. Butler then returned to the house, gave Curry the $3.00, and received three cigarettes rolled in brown paper. Moore testified that Butler received them in his left hand, and he observed that he kept them in the same hand, returned to the car, and handed them to Moore.

The cigarettes, which were identified in court and used in evidence, were analyzed and revealed to contain marijuana. Defendant did not take the stand, but called as a witness his wife, Connie Curry, who testified that she had returned home shortly after ten o'clock, had gone outside, and that she saw Butler go toward the house on foot, but did not see the car nor see him go to the door. Two other witnesses--defendant's brother, Willie Clyde Curry, and his next-door neighbor, Frank Gilder--testified for defendant, and gave negative evidence attempting to prove that Moore could not have seen Butler go to the door of the house from where the car was parked.

Defendant contends as the basis for his appeal

1. That the statute under which he was convicted--s 36-1001 et seq. (1956)--is unconstitutional on the grounds of vagueness, indefiniteness, and uncertainty. He also contends that A.R.S. § 36-1001, Paragraph 13(a), is vague and indefinite.

2. That there was prejudicial error committed by the attorney in asking certain questions upon direct examination.

The defendant's contentions will be considered in the order heretofore set forth.

Defendant states that the statute is vague, indefinite and uncertain, contending it is impossible to determine what the legislature meant when it used the word 'marihuana' in defining a narcotic as applied to marihuana and cannabis, and for this reason the act is unconstitutional.

Sec. 36-1002 provides:

'It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compunded any narcotic drug, except as authorized in this article.'

Sec. 36-1001, Paragraph 14:

"Narcotic drugs' means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone and any substance neither chemically nor physically distinguishable from them.'

Sec. 36-1001, Paragraph 13:

"Cannabis' includes the following substances under whatever names they may be designated:

'(a) Mariahuana (Marihuana).

'(b) The dried flowering or fruiting tops of the pistillate plant cannabis satina (sativa) L., from which the resin has not been extracted.

'(c) The resin extracted from such tops.

'(d) Every compund, manufacture, salt, derivative, mixture or preparation of such resin, or of such tops from which the resin has not been extracted.'

In determining the meaning of the word 'marihuana,' as used in Paragraph 13, all three of these sections must be construed as a whole. The contention of the defendant in regard to those three is directed to the definition of the word 'cannabis'--that it is synonymous with the word 'marihuana.'

Defendant claims that Paragraph 13(a) of Sec. 36-1001 is vague, indefinite, and uncertain in listing 'marihuana,' which he states is synonymous with the word 'cannabis,' and is therefore merely another name for the same thing. For this reason he claims it is impossible to determine what the legislature meant when it used the word 'marihuana' in subparagraph (a).

Sec. 36-1002 refers to a narcotic drug. Hence, the word 'marihuana' was used to describe one of the parts of the cannabis containing narcotics, the possession and sale of which was made unlawful except as authorized by law.

We do not think there could be any question as to the reason and purpose of the law in making the prohibition in regard to the use of narcotic drugs as provided for in Sec. 36-1002. The legislature recognized its possible harmful effect. The intent was to prohibit the illegal use and sale of narcotics. The words of the statute are to be given their ordinary meaning unless it appears from context or otherwise that a different sense was intended. State Board of Dispensing Opticians v. Schwab, 93 Ariz. 328, 380 P.2d 784 (1963).

In the case of State v. Navaro, 83 Utah 6, 26 P.2d 955 (1933), the defendant was convicted of the crime of unlawful possession of marijuana. The statute under which the charge was made, among other things, provides that it is unlawful to sell:

'* * * flowering tops and leaves, extracts, tinctures, and other narcotic preparations of hemp or loco weed, (cannabis sativa, Indian hemp), mariguana, or chloral hydrate, or any of the salts, derivatives, or compounds of the foregoing substances, or any preparation or compound containing any of the foregoing substances, or their salts, derivatives, or compounds. * * *'

The court, in discussing the meaning of the word 'marijuana,' stated:

'While in some of the articles to which we have referred the word 'mariguana' is used indiscriminately with reference to the plant, the drug, or the flowering tops and leaves of cannabis sativa, the preponderant use of the word, we think, is clearly with reference to the product which is used for smoking. Such use is so frequent and common that no one can misunderstand when the statute prohibits its unauthorized possession or sale as a drug. The information in this case charges the unlawful possession of mariguana in the language of the statute, and that is sufficient.

* * *

* * * 'Had it been the legislative intent by the amendment of 1927 when the word 'marigua...